J. A19002/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COREY T. KILSON                         :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
TOP CLASS AUTO, INC.,                   :         No. 2695 EDA 2015
                                        :
                       Appellant        :


                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.:            FILED NOVEMBER 02, 2016

      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

* Former Justice specially assigned to the Superior Court.
J. A19002/16


            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).

                  [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.]

Trial court opinion, 10/28/15 at 1-2.

      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


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J. A19002/16


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. 1

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


1
    The trial was actually scheduled to begin at 9:30 a.m.


                                      -3-
J. A19002/16


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.2

      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


2
  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.


                                     -4-
J. A19002/16


                   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.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/2/2016




                                      -5-
                                                                                               Circulated 09/26/2016 11:52 AM




                           COURT OF COMMON PLEAS Of PHILADELPHIA COUNTY
                               FIRST JUDICIAL DISTRICT 0F PENNSYLVANIA
                                          CIVIL TRIAL DIVISION


            CORY KILSON                                                           SUPERIOR COURT
                 APPELLEE                                                         2695 EDA 2015

                    v.

            TOP CLASS AUTO, INC.                                                  MARCH TERM, 2014
                 APPELLANT                                                        NO. 00907      ~
                                                                                                    ..
                                                                                                    :..·   .,   .
                                                           OPINION
            LEON W. TUCKER, J.                                                    DATE: OCTOBER 28, 2015


               I.        Procedural History and Facts

               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"). Order Entered

           by J. Tucker (07/10/2015). 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 December 23, 2014. (Case Mgmt.

           Order, Dec. 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



                                         · Kilson Vs Top Class Auto, lnc.-OPFLD


COPIES SENT PURSUANT     TO Pa.RC P   236(blltilllHHIMl~ln~~, ·
 am. On July 8, 2015, the Court was called to order at approximately                 9:43 am.1 (Trial Tr. 3, July 8,

 2015). Plaintiff, Plaintiffs counsel, and Plaintiffs witness appe_ared as notified and were ready to

 proceed. At that time, the Com1 noted the matter was scheduled for 9:30 am and allowed a brief

 recess to contact counsel for Appellant. The matter was then called for trial by the court crier at

 approximately 9:53 am. (Trial Tr. 3, July 8, 2015). Plaintiff then proceeded with his case. The

 Court heard testimony from two witnesses and a closing argument from Plaintiffs counsel. The

 court proceedings concluded at I 0:09 am without an appearance of counsel for Appellant. (Trial

 Tr. 21, July 8, 2015).

     Subsequently, Appellant filed a post-trial motion 'on July 14, 2015 seeking a new trial. The

 Court denied the request for post-trial relief. Appellant then filed the instant appeal. The Court

 ordered the Appellant to file concise statements of error complained of on appeal pursuant to

 Pa.R.A.P.
                                                                         .
              l 925(b) (hereinafter referred to as "I 925(b) Statements"). On September 3, 2015,
                                        .
Appellant timely filed its 1925(b) Statement. The Court will !}Ot reproduce Appellant's 1925(b)

Statement verbatim but will address each complaint of error in numerical order.


     II.      Legal Analysis

     Absent a manifest abuse of discretion, this Court's rulings regarding the bench trial and post-

trial motions in the instant matter should stand. Reilly Assocs. V. Duryea Borough Sewer Auth.,

631 A.2d 621, 622 (Pa. Super. Ct. 1993). An· abuse ?f discretion is more than a mere error of

judgment. Zappala v. Brandolini Property Mgmt., Inc., 909 A.2d 1272, 1284 (Pa. 2006). It occurs

when the Jaw is overridden, the law is misapplied or the Court's judgment is "manifestly




I
  The Court's record reflects a call was placed by court staff to Appellant's counsel when he did not appear at the
listed start time of9:30 am.                            ·                        ·

                                                          2
unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence o[f]

the record." Id.

            A. The Court did not abuse its discretion when it allowed Appellee to proceed to
               trial in the absence of Appellant or Appellant's counsel as provided for
               under the Pennsylvania Rule of Civil Procedure218.

