IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael A. Lasher v. No. 1591 C.D. 2012 Submitted May 24, 2013 Lackawanna County Tax Claim Bureau Appeal of Balaji Investments, LLC BEFORE HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED July 31, 2013 Balaji Investments, LLC (Balaji) appeals from the July 13, 2012 Order of the Court of Common Pleas of Lackawanna County (trial court), denying Balaji s (i) Petition to Intervene, (ii) Petition to Strike Order of May 9, 2012, and (iii) Petition to Schedule a Rehearing. Balaji was the successful bidder at the Lackawanna County Tax Claim Bureau (Bureau) upset tax sale, held on September 26, 2011, of the property located at 1101 Cedar Avenue, Scranton, formerly owned by Michael A. Lasher (Lasher). 1 In March 2012, Lasher filed a Petition to Set Aside Public Upset Tax Sale, due to the failure of the Bureau to provide notice of the sale as required by 1 By Order dated May 20, 2013, this Court precluded Lasher from filing a brief in this matter or participating in oral argument due to his failure to comply with our prior Order of April 15, 2013, directing him to file a brief.
Section 602 of the Real Estate Tax Sale Law (Tax Sale Law). 2 A hearing was held on May 8, 2012 before the trial court; however, Balaji was not provided notice of the Petition to Set Aside Public Sale nor the hearing date, and was not present at the hearing. (Trial Court Opinion (Tr. Ct. Op.), Reproduced Record (R.R.) at 41.) At the hearing, Lasher and Bureau s counsel appeared, and oral argument took place, although the record contains no transcript. The trial judge found that the Bureau failed to meet the Section 602 notice requirements, and granted the Petition to Set Aside Public Sale. (Id.) On June 4, 2012, having been made aware of the fact that a hearing had been held and an order issued, Balaji filed its Petition to Intervene, Petition to Strike the trial judge s Order of May 9, 2012, and Petition to Schedule Rehearing; oral argument was held on the matter on July 11, 2012. Following oral argument, the trial judge issued its July 13, 2012 Order denying Balaji s petitions, and on August 13, 2012, Balaji filed a notice of appeal to this Court. In compliance with Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, the trial judge 2 Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. 5860.602. Section 602(a) of the Tax Sale Law requires that before an upset tax sale, the public must be given notice of the sale. 72 P.S. 5860.602(a). In addition, each owner of the property being listed for upset tax sale must be given notice by certified mail. Section 602(e) states (e) In addition to such publications, similar notice of sale shall also be given by the bureau 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.... 72 P.S. 5860.602(e). 2
filed its opinion on August 13, 2012. Therein, the trial court summarized Balaji s position and Lasher s response [Balaji] argues that as the purchaser of the property at the upset tax sale, it is entitled to argue its position and to argue the merits of the case as the equitable owner of the property. [Balaji] argues that since a hearing was held and an Order issued without the input and argument of [Balaji], [Balaji] should be permitted to intervene [Lasher] simply argues that even if [Balaji] was allowed to argue its position and be present at a hearing, the outcome would be the same. (Tr. Ct. Op., R.R. at 41.) The trial judge found that Balaji was obviously an interested party who could be permitted to file a petition to intervene. 3 However, 3 Pennsylvania Rules of Civil Procedure Nos. 2326-2350 govern intervention. Rule 2327 provides that [a]t any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to the following rules Pa. R.C.P. No. 2327. (1) The entry of a judgment in such action or the satisfaction of such a judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or (2) Such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or (3) Such person could have joined as an original party in the action or could have joined therein; or (4) The determination of such action may affect any legally enforceable interest of such a person whether or not such person may be bound by a judgment in action. 3
the trial court noted that Pennsylvania Rule of Civil Procedure No. 2329 expressly permits a Petition to Intervene to be refused if (1) the claim or defense of the petitioner is not in subordination to and in recognition of the propriety of the action; or (2) the interest of the petitioner is already adequately represented; or (3) The petitioner has unduly delayed in making the application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties. Pa. R.C.P. No. 2329 (emphasis added.) The trial judge determined that even though Balaji was not provided with notice of the May 8, 2012 hearing and was unable to argue its position as the purchaser of the property at the upset tax sale, its interests were adequately represented by the presence of the Bureau s counsel. (Tr. Ct. Op., R.R. at 42-3.) On appeal to this Court, 4 Balaji argues that as successful bidder at the upset tax sale, it is an indispensable party at the May 8, 2012 hearing, and the trial court abused its discretion by stating that since the Bureau allegedly failed to meet its burden of proving compliance with the notice provisions, 5 somehow Balaji does 4 Our review is limited to a determination of whether the trial court rendered a decision without supporting evidence, erred as a matter of law or abused its discretion. Pitts v. Delaware County Tax Claim Bureau, 967 A.2d 1047, 1052 n.8 (Pa. Cmwlth. 2009). 5 It is the Bureau that has the burden of proving compliance with the applicable notice provisions. Casaday v. Clearfield County Tax Claim Bureau, 627 A.2d 257, 258 (Pa. Cmwlth. 1993). 4
not have the right to appear at the hearing where its rights were affected. (Balaji s Brief at 6.) While we readily acknowledge that Balaji s interest may well have been adequately represented at the hearing on the Petition to Upset Tax Sale, in the absence of a transcript from the proceedings, we cannot exercise independent, reasoned appellate judgment. For that reason, we will vacate (i) the July 13, 2012 Order of the trial court denying the Petition to Intervene, Petition to Strike Order of May 9, 2012, and Petition to Schedule a Rehearing; and (ii) the May 9, 2012 Order of the trial court granting the Petition to Set Aside the Upset Tax Sale, and remand to the trial court for a new hearing on the merits of the Petition to Set Aside Tax Sale, with a court stenographer present, and Balaji permitted to participate. An appropriate order follows. JAMES GARDNER COLINS, Senior Judge 5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael A. Lasher v. No. 1591 C.D. 2012 Lackawanna County Tax Claim Bureau Appeal of Balaji Investments, LLC O R D E R AND NOW, this 31 st day of July, 2013, the Orders of the Court of Common Pleas of Lackawanna County (i) dated July 13, 2012, denying the Petition to Intervene, Petition to Strike Order of May 9, 2012, and Petition to Schedule a Rehearing; and (ii) dated May 9, 2012, granting the Petition to Set Aside the Upset Tax Sale, are VACATED. We REMAND to the Court of Common Pleas of Lackawanna County for a new hearing on the merits of the Petition to Set Aside Tax Sale, with a court stenographer present, and Balaji permitted to participate. Jurisdiction relinquished. JAMES GARDNER COLINS, Senior Judge