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City of Philadelphia v. Albert's Restaurant, Inc.

Commonwealth Court of Pennsylvania

December 4, 2017

City of Philadelphia
v.
Albert's Restaurant, Inc. and Albert Buoncristiano, Appellants

          Argued: October 19, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          MARY HANNAH LEAVITT, President Judge

         Appellants, Albert's Restaurant, Inc. and Albert Buoncristiano (collectively, Taxpayers), appeal a judgment entered in favor of the City of Philadelphia by the Court of Common Pleas of Philadelphia County (trial court) for payment of business income and receipts taxes, wage taxes, and liquor sales taxes. Taxpayers did not receive telephonic notice of the hearing and, thus, did not appear. Taxpayers contend that the trial court abused its discretion in refusing to grant a continuance of less than 24 hours so that they could be represented at the hearing and in refusing to grant their request for a new trial. We vacate the trial court's judgment and remand the matter for a new hearing.

         Albert's Restaurant, Inc. operated in Philadelphia until 2011, and Buoncristiano was the company's president. The City assigned Albert's Restaurant a tax account number for the filing of business income and receipts (BIR) taxes, wage taxes, and liquor sales taxes.

         In December 2009, the City did an audit that resulted in its claim against Albert's Restaurant for unpaid BIR taxes for years 2006 through 2009;[1] unpaid wage taxes for years 2006 through 2008; and unpaid liquor sales taxes for tax years 2006 through 2009. City's Complaint ¶23; R.R. 28a. Albert's Restaurant filed three separate appeals of the City's tax claims, but the Tax Review Board denied them. In March 2013, Albert's Restaurant appealed the Tax Review Board's decision to the trial court, which was denied.

         On March 2, 2015, the City filed suit against Taxpayers for payment of the combined taxes of $111, 118.44, plus interest and penalties. On July 9, 2015, the trial court entered a case management order placing the City's action on the expedited track and into the July 2016 trial pool. Cases in the fast track receive notice of the date of trial on a "next day minimum" basis, no later than 3:00 p.m. on the day prior to jury selection. See Philadelphia County Administrative Judicial Order 98-1 (stating that cases will be assigned on a "next day minimum" notice basis and no "later than 3:00 p.m. on the day prior to jury selection."). Consistent with the case management order, the parties were directed to notify each other and the trial court of availability for trial in the month of July.[2]

         On July 20, 2016, the trial court's administrative staff notified counsel for the parties, by voicemail, that the case would be heard the next day at 9:30 a.m. in City Hall, Courtroom 636. When the court called the case for trial at 9:30 a.m. on July 21, 2016, neither party appeared.

         Court staff contacted both counsel. Taxpayers' counsel informed the trial court that he was in New York but could appear the following day at 9:00 a.m. At 11:14 a.m., the trial court notified the parties, by e-mail, as follows:

This matter was listed in the July Trial Pool and thus was subject to scheduling within 24 hours' notice. Sufficient notice was given to all parties by the Court via voicemail for a non-jury trial to begin on 7/21/16 at 9:30 am. Because there was sufficient notice and [] no documentation with the court that either party would be unavailable on 7/21/16, trial will begin today at 11:30 a.m.

         R.R. 595a.

         At 12:15 p.m., the City appeared with its witnesses and counsel. Taxpayers did not appear. The trial court stated, in pertinent part, as follows:

June 6th of 2016 a settlement conference was held. It appears from the record that [Taxpayers' counsel] participated, although he arrived late. He was subsequently fined $100 by the Honorable Sheridan Harris for his failure to have a settlement memo at that meeting.
June 7th of 2016 defense counsel advised the Court administrator of his unavailable dates in July: July 11th, July 12th, July 13th, 14thand 15th, and the period from July 24th through August 2nd.
July 20th, pursuant to Court protocol, both parties were called and I was advised that this matter was ready and would be called today at 9:30 in Room 636.
When I arrived at Court today no counsel were here.
Mr. Richards, my tipstaff, contacted both parties. There has been some e-mail correspondence and telephone communication, the upshot of which is I advised the parties that the matter would be called to trial today.
We had hoped to do so before noon, but here we are.

         Notes of Testimony (N.T.), 7/21/2016, at 7-8; R.R. 231a. The City presented its case, and the next day, the trial court issued a judgment against Taxpayers in the amount of $326, 106.97.

         On July 26, 2016, the City filed a motion for reconsideration to correct an error.[3] Specifically, the City requested a judgment against Albert's Restaurant in the amount of $317, 238.86 and a judgment against Buoncristiano, personally, in the amount of $209, 594.21.

         On August 5, 2016, Taxpayers filed a motion for post-trial relief, requesting judgment notwithstanding the verdict or a new trial. Taxpayers' motion asserted that based upon his discussion with opposing counsel, Taxpayers' counsel understood that the City's counsel would be out of the office the entire week of July 18th. This absence, he believed, placed the City's action in the August pool. Taxpayers' motion also asserted that Taxpayers' counsel did not receive the voicemail message that the hearing would take place on July 21, 2016. Taxpayers' motion for post-trial relief requested leave to amend, following receipt and review of the trial transcript.

         On August 17, 2016, the trial court heard argument on the City's motion for reconsideration and Taxpayers' motion for post-trial relief. At the beginning of argument, the trial court stated:

When the case was called, counsel were given 24 hours' notice by phone from our conference litigation unit, which is customary, but when the case was called on the day of ...

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