Opinion
3JD 2015
09-13-2016
IN RE: Dawn A. Segal Municipal Court Judge First Judicial District Philadelphia County
LAW OFFICES OF STUART L. HAIMOWITZ Stuart L. Haimowitz, Esq. Identification No. 32174 1910 Land Title Building 100 S. Broad Street Philadelphia, PA 19110 (215) 972-1543
LAW OFFICES OF STUART L. HAIMOWITZ
Stuart L. Haimowitz, Esq.
Identification No. 32174
1910 Land Title Building
100 S. Broad Street
Philadelphia, PA 19110
(215) 972-1543 PETITION TO SUPPLEMENT THE RECORD AND TO ADD ADDITIONAL PARAGRAPH 5(a) TO THE PREVIOUSLY FILED OBJECTIONS TO THE JULY 21, 2016, OPINION OF THIS HONORABLE COURT BASED UPON NEWLY DISCOVERED EVIDENCE
Judge Dawn A. Segal, by and through her attorney, Stuart L. Haimowitz, Esquire, files this Petition and in support thereof alleges as follows:
1. On September 13, 2016, counsel discovered the attached stipulated testimony of President Judge Marsha Neifield and Supervising Judge Bradley Moss, both of the Municipal Court of Philadelphia. The stipulated testimony is attached hereto as Exhibit "A" (hereafter stipulated testimony.)
2. The stipulated testimony was presented at the September 8, 2016, trial of Judge Angeles Roca before this Honorable Court.
3. The stipulated testimony was presented by the agreement of counsel for Judge Roca and counsel for the Judicial Conduct Board, introduced at that trial and made part of the record in that case.
4. The stipulated testimony also is relevant, admissible and necessary to important issues in this case. Thus, the contents of the stipulated testimony should be treated and considered as undisputed evidence in the case at bar as well.
5. Specifically, the stipulated testimony corroborates the testimony of Judge Segal and David Denenberg, Esq. given in the instant matter that Judge Segal's rulings in initially denying the petition to open the default judgment and in later granting the petition for reconsideration in the Rexach matter were appropriate and correct and were in accordance with her Court's and her standard policy in similar circumstances.
6. Moreover, the stipulated testimony further demonstrates that Judge Segal's rulings in initially denying the petition to open the default judgment and in later granting the petition for reconsideration in the Rexach matter were appropriate and correct and were in accordance with her Court's and her standard policy in similar circumstances.
7. Accordingly Judge Segal wishes to supplement her previously filed Objections to add paragraph 5(a) [to follow paragraph 5 in the previously filed Objections] as follows:
5(a) The stipulated testimony of President Judge Marsha Neifield and Supervising Judge Bradley Moss, both of the Municipal Court of Philadelphia further demonstrates that this Court ignored uncontradicted, credible, direct and circumstantial evidence that proved Judge Segal's rulings in initially denying the petition to open the default judgment and in later granting the petition for reconsideration in this matter were appropriate and correct and were in accordance with her Court's and her standard policy in similar circumstances.
8. No prejudice will be suffered as this Court has yet to rule on our previously filed Objections.
9. In the interests of justice this Court should accept the submission of the stipulated testimony as a supplement to the record in the case at bar.
WHEREFORE, Judge Segal respectfully requests leave to supplement the record to include the attached stipulated testimony and to add additional paragraph 5(a) to the previously filed objections to the July 21, 2016 Opinion of this Honorable Court based upon newly discovered evidence.
Respectfully submitted,
/s/_________
STUART L. HAIMOWITZ
Counsel for Judge Dawn A. Segal DATE: 9/13/16 IN RE: Angeles Roca Court of Common Pleas First Judicial District Philadelphia County 14 JD 2015
STIPULATED TESTIMONY OF THE HONORABLE MARSHA H. NEIFIELD, PRESIDENT JUDGE OF THE PHILADELPHIA MUNICIPAL COURT, AND THE HONORABLE BRADLEY K. MOSS, SUPERVISING JUDGE OF THE PHILADELPHIA MUNICIPAL COURT'S CIVIL DIVISION
It is hereby stipulated that if the Honorable Marsha H. Neifield and the Honorable Bradley K. Moss testified in the above-referenced matter their testimony would be as follows:
1. The Philadelphia Municipal Court is a court of record that was established in the Commonwealth's 1968 Constitution. See Article V, Section 6(c) ("In the City of Philadelphia there shall be a municipal court. The number of judges and the jurisdiction shall be as provided by law. This court shall exist so long as a community court has not been established or in the event one has been discontinued under this section.").
