IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Iron and Steel Realty :

Investments, LLC, Douglas Dolan :

and Vicki Dolan :

 :

v. : No. 893 C.D. 2021 

 : Argued: May 16, 2022

Westmoreland County Tax Claim :

Bureau and Hoberman Homes, LLC :

 :

Appeal of: Hoberman Homes, LLC :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: June 29, 2022

Hoberman Homes, LLC (Purchaser) appeals from the Order of the Court of 

Common Pleas of Westmoreland County (common pleas) that granted the Amended 

Petition to Set Aside and/or Strike (Petition to Set Aside) the September 9, 2019 

upset tax sale conducted by the Westmoreland County Tax Claim Bureau (Bureau1) 

of 1100 Willowbrook Road, Belle Vernon, Pennsylvania 15012 (Property), a 

residential property, filed by the Property’s owner, Iron and Steel Realty 

Investments, LLC, (Iron and Steel), and Douglas and Vicki Dolan (the Dolans), Iron 

and Steel’s principals. Common pleas set aside the tax sale, finding it was void 

because the Bureau acknowledged that it failed to abide by the statutory notice 

requirements set forth in Section 602 of the Real Estate Tax Sale Law2(Tax Sale 

Law), 72 P.S. § 5860.602. In granting the Petition to Set Aside on this basis, 

1 The Bureau is not participating in the appeal. 

2 Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.602.
2

common pleas did not first address Purchaser’s argument that Iron and Steel, a

Nevada limited liability company (LLC) not registered in Pennsylvania, lacked the 

capacity to file the Petition to Set Aside pursuant to Section 411(b) of the 

Associations Code, 15 Pa.C.S. § 411(b).

3

 

On appeal, Purchaser argues that common pleas erred in concluding that Iron 

and Steel’s lack of corporate registration in Pennsylvania was not relevant and/or 

did not preclude it from obtaining relief. Purchaser contends the legal capacity to 

sue issue should have been resolved in its favor prior to reaching the merits of the 

Petition to Set Aside. Iron and Steel responds that: its Motion to Quash the appeal 

should be granted4 because Purchaser did not request a stay of common pleas’ 

orders; Purchaser waived its challenge to Iron and Steel’s legal capacity to sue; its 

corporate status is not relevant because the only issue in a challenge to a tax sale is 

whether notice was provided; and, even if its status was relevant, it was not doing 

business in Pennsylvania pursuant to Section 403 of the Associations Code, 15 

Pa.C.S. § 403. After review, we will not grant the Motion to Quash the appeal, nor 

will we find that Purchaser waived the issue of Iron and Steel’s capacity to sue. 

Although common pleas should have technically addressed the issue of capacity to 

sue as a threshold matter, based on the credibility findings, and the facts of this case, 

we affirm common pleas’ granting of the Petition to Set Aside. 

I. FACTS

The Property was sold in an upset tax sale on September 9, 2019, for 

nonpayment of taxes for the 2017 tax year. Iron and Steel, along with the Dolans, 

3 Section 411(b) of the Associations Code provides that foreign filing associations “doing 

business in this Commonwealth may not maintain an action or proceeding in this Commonwealth 

unless it is registered to do business under this chapter.” 15 Pa.C.S. § 411(b). 

4

Iron and Steel’s Motion to Quash is assigned to be resolved with the merits.
3

filed a Petition to Set Aside, followed shortly by the Amended Petition to Set Aside. 

The Bureau filed responses to both Petitions to Set Aside. Purchaser filed a Petition 

to Intervene, which was granted, and an answer to the original Petition to Set Aside. 

Purchaser subsequently filed, with leave of court, an Amended Answer with New 

Matter to the Amended Petition to Set Aside (Amended Answer), in which it

asserted, inter alia, that Iron and Steel was not registered to do business in 

Pennsylvania. Common pleas held an evidentiary hearing on April 26, 2021, at 

which the Bureau presented exhibits without objection showing their efforts to 

satisfy the Tax Sale Law’s notice requirements, the Dolans testified, and Purchaser 

cross-examined them and presented a memorandum of law outlining why Iron and 

Steel did not have the legal capacity to file the Petition to Set Aside. 

The Dolans testified as follows. The Dolans denied receiving any notice from 

the Bureau regarding delinquent taxes or the tax sale of the Property. They likewise 

denied having any actual knowledge of the tax sale. As to Iron and Steel, they 

testified it is an LLC formed in Nevada because they “talked to people that said it 

was the best place to form [an] LLC.” (Hearing Transcript (Hr’g Tr.) at 18.)5

Pursuant to its operating agreement, Iron and Steel’s business purpose is to engage 

in “business development.” (Id. at 37.) Prior to creating Iron and Steel, the Dolans

drove by the Property and thought it would “be a good investment property to repair 

and flip for profit.” (Id. at 14.) In 2015, Iron and Steel purchased the Property for 

$25,000 at a sheriff’s sale. No one told them that they could not purchase the 

property with an out of state LLC, and they did not consult with an attorney when 

setting up Iron and Steel. The Property’s deed, recorded on October 30, 2015, 

indicated that tax bills were to be mailed to “Iron and Steel Realty Investments, 

5 The April 26, 2021 Hearing Transcript can be found at pages 141a-232a of the 

Reproduced Record. 
4

LLC” at 410 Cowan Drive, Elizabeth, Pennsylvania 15037 (the Dolans’ home 

address). (Id. at 13, 16.) 

