Opinion
J. A19002/16 No. 2695 EDA 2015
11-02-2016
COREY T. KILSON v. TOP CLASS AUTO, INC., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 28, 2015, in the Court of Common Pleas of Philadelphia County
Civil Division at No. 907 March Term, 2014 BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Former Justice specially assigned to the Superior Court.
Top Class Auto, Inc., appeals the order of the Court of Common Pleas of Philadelphia County that denied appellant's motion for post-trial relief after the entry of judgment in favor of Corey T. Kilson in the amount of $27,396.50 and against appellant.
The facts and procedural history as recounted by the trial court are as follows:
This matter comes before the Superior Court on appeal from a bench trial held on July 8, 2015, which resulted in a verdict for Cory Kilson (hereinafter referred to as "Appellee"). . . . On March 7, 2014, Appellee commenced a civil action against Top Class Auto, Inc. (hereinafter referred to as "Appellant"). The amount in controversy was below $50,000 and the matter was scheduled for an arbitration hearing on November 21, 2014, as part of the Court's
Compulsory Arbitration Program. Both parties attended the arbitration hearing and the arbitrators entered a report and award in favor of Appellee. On December 19, 2014, a Notice of Appeal from the arbitrators' award was filed. Pursuant to the First Judicial District's Case Management program, a Case Management Order was issued on Dec. 23, 2014. (Case Mgmt. Order, December 23, 2014). The Order decreed that all counsel and parties were attached for the July 2014 trial pool, on next day notice. On July 7, 2015, all counsel, including defense counsel, were notified by telephone of the case assignment to Courtroom 696 City Hall on July 8, 2015 at 9:30 [a.m.] On July 8, 2015, the Court was called to order at approximately 9:43 [a.m.][Footnote 1] (Trial Tr. 3, July 8, 2015). [Appellee], [appellee's] counsel, and [appellee's] witness appeared as notified and were ready to proceed. At that time, the Court noted the matter was scheduled for 9:30 [a.m.] and allowed a brief recess to contact counsel for [a]ppellant. The matter was then called for trial by the court crier at approximately 9:53 [a.m.] (Trial Tr. 3, July 8, 2015). [Appellee] then proceeded with his case. The Court heard testimony from two witnesses and a closing argument from [appellee's] counsel. The court proceedings concluded at 10:09 [a.m.] without an appearance of counsel for [a]ppellant. (Trial Tr. 21, July 8, 2015).
Trial court opinion, 10/28/15 at 1-2.[Footnote 1] The Court's record reflects a call was placed by court staff to [a]ppellant's counsel when he did not appear at the listed start time of 9:30 [a.m.]
At trial, appellee testified that he purchased a 2006 Pontiac Grand Prix from appellant, a used car dealer. (Notes of testimony, 7/8/15 at 5.) Appellee paid $6,000 in cash for the vehicle. ( Id. at 6.) Appellee never received title to the vehicle. After his second trip back to appellant, he asked for his money back and was told that he could not get his money back. He went back a third time and was given a letter, but the letter was insufficient to serve as the registration for state vehicle inspection purposes. His inspection sticker expired. Appellee parked his car on the street and received tickets for an expired inspection sticker over a period of five or six months. Ultimately, the Philadelphia Parking Authority seized the car and sold it at auction. ( Id. at 8-11.)
By order dated July 9, 2015, the trial court entered judgment in favor of appellee in the amount of $27,396.50. This sum consisted of the $6,000 purchase price of the vehicle, $490 in sales tax, $22.50 for the title fee, $36 for the registration fee, $848 in tickets and penalties, $15,000 in treble damages pursuant to the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-9.2, and $5,000 in attorney's fees.
On July 14, 2015, appellant moved for post-trial relief and sought a new trial. Appellant alleged that neither appellee's counsel nor his office received any notice that the trial was called for July 8, 2015 at 10:00 a.m. Appellant alleged that his counsel appeared in court at 10:00 a.m., but the courtroom was empty, except for a court clerk. Appellant included affidavits from its attorney, Jerome Gamburg, Esq. ("Attorney Gamburg"), which stated that he was in his office on July 7, 2015, from 9:30 a.m. to 3:30 p.m., except for the time between 11:30 a.m. and 1 p.m., and did not receive a call from the trial court informing him that a trial was scheduled for July 8, 2015. When he received a call on July 8, 2015, at 9:50 a.m. that trial was ready to begin, he alleged that he arrived at the courtroom at 10:00 a.m., but court was over for the day.
The trial was actually scheduled to begin at 9:30 a.m.
Clint Orem, Esq., submitted an affidavit which stated he worked for Attorney Gamburg and did not receive a call on July 7, 2015 to advise them of the date and time of trial. Catie McCafferty submitted an affidavit that stated she was a telephone receptionist for another law firm and answered the phones for Attorney Gamburg on July 7, 2015, between 10 a.m. and noon but did not receive a call from the trial court giving notice about a trial the next day.
On July 28, 2015, the trial court denied the motion. The trial court reasoned that appellant received notice and failed to appear without satisfactory excuse. Therefore, the trial court treated the motion as a petition to open a default judgment and denied it because appellant lacked a meritorious defense to appellee's claims.
Appellant raises the following issues for this court's review:
1. Did the trial court abuse its discretion in proceeding with a bench trial without counsel for the appellant or appellant being present without proof being offered showing that appellant's counsel had been notified by "next day" notice?
2. Did the trial court abuse its discretion in failing to permit counsel for the appellant to explain his reason for his late appearance before proceeding to trial?
3. Did the trial court abuse its discretion in failing to consider affidavits filed by two attorneys and a receptionist attesting to the fact that no
notice was given to counsel for the appellant of the trial[?]Appellant's brief at 3.
With respect to the issues raised by appellant, the trial court has ably and thoroughly addressed these issues in its opinion of October 28, 2015. This court will affirm on the basis of that opinion.
Order affirmed.
Ott, J. joins this Memorandum.
Fitzgerald, J. notes dissent. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/2/2016
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