        Appellant argues the Court abused i!s discretion when it proceeded with a bench trial

without inquiring into the proof of notice to both parties when the_ Appellant and Appellant's

counsel were not present at the date and time assigned for the proceedings. The Court did not abuse

its discretion when it proceeded with trial without the presence of Appellant's counsel, pursuant

to Pennsylvania Rule of Civil Procedure 218. Additionally, the Court did inquire as to notice of


                                                                .
trial being given to counsel and was assured that notice was given by Court Administration.
                                   .
        Under the Pennsylvania Rules of Civil Procedure, when an appeal from compulsory

arbitration is before the court, a plaintiff may either proceed to trial or request dismissal of the

appeal and a reinstatement of the arbitration award if the defendant is not ready when the case is

called for trial. Pa. R. Civ. P. 218. A party will be "deemed to be not ready without satisfactory

excuse" if he is absent from the proceeding. Id. Notably absent from this rule is the requirement

that the court proactively determine whether all parties received notice of the trial date, although

this Court did in fact inquire into notice to the parties.

        The Philadelphia County local court rules stipulate that all arbitration appeals shall be listed

for trial in a monthly trial pool corresponding to the Case Management Order issued for the

particular matter. Pli.ila. Cnty. Civ. R. 215. The monthly. trial pool corresponds to a specific

calendar month. Id. Cases within a particular trial pool are subject to a '"next day minimum' notice
                                    .              .
basis." Phila. Cnty. Civ. Div. Admin. J. Admin. Order 98-1. Cases in the monthly pool are assigned

no later than 3:00 p.m. on the day prior to the start of trial. Id. As such, counsel are expected to



                                                    3
 anticipate a case being listed for trial for the duration of the calendar month. Id. This Court was

 notified by Court Administratioh and Plaintiffs counsel that proper notice 'was given to both

 parties prior to 3 :00 pm on the day prior to the start of trial. There is no basis for the Court to find

 the statement of Court Administration as untrue.

        Although Pa. R. Civ. P. 218 does not require -the court to contact parties who are absent

 from the proceedings prior to the start of trial, this Court independently directed its staff to contact

 Appellant's counsel regarding his absence. (Trial Tr. 4, July 8, 2015). When the Appellant and his

 counsel did not appear by 9:.50 am, twenty minutes after the trial's listed start time, the Court

 properly proceeded to hear the case. (Trial Tr. 3-4; July 8, 2015). The Court did not abuse its

 discretion when it allowed Appellee to proceed to trial in the absence of Appellant or Appellant's

counsel, as provided for under the Pennsylvania Rule of Civil Procedure 218.


            B. The Court did not abuse its discretion when it declined to reopen the
               proceedings to allow defense. counsel to offer proof regarding his failure to
               appear at trial.

        Appellant argues the Court abused its di~cretio~ when it declined to hear ex parte evidence

from Appellant's counsel regarding his absence at trial after the proceedings had closed and the

Appellee was excused to leave the courtroom.

        Under the controlling Pa.R.C.P. 218, the court may presume the absent party is not ready
                     .         .
for trial without a satisfactory excuse when that party is absent from the proceeding. The trial court

may proceed to trial without determining if there is a satisfactory excuse for counsel's absence.

Anderson v. Pennsylvania Fin. Responsibility Assigned Claims Plan, 637 A.2d 659, 661 (Pa.

Super. Ct. 1994).

       I.n the instant matter, the Court properly exercised its discretion when it declined to ex parte

reopen the proceedings to allow Appellant's counsel to establish cause for his absence from trial.


                                                   4
                                                                                                       Af
 The Court was not required to reopen the proceedings orto hold a separate hearing to determine

 why Appellant's counsel failed to appear for trial at the listed date and time. Counsel was presumed

 not ready for trial withouta satisfactory excuseafter failing to appear when the case was called.

 Therefore, the Court did not abuse its discretion when it declined to ex parte reopen the

 proceedings to allow defense counsel to offer proof regarding his failure to appear at trial, after the

 Court was adjourned and the.Court left the bench and the courtroom.


            C. The Court did not abuse its discretion when it declined to grant Appellant
                post-trial relief on the basis of affidavits offered by Appellant's counsel.

        Appellant argues the Court abused its discretion when it denied Appellant's post-trial

motion, which was accompaniedby affidavits from counsel's staff.

        When a.defendant fails to appear at trial and the plaintiff decides to proceed with the case

pursuant to Pa.R.C.P.    218, judgment against the defendant is not automatic. Com. v. 1992
                            .                         .
Chevrolet, 844 A.2d 583, 586 (Pa. Commw. Ct.· 2004). If the plaintiff carries the burden of proof

for the particular matter, he or she must still meet that burden in the absence of the opposing party.

-Id. If the court finds this burden has been met and an adverse verdict. is entered, it is subject to
post-trial relief. Melvin v. Melvin, 580 A.2d 811, 818 (Pa. Supe~. Ct. 1990). In its request for post-

trial relief, a party may request a new trial on "equitable grounds similar to those which permit the

opening of a default or confessed judgment." Id. The opening of default judgment is warranted

when the petitioner "states a meritorious cause of action or defense." Pa.R.C.P. 237.3(b). To

succeed on a petition to open judgment, the petitioner must (l) timely file the petition to open, (2)

state the reason for the failure to file a timely answer or appear, and (3) show a meritorious defense.

PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 228 (Pa. Super.  proceedings in which the judgment was entered. Id. The trial court has the discretion to open a

judgment and its ruling should not be disturbed absent a manifest abuse of discretion. Id.

        Appellant failed to present·a meritorious defense, which wouldhave warranted an opening


                                                              .
of the adverse judgment entered after the Court heard evidence from the Appellee about the claims

of unfair consumer practices. In the instant matter, the plaintiff exercised his right to proceed to

trial in the absence of the defendant. However, a judgment against defendant was not automatically

entered. The court heard testimony from two witnesses before concluding the proceedings and
                                   .                                              .
ultimately finding in favor of the Appellee pursuant to the Unfair Trade Practices and Consumer

Protection Law, 73 P.S. § 201-9.2.       Order. Entered by J. Tucker (07/10/2015).        In order to

successfully open this adverse judgment, the ~ppellant was required to timely file a petition to

open and present a meritorious defense. Additionally, this Court would have to excuse the

Appellant's failure to appear at the hearing.

        Although the Appellant failed to file a petition to open and instead filed a post-trial motion

for a new trial, this Court still considered whether the Appellant presented a meritorious defense

against the claims of unfair and ~eceptive consumer practices. In its post-trial motion, Appellant

did not offer a defense against Plaintiff's claims that the Appellant failed to provide a title for a

vehicle purchased by the Appellee, in violation _of consumer protection laws. Furthermore,

Appellant admitted in its Answer to the Complaint that it failed to provide title to Appellee a year

following the sale and anticipated a new title to be available for the Appellee "in the near future."

(Def.'s Answer, Lines 6, 9). As such, the Court did not abuse its discretion when it declined to

grant Appellant's post-trial motion on the basis of affidavits offered by. Appellant's counsel, as

Appellant failed to offer a meritorious defense required.to open the adverse judgment.




                                                 6
               D. The Court did not abuse its discretion when it discussed Appellant counsel's
                  credibility in -its July 28, 2015 order when there were discrepancies between
                  the official trial transcrip t and counsel's sworn affidavits.

         Appellant argues the Court abused its discretion when it noted inconsistencies between the

 official trial transcript and Appellant's claims in its motion for post-trial relief and accompanying

 affidavits.

         In Appellant's July 14, 2015 post-trial motion, Appellant claims that counsel "ran to the

 courtroom and appeared at IO A.M. where the courtroom was empty except for a court clerk" after

 receiving a call from chambers regarding his 'absence from the proceedings. (Def. 's Post Trial

 Motion, Lines 5, 6). Additionally, Appeilant offers three affidavits in support of the Motion for

Post-Trial Relief. In the sworn affidavit of counsel Jerome Gamburg, Esq., he attested that "upon

(his) arrival at the courtroom at IOAM there was no one present except a clerk." (Gamburg Aff.

 l ). However, the official transcription of the proceedings reveals the court was still in session at

 10:00 am and the proceedings officially concluded at 10:09 am. (Trial Tr. 21, July 8, 2015). The

Court did not immediately leave the bench at 10:09 am. The Court appropriately noted this

discrepancy in its July 28, 2015 Order with the remark that "counsel's allegation that he arrived at

10:00 AM and found an empty courtroom casts doubt on counsel's credibility." Order Entered by

J. Tucker (7/28/2015). The Court went on to note "Plaintiff's case lasted until well after I 0:00

AM. Counsel did not appear." Id. Subsequently? Appellant attempted to correct this discrepancy

by stating "defense counsel appeared at I 0: 20am and found the Courtroom empty except for the

court crier" in its 1925(b) Statement. (l 925(b) Statement' I) (emphasis added). Therefore, the Cou11

did not abuse its dis~retion V:hen it discussed Appellant counsel's credibility in its July 28, 2015
                                                              .
order as there were discrepancies between the official trial transcript and counsel's sworn

affidavits.



                                                  7
   III.    Conclusion

   The Court did not abuse its discretion in proceeding to trial after Appellant's counsel was

absent from trial even though Appellant and Appellant's counsel were attached to the July 2015

trial pool. The Court properly entered judgment in favor of the Appellee as it met the requisite

burden of proof. The Court's ruling should stand.




                                               8