The Dolans had never bought an investment property prior to this and have 

not bought another since; however, it was Mr. Dolan’s intention at the time to invest 

in more properties. Iron and Steel has no assets other than the Property. The Dolans 

intended to “refurbish [the Property] within six months and put it on the market,” 

and hired four contractors through Iron and Steel; this timeframe was not met, 

however, and the fourth contractor finished around May or June of 2018. (Id. at 19-

22.) Iron and Steel spent approximately $305,000.00 to renovate the Property, using 

some of the Dolans’ money and taking out loans (guaranteed by the Dolans), some 

of which are still outstanding. The Dolans engaged a realtor to sell the Property at 

some point. When asked if this property purchase was a “one and done,” Mr. Dolan 

testified “[w]e were looking at the potential of purchasing other properties to do this 

again maybe.” (Id. at 37.)

Purchaser cross-examined Mr. Dolan, asking if he had registered Iron and 

Steel to do business in Pennsylvania, to which Mr. Dolan initially responded that he 

had in 2016 but later agreed that he did not know that as a fact. Ms. Dolan 

acknowledged, on cross-examination, that, to her knowledge, Iron and Steel was not 

registered in Pennsylvania. Purchaser submitted a search from the Pennsylvania 

Department of State’s website, performed the day prior to the hearing, indicating 

that Iron and Steel was not registered in Pennsylvania. Purchaser asked common 

pleas to take judicial notice of various judicial admissions in the pleadings and 

representations made in depositions regarding Iron and Steel’s lack of registration 

to do business in Pennsylvania. Purchaser further represented to common pleas that 
5

it had paid $8,313.68 for the Property at the tax sale and spent a total of $24,845.60 

to date on the Property. (Id. at 85.)

At the conclusion of that hearing, common pleas asked the parties to submit 

proposed findings of fact and conclusions of law, as well as legal memoranda. These 

filings were timely submitted. For its part, the Bureau agreed that the notices were 

sent to an address not listed on the Property’s deed, that the notices were returned to 

it unclaimed, and that there was no testimony that would support that there was 

actual notice of the tax sale. (Bureau Proposed Findings of Fact and Conclusions of 

Law at 4.6) Thus, it “would have to concede that there was a notice defect.” (Id.)

II. COMMON PLEAS’ DECISIONS

Common pleas credited the Dolans’ testimony, and, after considering that 

testimony, the other evidence, the relevant law, and the Bureau’s concession, 

common pleas concluded that “the purported upset tax sale [was] void for defective 

notice” because the notice requirements of the Tax Sale Law were not satisfied.

(Common Pleas’ July 6, 2021 Opinion at 8.)

7 As to Purchaser’s argument that Iron 

and Steel could not obtain relief pursuant to Section 411(b) of the Associations Code, 

common pleas appreciated the argument but nevertheless held that, because the sale 

was void, “as ‘to render of no validity or effect; null,’” Iron and Steel’s “corporate 

registration [was] of no import.” (Id. at 9 (quoting Black’s Law Dictionary 

definition of “Void”).) Common pleas also explained that pursuant to Section 411(c) 

of the Associations Code, 15 Pa.C.S. § 411(c), failure of a foreign limited liability 

company to register to do business in this Commonwealth does not “preclude it from 

6 The Bureau’s Proposed Findings of Fact and Conclusions of Law can be found at pages

233a-38a of the Reproduced Record.

7 Common pleas’ July 6, 2021 Opinion can be found at pages 239a-50a of the Reproduced 

Record.
6

defending an action or proceeding in this Commonwealth.” (Id. at 9 (internal 

quotations omitted).) It further indicated, citing Section 403(a)(1), (7)-(10) of the 

Associations Code, 15 Pa.C.S. § 403(a)(1), (7)-(10), that there are some activities 

performed within Pennsylvania that do not constitute doing business. “Based on the 

evidence and testimony before [the c]ourt,” common pleas stated that Iron and Steel 

and the Dolans were “not precluded from being in this court. However, . . . this 

[c]ourt need[] not reach this issue, as the failure to provide notice as required by 

[Section 602 of the Tax Sale Law] . . . render[ed] the tax sale void, [and] moot[ed]

the issue.” (Id. at 10.) 

Purchaser appealed to this Court, and filed, as directed, a Concise Statement 

of Errors Complained of on Appeal (Statement) pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(b), Pa.R.A.P. 1925(b). Therein, Purchaser raised the 

same issues it asserts in this appeal. Thereafter, common pleas issued an order on 

August 3, 2021, amending its July 6, 2021 Order to direct Iron and Steel to pay 

$9,311.32 to Purchaser by September 2, 2021, and allow Iron and Steel to record the 

July 6, 2021 Order showing that the deed naming Purchaser is now null and void.8 

(R.R. at 282a-83a.) Purchaser did not seek a stay or supersedeas of the original July 

6, 2021 Order or the August 3, 2021 Amended Order.

8 Prior to the appeal, Iron and Steel filed a Motion for Special Injunctive Relief for Return 

of Property/Replevin on July 14, 2021, requesting common pleas grant it and the Dolans 

immediate possession of the Property. (R.R. 251a-56a.) The Bureau filed a Motion to Amend 

common pleas’ Order on July 21, 2021, seeking the addition of language “that declares the deed 

recorded by the Tax Claim Bureau to Hoberman Homes, LLC as null and void.” (Id. at 271a.) 

The Bureau’s Motion to Amend also indicated that it could not make a full refund to Purchaser

because some of the money that was paid for the purchase price was sent to Harrisburg to cover 

transfer tax payments and was unable to be recouped. (Id.) Iron and Steel agreed with the Bureau

that the order needed to reflect that the deed on behalf of Purchaser should be void; however, it

disagreed with shifting the burden to it to refund Purchaser for the tax sale. Instead, Iron and Steel

argued that it should only have to pay the tax due, and the Bureau should issue a refund to 

Purchaser. (Id. at 276a-77a.) The August 3, 2021 order granted the Bureau’s Motion to Amend.
7

In response to the Statement and in support of granting the Petition to Set 

Aside, common pleas issued a 1925(a) Opinion.9 Common pleas reiterated the legal 

principles it relied on in the July 6, 2021 Opinion to find the tax sale void, and added

that “if the entire legal proceeding is void and any and all legal proceedings at this 

case number in effect did not legally exist, Iron and Steel did not maintain any legal 

action in the Commonwealth, whether it is doing business or not doing business in 

Pennsylvania.” (1925(a) Op. at 10.) Regarding Purchaser’s claims that common 

pleas “found” that Iron and Steel was not doing business in Pennsylvania and was 

not precluded from obtaining affirmative relief in the trial court, common pleas

stated that it “made no such ‘findings.’” (Id. at 11.) 

III. PARTIES’ ARGUMENTS 

Before this Court, Purchaser argues that common pleas erred in holding that 

Iron and Steel’s corporate registration was of no consequence due to the tax sale 

being void and in finding that Iron and Steel did not lack the legal capacity to sue.

Purchaser argues that pursuant to Section 411(a) and (b) of the Associations Code, 

Iron and Steel’s failure to register in Pennsylvania meant it could not “do business” 

in the Commonwealth and could not “maintain an action or proceeding in this 

Commonwealth unless it is registered to do business under this chapter.” 

(Purchaser’s Brief (Br.) at 20-21 (citing 15 Pa.C.S. § 411(a), (b)) (emphasis added).)

While Purchaser concedes that Iron and Steel did not maintain an “action,” it argues 

Iron and Steel did maintain a “proceeding” under Section 411(b). Purchaser 

contends that “proceeding” is broader than “action” and “[i]ncludes every 

declaration, petition or other application which may be made to a court under law or 

usage or under special statutory authority, but the term does not include an action or 

9 The 1925(a) Opinion can be found at pages 306a-17a of the Reproduced Record.
8

an appeal.” (Id. at 23 (citing Section 102 of the Judicial Code, 42 Pa.C.S. § 102).)

Purchaser also cites the Committee Comment-2014 to Section 411(b) as support for

its argument that common pleas erred in not resolving this issue first. Purchaser 

argues that American Housing Trust, III v. Jones, 696 A.3d 1181 (Pa. 1997), and 

Drake Manufacturing Company, LLC v. PolyFlow, Inc., 109 A.3d 250, 257 (Pa. 

Super. 2015), set forth the legal analysis that must be applied to determine whether 

a foreign business entity has the capacity to sue in the first instance, an analysis that 

common pleas did not perform before concluding that Iron and Steel was not 

precluded from filing the Petition to Set Aside. In short, “Iron and Steel’s corporate 

registration is important because its failure to register directly affects its capacity to 

sue.” (Purchaser’s Br. at 24 (emphasis omitted).) 

Purchaser also argues that, to the extent common pleas found Iron and Steel 

was not “doing business” in Pennsylvania, it erred in doing so without making 

findings of fact or analyzing that issue to support those conclusions. Even absent 

those findings or that analysis, Purchaser argues that the record here would not 

support a finding that Iron and Steel was not doing business in Pennsylvania as 

defined by Section 403 of the Associations Code and interpreted in American 

Housing Trust and Drake Manufacturing. It notes that, from common pleas’ 

opinions, it appears that the court treated the Dolans as also bringing the Petition to 

Set Aside and considered the hardship on the Dolans if the tax sale was not set aside. 

