Opinion
No. 515 C.D. 2013
04-07-2014
Appeal of Nathan Lerner from the Decision of the Philadelphia Tax Review Board Appeal of: Nathan Lerner
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Nathan Lerner appeals, pro se, an order of the Court of Common Pleas of Philadelphia County (trial court) quashing his appeal of two decisions of the Philadelphia Tax Review Board on his tax assessments. The trial court quashed Lerner's appeal because he had failed to comply with a case management order of the trial court. On appeal, Lerner asserts that the trial court abused its discretion in dismissing his appeal because he could not afford the transcript and the other party, i.e., the City of Philadelphia, complied with the order in question, making his compliance redundant and unnecessary. In addition, Lerner challenges the merits of the taxes in question. We affirm.
On September 25, 2009, the City of Philadelphia filed a collection action against Lerner for nonpayment of certain City business privilege and net profits taxes that were imposed in 2006. When Lerner did not pay the tax assessments, the City filed a collection action seeking tax payments in excess of $200,000.
On November 12, 2010, Lerner filed petitions with the Philadelphia Tax Review Board to challenge the tax assessments that were the subject of the City's collection action. At the hearing before the Board, the City argued that the Board lacked jurisdiction because the taxes at issue were the subject of a collection action pending with the trial court. On May 25, 2012, the Board issued two orders. The first dismissed Lerner's challenge to the net profit tax, and the second dismissed his challenge to the business privilege tax. In each case, the Board concluded that it lacked jurisdiction because of the City's pending collection proceeding in the trial court.
Lerner appealed the Board's orders to the trial court. On June 25, 2012, the trial court issued a case management order directing Lerner to order a transcript of the Board proceedings and to pay for the cost of the transcript. The case management order warned that "[f]ailure to order the transcript will result in the dismissal of the appeal absent good cause shown." Supplemental Reproduced Record of the City at 94b (S.R.R. ___). Thereafter, on August 23, 2012, the trial court consolidated Lerner's appeal of the Board's orders with the City's pending collection action and scheduled a hearing for September 6, 2012.
At the September hearing, the trial court learned that Lerner had not ordered a transcript of the Board proceeding. The trial court directed Lerner to pay for the transcript within 20 days, and Lerner agreed to do so. Later that day, the trial court issued an order memorializing its directive, which stated that Lerner must "pay for transcript within twenty days as agreed." S.R.R. 95b. The September 6th order was docketed on September 10, 2012.
On December 17, 2012, the City filed a motion to quash Lerner's appeal of the Board's orders because he had not paid for the Board transcript. Lerner answered the City's motion, explaining that he had decided not to purchase the transcript because it was "entirely extraneous, irrelevant and immaterial to the narrow and circumscribed appellate issue, which is pending disposition by the [trial court]." S.R.R. 108b. Lerner also filed a motion requesting that he be excused from purchasing the transcript. In support, Lerner acknowledged that he had agreed to purchase the transcript of the Board hearing; however, he later discovered new evidence that prompted him to file a motion for rehearing with the Board. Based on the new evidence, Lerner made the
This motion was later denied. In his brief, Lerner claims the newly discovered evidence was that the City had misrepresented to the trial court that the delinquent tax billing and the original tax notice were the same document. Further the Board had failed to adjudicate the issue of the net profit tax for years 2001 through 2005. Thus, this issue remained outstanding before the Board.
carefully reasoned decision not to incur the substantial cost of purchasing the transcript ... based upon the fact that the transcript of the administrative hearing had been rendered moot by after-discovered evidence.S.R.R. 135b-36b.
The trial court quashed Lerner's appeal of the Board's order for the stated reason that Lerner had failed to prosecute his appeal by not paying for the transcript by October 1, 2012, as he had agreed to do. Further, Lerner did not request an extension of the October 1, 2012, deadline or assert an inability to pay for the transcript. Lerner simply decided that the trial court did not need a copy of the Board transcript, but this was not his prerogative. Lerner's job was to comply with the trial court's orders. The trial court refused to permit Lerner "to forestall the ultimate conclusion in the underlying tax appeal by ignoring the [trial court's] Order to pay for the transcript necessary for disposition of this matter." Trial Court Opinion at 6.
As a result of this order, the case was no longer consolidated with the remaining collection action. This Court's standard of review of a trial court's order granting a motion to quash is whether the trial court committed an error of law, an abuse of discretion or a violation of constitutional rights. Alma v. Monroe County Board of Assessment Appeals, 83 A.3d 1121, 1123 n.3 (Pa. Cmwlth. 2014).
On appeal to this Court, Lerner argues that: (1) the trial court erred in allowing the City to concoct erroneous tax assessments; (2) the trial court erred in not permitting him to present evidence establishing he did not owe any tax to the City; (3) the trial court erred in not remanding the matter to the Board; and (4) he had good cause for not purchasing the transcript, i.e., he could not afford to purchase the transcript and the City was not prejudiced because it had obtained a copy of the Board's hearing transcript.
Lerner does not indicate when the City's purported purchase of the hearing transcript occurred. It is not part of the record before the trial court. --------
The merits of Lerner's appeal of the tax assessments to the trial court and whether a decision on the merits would have resulted in remand to the Board are not before us. The only issue is the trial court's dismissal of Lerner's appeal of the Board's orders. Accordingly, the only issue we address is Lerner's fourth issue, i.e., whether he had good cause for not purchasing the hearing transcript.
Generally, a trial court has authority to enforce its own orders, and its enforcement decisions will not be overturned on appeal absent an abuse of discretion. Konya v. District Attorney of Northampton County, 543 Pa. 32, 36, 669 A.2d 890, 892 (1995); see also Henderson v. Bogusky, (Pa. Cmwlth., No. 1971 C.D. 2007, filed July 29, 2008). Enforcement authority includes dismissal of an action for failure to comply with court ordered deadlines. Konya, 543 Pa. at 35-36, 669 A.2d at 892; Henderson, slip opinion at 4-5. In Konya, the Pennsylvania Supreme Court explained that to require a court to overlook its own deadline "would be to countenance the dilatory actions of litigants who blatantly disregard court orders." Id. at 36, 669 A.2d at 892. Further, the Supreme Court refused to adopt a rule that as long as no prejudice is suffered, a court order can be disregarded. To do so "would be hindering the orderly disposition of cases before the courts of the Commonwealth and injecting into well-grounded procedure an element of uncertainty w[h]ere there should be none." Id.
On June 25, 2012, Lerner was ordered to obtain the Board hearing transcript and to pay the costs therefor, on pain of having his appeal dismissed. Specifically, the trial court ordered Lerner to serve the Board's stenographer with a copy of the court's order within 10 days and to arrange payment. At the hearing on September 6, 2012, the trial court learned that Lerner had not complied with this order. Lerner was again ordered to obtain and pay for the hearing transcript and was given 20 days to do so. On September 6, 2012, the trial court also issued an order that memorialized its directive that Lerner is "to pay for transcript within twenty days as agreed." S.R.R. 95b.
In his answer to the City's motion to quash his appeal of the Board's order, Lerner stated that he did not order the hearing transcript because he did not consider it relevant. His answer did not make the claim that he could not afford the hearing transcript or that compliance was not necessary because the City had obtained the transcript. It is well settled that a claim raised for the first time on appeal is waived. Pennsylvania Bankers Association v. Pennsylvania Department of Banking, 599 Pa. 496, 516, 962 A.2d 609, 621 (2008). Lerner did not raise either claim before the trial court on which he seeks this Court's review. Accordingly, both claims are waived on appeal.
Accordingly, the order of the trial court must be affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 7th day of April, 2014, the order of the Court of Common Pleas of Philadelphia County dated January 28, 2013, in the above-captioned matter is AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge