Commonwealth Court remands Albert's Restaurant tax dispute for new trial

By John Revak | Dec 21, 2017

HARRISBURG – The Commonwealth Court has ruled on a case that could have ramifications for a when party can be granted a continuance.

The court vacated the Philadelphia County Common Pleas Court's ruling denying Albert’s Restaurant Inc. and Albert Buoncristiano's motion for post-trail relief and remanded the case for a new trial, stating that the trial court "abused its discretion in failing to grant" a new trial. The opinion was filed Dec. 4.

The case initially centered on a tax dispute between the city of Philadelphia and Albert’s Restaurant Inc., and the owner of the restaurant Buoncristiano.

The opinion states the city sued the defendants in March 2015 for a slew of allegedly unpaid taxes, including unpaid business income and receipts taxes, wage taxes and liquor sales taxes.

The matter evolved into a dispute over the grounds on which a continuance can be granted when the defendants’ counsel failed to appear for the trial on July 21, 2016.  

Defendants’ counsel contended that he had not been given notice of when the trial would be occurring due to a miscommunication, the opinion states. He claimed that the plaintiff’s counsel had communicated that he would be unavailable on the week of July 18 and thus assumed the trial would not be held on that date.

According to the opinion, plaintiffs counsel also failed to appear by the 9:30 a.m. start time, but was granted a three-hour continuance by the court and was able to appear. Defendants' counsel was unable to appear in court that day and moved for a 24-hour continuance but it was denied by the trial court. 

Judgment was entered against the defendants and the defense appealed the trial court’s refusal to grant a continuance.

The defendants contended that because there was a breakdown in communication between the court, the city’s counsel, and their counsel, a one-day continuance should have been granted. They contended further that the trial court abused its discretion by not granting a continuance, the opinion states.

The city argued that defendants did not have valid ground for a continuance, and their counsel’s failure to appear at the trial was part of a pattern of similar misconduct.

The court, led by Judge Mary Hannah Leavitt, found for the defendants. Stating that their counsel was not properly notified of the trial date, and that there was no reason for the trial court to deny them a continuance. 

The court also considered the fact that the trial court granted the city a shorter continuance the day of the trial, which allowed their counsel to appear in time.

“In short, the trial court allowed the city to escape a non-suit, to the detriment of the taxpayers (the defendants), notwithstanding the fact that neither party was present when the case was called,” Leavitt’s opinion read.

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