(Id. at 32 n.15.) However, the Dolans were not the record owner of the Property and

the equities of the situation are not a consideration in determining whether an entity 

is subject to Section 411(b) of the Associations Code. (Id. (citing Drake Mfg., 109 

A.3d at 257).)
9

Iron and Steel argues that the appeal is moot and its Motion to Quash should 

be granted pursuant to Deutsche Bank National Co. v. Butler, 868 A.2d 574 (Pa. 

Super. 2005), because Purchaser has no interest in the Property having not requested

a stay or supersedeas to protect its property rights. Iron and Steel relies on common 

pleas’ August 3, 2021 Amended Order, which voided and nullified the sale and 

allowed for the order to be filed with the Recorder of Deeds resulting in it, not 

Purchaser, being the current legal owner of the Property. Iron and Steel next asserts

that Purchaser waived the issue of Iron and Steel’s corporate registration because it

did not raise the issue in its original Petition to Intervene and did not file preliminary 

objections to the Petition to Set Aside as required by Pennsylvania Rule of Civil 

Procedure 1028(a), Pa.R.Civ.P. 1028(a). Instead, Iron and Steel asserts Purchaser

raised this issue in its Amended Answer on July 6, 2020, to which Iron and Steel 

filed a reply asserting the issue was waived. Iron and Steel further argues that, even 

if preliminary objections were not required, the argument should still be waived 

because it was raised after discovery had been completed.

Iron and Steel next argues there was no error in common pleas finding that its 

corporate status is not relevant because the only issue in a tax sale challenge is 

whether the taxing authority complied with the notice requirements of Section 602 

of the Tax Sale Law. Iron and Steel posits that its own negligence does not provide 

an exception to those requirements that would relieve a taxing authority from strictly 

complying with the statute, citing cases where the taxpayers’ negligence or inaction 

could not be used by a purchaser to oppose their petitions to set aside. (Iron and 

Steel’s Br. at 16.) Iron and Steel additionally asserts that, even if its corporate status

is relevant, its actions fall within several of the exceptions to “doing business” set 

forth in Section 403 of the Associations Code, and, therefore, it is not subject to 
10

Section 411(b)’s penalty. Iron and Steel contends that American Housing Trust

recognized that, under Section 403, “passive owning of real estate for investment or 

fiduciary purposes does not constitute transacting business in this state,” and that its 

ownership of the Property is an isolated transaction that does not constitute “doing 

business.” (Id. at 21 (internal quotations omitted).) Even if it were and registration 

was required, Iron and Steel maintains that it would place a cost on foreign 

businesses to access the court system to defend their rights. Moreover, Iron and 

Steel asserts that equitable factors weigh in favor of upholding the finding that the 

tax sale should be set aside because the Dolans spent approximately $305,000.00 to 

renovate the Property, and Purchaser would receive a windfall if the tax sale were 

not set aside, particularly where due process was violated by the lack of notice. 

In its Reply Brief, Purchaser responds that this appeal is not moot and should 

not be quashed because this situation is distinguishable from Deutsch Bank where, 

unlike in that case, an order from this Court reversing would return the Property to 

Purchaser. The recording of common pleas’ Amended Order, declaring the tax sale 

void, by Iron and Steel did not end this controversy or Purchaser’s appeal, and could 

be struck if this Court reversed. That it did not request a stay similarly does not 

render the appeal moot. As to waiver, Purchaser asserts it timely raised and 

preserved the issue of Iron and Steel’s capacity to sue and, therefore, the issue is not 

waived. The lack of capacity to sue can be raised either in preliminary objections or 

in an answer to a complaint, and while Purchaser did not file preliminary objections, 

it did raise the issue in paragraph 42 of its Amended Answer, filed with leave of 

court, and during the hearing. This is sufficient to preserve the issue. (Purchaser’s 

Reply Br. at 7-8 (citing McGuire on behalf of Naidig v. Pittsburgh, 250 A.3d 516 

(Pa. Cmwlth. 2021) (citing Drake Mfg., 109 A.3d at 257)).)
11

IV. DISCUSSION

A. Whether Purchaser’s appeal should be quashed due to its failure to request 

a stay to preserve its interests in the Property.

Iron and Steel’s argument that Purchaser’s appeal should be quashed is based 

on its belief that the recording of common pleas’ August 3, 2021 Amended Order 

which transferred the Property back into its name, and Purchaser’s failure to request 

a stay or supersedeas of that order, results in Purchaser no longer having any legal

interest in the Property. Without this legal interest, the appeal is moot and should 

be quashed. Iron and Steel analogizes this situation to that in Deutsche Bank and 

claims that as in that case, this Court’s order would have no impact on the title to the 

Property. However, it appears that, as Purchaser asserts, Deutsche Bank is 

distinguishable, this matter is not moot, and the Motion to Quash should, therefore,

be denied. 

An appeal is moot if a court’s order cannot have any force or practical effect

on the controversy. Chruby v. Dep’t of Corr., 4 A.3d 764, 770-71 (Pa. Cmwlth. 

