IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :
:
v. : No. 1647 C.D. 2016 : Argued: October 19, 2017 Albert ’ s Restaurant, Inc. : and Albert Buoncristiano, :

Appellants :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY PRESIDENT JUDGE LEAVITT FILED: December 4, 2017

Appellants, Albert’s Restaurant, Inc

. and Albert Buonc ristiano (collectively

, Taxpaye rs)

, 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 r eceipts taxes, wage taxes, and liquor sales t axes. Taxpayers did not receive telephon ic 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 t ax account number for th e filing of business income and r eceipts (BIR) taxes, wage taxes, and liquor sales t axes.2 In December 2009, the City did an audit that resulted in i t s claim against

Albert’s Restaurant for unpaid BIR taxes for years 2006 through 200 9; 1 unpaid w age

taxes for years 2006 through 2008; and unpaid l iquor 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 t hem

. In March 2013, Albert’s Restaurant appeal ed 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 c ase m anagement 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 tha n 3:00 p.m. on the day prior to jury selection. See Philadelphia County Adm inistrative Judicial

Order 98

- 1 ( stating that c ases will be assigned on a “next day minimum” notice basis

and no “ later than 3:00 p.m. on the day prior to j ury s election.”). Consi stent 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

1 The City’s Department of Revenue did an estimated audit of Albert’s Restaurant for the BIR Tax for 2006 through 2008; for the Wage Tax for years 2006 through 2008; and the Liquor Sales T ax for years 2006 through 2009. In January 2010, the Audit Division assessed Albert’s Restaurant in the a mount of $295,517.67, exclus ive of interest and penalties. City’s Complaint ¶23; Reproduced Record at 28a (R.R. __). Thereafter, Albert’s Restaurant filed three petitions for review, challe nging each of the assessments. In August 2011, the Tax Review Bo ard authorized the City to do a r e

- audit of Albert’s Restaurant based on records it pr ovided. Following the re

- audit, Albert’s Restaurant was assessed $111,118.44, exclusive of i nterest and penalties. Id . at ¶32; R.R. 29a.

2 The City’s counsel informe d Taxpayers’ counsel and the trial court that he was unavailable July 1, July 14

- 15, and July 18

- 20.3 On July 20, 2016, the trial court ’s administrative staff no tified counsel for the parties

, by voicem ail, that the case would be heard the next day at 9:30 a.m. in City Hall, Courtroom 636. W hen the c ourt called the case for trial at 9 : 30 a.m. on July 21, 2016, neither part y appeared

.

Court staff contacted both counsel. Taxpayer s ’ 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., t he t rial 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 th ere was sufficient notice and [] no d ocumentation 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

. T he trial court stated, in pertinent part , as follows:

June 6 th 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 s ettlement memo at that meeting.

June 7 th of 2016 defense counsel advised the Court administrator of his unavailable dates in July: July 11 th , July 12 th , July 13 th , 14 th and 15 th , and the period from July 24 th through August 2 nd

. July 20 th , pursuant to Cour t 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.4 Mr. Richards, my tip staff, contacted both parties. There has been

some e

- m ail 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 C ity 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 a ga inst Albert’s Restaurant in

the amount of $317,238.86 and a judgment against Buoncri stiano , personally, in the

amount of $209,594.21.

O n August 5, 2016, Taxpayers filed a motion for post

- trial relief, requesting judgment notwithstan ding 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

18 th

. 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:

3 A motion for reconsideration can be treated as a post

- trial motion where the relief requested is in accordance with P A . R.C.P. No. 227.1. See Arches C ondominium Association v. Robinson , 131 A.3d 122, 129 (Pa. Cmwlth. 2015).5 When the case was called, couns el 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 the hearing, neither counsel were here.
Telephone calls were made both to the City of Philadelphia, city solicitor ’s o ffice, as well as to [Taxpayers’ ] counsel, Mr. Paul Sosnowski.
After some coaxing, the city appeared with its witnesses . Mr. Sosnowski advised the Court by telephone that he was unable to attend.
Although he didn’t acknowledge not getting the phone call , but he didn’t quite say that he had gotten the phone call.

N.T., 8/17/2016, at 4; R.R. 567a (emphasis added)

.

Taxpayers’ counsel responded that he “was not aware that [he] had received a telephone call from the day before. The reason being, [he] was i n New

York.” Id. at 5; R.R. 568a. He explained that he has a part

- time practice in Philadelphia. His principal client is a credit union headquartered in Newark, New
Jersey. Because the City’s counsel stated that he was going to be out of the office

the week of July 18 th

, Taxpayers’ counsel did not expect to be called for trial and was not “looking for telephone calls on one day notice[.]” Id. at 11 ; R.R. 569a.
Taxpayers requested the trial court to open the record to permit the presentation of evidence in response to the City’s case

. In the alternative, Taxpayers requested a

new trial. The City’s counsel responded that he did not list July 21, 2016, as a

date he would be unavailable for trial . He did not deny the conversation described by Taxp ayers’ counsel but stated that he could “not recall the exact content of this conversation” or when it occurred. R.R. 554a. The City claimed that a new trial

would be prejudicial because of the City audito r ’s limited availability

.6 The trial court den ied Taxpayers’ motion for post

- trial relief . The trial

court reasoned that the parties understood the court’s procedures. Counsel were not at liberty to decide themselves on the trial date. Accordingly, the trial court had the

discretion to proceed with trial and did so

. Taxpayers appealed to this Court

.

On appeal, 4 Taxpayers raise two issues

. 5 First, Taxpayers contend that the trial court erred and abused its discretion in denying their request for a

continuance and their post

- trial motion for a new trial, which denied them due

process

. Second, Taxpayers contend that the trial court erred in holding Buoncristiano, a corporate officer, liable for liquor taxes imposed on Albert’s Restaurant because he was not a vendor of alcoholic beverages.

In their first issue, Taxpayers contend that the trial court erred in denying their request for a new trial , which violate d their right to due process.
Moreover, t h e trial court a bused its disc retion in denying their request for a one

- day

continuance of trial.

Taxpayers explain that Pennsylvania courts “have repeatedly held that

a trial court’s den ial of a short continuance is an abuse of discretion

. ” Taxpayers’

Brief at 20. A continuance of 24 hours is short. They also note that there is no record evidence that, in fact, the court’s administrative staff gave the parties “24 hours’ notice by phone

, ” as asserted by the trial court. N.T., 8/17/2016, at 4; R.R.

567a. Taxpayers contend that there was a breakdown in the court’s communicati on
system , as evidenced by the fact that neither party was present when the case was

4 This Court’s scope of review, when reviewing an order denying a motion for post

- trial relief, is to determine whether the trial court abused its discretion or committed an error of law. City of Philadelphia v. Petherbridge , 781 A.2d 263, 265 n. 6 (Pa. Cmwlth. 2001).

5 For purposes of clarity, we combine two of Taxpayer s ’ issues, i.e. , that the trial court erred and abused its discretion in denying their request for a continuance of the hearing and their request for a new trial.7

called for trial at 9:30 a.m. on July 21, 2016. The City responds that Taxpayers

waived th e issue of the denial of the continuance because they did not raise it in their

post

- trial motion and, further , Taxpayers did not present a valid ground for

continuance.

We begin with waiver. P ost

- trial motions must be filed at the conclusion of a trial to preserve issues to be raised on appeal. See P A . R.C.P. No.

227.1. “Issues not raised in a timely post

- trial motion will be deemed waived.” State Farm Fire and Casualty Company v. JPC Group, Incorporated , 157 A.3d 1, 5 (Pa.
Cmwlth. 2017).

Here, Taxpayers filed a timely post

- trial motion arguing that, due to a misunderstanding of their counsel, they were unable to appear for trial on July 21,
2016, and present a defense

. Taxpayers sought a new trial

, judgmen t notwithstanding the verdict or leave to reopen the record

. Taxpayers did not explicitl y challenge the trial court’s denial of a request for a one

- day continuance

. However, Taxpayers did state in their post

- trial motion:

[Taxpayers ’ ] counsel informed the [trial court] that he was unable to appear in court on July 21, 2016 but was available to be in Courtroom 636 the following morning at 9:00 a.m.