2. In 2012, the Honorable Marsha H. Neifield was the President Judge of the Philadelphia Municipal Court and the Honorable Bradley K. Moss was the Supervising Judge of the Philadelphia Municipal Court's Civil Division.
3. In 2012, the Philadelphia Municipal Court had a Civil and a Criminal Division. In 2012, the Civil Division's offices and courtrooms were located at 34 S. 11th Street and the Criminal Division's offices and courtrooms were located at 1301 Filbert Street. Judge Neifield did not preside over any civil cases during 2012 and has not done so for at least ten years. Judge Moss regularly presided over civil cases during 2012 and continues to do so.
The Philadelphia Municipal Court currently also has a Traffic Division.
4. The Philadelphia Municipal Court's jurisdiction includes "[c]ivil actions, ... wherein the sum does not exceed $12,000, ... for fines and penalties by any governmental agency." 42 Pa. C.S. § 1123(a)(4)(iii).
5. The Philadelphia Code is the "comprehensive revision and codification of all the general ordinances of the City [of Philadelphia]." Section 1-101 of the Philadelphia Code. In order to enforce the Philadelphia Code, a notice of violation is issued by the City to any person who is alleged to be in violation. See Section 1-112 of the Philadelphia Code. If a person does not come into compliance after receiving a notice of violation, the City may file a code enforcement complaint in the Philadelphia Municipal Court. Id.
6. Chapters 19-500 and 19-2600 of the Philadelphia Code require that persons doing business in the City of Philadelphia file business income and receipts tax returns and pay any applicable tax due in accordance with those returns. These taxes are commonly referred to as the Net Profits Tax ("NPT") and the Business Privilege Tax ("BPT"). Under the Philadelphia Code, it is a civil offense if a taxpayer fails to file a required tax return or to pay any tax due. The amount of the tax that is due cannot be calculated until the taxpayer files the appropriate tax returns. Section 19-509(6) provides the following fine when a taxpayer fails to file a tax return: "Any person who shall have paid, or from whom there is due or alleged to be due any moneys collectible by the Department, including any taxes, rents, charges, or other sums, and who fails and refuses to produce or permit the examination of his books, records, accounts, and related data, or to afford to authorized representatives of the Department an opportunity for such examination, shall be subject to a fine of not more than three hundred (300) dollars for each such offense." Section 1-109(1) of the Philadelphia Code explains that "[e]ach day the violation continues is a separate offense."
7. On March 27, 2012, the City filed a code enforcement complaint against Ian C. Rexach in the Philadelphia Municipal Court. In the complaint, the City alleged that Mr. Rexach failed to file a 2008 Business Privilege Tax Return that was due on April 15, 2009. The case was docketed at CE-12-03-73-0123. The complaint advised Mr. Rexach that he was summoned to appear for a hearing on May 15, 2012 at 1:00 p.m. in Courtroom 4C. A true and correct copy of the complaint and docket is attached as Exhibit "A."
Mr. Rexach has the following history of code enforcement actions:
1. CE0808730787 (Case was brought due to failure to file 2005 BPT return. It was withdrawn without prejudice.);
2. CE1011731433 (Case was brought due to failure to file 2007 BPT return. It was withdrawn without prejudice);
3. CE1012731180 (Case was brought due to failure to file 2007 NPT return. It was withdrawn without prejudice.);
4. CE1203700001 (Case was brought due to failure to pay 2007 NPT return. It was eventually withdrawn without prejudice after Mr. Rexach produced a 2007 NPT return);
5. CE1203730725 (Case was brought due to failure to file 2008 NPT return. It was eventually withdrawn without prejudice.);
6. CE1211730102 (Case was brought due to failure to file 2009 BPT return. It was eventually withdrawn without prejudice.);
7. CE1211730719 (Case was brought due to failure to file 2009 NPT return. On January 9, 2014, a default judgment was entered in the amount of $3.413.50. On January 28, 2014, Judge Segal denied petition to open the default judgment. The docket shows that the judgment has not been satisfied.);
8. CE1408730272 (Case was brought due to failure to file 2010 BPT return. It was eventually dismissed due to lack of service.);
9. CE1409730745 (Case was brought due to failure to file 2010 NPT return. It was eventually withdrawn without prejudice.); and
10. CE1606700239 (Case was brought due to failure to pay taxes. It is scheduled to be heard on September 27, 2016.)
8. The affidavit of service shows that Mr. Rexach was personally served at his alleged place of business on April 6, 2012 at 11:57 a.m.
9. A court-trained employee known as a commissioner normally calls the list of code enforcement complaint cases. At the call of the list, the commissioner first determines if the defendant is present and the City is ready to proceed. The practice described in this paragraph and in subsequent paragraphs existed in 2012 and remains the practice today.
10. The commissioner has the authority to enter a default judgment in a case involving the failure to pay taxes or file tax returns when the defendant is not present, an affidavit of service of original process was filed and the City requests the entry of a default judgment. If the case concerns the failure to pay taxes, the amount of the default judgment is the amount of the tax due. If the case concerns the failure to file tax returns, a $5,000 default judgment is entered. As previously noted, the Philadelphia Code permits a $300 per day fine and, therefore, the $5,000 default judgment amount is well within what is permitted because the length of the delinquency is at least a couple of years. If, however, the defendant is absent and an affidavit of service of original process was not filed, the commissioner may not enter a default judgment and must dismiss the case.
11. If the defendant is not present at a hearing and an affidavit of service of original process was filed, the City may also withdraw the case, mark it settled, discontinued and ended or, with certain limitations, continue the case.
After 2012, the Philadelphia Municipal Court limited the number of times that a continuance may be granted without the approval of a judge.
12. If the defendant is present and the case is not resolved by way of the case being withdrawn, marked settled, discontinued and ended or continued, a trial is held before a Philadelphia Municipal Court judge.
13. Although the President Judge is not present or personally involved with the call of the list, the entry of any Orders authorized by the commissioner are docketed and issued under the name of the President Judge by electronic signature. Additionally, the initials of the commissioner who authorized the entry of such Orders appear on those Orders next to the President Judge's electronic signature.
14. On May 15, 2012, Mr. Rexach did not appear and did not request a continuance. The City requested a default judgment and one was entered. The court mailed Mr. Rexach a notice advising him of the entry of a default judgment. The notice also advised him that:
Philadelphia Municipal Court Civil Rule 116 provides a procedure for a defendant to request in writing prior to a hearing a continuance of any hearing. --------
To avoid further legal action which may result in additional costs to you, and to have this case closed, within 30 days from the date hereof you must hand deliver to the Law Department Non-Filer Unit, One Parkway, 1515 Arch Street, 15th floor, Philadelphia, PA 19102:
1. The completed tax returns which are the subject matter of this lawsuit and
2. A check or money order made payable to the City of Philadelphia in the total amount due set forth above and
3. A copy of this notice.
15. An Order entering a default judgment in the Philadelphia Municipal Court is not a final, appealable Order. An individual may, however, file a petition to open a default judgment. The court has a form petition which asks the petitioner to explain the reason why the petitioner failed to appear at the hearing and why the petitioner has good reason to proceed.
16. On June 12, 2012, Mr. Rexach filed such a petition in which he wrote the following: "I APOLOGIZE, I GOT THIS DATE MIXED UP WITH ANOTHER COURT DATE MUNICIPAL COURT. I WISH FOR THE COURTS TO RE-OPEN MY CASE SO I CAN RESOLVE THIS MATTER AND MAKE PAYMENT. THANK YOU."
17. The chart below provides data about the number of petitions filed during June of 2012.
| TOTAL NUMBEROF PETITIONSFILED | TOTAL NUMBEROF PETITIONS TOOPEN DEFAULTJUDGMENT FILED | TOTAL NUMBEROF PETITIONS TOOPEN DEFAULTJUDGMENT INWHICH A HEARINGWAS GRANTED | TOTAL NUMBEROF PETITIONS TOOPEN DEFAULTJUDGMENT INWHICH THEPETITION WASDENIED WITHOUTA HEARING | |
| June, 2012 | 757 | 207 | 135 (26 were voidedbecause thepetitioner failed tosecure a hearingdate) | 72 |
| Week of June 11, 2012 | 199 | 67 | 38 (4 were voidedbecause thepetitioner failed tosecure a hearingdate) | 29 |
| June 12, 2012 | 19 | 8 | 3 | 5 |
18. All such petitions were and continue to be put on an electronic queue that is part of the Philadelphia Municipal Court's Claims System. In June of 2012, either Supervising Judge Bradley K. Moss or Judge Dawn Segal reviewed those petitions in order to determine whether or not a hearing was warranted based on the averments contained in the petition. Judge Moss issued a schedule every six months which specified the weeks during each six-month period that Judge Segal or he would be responsible for reviewing the petitions.
19. In deciding whether or not a hearing is warranted, a judge must consider that a petition to open a judgment is addressed to the equitable powers of the court and is a matter of judicial discretion. A judge is only to exercise such discretion when the averments in the petition show that a petitioner may be able to show at a hearing that (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure to appear can be excused. See Schultz v. Erie Insurance Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984).
20. If Judge Moss or Judge Segal determined that a hearing was warranted, the judge would check electronically a circle labeled "Grant" and a rule to show cause would be generated. If either judge determined that a hearing was not warranted, the judge electronically would check a circle labeled "Deny" and was required to check at least one of the following explanations: (1) Petition Not Timely Filed; (2) Reason For Missing Hearing Not Sufficient; (3) Defense Set Forth Is Without Merit; (4) Special Order. There is also space for the judge to provide written comments.
21. On June 12, 2012, Judge Segal denied Mr. Rexach's petition to open the default judgment because she determined that the defense set forth was without merit. The court mailed Mr. Rexach a notice advising him that the court had denied his petition, the reason for the denial and the fact that he had thirty days from the date of the court's denial to take an appeal to the Court of Common Pleas.
22. On June 29, 2012, Mr. Rexach filed a petition for reconsideration in which he wrote the following:
Petitioner is asking the Honorable Dawn Segal to reconsider her decision as panting the Petition to Open would not prejudice the Plaintiff but would severely prejudice the Petitioner to the tune of a $5000.00 judgment for a debt of $100.00 or less.
Petitioner is asking the Honorable Dawn Segal to reconsider her decision so that Petitioner may have his day in Court and settle this matter in the appropriate fashion by resolving the matter and making the appropriate payment.
23. The petition for reconsideration was filed during a week that Judge Segal was assigned to handle the petitions. If it had been filed during a week that Judge Moss was assigned to handle the petition, he would have likely referred it to Judge Segal for her consideration since the petition was requesting reconsideration of one of her Orders.
24. On June 29, 2012, Judge Segal granted a hearing on the petition for reconsideration. The court sent notice to the parties that the hearing would be held on July 25, 2012. The notice further advised the parties that:
ALL PARTIES INVOLVED IN THIS CASE (PLAINTIFFS, DEFENDANTS & WITNESSES) MUST BE PRESENT AT THE ABOVE HEARING. IF THE JUDGMENT IS OPENED, THE CASE WILL PROCEED ON THE MERITS IMMEDIATELY.
25. The July 25, 2012 hearing was continued until September 5, 2012. The September 5, 2012 hearing was continued until October 24, 2012. The October 24, 2012 hearing was continued until December 5, 2012. The December 5, 2012 hearing was continued until February 6, 2013. The February 6, 2013 hearing was continued until March 13, 2013.
26. On March 13, 2013, Mr. Rexach appeared at the hearing. The City requested that the commissioner enter an Order vacating the default judgment and withdrawing the case without prejudice. Orders to that effect were entered on the docket under President Judge Neifield's electronically generated name. The initials of "KS" on the signature line signify those of the commissioner who was present in the court on March 13, 2013.
27. Neither President Judge Neifield nor Judge Moss were present or aware of the March 13, 2013 hearing at the time of the hearing. Neither President Judge Neifield nor Judge Moss had any personal involvement with the case of City of Philadelphia v. Rexach, CE-12-03-73-0123 from March 27, 2012, the date on which the case was filed, through and including March 13, 2013, the date on which the case was concluded. /s/_________
Bradley K.Moss
Supervising Judge, Civil Division
Philadelphia Municipal Court /s/_________
Marsha H.Neifield
President Judge
Philadelphia Municipal Court
Image materials not available for display. LAW OFFICES OF STUART L. HAIMOWITZ
Stuart L. Haimowitz, Esq.
Identification No. 32174
1910 Land Title Building
100 S. Broad Street
Philadelphia, PA 19110
(215) 972-1543
AFFIDAVIT OF SERVICE
I hereby certify that in accordance with Rule 122 (E) I have this day served by e-mail and First Class Mail, the attached document upon: Elizabeth A. Flaherty, Assistant Counsel
Judicial Conduct Board
Suite 3500, Pennsylvania Judicial Center
601 Commonwealth Ave.
Harrisburg, PA 17106-2595 Dated this 13thth day of September, 2016
/s/_________
STUART L. HAIMOWITZ
Counsel for Judge Dawn A. Segal