2010). In Deutsche Bank, a mortgagee filed a petition to set aside a sheriff’s sale of 

a mortgaged property after its representative mistakenly failed to increase the bid to 

the upset amount, which was granted. The trial court directed that the property be 

rescheduled for sheriff’s sale three months later. The successful bidder appealed, 

requested that the second sale be stayed, offered a bond to operate as a supersedeas, 

but did not post the bond resulting in the order not being stayed. At the rescheduled 

sheriff’s sale, the mortgagee purchased the property, and the sheriff delivered the 

deed to the mortgagee during the pendency of the appeal. The mortgagee filed a 

motion to dismiss the appeal for mootness, which the Superior Court granted 

because “the property was sold at the second sale, and now an order declaring the 

first sale valid would have no effect.” Deutsche Bank, 868 A.2d at 577. The 

Superior Court rejected arguments that a motion to strike the deed would solve the 
12

problem because “there [was] nothing in the record that indicate[d] whether [the 

mortgagee] still own[ed]” the property, and the appeal of the first sale could not be 

treated as a petition to set aside of the second sale because the deed had already been 

delivered, which precluded the filing of a petition to set aside. Id. 

Here, unlike in Deutsche Bank, there has been no subsequent, valid sale of the 

Property, and there is no dispute that Iron and Steel still has ownership of the 

Property. Indeed, that is the basis of the Motion to Quash – that the ownership of 

the Property has returned to Iron and Steel and it is as though the tax sale never 

happened. Further, the transfer of the Property is based on the order being 

challenged on appeal, and it is not a situation where Purchaser’s appeal is an attempt 

to assert an invalid petition to set aside. Thus, under these circumstances, an order 

by this Court would have force or practical effect as to the ownership of the Property. 

Therefore, the Court will not quash the appeal. 

B. Whether Purchaser waived the issue of Iron and Steel’s capacity to sue.

Iron and Steel argues that Purchaser has waived this argument because it did 

not raise this issue in preliminary objections, did not raise this issue in its Petition to 

Intervene, and waited six months to raise this issue with an Amended Answer on 

July 6, 2020, after discovery was complete. In response, Purchaser asserts it timely 

raised the issue of Iron and Steel’s lack of legal capacity, which, pursuant to

McGuire and Drake Manufacturing, can be raised in an answer, rather than in 

preliminary objections. Reviewing the rules that govern tax sale cases and McGuire

and Drake Manufacturing, we agree that Purchaser timely raised the issue of Iron 

and Steel’s lack of registration in Pennsylvania.

First, the Pennsylvania Rules of Civil Procedure, which includes Rule 1028 

regarding the filing of preliminary objections, “do not apply to statutory proceedings 
13

brought under the . . . Tax Sale Law.” Battisti v. Tax Claim Bureau of Beaver Cnty., 

76 A.3d 111, 115 (Pa. Cmwlth. 2011). Accordingly, that Purchaser did not raise the 

issue in a pleading (preliminary objections) that is not required, nor authorized, to 

be filed in a tax sale case does not render the issue waived. Second, this Court, in 

McGuire held that “a defendant timely objects to a plaintiff’s lack of capacity to sue 

if the defendant raises this issue in preliminary objections or in its answer to the 

complaint.” 250 A.3d at 525 (quoting Drake Mfg., 109 A.3d at 257) (emphasis 

added; internal quotations omitted). Purchaser raised Iron and Steel’s lack of 

registration in paragraph 42 of its Amended Answer, stating that Iron and Steel had 

not registered as a foreign corporation in Pennsylvania. (R.R. at 100a.) Iron and 

Steel denied this assertion as being irrelevant because it had purchased the Property 

and was the owner on the deed in paragraph 10 of its response. (Id. at 115a.) 

Purchaser then submitted its memorandum of law during the April 26, 2021 hearing 

to explain the import of that lack of registration on Iron and Steel’s capacity to sue. 

Pursuant to McGuire and Drake Manufacturing, Purchaser timely asserted Iron and 

Steel’s lack of registration in Pennsylvania, and, therefore, Purchaser did not waive 

the issue.

C. Whether Iron and Steel lacked capacity to sue such that the Petition to Set 

Aside in this case should have been denied.

“Our scope of review in tax sale cases is limited to determining whether the 

trial court abused its discretion, rendered a decision with a lack of supporting 

evidence, or clearly erred as a matter of law.” Shipley v. Tax Claim Bureau of 

Delaware Cnty., 74 A.3d 1101, 1104 n.3 (Pa. Cmwlth. 2013). It is well settled that 

“[t]he primary purpose of tax sale laws is to ensure ‘the collection of taxes, and not 

to strip away citizens’ property rights.’” In re Consol. Reps. & Return by Tax Claims 

Bureau of Northumberland Cnty. of Properties, 132 A.3d 637, 650 (Pa. Cmwlth. 
14

2016) (quoting Rice v. Compro Distrib., Inc., 901 A.2d 570, 575 (Pa. Cmwlth. 