Taxpayers’ Post

- Trial Motion ¶7; R.R. 546a. Likewise, t he post

- trial motion specifically stated that James Berardinelli, Esq. appeared in court on Taxpayers’

behalf

. 6 Id. at ¶11; R.R. 547a. Final ly, the City concede s that Taxp ayers requested

a continuance on the day of the trial. City’s Brief at 22 (“... [Taxpayers’]

6 Taxpayers explained that their counsel arranged for Berardinelli to appear at trial and request, “if possible, [trial] can begin tomorr ow as opposed to today.” N.T., 7/21/2016, at 4; R.R. 230a. The trial court inquire d of Berardinelli if he was present to request to have the matter continued, to which he replied

, “I guess that’s probably the safest way to phrase it.” Id. at 5; R.R. 231 a.8

continuance request made on the day of trial.”). Taxpayers’ request for a

continuance on the day of trial preserved the issue and, t hus, we reject the City’s

waiver argument

.

C ourt s will reverse the denial of a continuance only if the trial court

“has abused its discretion.” Commonwealth v. Paddy , 15 A.3d 431, 470 (Pa. 2011).

T he trial court believed that both parties were notified by voicemail that the trial

would start at 9:30 a.m.

, on July 21, 2016 . However, neither party appeared when

the case was called for trial.

The Pennsylvania Rules of Civil Procedure specify what must happen when the parties do not appear for trial

. Spec ifically, Rule 218 states as follows:

(a) Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court’s own motion

. (b) If without satisfacto ry excuse a defendant is not ready, the plaintiff may
(1) proceed to trial, or,
(2) if the case called for trial is an appeal from compulsory arbitration, either proceed to trial or request the court to dismiss the appeal and reinstate the arbitration award.
(c) A party who fails to appear for trial shall be deemed to be not ready without s atisfactory excuse.

P A . R.C.P . No. 218 (emphasis added)

.

Here, because neither the City nor Taxpayers appeared for trial at the appointed hour , under Rule 218(c) both parties were to be deemed “not ready without satisfactory excuse.” P A . R.C.P. No. 218 ( c)

. As a result, t he trial court9

should have enter ed a non

- suit or non pros against the City. Instead, the trial court

“coaxed” the City to put on its case three hours later in spite of knowing that Taxpayers’ counsel was out

- of

- state

. In short, the trial court allowed the City to

escape a non

- suit

, to the detriment of Taxpayers, notwithstanding the fact that neither
party wa s present when the case was called

.

Abuse of discretion is more than a simple error of judg ment ; rather,

abuse of discretion r equires the showing of a manifestly unreasonable judgment.

This Court has elaborated on abuse of discretion as follows :

Judicial discretion, broadly defined, is the option which a judge may exercise either to do or not to do that which is proposed to him. As a guide to judicial action, it means a sound discretion exercised with due regard for what is right and equitable under the circumstances and under the law . Abuse of discretion is not merely an error of judgment; however, if, in reaching a conclusion , the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.

Commonwealth v. Korn , 467 A.2d 1203, 1205 ( Pa. Cmwlth. 1983) (emphasis
added). We conclude that it was manifestly unreasonable to deny Taxpayers’ request for a very short continuance while granting the City a continuance so that it

could proceed on its case without the presence of Taxpayers

.

Taxpayers also assert that their counsel proffer ed a satisfactory excuse to explain his absence from trial. The City responds that Taxpayers’ counsel’s failure to appear at trial was part of a well

- documented pattern of misconduct. City’s

B rief at 12. I n denying Taxpayers’ post

- trial motion for a new hearing , t he trial court explained as follows :

Mr. Sosnowski, Mr. Cullin, I think you are both aware that the manner in which our civil cases are handled provides ample10 opportunity for all parties to provide the Court with conflict dates. It’s tightly controlled and it cannot be governed by the attorneys who appear in this Court. They are not at liberty to arrange between themselves what dates a case will be heard.
For that reason, for cases such as this, we have a 24 hour notice rule. That rule was observed in this matter, perhaps to the dismay of Mr. Sosnowski. You are not a stranger to our civil case management system, sir.

N.T., 8/17/2016, at 17; R.R. 571a. In its opinion, the trial court stated that, “[Mr. Sosnowski’s] informal conversation [did] not supplant the procedures [outlined] by Philadelphia County’s Local Rules and [did] not excuse his failure to check his

voicemail.” Trial Court 1925 (a) Op

. at 6.

The comment to Rule 218 states, in relevant part, as follows:
A decision of the court following a trial at which the defendant failed to appear is subject to the filing of a motion for post

- trial relief which may include a request for a new trial on the g round of a satisf actory excuse for the defendant’ s failure to appear.

P A R.C.P. No. 218, Comment. Case law precedent has established guidance on when a court should grant a new trial where a party’s counsel does not appear. We

have identified the factors that should be consider ed :

(1) whether counsel’s failure to appear was part of a pattern of improper behavior, misconduct or abuse; (2) w hether the failure to appear was inadvertent; (3) whether the court attempted to contact counsel; (4) whether t he opposing party would be prejudiced by the delay; and (5) whether the court gave any consideration to lesser sanctions.

Williams ex. rel. Williams v. School District of Philadelphia , 870 A.2d 414, 416 (Pa. Cmwlth. 2005) (citing Shin v. Brenan , 764 A.2d 6 09 (Pa. Super. 2000)). Courts

review an attorney’s absence by considering the extent to which these circumstances

are relevant.11 In its R ule 1925(a) opinion, the trial court noted that Taxpayers’

counsel had been sanctioned $100 for not submitting a settlement memorandum on
time

. The trial court found that counsel’s late appearance at the settlement and concomitant late filing of the settlement memorandum constituted a pattern of

misconduct that was capped by counsel’s failure to appear at trial

. We disagree.

It is not clear that tardiness is even “ misconduct

. ” However, the

tardiness of counsel related to a single matter, the settlement conference

. There is no “pattern” in being late for a settlement conference and not appearing at a trial for

whi ch notice was not received.

The trial court further stated in its opinion that Taxpayers’ failure to

appear at trial was deliberate, not inadvertent

, because their counsel did not listen to

his voicemail on July 20, 2016

. T he trial court stated that bot h counsel were given

24 hours’ notice “via voicemail

, ” but this assumption is not supported by record

evidence. Trial Court 1925(a) op. at 2. N o witness from the court’s administration

testified about this telephone call . The identity of the caller, the time of the call, the number called, or the content of the message remain unknown

. 7 Without a record or relevant findings of fact , t he trial court’s assertion that Taxpayers’ counsel was deliberately absent lacks a found ation in the record

. Rather, it appears that Taxpayers’ counsel , as was the case with the City’s counsel, did not know the trial would take place on the morning of July 21, 2016

.

T he City asserts that a new trial would be prejudicial because its field

a uditor is difficult to schedule

. T his rings hollow because the auditor has to be ready to appear on short notice in any tax case placed on the fast track

.

7 Likewise, the trial court did not make a factual finding about whether the City’s counsel, as claimed by Taxpayers, had stated to Taxpayers’ counsel that he would be unavailable the week of July 18, 2016.12 F inally , the trial court has an interest in controlling its docket.
However, o ther , less severe, sanctions were available to advance this interest, but, apparently, were not considered

.

Having considered all the circumstances, we find that Taxpayers’

counsel proffered a satisfactory ex planation for his absence at trial. Thus, the trial court abused its discretion in failing to grant Taxpayers a new trial.

For the foregoing reasons, we vacate the trial court’s order denying Taxpayers’ motion for post

- trial relief and remand this matter for a new trial. 8

_____ _________________________________ MARY HANNAH LEAVITT, President Judge

8 In light of this Court’s disposition, we need not address Taxpayers’ remaining argument that the trial court erred in holding Buoncristiano was liable for the corporation’s liquor sales taxes.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :
:
v. : No. 1647 C.D. 2016

: Albert’s Restaurant, Inc. : and Albert Buoncristiano, :

Appellants :

O R D E R

AND NOW, this 4 th day of December , 2017, the order s of the Philadelphia County Court of Common Pleas dated July 22, 2016, and August 17,
2016, are hereby VACATED and this matter is REMANDED for a new trial on the City of Philadelphia’s Complaint.

Jurisdiction relinquished.

______________________________________ MARY HANNAH LEAVITT, Pr esident Judge