IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Brenda L. Strickler, :

An Incapacitated Person : No. 2651 C.D. 2015

: Submitted: September 15, 2016

Appeal of: Blackhawk Property :

Investors, LLC :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge 

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: October 12, 2016

In this matter involving a tax sale under the Real Estate Tax Sale Law 

(Tax Sale Law),

1 Blackhawk Property Investors, LLC (Purchaser), a Utah 

corporation, appeals from an order of the Court of Common Pleas of York County, 

Orphans’ Court Division (trial court),2setting aside a tax upset sale. The trial court 

determined the York County Tax Claim Bureau (Bureau) failed to comply with the 

mandatory notice requirements of the Tax Sale Law by failing to make reasonable 

efforts under the circumstances of this case to discover the whereabouts of 

landowner Brenda L. Strickler (Owner), or her appointed guardian at that time, 

Gary L. Landis (First Guardian). Purchaser advances several arguments, asserting 

the trial court erred in setting aside the tax sale after it was confirmed and after 

Purchaser obtained a default judgment in a quiet title action. For the reasons that 

follow, we affirm.

 

1 Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101-803.

2

The Honorable John S. Kennedy presided.
2

I. Background

Owner and her husband were the owners of a residential dwelling 

located at 3884 Hearthstone Court (Springettsbury Township), York, PA 17402. 

In November 2009, the trial court, Orphans’ Court Division adjudicated Owner 

incapacitated. See Reproduced Record (R.R.) at 22a-27a. The trial court also 

appointed First Guardian as plenary guardian of Owner’s person and estate. At the 

time of the adjudication, Owner was 68 years old and resided at the Pleasant Acres 

Nursing Home, 118 Pleasant Acres Road, York, PA. In 2010, Owner’s husband 

died. This vested the entire title to the property in Owner. Thereafter, First 

Guardian failed to pay the 2012 county and township taxes. He also failed to pay 

the 2012-2013 school tax assessed on the property.

In September 2014, the Bureau sold Owner’s property to Ralph Neely, 

a member of Purchaser, at a tax upset sale. Shortly thereafter, the Bureau filed a

deed transferring the property to Purchaser. See R.R. at 176a-77a. 

In January 2015, Purchaser commenced a quiet title action against 

Owner and her deceased husband. Purchaser served First Guardian with a copy of 

the complaint. When no answer was filed, Purchaser sent notice of default 

judgment in the quiet title action to First Guardian at Owner’s nursing home 

address: 118 Pleasant Acres Road, York, PA, 17042. This was not First 

Guardian’s address. Consequently, he did not receive the notice.

On March 4, 2015, Purchaser filed a motion for default judgment in 

the quiet title action against Owner and mailed a copy of the notice to First 
3

Guardian at Owner’s nursing home address. First Guardian did not receive this 

document until March 10, 2015. The same day, the trial court entered a default 

judgment against Owner.

Seven days later, First Guardian filed a motion to strike or open 

judgment. First Guardian simultaneously filed a petition nunc pro tunc to set aside 

the tax sale. Two days later, the trial court, upon consideration of the petition nunc 

pro tunc, entered a rule upon Purchaser and the Bureau to show cause why the tax 

sale should not be set aside. The trial court also directed that an answer be filed 

within 20 days. Thereafter, Purchaser filed an answer to First Guardian’s petition 

to set aside the tax sale, and First Guardian filed an answer to Purchaser’s quiet

title action.

In April 2015, the trial court removed First Guardian as plenary 

guardian of Owner’s person and estate. The same day, the court appointed 

Emerald Guardian Services, LLC (Second Guardian) as the successor plenary 

guardian of Owner’s person and estate.

On June 1, 2015, Second Guardian filed a voluntary substitution and 

entered an appearance on behalf of Owner. The same day, all parties agreed to 

stipulations permitting Second Guardian to file, as a consolidated action: an 

amended petition to set aside the tax upset sale; an amended petition to strike or 

open the default judgment; and, an amended answer and new matter to Purchaser’s 

complaint in the quiet title action. On the same date, Second Guardian filed all the 

amended pleadings.
4

On June 2, 2015, Second Guardian filed a motion to consolidate and 

for an interdivisional transfer of the amended petition to set aside tax sale and the 

quiet title action to the trial court’s Orphans’ Court Division. All parties concurred 

in the motion, and the trial court entered a consolidation and transfer order.

On October 7, 2015, the trial court held an evidentiary hearing on the 

petition to set aside the upset sale. See R.R. at 948a-93a. At the beginning of the 

hearing, Purchaser requested that the trial court address the amended petition to 

open or strike the default judgment in the quiet title action prior to addressing the 

amended petition to set aside the tax sale. R.R. at 950a-55a. However, the trial 

court noted Purchaser never indicated to the court or Second Guardian at a status 

conference before the hearing that anything other than the petition to set aside the 

tax sale would be addressed. R.R. at 955a. Nonetheless, Purchaser indicated it 

was prepared to proceed on the petition to set aside the tax sale. Id. 

Purchaser first called the Bureau’s Supervisor, Vanessa Shive (Bureau 

Supervisor), as a witness. R.R. at 958a. She was responsible for scheduling the 

tax sale and for complying with the Tax Sale Law. R.R. at 959a. In August 2014, 

the Bureau sent notice of the tax sale to Owner by certified mail. R.R. at 969a. 

However, the postal authorities returned it to the Bureau unsigned and marked 

“return to sender.” R.R. at 969a-70a. Of significance to our analysis, Bureau 

Supervisor further testified the Bureau took no action when the notice was returned 

unsigned. R.R. at 970a.
5

Bureau Supervisor also testified the Bureau posted Owner’s property. 

R.R. at 970a. The person who posted the property determined it was not owneroccupied. Id. 

Thereafter, the Bureau sent notice to Owner and her deceased husband 

by first class mail. R.R. at 971a. The first class mail did not come back. Id. The 

Bureau did not make any further efforts to determine Owner’s whereabouts before 

the tax sale. Id. 

Purchaser also called First Guardian as a witness. R.R. at 980a. 

However, First Guardian testified he was unaware that Owner’s taxes were not 

paid or that the Bureau had posted the property for sale. R.R. at 983a. 

In November 2015, the trial court issued an opinion and order setting 

aside the tax sale of Owner’s property to Purchaser. In its decision, the trial court 

found the following facts:

(1) [Bureau Supervisor], in her capacity as supervisor of 

the [Bureau], was responsible for scheduling and 

following the process based on the [Tax Sale Law].

(2) A Notice of Intent to File Tax Claim was sent to 

[Owner and her deceased husband] on March 8, 2013.

(3) A Tax Claim against Real Estate indicating [Owner 

and her deceased husband] as property owners was filed 

on April 17, 2013 in the York County Office of the 

Prothonotary.

(4) A posting was made at 3884 Hearthstone Court, 

York, PA 17402 on or around July 11, 2014.
6

(5) The Notice of Sale was sent to [Owner and her 

deceased husband] via first class mail and certified mail 

on August 22, 2014.

(6) The Petition for Confirmation nisi showing 

advertisements in the York Newspaper Company and the 

York Legal Record was filed on October 7, 2014.

(7) An order of Court Confirmation nisi of Consolidated 

Return was signed on October 17, 2014 by the Honorable 

Judge Stephen P. Linebaugh.

(8) The tax sale was confirmed by the [Bureau] on 

November 10, 2014 and a deed was signed to [Purchaser] 

on November 10, 2014.

(9) The Deed was recorded in the York County Recorder 

of Deeds on December 1, 2014 naming [Purchaser] as 

grantee.

(10) John W. Stitt, Esq., having represented [Owner and 

her deceased husband] in the past, sent a letter dated 

January 22, 2015 to [Bureau Supervisor], indicating that 

[Owner] had been declared an Incapacitated Person in 

2009 and that [her husband] predeceased [Owner] on 

June 27, 2010, as evidenced by the filing of an 

information in the Office of the Register of Wills. The 

letter also asked for the remaining proceeds from the sale 

of [Owner’s] former residence to be forwarded to [First 

Guardian], the then legal guardian of [Owner], for her 

continued care as a resident of Pleasant Acres nursing 

facility.

(11) [Bureau Supervisor] testified that a notice of sale 

was sent to [Owner] via certified mail on August 22, 

2014 and the certification was returned to the tax 

collection office as ‘return to sender.’

(12) After receiving the returned certification, [Bureau

Supervisor] testified that the tax collection office did not 

take any action.
7

(13) [Bureau Supervisor] testified that personal service 

was made on [Owner] pursuant to [Section 613 of the 

Tax Sale Law, 72 P.S. §5860.613,] via the posting at the 

residence. The posting also determined that the residence 

was not owner occupied.

(14) [Bureau Supervisor] testified that since the first class 

mailing did not come back to the tax collection office, no 

other reasonable efforts were made by the tax collection 

office to determine the owners of the property.

(15) [Bureau Supervisor] testified that the certified 

mailing came back unsigned and that the tax collection 

office did not undertake any other actions until the tax 

sale took place.

(16) [First Guardian] testified that he did not have actual 

notice of the tax sale. 

 

Tr. Ct., Slip Op., 11/23/15, at 2-3; R.R. at 850a-51a.

In its analysis, the trial court first noted that due process requirements 

demand strict compliance with the Tax Sale Law. Geier v. Tax Claim Bureau of 

Schuykill County, 588 A.2d 480 (Pa. 1991). Further, the trial court observed, the 

essence of Geier and Tracy v. Chester County Tax Claim Bureau, 489 A.2d 1334 

(Pa. 1985), is that due process also requires that taxing bureaus in the 

Commonwealth conduct reasonable investigations to ascertain the identity and 

whereabouts of the latest owners of record of property subject to an upset sale for 

purposes of providing notice to them. However, a taxing bureau’s duty to 

investigate such matters is limited to determining the owners of record and then to 

use ordinary common sense business practices to ascertain the proper addresses 

where notice of the tax sale may be given. Farro v. Tax Claim Bureau of Monroe 

County, 704 A.2d 1137 (Pa. Cmwlth. 1997).
8

Nonetheless, the trial court continued, Geier and Tracy require a 

taxing bureau to go beyond the mere ceremonial act of notice by certified mail 

where such notice is obviously ineffective in reaching the owner of record. To that 

end, Section 607.1(a)3(additional notification efforts), 72 P.S. §5860.607a(a), 

provides:

(a) When any notification of a pending tax sale or a tax 

sale subject to court confirmation is required to be mailed 

to any owner, mortgagee, lienholder or other person or 

entity whose property interests are likely to be 

significantly affected by such tax sale, and such mailed 

notification is either returned without the required 

receipted personal signature of the addressee or under 

other circumstances raising a significant doubt as to the 

actual receipt of such notification by the named 

addressee or is not returned or acknowledged at all, then, 

before the tax sale can be conducted or confirmed, the 

bureau must exercise reasonable efforts to discover the 

whereabouts of such person or entity and notify him. 

The bureau’s efforts shall include, but not necessarily be 

restricted to, a search of current telephone directories for 

the county and of the dockets and indices of the county’s 

tax assessment offices, recorder of deeds office and 

prothonotary’s office, as well as contacts made to any 

apparent alternate address or telephone number which 

may have been written on or in the file pertinent to such 

property. When such reasonable efforts have been 

exhausted, regardless of whether or not the notification 

efforts have been successful, a notation shall be placed in 

the property file describing the efforts made and the 

results thereof, and the property may be rescheduled for 

sale or the sale may be confirmed as provided in this act. 

In the present case, the court observed, the Bureau did not receive a 

signed certified mail receipt with Owner’s signature. Therefore, Section 607.1(a) 

 

3 Added by the Act of July 3, 1986, P.L. 351. 
9

of the Tax Sale Law required the Bureau to exercise reasonable efforts to discover 

Owner’s whereabouts and notify her of the pending tax sale. Geier; Tracy. At 

hearing, Bureau Supervisor testified the certified mail notice was returned to the 

Bureau’s office unsigned and marked “return to sender.” Tr. Ct., Slip. Op., at 5-6. 

Upon return of the certified mail, the Bureau sent out notice by first class mail. Id. 

This notice did not come back to the Bureau as undeliverable. Id. Bureau 

Supervisor testified the Bureau took no further action to discover the whereabouts 

of Owner or First Guardian. Id. at 6.

Based on Bureau Supervisor’s testimony, the trial court determined 

the Bureau failed to make reasonable efforts to locate Owner as prescribed by 

Section 607.1(a) of the Tax Sale Law. For example, the Bureau did not inquire as 

to any alternate address for Owner or her deceased husband or check the dockets 

and indices of the County’s tax assessment offices, recorder of deeds, or 

prothonotary’s office.

In particular, the trial court noted, if the Bureau would have contacted 

Fran Surdich, the current tax collector for Springettsbury Township, it would have 

discovered the 2013-2014 school tax bill addressed to Owner was sent to First 

Guardian’s address at: P.O. Box 732, York, PA 17404. Tr. Ct., Slip Op., at 6-7. 

In addition, the Bureau could have discovered that the prior tax collector, Margaret 

E. Cousler, sent the 2011 tax bill for Springettsbury Township to First Guardian’s 

post office box address. Tr. Ct., Slip. Op., at 7.
10

Also, if the Bureau would have checked its own records it would have 

discovered that in June 2013 it received checks from First Guardian in the amount 

of $3,116.31 for payment of Owner’s 2011 County taxes and $2,116.30 for 

Owner’s 2011-2012 school taxes. Tr. Ct., Slip. Op., at 7.

Citing Maya v. County of Erie Tax Claim Bureau, 59 A.3d 50 (Pa. 

Cmwlth. 2013), the trial court reasoned that a taxing bureau’s attempts at making 

additional notification were insufficient under Section 607.1(a) where the search 

failed to discover an alternative address in the county that the taxpayer used for 

other filings, and the bureau failed to use other search resources, including an 

internet search. The trial court also observed that additional notification efforts are 

required under Section 607.1(a) where, as here, certified mail notifications were 

returned without the required receipt, the bureau failed to make personal service on 

any owner, and where none of the notices were acknowledged in any respect. In re 

1999 Upset Sale of Real Estate, 811 A.2d 85 (Pa. Cmwlth. 2002). 

Finally, the trial court recognized that an upset sale may be valid, even 

where the taxing authority failed to comply will all statutory notice requirements. 

Sabbeth v. Tax Claim Bureau of Fulton Cnty., 714 A.2d 514 (Pa. Cmwlth. 1998). 

Here, however, the trial court determined the record did not show First Guardian 

had actual notice of the tax sale. Consequently, the trial court found, the Bureau’s 

failure to comply with Section 607.1(a) was not cured by actual notice.
11

Accordingly, the trial court granted Second Guardian’s amended 

petition to set aside the tax sale and declared void the September 2014 tax upset 

sale of Owner’s property. Purchaser appeals.

II. Issues

On appeal,4 Purchaser presents the following issues. First, Purchaser 

contends the trial court erred by not adjudicating Second Guardian’s amended 

petition to open or strike the default judgment prior to considering the amended 

petition to set aside the sale. Second, Purchaser asserts the trial court erred by not 

requiring Owner or her guardian to prove Owner was excused from the statutory 

requirements in Section 607 of the Tax Sale Law, 72 P.S. §5860.607, pertaining to 

the filing of objections and exceptions within 30 days of confirmation nisi. To that 

end, Purchaser argues the trial court erred by disregarding the confirmation of the 

sale. Purchaser also argues the trial court erred where the court concluded that 

First Guardian was at fault for not paying the property taxes.

Also before this Court is First Guardian’s request that we direct the 

Prothonotary to indicate on the docket that he is not a party to the appeal. First 

Guardian asserts he is no longer a party to this case because the trial court removed 

him from the case and appointed Second Guardian, which voluntarily substituted 

itself as Plaintiff in the petition to set aside the tax sale and as Defendant in the 

quiet title action.

 

4

In tax sale cases, our review is limited to determining whether the trial court abused its 

discretion, rendered a decision without supporting evidence, or clearly erred as a matter of law. 

Husak v. Fayette County Tax Claim Bureau, 61 A.3d 302 (Pa. Cmwlth. 2013).
12

First Guardian also requests an award of costs and counsel fees 

pursuant to Pa. R.A.P. 2744 where Purchaser joined or kept First Guardian as a 

defendant even though Purchaser knew he was removed from the case.

 

III. Discussion

A. Petition to Open or Strike Default Judgment

1. Argument

Purchaser first contends the trial court erred by not adjudicating 

Second Guardian’s amended petition to open or strike default judgment in the quiet 

title action prior to considering the amended petition to set aside. At the October 

2015 hearing before the trial court, Purchaser took the position that the court could 

not address the pending petition to set aside the tax sale without first addressing the 

amended petition to open or strike the default judgment in the quiet title action, 

which established Purchaser’s title to the subject property. See R.R. at 950a-54a.

Purchaser asserts a default judgment may only be opened if the 

moving party can show (1) it promptly filed a petition to open the default 

judgement, (2) it provided a reasonable excuse or explanation for failing to file a 

responsive pleading, and (3) it pled a meritorious defense to the allegations 

contained in the complaint. McFarland v. Whitman, 544 A.2d 929 (Pa. 1988).

Purchaser argues Owner, through First Guardian, never provided an 

excuse for failing to file a responsive pleading. Purchaser also notes that First 

Guardian demanded that excess tax sale monies be released following the sale. 

Because First Guardian’s legal counsel filed this demand, Purchaser asserts any 
13

claim of confusion must be rejected. Thus, Purchaser asserts the trial court erred in 

not addressing the petition to open the default judgment prior to considering the 

petition to set aside the tax sale.

2. Analysis

In Husak v. Fayette County Tax Claim Bureau, 61 A.3d 302 (Pa. 

Cmwlth. 2013), we determined that a quiet title action had no preclusive effect on 

the owners where they were not a party to the quiet title action. Here, in January 

2015, following the tax sale, Purchaser filed a quiet title action against Owner at 

her vacant residential address, the subject property. In February 2015, the trial 

court mailed to Owner’s vacant residential address an order requiring that Owner 

file a case management plan. This order was returned as undeliverable as 

addressed. Notice of intent to enter a default judgment, dated February 18, 2015, 

directed to First Guardian, was mailed to Owner’s nursing home address, not First 

Guardian’s business or residence address. On March 10, 2015, the trial court 

mailed notice of entry of default judgment to First Guardian at Owner’s nursing 

home address. R.R. at 204a. 

On March 17, 2005, seven days after entry of the default judgment, 

First Guardian filed a motion to strike or open the default judgment. R.R. at 214a19a. In his motion, First Guardian alleged he did not receive adequate notice of the 

intent to enter default judgment. Mot. to Strike at ¶6; R.R. at 217-18a. First 

Guardian also indicated Owner was an incapacitated person and her husband was 

deceased. Mot. to Strike at ¶¶9-10; R.R. at 218a. On the same day, First Guardian 

filed a petition nunc pro tunc to set aside the tax sale.
14

As noted above, in June 2015 Second Guardian filed amended 

petitions to open or strike the default judgment in the quiet title action and to set 

aside the tax sale. These petitions raised fundamental due process challenges 

involving notice to Owner and First Guardian. These petitions were consolidated 

for hearing. At the October 2015 hearing, the trial court questioned Purchaser as to 

why it could not address the petition to set aside the tax sale prior to motion to 

open the default judgment. R.R. at 954a. Notably, at the end of the hearing, the 

trial court advised the parties that it would review the entire matter and determine 

whether additional testimony was needed to resolve the motion to open the default 

judgment. See R.R. at 987a-88a. Purchaser did not object. Thereafter, in its Pa. 

R.A.P. 1925(a) opinion, the trial court noted there is no procedural rule requiring 

that a motion to open a default judgment must be determined prior to a petition to 

set aside a tax sale. See Supplemental Reproduced Record (S.R.R. Emerald 

Guardian Services); at 12c-13c.

Further, we note that strict compliance with the mandatory notice 

provisions of the Tax Sale Law is essential in every tax sale. Tracy; Murphy v. 

Monroe Cnty. Tax Claim Bureau, 784 A.2d 878 (Pa. Cmwlth. 2001). The purpose 

of the Tax Sale Law is not to strip an owner of his property, but to ensure the tax is 

collected. Tracy; Murphy. In addition, Section 607(g) provides that if objections 

and exceptions are not filed to confirmation nisi and the sale is confirmed 

absolutely, the proceedings of the Bureau may still be challenged “with respect to 

the giving of notice under the act ....” 72 P.S. §5860.607(g) (emphasis added). 
15

We recognize that resolving the challenges to the default judgment 

would logically precede other relief; nevertheless, we perceive no prejudice to the 

parties by the manner in which the trial court resolved the underlying dispute. 

Given the fundamental due process issues at the heart of both the petition to open 

the default judgment and the petition to set aside the tax sale, we discern no 

reversible error or abuse of discretion by the trial court in granting the petition to 

set aside the tax sale without first expressly ruling on the motion to open the 

default judgment. 

Further, we recognize that a petition to open or strike a default 

judgment must be filed within 10 days of the entry of judgment. Pa. R.C.P. No. 

237.3. Here, First Guardian satisfied the first prong of McFarland by showing he 

promptly filed a petition to open the default judgment.

Regarding the second prong in McFarland, First Guardian established 

a reasonable explanation for failing to file a timely responsive pleading. Purchaser 

sent notice of the quiet title action and its notice of intent to take default judgment 

to First Guardian at Owner’s nursing home address. This is not First Guardian’s 

residential or business address. Where a defendant does not receive notice of a 

lawsuit against him, a reasonable explanation for his failure to respond is 

established. Brown v. Great Atlantic & Pacific Tea Co., 460 A.2d 773 (Pa. Super. 

1983). 

The third prong in McFarland requires that a party seeking to open a 

default judgment plead a meritorious defense to the allegations contained in the 
16

complaint. Here, First Guardian simultaneously filed a petition nunc pro tunc to 

set aside the tax sale with his petition to open the default judgment in the quiet title 

action. First Guardian’s petition to set aside the tax sale, based on the Bureau’s 

failure to comply with the mandatory notice provisions of the Tax Sale Law,

provided a meritorious defense to the allegations in Purchaser’s quiet title action.

As such, First Guardian’s petitions to open the default judgment 

satisfied the necessary requirements for opening or striking the default judgment. 

McFarland. Therefore, we reject Purchaser’s argument that the trial court’s failure 

to first address the petition to open the default judgment constituted reversible 

error.

B. Confirmation of Sale; Objections and Exceptions

1. Argument

Section 607 of the Tax Sale Law provides (with emphasis added):

 (a) It shall be the duty of the bureau, not later than sixty 

(60) days after a sale was held, to make a consolidated 

return to the court of common pleas of the county, 

wherein it shall set forth, (1) a brief description of each 

property exposed to sale, (2) the name of the owner in 

whose name it was assessed, (3) the name of the owner at 

the time of the sale, and to whom notice by mail was 

given as provided by this act, (4) a reference to the record 

of the tax claim on which the sale was held, (5) the time 

when and the newspapers in which the advertisement for 

sale was made, with a copy of said advertisement, (6) the 

time of sale, (7) the name of the purchaser, if any, and (8) 

the price for which each property was sold .... Within 

thirty (30) days of presentation of the consolidated return, 

if it shall appear to said court that such sale has been 

regularly conducted under the provisions of this act, the 

consolidated return and the sales so made shall be 
17

confirmed nisi. No consolidated return shall be made to 

the court until notice has been given to the owner under 

subsection (a.1)(1).

(a.1)(1) Notice shall be given by the bureau within thirty 

(30) days of the actual sale to each owner by United 

States certified mail, restricted delivery, return receipt 

requested, postage prepaid, to each owner at his last 

known post office address as determined in section 

602(e)(2) that the property was sold and that the owner 

may file objections or exceptions with the court relating 

to the regularity and procedures followed during the sale 

no later than thirty (30) days after the court made 

confirmation nisi of the consolidated return.

* * * *

 (b.1) If notice is given under subsection (a.1)(2), proof 

that notice under subsection a.1(1) was not received by 

the owner shall not defeat a sale nor invalidate title to 

property. If the mailed or published notice under this 

section is defective or was served in an untimely manner, 

the court shall enter an order nunc pro tunc for cause, 

and, upon proof of prejudice, shall grant the owner leave 

to file objections and exceptions.

 (c) In case no objections or exceptions are filed to any 

such sale within (30) days after the court has made a 

confirmation nisi, a decree of absolute confirmation shall 

be entered as of course by the prothonotary.

 

72 P.S. §5860.607(a)-(c).

In light of Section 607(b.1), Purchaser asserts it is Owner’s burden to 

establish prejudice related to her untimely filing beyond the 30-day statutory 

requirement and the 30-day period begins to run when the sale is confirmed. Here, 

the court confirmed the sale on October 7, 2014. Purchaser asserts First Guardian 

became aware of the tax sale in December 2014 and was served with the quiet title 
18

action in January 2015. In addition, Purchaser served First Guardian with a motion 

for default judgment in early March 2015. However, First Guardian waited until 

March 17, 2015, to file a petition nunc pro tunc to set aside the tax sale.

In short, Purchaser argues, a person wishing to challenge a tax sale 

may do so by (1) filing exceptions or objections within 30 days after the trial court 

issues a confirmation nisi or (2) by filing an action in equity or a civil proceeding. 

M.C. & E.K. Lees, Inc. v. Capenos, 119 A.3d 1092 (Pa. Cmwlth. 2015). Here, 

neither Owner nor her guardian filed exceptions or objections within 30 days of 

confirmation. Therefore, Purchaser urges, the trial court erred in setting aside the 

tax sale.

2. Analysis

The provisions of Section 607(b.1) of the Tax Sale Law, relied upon 

by Purchaser, apply to the notice that a tax sale has taken place, not to the pre-sale 

notices in Section 602 of the Law, 72 P.S. §5860.602. Nevertheless, Section 

607(g) provides that if objections and exceptions are not filed to confirmation nisi 

and the sale is confirmed absolutely, the proceedings of the Bureau with respect to 

such tax sale shall not be challenged “except with respect to the giving of notice 

under the act ....” 72 P.S. §5860.607(g) (emphasis added).

Section 602 of the Tax Sale Law (relating to notice prior to sale), 

provides in pertinent part (with emphasis added):

 (a) At least thirty (30) days prior to any scheduled sale 

the [B]ureau shall give notice thereof, not less than once 

in two (2) newspapers of general circulation in the 
19

county, if so many are published therein, and once in the 

legal journal if any, designated by the court for the 

publication of legal notices. Such notice shall set forth 

(1) the purposes of such sale, (2) the time of such sale, 

(3) the place of such sale, (4) the terms of the sale 

including the approximate upset price, (5) the 

descriptions of the properties to be sold as stated in the 

claims entered and the name of the owner.

* * * * 

 (e) In addition to such publications, similar notice of the 

sale shall also be given by the [B]ureau as follows:

 (1) At least thirty (30) days before the date of the sale, 

by United States certified mail, restricted delivery, return 

receipt requested, postage prepaid, to each owner as 

defined by this act.

 (2) If return receipt is not received from each owner 

pursuant to the provisions of clause (1), then at least ten 

days before the date of the sale, similar notice of the sale 

shall be given to each owner who failed to acknowledge 

the first notice by United States first class mail, proof of 

mailing, at his last known post office address by virtue of 

the knowledge and information possessed by the bureau, 

the tax collector for the taxing district making the return 

and the county office responsible for assessments and 

revisions of taxes. It shall be the duty of the bureau to 

determine the last post office address known to said 

collector and county assessment office. 

72 P.S. §5680.602(a), (e)(1), (e)(2).

The Bureau bears the burden of showing it complied with the specific 

requirements of Section 602 and the additional notification efforts of 607.1 of the 

Tax Sale Law. Rice v. Compro Distrib., Inc., 901 A.2d 570 (Pa. Cmwlth. 2006); 

McElvenny v. Bucks County Tax Claim Bureau, 804 A.2d 719 (Pa. Cmwlth. 
20

2002). Here, the Bureau did not meet its burden of showing compliance with 

either Section 602 or Section 607.1.

First, Bureau Supervisor testified that the Bureau sent notice by 

certified mail to Owner at her residential address of 3884 Hearthstone Court, York, 

PA 17402. R.R. at 969a. The notice was returned to the Bureau unsigned and 

marked “return to sender.” R.R. at 970a. Upon return of the unsigned notice, the 

Bureau did not, as required by Section 602(e)(2) of the Tax Sale Law, search for 

Owner’s last known address by checking with the tax collector for the taxing 

district and the county office responsible for the assessments. See 72 P.S. 

§5860.602(e)(2).

Bureau Supervisor also testified that the Bureau posted the property. 

R.R. at 970a. However, the person who posted the property noticed it was not 

occupied. Id.

However, the Bureau did not inquire as to any alternate addresses for 

Owner. Tr. Ct., Slip Op., 11/23/15, at 6. If the Bureau would have contacted the 

current tax collector for Springettsbury Township, it would have discovered that 

the 2013-2014 school tax bill addressed to Owner was sent to First Guardian’s 

address at: P.O. Box 732, York, PA 17404. Id. at 6-7. In addition, the Bureau 

could have also discovered that the Township’s prior tax collector, sent the 2011 

tax bill for Springettsbury Township to First Guardian’s post office box address. 

Tr. Ct., Slip. Op., at 7.
21

In addition, the trial court observed, if the Bureau would have checked 

its own records it would have discovered that in June 2013 it received checks from 

First Guardian in the amount of $3,116.31 for payment of Owner’s 2011 County 

taxes and $2,116.30 for Owner’s 2011-2012 school taxes. Id. at 7. First Guardian 

made the payment with a cashier’s check indicating his status as Owner’s guardian. 

Id.

Second, Bureau Supervisor testified that other than mailing another 

notice first class to Owner and her deceased husband at the vacant property’s 

address, which the postal authorities did not return to the Bureau, the Bureau took 

no further action to determine Owner’s whereabouts. R.R. at 970a-71a.

Although the Bureau did send notice to the subject property by first 

class mail, which was not returned, this falls far short of the notice requirements of 

both Section 602(e)(2) and Section 607.1 of the Tax Sale Law. In particular, the 

Bureau knew the subject property was vacant, but it made no other efforts to 

determine Owner’s whereabouts. Inquiries to the tax collector or even a check of 

its own records would have indicated that First Guardian was responsible for 

paying Owner’s taxes.

As this Court explained in Maya, Section 607.1(a) of the Tax Sale 

Law provides that when any notification of a pending tax sale or a tax sale subject 

to court confirmation is required to be mailed to any owner, and is either returned 

without the required receipted personal signature of the addressee, or under other 

circumstances raising a significant doubt as to the actual receipt by the addressee, 
22

the bureau must make reasonable efforts to discover the whereabouts of the person 

or entity and notify him. 72 P.S. §6860.607(a)(a). Here, given the unsigned 

certified mail notice and the vacant property, the Bureau was required by Section 

607.1(a) to conduct reasonable efforts to determine Owner’s whereabouts. 

However, Bureau Supervisor clearly testified that the Bureau failed to do so. 

Consequently, the Bureau failed to comply with the statutory notice requirements 

of the Tax Sale Law. Tracy; Maya; Rice; McElvenny.

Third, where the taxing bureau fails to comply with the mandatory 

notice provisions of the Tax Sale Law, a tax sale may be set aside even after the 

sale is confirmed absolutely. Section 607(g) of the Tax Sale Law; Rice. 

Therefore, the trial court did not err in setting aside the tax sale based on the 

Bureau’s failure to comply with the mandatory notice provisions of the Tax Sale 

Law regardless of the confirmation of the sale.

C. First Guardian’s Failure to Pay Taxes

1. Argument

Purchaser also contends the trial court erred in setting aside the tax 

sale because First Guardian rather than the Bureau, was at fault for failing to pay 

Owner’s property taxes.

2. Analysis

We disagree. Although First Guardian may have been negligent in 

failing to pay Owner’s 2012-2013 real estate taxes, the trial court found he had no 

actual knowledge of the tax sale. As discussed above, the Bureau is required to 
23

strictly adhere to the mandatory notice provisions of the Tax Sale Law. Rice. The 

focus is not on the alleged neglect of the owner or her agent, which is often present 

in some degree; rather, the focus is on whether Bureau complied with the 

requirements of the statute. See id. 

D. First Guardian’s Party Status

1. Argument 

Also before the Court is First Guardian’s request that we direct the 

Prothonotary to indicate on the docket that he is not a party to the appeal. First 

Guardian argues that where one party is substituted as the party in interest for 

another party, the other party is no longer a party to any further litigation. Dep’t of 

Educ. v. Empowerment Bd. of Control of Chester-Upland Sch. Dist., 938 A.2d 

1000 (Pa. 2007). In April 2015, the trial court removed First Guardian and 

appointed Second Guardian as successor plenary guardian for Owner. R.R. at 

419a. In June 2015, Second Guardian filed an amended petition to open the 

default judgment in the quiet title action, an amended answer to the quiet title 

action, and an amended petition to set aside the tax sale.

On June 12, 2015, Second Guardian filed a motion to consolidate the 

amended petition to open or strike the default judgment in the quiet title action and 

the amended petition to set aside the tax sale. The motion was granted and the

amended petitions were transferred to the Orphan’s Court Division. R.R. at 531a.

Because the trial court removed him as Owner’s guardian, First 

Guardian argues he is no longer an extant party and thus he does not have party 
24

status before this Court. Empowerment Bd. of Control. First Guardian further 

asserts Purchaser refused a request under Pa. R.A.P. 908 to notify this Court’s 

prothonotary of its belief that First Guardian had no interest in the outcome of this 

appeal. See Appellee Landis’ Br. at 13. In addition, First Guardian asserts 

Purchaser refused to discontinue the action against him under Pa. R.A.P. 1973. Id.

Therefore, First Guardian asks the Court to direct our Prothonotary to indicate on 

the docket that he is no longer a party to the appeal.

2. Analysis

Pursuant to Pa. R.A.P. 1973(a), an appellant may discontinue an 

appeal as to less than all appellees if all parties stipulate to the discontinuance, or 

by leave of court upon application by the appellant.

In addition, pursuant to Pa. R.A.P. 908, an appellant may notify the 

prothonotary of the appellate court of its belief that one or more parties has no 

interest in the outcome of the appeal. 

Here, the parties filed no stipulation, and Purchaser filed no 

application for discontinuance alleging First Guardian no longer had an interest in 

the case. Absent such a stipulation or motion for discontinuance, First Guardian 

will remain a named appellee in this case.

Regardless, we note that a party who no longer desires to be involved 

in the appeal may file a notice of non-participation. See Pa. Indep. Waste Haulers 

Ass’n, 885 A.2d 1106, 1107 n.1 (Pa. Cmwlth. 2005).
25

E. Counsel Fees and Costs

1. Argument

First Guardian also contends he is entitled to counsel fees and costs 

under Pa. R.A.P. 2744 for a frivolous appeal on the ground that Purchaser’s brief 

lacks legal support or citation to pertinent authority. Venafro v. Dep’t of Transp., 

Bureau of Driver Licensing, 796 A.2d 384 (Pa. Cmwlth. 2002) (an appeal that 

raises an issue that is well-settled and presents no legal support is frivolous; a brief 

that lacks support for an argument and citation to pertinent authority is grounds to 

find appeal frivolous).

Here, First Guardian points out he requested that Purchaser 

discontinue the action against him under Pa. R.A.P. 908 and 1973, but Purchaser 

refused his requests. Rather, First Guardian asserts Purchaser’s “joinder” was 

frivolous, obdurate and vexatious, thereby entitling him to counsel fees in the 

amount of $5,867.50, plus copying and service costs.

Pursuant to Pa. R.A.P. 906(a)(1), Purchaser responds, an appellant 

must serve all parties to the matter in the trial court, including parties previously 

dismissed pursuant to an interlocutory order, unless: (i) the interlocutory order of 

dismissal was reviewed by an appellate court and affirmed; or (ii) the interlocutory 

order of dismissal was made final under Pa. R.A.P. 341(c) and no party appealed 

from that date. Therefore, Purchaser argues this is not a joinder.

Purchaser also asserts First Guardian could have filed a notice of nonparticipation and would not have incurred the alleged counsel fees and costs.
26

2. Analysis

The imposition of counsel fees and costs under Rule 2744 is solely 

within this Court’s discretion. Canal Side Care Manor, LLC v. Pa. Human 

Relations Comm’n, 30 A.3d 568 (Pa. Cmwlth. 2011). An appeal is frivolous if the 

realistic chances of success are slight and continuation of the contest is 

unreasonable. Waste Mgmt. v. Unemployment Comp. Bd. of Review, 651 A.2d 

231 (Pa. Cmwlth. 1994). However, in awarding counsel fees, this Court is guided 

by the principle that an appeal is not frivolous merely because it lacks merit. Canal 

Side Care Manor. Rather, the appeal must have no basis in law or in fact. Id. 

Such a high standard is necessary to avoid discouraging parties from bringing 

appeals based on fear of being sanctioned. Id.

Here, although Purchaser’s appeal lacks merit, we do not believe the 

appeal is frivolous so as to warrant the imposition of counsel fees under Pa. R.A.P. 

2744. To that end, the trial court issued a confirmation nisi of the September 2014 

tax sale. R.R. at 808a. First Guardian did not file objections or exceptions within 

30 days of the confirmation nisi. As a result, the trial court confirmed the sale 

absolutely. Further, Purchaser attempted to quiet title to the property and obtained 

a default judgment in that action.

 

This Court describes a frivolous appeal as “one presenting no 

justiciable questions and so readily recognizable as devoid of merit on face of [the] 

record that there is little prospect that it can ever succeed,” Appeal of Langmaid 

Lane Homeowners Ass’n, 465 A.2d 72, 75 (Pa. Cmwlth. 1983) (citation omitted),

and “one in which no justiciable question has been presented and [the] appeal is 
27

readily recognizable as devoid of merit in that there is little prospect that it will 

ever succeed.” Erie v. Int’l Ass’n of Firefighters, Local 293, 522 A.2d 132 (Pa. 

Cmwlth. 1987) (citation omitted). A vexatious appeal is one instituted without 

reasonable cause. Dep’t of Transp., Bureau of Driver Licensing v. Grubb, 618 

A.2d 1152 (Pa. Cmwlth. 1992). Further, obdurate is defined as unyielding or 

stubborn. In re Padezanin, 937 A.2d 475 (Pa. Super. 2007). And, dilatory is 

defined as tending to cause delay. BLACK’S LAW DICTIONARY 488 (8th ed. 2004).

Given the totality of the circumstances in this case, including the 

confirmation of the tax sale without objection and Purchaser’s efforts to quiet title 

after confirmation of the sale, we do not agree with First Guardian’s assertions that 

Purchaser’s appeal of the trial court’s ultimate order setting aside the tax sale was 

frivolous, vexatious or brought simply to cause a delay. Therefore, we deny First 

Guardian’s request for counsel fees and costs under Pa. R.A.P. 2744.

IV. Conclusion

For the above reasons, we discern no error or abuse of discretion by 

the trial court in setting aside the September 2014 tax sale of Owner’s property to 

Purchaser. Accordingly, we affirm.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Brenda L. Strickler, :

An Incapacitated Person : No. 2651 C.D. 2015

:

Appeal of: Blackhawk Property :

Investors, LLC :

O R D E R

AND NOW, this 12th day of October, 2016, for the reasons stated in 

the foregoing opinion, the order of the Court of Common Pleas of York County, 

Orphan’s Division, is AFFIRMED.

 

ROBERT SIMPSON, Judge