2006)). Our Supreme Court has held that tax sale laws “were never meant to punish 

taxpayers who omitted through oversight or error (from which the best of us are 

never exempt) to pay their taxes.” In re Return of Sale of Tax Claim Bureau (Ross 

Appeal), 76 A.2d 749, 753 (Pa. 1950). In all tax sale cases, the tax claim bureau 

“has the burden of proving compliance with the statutory notice provisions.”

Krawec v. Carbon Cnty. Tax Claim Bureau, 842 A.2d 520, 523 (Pa. Cmwlth. 2004). 

In general, Section 602 of the Tax Sale Law, 72 P.S. § 5860.602, requires three forms 

of notice to an upset tax sale: publishing the notice in newspapers; posting notice 

on the property; and mailing notice by certified mail to the owner or others with a

legal interest in the property. “If any of the three types of notice is defective, the tax 

sale is void.” Gladstone v. Fed. Nat’l Mort. Ass’n, 819 A.2d 171, 173 (Pa. Cmwlth. 

2003) (emphasis added). 

Purchaser does not argue that notice of the tax sale of the Property was 

sufficient. Instead, Purchaser essentially argues that common pleas had to resolve 

the issue of whether Iron and Steel had the legal capacity to file the Petition to Set 

Aside before it addressed the merits. Iron and Steel contends that its corporate 

registration, or lack thereof, is of no moment because the focus in a challenge to a 

tax sale is on the sufficiency of the Bureau’s actions, not on any action or inaction 

(negligence) of the property owner. It further argues that, even if its corporate 

registration was relevant to the inquiry, it was not precluded from filing the Petition 

to Set Aside because it was not doing business in Pennsylvania and the equities 

support affirming common pleas’ order. 

As noted, the purpose of the Tax Sale Law is to ensure the payment of taxes 

and not to punish taxpayers for their nonpayment of taxes due to oversight or error. 
15

Further, as Iron and Steel argues, the Court has held that the lack of compliance with 

the notice provisions in Section 602 of the Tax Sale Law render the upset tax sale 

void. Gladstone, 819 A.2d at 173. Iron and Steel cites three cases, In re 

Consolidated Return of Lackawanna County Tax Claim Bureau (Pa. Cmwlth., No. 

462 C.D. 2017, filed January 19, 2018),10 Santarelli Real Estate, Inc. v. Tax Claim 

Bureau of Lackawanna County, 867 A.2d 717 (Pa. Cmwlth. 2005), and Smith v. Tax 

Claim Bureau, 834 A.2d 1247 (Pa. Cmwlth. 2003), as support for its argument that 

its negligence in not registering in Pennsylvania cannot be held against it because 

the burden was on the Bureau to establish strict compliance with the Tax Sale Law’s 

notice provisions, which “cannot be waived due to the actions of the owner.” (Iron 

and Steel’s Br. at 14 (citing In re Consol. Return of Lackawanna Cnty. Tax Claim 

Bureau, slip op. at 4) (emphasis omitted).) In each of these cases, this Court held

that the actions of the taxpayers, including negligence, was not relevant because the 

issue is whether the tax claim bureaus met their burden of proving proper notice. In

In re Consol. Return of Lackawanna Cnty. Tax Claim Bureau, slip op. at 3-4, we 

rejected the argument that taxpayer’s status as realtor and failure to inquire about the 

lack of tax bills for six years should have been considered. In Santarelli Real Estate, 

Inc., 867 A.2d at 722, a case where the tax claim bureau acknowledged lack of 

notice, we rejected the argument that taxpayer’s “‘knowing failure’ to pay the taxes 

provided her with notice that there w[ould] be a public sale of the [p]roperty,” so as 

to provide implied actual notice. Finally, in Smith, 834 A.2d at 1251, we rejected 

the argument that the tax claim bureau’s efforts to find a taxpayer were reasonable 

where the taxpayer, who owned the property with their estranged spouse as tenants 

10 Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and 

Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an 

unreported opinion of this Court is not precedential but can be cited as persuasive.
16

by the entirety, failed to provide an updated address because the focus is not on the 

neglect of the owner. These cases support, at least in part, Iron and Steel’s argument 

that a taxpayer’s actions, inaction, or negligence is not relevant to the determination 

as to whether the taxing authority met its burden of proving proper notice. However, 

these cases involve a taxpayer’s actions/neglect in relation to their obligation to pay 

taxes or in their interaction with a tax claim bureau. They do not involve questions 

related to the legal capacity to sue – to file a petition to set aside challenging the tax 

sale – which could be viewed as a separate and threshold inquiry. 

Generally, “capacity to sue refers to the legal ability of a person to come into 

court, and ‘[w]ant of capacity to sue has reference to or involves only a general legal 

disability, . . . such as infancy, lunacy, idiocy, coverture, want of authority, or a 

want of title in plaintiff in the character in which he or she sues.’” In re Estate of 

Sauers, 32 A.3d 1241, 1248 (Pa. 2011) (quoting 67A C.J.S. Parties § 11) (emphasis

and alteration in original). Our Supreme Court has explained that it views capacity 

to sue issues as “threshold matter[s] that should be resolved prior to answering 

the [main legal] question.” Id. at 1245 n.2 (emphasis added). This is because 

objections based on a lack of legal capacity, if sustained, “could lead to the dismissal 

of an action in whole alleviating the need to consider the larger issue[.]” Id. See 

also Am. Hous. Trust, III, 696 A.2d at 1184 (holding that a preliminary objection 

challenging a party’s capacity to sue may lead to “the end result of . . . dismissal of 

the action”). 

Purchaser challenges Iron and Steel’s legal capacity to sue under Section 

411(b) of the Associations Code alleging that it was doing business in Pennsylvania 

without being registered which defeated its capacity to sue. A foreign business 

entity’s capacity to sue under Section 411(b) has not been addressed in the context 
17

of an upset tax sale. However, given our Supreme Court’s statements in Estate of 

Sauers and American Housing Trust that the capacity to sue is a threshold issue, it 

would have been prudent to resolve the issue prior to addressing the merits of the 

Petition to Set Aside. 

Purchaser argues Iron and Steel was doing business in Pennsylvania without 

registering and, therefore, it was precluded from filing the Petition to Set Aside as a 

penalty for that failure. Purchaser further asserts that common pleas did not engage 

in the kind of analysis of the evidence that is required to make a determination under 

Sections 403 and 411(b) of the Associations Code because, while common pleas

cited some of the statutory provisions, it made no findings of fact and provided no 

analysis on the issue. Iron and Steel asserts that it was not precluded by Section 

411(b) from filing the Petition to Set Aside based on the record because its activities 

do not constitute “doing business” in Pennsylvania under Section 403 of the 

Associations Code. 

Section 411 of the Associations Code, 15 Pa.C.S. § 411, provides, in relevant 

part: 

(a) Registration required.—Except as provided in section 401 (relating 

to application of chapter) or subsection (g), a foreign filing association 

or foreign limited liability partnership may not do business in this 

Commonwealth until it registers with the department under this chapter.

(b) Penalty for failure to register.—A foreign filing association or 

foreign limited liability partnership doing business in this 

Commonwealth may not maintain an action or proceeding in this 

Commonwealth unless it is registered to do business under this 

chapter. 

(c) Contracts and acts not impaired by failure to register.—The failure 

. . . to register to do business in this Commonwealth does not . . . 

preclude it from defending an action or proceeding in this 

Commonwealth.
18

. . . .

Committee Comment – 2014 

. . . .

The purpose of subsection (b) is to induce foreign associations to 

register without imposing harsh or erratic sanctions. Often the 

failure to register is a result of inadvertence or bona fide disagreement 

as to the scope of 15 Pa.C.S. § 403 which is necessarily imprecise; and 

the imposition of harsh sanctions in those situations is 

inappropriate.

. . . .

Subsection (b) does not prevent a foreign association that has failed to 

register from “defending” an action or proceeding. The distinction 

between “maintaining” and “defending” an action or proceeding under 

subsection (b) is determined on the basis of whether affirmative relief 

is sought. . . .

15 Pa.C.S. § 411(a)-(c), Committee Comment – 2014, (emphasis added). Section 

403 of the Associations Code, 15 Pa.C.S. § 403, states, in pertinent part:

(a) General rule.—Activities of a foreign filing association or 

foreign limited liability partnership that do not constitute doing 

business in this Commonwealth under this chapter shall include the 

following: 

(1) Maintaining, defending, mediating, arbitrating or settling an 

action or proceeding. 

. . . .

(7) Creating or acquiring indebtedness, mortgages or security interests 

in property.

(8) Securing or collecting debts or enforcing mortgages or security 

interests in property securing the debts and holding, protecting or 

maintaining property so acquired.

(9) Conducting an isolated transaction that is not in the course of similar 

transactions.

(10) Owning, without more, property. 

. . . .

Committee Comment – 2014 
19

. . . .

This section does not attempt to formulate an inclusive definition of 

what constitutes doing business in Pennsylvania. Rather, the concept 

is defined in a negative fashion by subsections (a) and (b), which state 

that certain activities do not constitute doing business. In general terms, 

any conduct more regular, systematic, or extensive than that described 

in subsection (a) constitutes doing business and requires the foreign 

association to register to do business. Typical conduct requiring 

registration includes maintaining an office to conduct local intrastate 

business, selling personal property not in interstate commerce, entering 

into contracts relating to the local business or sales, and owning or using 

real estate for general purposes. But the passive owning of real estate 

for investment purposes does not constitute doing business. See

subsection (a)(10).

. . . .

The list of activities set forth in subsection (a) is not exhaustive.

1. Engaging in Litigation

A foreign association is not “doing business” solely because it resorts 

to the courts of Pennsylvania to recover an indebtedness, enforce an 

obligation, recover possession of personal property, obtain the 

appointment of a receiver, intervene in a pending proceeding, bring a 

petition to compel arbitration, file an appeal bond, or pursue appellate 

remedies. Similarly, a foreign association is not required to register 

merely because it files a complaint with a governmental agency or 

participates in an administrative proceeding within Pennsylvania.

. . . .

5. Isolated Transactions 

The concept of “doing business” involves regular, repeated, and 

continuing business contacts of a local nature.

15 Pa.C.S. § 403(a)(1), (7)-(10), Committee Comment – 2014 subparagraphs 1, 5

(emphasis added). 

In American Housing Trust, our Supreme Court addressed lack of capacity to 

sue regarding a foreign business “doing business” in the Commonwealth and 

described the type of analysis that must be performed on a case-by-case basis to 
20

resolve the issue.11 In that case, the court of common pleas determined that 

American Housing Trust, III (the appellant), at the preliminary objection stage,

lacked the capacity to sue because it was “doing business” within Pennsylvania 

without registering. Although the Superior Court affirmed, the Supreme Court 

reversed. It found that the facts developed at the preliminary stage of the 

proceedings did not enable the court to make a determination as to facts pertaining 

to the corporation’s regular, repeated business contacts, which were critical in 

determining whether the corporation was required to register. The Supreme Court 

noted that “it is well-established that the test for whether a corporation is ‘doing 

business’ in [Pennsylvania] is a question of fact, to be resolved on a case-by-case 

basis.” Am. Hous. Tr. III, 696 A.2d at 1184. The Supreme Court explained that:

Where this factual dispute was raised by the pleadings, in order for the 

trial court to properly rule on . . . preliminary objections to [the]

complaint, there must be of record, all of the facts necessary for the trial 

court to determine whether [the corporation] is statutorily excluded 

from the requirement to obtain a certificate of authority. This 

necessarily entails facts going to both the nature and the extent of [the 

corporation’s] activities in [Pennsylvania]. The trial court may not 

reach a determination based upon its view of the controverted facts, but 

must resolve the dispute by receiving evidence thereon through 

interrogatories, depositions, or an evidentiary hearing. 

Id. at 1185 (citation omitted). 

In this case, after a hearing in which common pleas heard the testimony, it 

found that “the testimony of the Petitioners [Iron and Steel and the Dolans] was 

detailed and credible.” (Common Pleas’ July 6, 2021 Opinion at 8.) The credible 

testimony is that Iron and Steel owns one property, purchased as an investment,

11 American Housing Trust considered the requirements of Sections 4121(a) and 4141 of 

the former Foreign Business Corporations Law, formerly 15 Pa.C.S. §§ 4121, 4141, which were 

replaced by Section 411 of the Associations Code.
21

which it intended to sell, but has not. When its Property was sold at tax sale, without 

Iron and Steel receiving notice, it filed the Petition to Set Aside. This required the 

Bureau to meet its burden of proving that the sale complied with the Tax Sale Law, 

which the Bureau could not do. Under these circumstances, we conclude that Iron 

and Steel is not precluded from contesting the tax sale of its Property. Passive 

ownership of real property does not constitute doing business, and Iron and Steel’s 

ownership and rehabilitation of one property is, under these facts, an isolated

transaction. Iron and Steel was protecting its ownership of real property, which 

according to the credited evidence here, does not constitute “doing business.” 

This determination is consistent with the purpose of Section 411(b), which is 

to induce registration “without imposing harsh or erratic sanctions” and that 

where “the failure to register is a result of inadvertence or bona fide disagreement as 

to the scope of 15 Pa.C.S. § 403 which is necessarily imprecise; . . . the imposition 

of harsh sanctions in those situations is inappropriate.” 15 Pa.C.S. § 411(b), 

Committee Comment 2014 (emphasis added). Here, where Iron and Steel is not 

doing business, as defined by Section 403 of the Associations Code, it would be a 

harsh sanction to preclude it from challenging the tax sale of its property without 

notice. But see Drake Mfg., 109 A.3d at 265 (Superior Court rejected an equitable 

argument that it was unfair to preclude an action due to nonregistration because 

doing so would allow the defendant to get away with not paying for $300,000 in 

merchantable goods). 

V. CONCLUSION

Based on the evidence found credible by common pleas, Iron and Steel was 

not doing business in accordance with Section 403 of the Associations Code and, 

therefore, was not precluded from filing the Petition to Set Aside. That Petition to 
22

Set Aside was properly granted where the Bureau conceded that it did not comply 

with the notice requirements of the Tax Sale Law. Accordingly, we affirm.

__________________________________________

RENÉE COHN JUBELIRER, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Iron and Steel Realty :

Investments, LLC, Douglas Dolan :

and Vicki Dolan :

 :

v. : No. 893 C.D. 2021 

 : 

Westmoreland County Tax Claim :

Bureau and Hoberman Homes, LLC :

 :

Appeal of: Hoberman Homes, LLC :

O R D E R

NOW, June 29, 2022, the Motion to Quash filed by Iron and Steel Realty 

Investments, LLC, Douglas Dolan, and Vicki Dolan is DENIED, and the Order of 

the Court of Common Pleas of Westmoreland County, entered in the abovecaptioned matter, is AFFIRMED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge