Argued: October 19, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge HONORABLE BONNIE BRIGANCE
LEADBETTER, Senior Judge
HANNAH LEAVITT, President Judge
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.
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.
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; 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
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
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.
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.
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.
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.
26, 2016, the City filed a motion for reconsideration to
correct an error. 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.
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.
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 ...