J-S31019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLES M. SMITH AND APRIL M.                  IN THE SUPERIOR COURT OF
SMITH,                                               PENNSYLVANIA

                          Appellees

                     v.

GEORGETTE L. COSTULAS AND
CHRISTOPHER COSTULAS,

                          Appellants                No. 1597 MDA 2014


           Appeal from the Judgment entered on August 21, 2014,
              in the Court of Common Pleas of Clinton County,
                     Civil Division, at No(s): 2012-01343


BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED MAY 27, 2015

      Georgette L. and Christopher Costulas, (“Appellants”), appeal from the

trial court’s judgment in favor of Charles M. and April M. Smith, (“the

Smiths”). Finding waiver, we affirm the trial court’s judgment in favor of the

Smiths.

      The trial court set forth the factual and procedural background relative

to this action as follows:

            This matter was initiated by [the Smiths’] complaint filed
      on November 15, 2012 alleging that [Appellants] placed material
      consisting of dirt, rocks, stumps and trees inside the boundary of
      a "paper alley" known as "Lexington Alley" and removed fill and
      knocked down/destroyed/removed trees from property owned by
      [the Smiths]. Various hearings on the issues raised in [the
      Smiths’] complaint were conducted before Senior Judge J.
J-S31019-15


       Michael Williamson on the dates of July [30]1, 2013; September
       17, 20132; and October 22, 2013. In addition, the record would
       confirm that a view of the property was also conducted by Senior
       Judge J. Michael Williamson prior to the entry of the Court's
       Order on October 23, 2013[, which was docketed on October 24,
       2013]. In that Order, the Court resolved all issues of credibility
       with respect to the placement of the aforementioned materials in
       favor of [the Smiths].

             The Court de[clined] to award [the Smiths] attorney's fees
       finding that [Appellants’] actions were not so intentional and
       vexatious as to warrant an award of attorney’s fees.

             The Court further declined to establish a value for [the
       Smiths’] parcel but in the alternative, provided [Appellants] with
       an opportunity to remedy the injury they caused [the Smiths] by
       making repairs to the affected property which would require
       [Appellants] to repair the damages to [the Smiths’] property,
       remove all materials placed on Lexington Alley and restore
       Lexington Alley to a comparable condition prior to their trespass.
       The Court further directed [Appellants] that all remedial action
       must take place in accordance with government regulations
       including the Ordinances of Chapman Township and regulations
       of the Pennsylvania Department of Environmental Protection.

             [Appellants] were provided a timeframe of sixty (60) days
       within which to complete the repairs to [the Smiths’] property
       and Lexington Alley and provided [the Smiths] with the
       opportunity to advise the Court if further proceedings were
       required.
____________________________________________


1
   While the trial court lists July 17, 2013 as the initial hearing date, the
certified docket entries reflect that the initial hearing was conducted on July
30, 2013. See Clinton County Prothonotary Docket Entries, Case No. 2012-
01343, at 1; see also The Smiths’ Motion for Hearing/Trial, 5/14/13, at 1;
Order, 5/15/13, at 1. Moreover, various subpoenas issued in this action list
July 30, 2013 as the trial date. See Subpoenas to Attend and Testify,
6/27/13, at 1; 7/13/13, at 1; 7/8/13, at 1.
2
  On September 17, 2013, the trial court continued the hearing “[b]ased on
the unavailability of [Appellants’] expert[.]” Order, 9/17/13, at 1. It is
unclear what, if any, testimony or argument was conducted that day
because the certified record does not contain a transcript of this hearing.



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             On or about January 6, 2014, this matter was transferred
       from Senior Judge J. Michael Williamson to the undersigned.
       The Court then received correspondence from the Clinton County
       Conservation District dated January 20, 2014, which resulted in
       this Court scheduling the matter for an on-the-record status
       hearing which took place on February 18, 20143. At that time
       [the Smiths] advised that [Appellants] had not, in their opinion,
       properly repaired [the Smiths’] property and Lexington Alley and
       requested that the matter be scheduled for a hearing to
       determine what, if any, damages [Appellants] were liable for.
       This Court granted [the Smiths’] request and a further hearing
       was conducted on March 1[3], 2014. At the conclusion of the
       hearing the parties agreed that the Court was permitted to
       conduct its own view of the property without the parties or their
       counsel being present. That view was completed on March 18,
       2014.

Trial Court Opinion and Order, 4/9/14, at 1-2 (unnumbered).

       On April 9, 2014, the trial court found in favor of the Smiths and

against Appellants, and awarded the Smiths $7,132.00 in damages. Id. at 6

(unnumbered).

       Our review of the certified trial court record and of our own Superior

Court docket yields the following additional details. On April 21, 2014,

____________________________________________


3
   The certified docket reflects that Rebecca Dunlap of the Clinton County
Soil Conservation District was subpoenaed “to testify on behalf of [the
Smiths]” on February 18, 2014, and “to bring with [her] [a]ll documentation
relative to earth disturbance at 13 Costulas Lane and Lexington Alley[.]”
Subpoena to Attend and Testify, 2/7/14, at 1. The trial court indicated that
the hearing “was attended by the parties and their respective counsel.”
Order, 2/18/14, at 1. It is unclear whether Ms. Dunlap was present, and
what, if any, testimony was adduced from any witness that day as the
certified record does not contain any transcript of this proceeding. The trial
court specifically advised that “Rebecca Dunlap … remains under subpoena
issued February 7, 2014, … and will be required to attend any future
scheduled proceedings without additional subpoena.” Id. at 2.



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Appellants moved for post-trial relief. Appellants’ post-trial motion averred

that “[v]arious hearings in this matter were conducted in front of the now-

Senior Judge J. Michael Williamson on July [30], 2013, September 17, 2013,

and October 22, 2013.” Appellants’ Motion for Post-Trial Relief Pursuant to

Pa.R.C.P. 227.1, 4/21/14, at 1. Appellants further averred that “additional

evidence was presented in front of the Honorable Michael F. Salisbury on

March 1[3], 2014.” Id. Appellants specifically observed that the trial court

entered its award of damages in favor of the Smiths “[f]ollowing the March

1[3], 2014 hearing.” Id. Appellants’ post-trial motion did not contain any

exhibits. Appellants requested that the trial court “modify its Order of April

9, 2014 to find in favor of [Appellants] as [the Smiths] have failed to meet

their burden of proof regarding damages.”       Id.   Appellants acknowledge,

“[w]hile Appellants did not specifically request a JNOV in this matter, the

Motion for Post-Trial Relief filed on April 21, 2014, asking for the lower court

to find that [the Smiths] failed to meet their burden of proof with respect to

damages, essentially served the same purpose.” Appellants’ Brief at 15.

      The trial court did not rule on Appellants’ post-trial motion within 120

days. Accordingly, on August 21, 2014, the Smiths filed a praecipe for entry

of judgment pursuant to Pa.R.C.P. 227.4(1)(b). On the same day, judgment

was entered in favor of the Smiths.          Judgment, 8/21/14, at 1.        On

September 22, 2014, Appellants filed their notice of appeal.

      On September 25, 2014, the trial court specifically ordered Appellants

“to file of record in the lower court and to serve on the trial judge and the

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official court reporter, pursuant to Paragraph (b)(1) of Rule 1925, … [a]

concise Statement of the Matters Complained Of …[and] [a] Statement

identifying any transcript which may be necessary for Appellate purposes.”

Order, 9/25/14, at 1. On October 1, 2014, Appellants filed their Pa.R.A.P.

1925(b) statement, but did not file any statement identifying any transcripts

necessary for appellate purposes as ordered by the trial court.            See

generally Appellants’ Statement of Matters Complained of on Appeal

Pursuant to Rule 1925(b), 10/1/14.

     On October 8, 2014, the trial court issued an order, docketed on

October 9, 2014, stating:

     [T]his Court having received and reviewed the Statement filed
     by Appellants pursuant to this Court’s Order of September 25,
     2014, and Appellant[s] not identifying any transcripts which may
     be necessary for Appellate purposes, IT IS HEREBY ORDERED
     [that] [t]he Office of Clinton County Prothonotary shall
     immediately prepare the file and forward said Court file to the
     Prothonotary of the Superior Court[, and] [t]he Official Court
     Reporter is directed not to prepare any transcripts in this matter.

Order, 10/9/14, at 1 (emphasis in original).

     The certified record transmitted from the Clinton County Prothonotary

to this Court does not contain a single transcript from any of the five (5)

hearings conducted in this case. Likewise, none of the pleadings, briefs, or

memoranda filed by the parties contain a single exhibit of any kind.

     A review of our Court’s docket reveals that on October 14, 2014, we

issued an order, which provided:




                                     -5-
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            The trial court record has been filed in this office in the
       above-captioned matter.

            It is your responsibility to review the record
       inventory list and make sure that the certified record
       forwarded to this court contains those documents
       necessary to the issues raised on appeal; failure to do so
       may result in waiver. Pa.R.A.P. 1926, 1931(d); Bennyhoff
       v.  Pappert,   790    A.2d   313   (Pa.   Super.    2001);
       Commonwealth v. Wint, 730 A.2d 965 (Pa. Super. 1999).

              Pursuant to Pa.R.A.P. 2185(a) briefs for the appellant must
       be filed on or before November 24, 2014.

Order, 10/14/14, at 1 (emphasis in original).

       On November 26, 2014, Appellants filed an application to extend the

time to file their appellate brief4. Appellants averred:

       2. Through their Motion for the Production of Trial Transcripts,
       filed on October 10, 2014, Appellants requested the production
       of the transcript of the trial court proceeding that took place on
       October 22, 2013, which the trial court ordered be produced
       through an Order dated October 13, 2014.

       3. Said transcript of the October 22, 2013 trial court hearing was
       produced by the court reporter on November 14, 2014.

       4. Appellants’ counsel has had possession of the relevant
       transcript for only six (6) days prior to the November 24, 2014
       briefing deadline imposed by this Honorable Court.

       5. Appellants respectfully request an additional sixty (60) days in
       which to file their appellate brief in this matter in order to allow
       for a full review of the transcript at issue.

Appellants’ Motion to Extend Briefing Deadline, 11/26/14, at 1. Appellants’

motion does not reflect any efforts to produce the transcripts relative to the
____________________________________________


4
  While Appellants’ certificate of service is dated November 24, 2014, our
docket reflects a November 26, 2014 date stamp/filing date.



                                           -6-
J-S31019-15



July 30, 2013, September 17, 2013, February 18, 2014, or March 13, 2014

hearings.    Our docket does not reflect any application by Appellants to

supplement the certified record with the October 22, 2013 hearing transcript

pursuant to Pa.R.A.P. 1926.

        On December 1, 2014, by per curiam order, we granted Appellants’

motion and ordered that Appellants’ brief “shall be filed on or before January

23, 2015.” Order, 12/1/14, at 1. Thereafter, Appellants filed their brief and

reproduced record, with a certificate of service dated January 23, 2015. Our

docket reflects a date stamp/filing date of January 29, 2015.

        On February 4, 2015, the Smiths filed an application for additional

time to file their responsive appellate brief. The Smiths averred in pertinent

part:

        5. Appellants did not, at any time, serve and file a designation
        of the record as required by Rule 2154(a) of the Pennsylvania
        Rules of Appellate Procedure. Accordingly, until [the Smiths]
        received service of Appellants’ Reproduced Record on January
        27, 2015, [the Smiths] were unaware of the portions of the
        record upon which Appellants intended to rely and were not
        provided with an opportunity to provide a counter-designation of
        the record as contemplated in Rule 2154(a).

        6. [The Smiths] respectfully submit that, had such designation
        been served, [the Smiths] would have provided a counter-
        designation including other portions of the record which are
        necessary to this appeal. Specifically, while five separate
        hearings were held in this action before the Court of
        Common Pleas, the Reproduced Record includes a
        transcript of only one such hearing.

                                     ***

        9. [] Upon learning that the additional transcripts were not
        included in the Reproduced Record, on January 27, 2015, [the

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J-S31019-15


      Smiths] immediately requested their production. Nevertheless,
      the additional transcripts will not likely be available before
      Monday, February 9, 2015.

The Smiths’ Motion to Extend Briefing Deadline, 2/4/15, at 2-3 (emphasis

added). The Smiths’ motion further averred that they had “conferred with

counsel for the Appellants[.]” Id. at 4. Despite the foregoing deficiency in

the certified record of which they were made aware, Appellants never sought

to supplement it pursuant to Pa.R.A.P. 1926.

      On appeal, Appellants present two issues:

      A. Whether the trial court committed an error of law/abuse of
         discretion in awarding damages to [the Smiths] despite [the
         Smiths’] failing to meet their burden of proof relative to
         establishing the value of the real estate in question, as
         required by Slappo v. J’s Development Associates, Inc., 791
         A.2d 409 (Pa. Super. 2002)?

      B. Whether the trial court committed an error of law/abuse of
         discretion in failing to credit the testimony of
         [Appellants’] expert real estate appraiser, despite the
         absence of any expert testimony to the contrary in light
         of the overwhelming evidence supporting said expert’s
         valuation of the real estate property at issue?

Appellants’ Brief at 6 (emphasis added).

      Appellants’ first issue challenges the sufficiency of the evidence

adduced by the Smiths in support of the judgment entered in their favor

following the non-jury trial below. Appellants’ second issue assails the trial

court’s credibility determinations concerning Appellants’ expert.   As noted

above, Appellants’ post-trial motion moved for JNOV, and the trial court’s

failure to rule on the motion within 120 days effectively denied relief. See



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Morningstar v. Hoban, 819 A.2d 1191, 1195 (Pa. Super. 2003) (post-trial

motions are “denied by the operation of law at the expiration of the 120-day

period” following their filing pursuant to Pa.R.C.P. 227.4).         We have

explained our standards of review as follows:

     Our review in a non-jury case such as this is

        limited to a determination of whether the findings of the
        trial court are supported by competent evidence and
        whether the trial court committed error in the application
        of law. Findings of the trial judge in a non-jury case must
        be given the same weight and effect on appeal as a verdict
        of a jury and will not be disturbed on appeal absent error
        of law or abuse of discretion. When this Court reviews the
        findings of the trial judge, the evidence is viewed in the
        light most favorable to the victorious party below and all
        evidence and proper inferences favorable to that party
        must be taken as true and all unfavorable inferences
        rejected.

     Hart v. Arnold, 884 A.2d 316, 330–331 (Pa. Super. 2005),
     appeal denied, 587 Pa. 695, 897 A.2d 458 (2006) (citations
     omitted). “The [trial] court's findings are especially binding on
     appeal, where they are based upon the credibility of the
     witnesses, unless it appears that the court abused its discretion
     or that the court's findings lack evidentiary support or that the
     court capriciously disbelieved the evidence.”        Id. (citations
     omitted). “Conclusions of law, however, are not binding on an
     appellate court, whose duty it is to determine whether there was
     a proper application of law to fact by the lower court.” Tagliati v.
     Nationwide Insurance Co., 720 A.2d 1051, 1053 (Pa. Super.
     1998), appeal denied, 559 Pa. 706, 740 A.2d 234 (1999). “With
     regard to such matters, our scope of review is plenary as it is
     with any review of questions of law.” Id.

           We also must decide whether the trial court properly
     denied Appellant's post-trial motions. “Our standard of review
     [of an order] denying a motion for a new trial is to decide
     whether the trial court committed an error of law which
     controlled the outcome of the case or committed an abuse of
     discretion.” Angelo v. Diamontoni, 871 A.2d 1276, 1279 (Pa.


                                    -9-
J-S31019-15


      Super. 2005), appeal denied, 585 Pa. 694, 889 A.2d 87 (2005)
      (citation omitted). Similarly, Appellant sought post-trial relief in
      the nature of a motion for JNOV, which requires us to “consider
      all of the evidence admitted to decide if there was sufficient
      competent evidence to sustain the verdict.” Wilson v. Transport
      Ins. Co., 889 A.2d 563, 569 (Pa. Super. 2005). If there is any
      basis upon which the trial court could have properly made its
      award, we must affirm its subsequent denial of the motion for
      JNOV. Id. “A JNOV should be entered only in a clear case.” Id.

Christian v. Yanoviak, 945 A.2d 220, 224-225 (Pa. Super. 2008).

      Accordingly, to review Appellants’ issues, we must carefully scrutinize

the testimony and evidence presented in the underlying proceedings before

the trial court. Indeed, our Supreme Court has expressed that “[t]o ensure

a defendant's right to meaningful appellate review, this court ‘require[s] that

he or she be furnished a full transcript or other equivalent picture of the trial

proceedings.’” Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)

(internal citation omitted).

      Here, notes of testimony as well as other important materials are

missing from the certified record.            In summarizing their argument,

Appellants contend:

            [The Smiths] presented various astronomical estimates for
      the repair of the land in question, including estimates in excess
      of $20,000.00, and finally, [the Smiths’] own estimate of
      $7,132.00 for his own company to repair the damage.
      Appellants employed the services of an expert, certified real
      estate appraiser, Dennis Greenaway, who opined a value of
      $2,600.00 for the property in question, considering [the Smiths’]
      purchase price of the land of $2,500.00 in 2008, and that the
      highest and best use of the property would be as a vacant lot.
      In contrast, … Charles Smith, provided his own valuation of
      $20,000.00 for the property, based upon no cognizable,



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J-S31019-15


      objective basis. The trial court, in its Order of October 24, 2013,
      discredited all testimony regarding the value of the property.

Appellants’ Brief at 9. The certified record is devoid of any of the foregoing

estimates   and   appraisals,   and    therefore   we   cannot   review     them.

Appellants’ failure to include within the certified record a full complement of

the transcripts from the multiple days of hearings conducted before the trial

court effectuates waiver.

      We have determined:

            The fundamental tool for appellate review is the official
      record of the events that occurred in the trial court.
      Commonwealth v. Williams, 552 Pa. 451, 715 A.2d 1101, 1103
      (1998). To ensure that an appellate court has the necessary
      records, the Pennsylvania Rules of Appellate Procedure provide
      for the transmission of a certified record from the trial court to
      the appellate court. Id. The law of Pennsylvania is well settled
      that matters which are not of record cannot be considered on
      appeal. Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d
      755, 763 (1995); Commonwealth v. Baker, 531 Pa. 541, 614
      A.2d 663, 672 (1992); Commonwealth v. Quinlan, 488 Pa. 255,
      412 A.2d 494, 496 (1980); Commonwealth v. Young, 456 Pa.
      102, 317 A.2d 258 (1974). Thus, an appellate court is limited to
      considering only the materials in the certified record when
      resolving an issue. Commonwealth v. Walker, 878 A.2d 887,
      888 (Pa. Super. 2005). In this regard, our law is the same in
      both the civil and criminal context because, under the
      Pennsylvania Rules of Appellate Procedure, any document which
      is not part of the officially certified record is deemed non-
      existent—a deficiency which cannot be remedied merely by
      including copies of the missing documents in a brief or in the
      reproduced record. Commonwealth v. Kennedy, 868 A.2d 582,
      593 (Pa. Super. 2005); Lundy v. Manchel, 865 A.2d 850, 855
      (Pa. Super. 2004). The emphasis on the certified record is
      necessary because, unless the trial court certifies a document as
      part of the official record, the appellate judiciary has no way of
      knowing whether that piece of evidence was duly presented to
      the trial court or whether it was produced for the first time on
      appeal and improperly inserted into the reproduced record.

                                      - 11 -
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     Simply put, if a document is not in the certified record, the
     Superior Court may not consider it. Walker, 878 A.2d at 888.

           This Court cannot meaningfully review claims raised on
     appeal unless we are provided with a full and complete certified
     record.    Commonwealth v. O'Black, 897 A.2d 1234, 1240
     (2006). This requirement is not a mere “technicality” nor is this
     a question of whether we are empowered to complain sua sponte
     of lacunae in the record. In the absence of an adequate certified
     record, there is no support for an appellant's arguments and,
     thus, there is no basis on which relief could be granted.

           The certified record consists of the “original papers and
     exhibits filed in the lower court, the transcript of proceedings, if
     any, and a certified copy of the docket entries prepared by the
     clerk of the lower court.”        Pa.R.A.P. 1921.      Our law is
     unequivocal that the responsibility rests upon the appellant to
     ensure that the record certified on appeal is complete in the
     sense that it contains all of the materials necessary for the
     reviewing court to perform its duty. Commonwealth v. Kleinicke,
     895 A.2d 562, 575 (Pa. Super. 2006) (en banc). To facilitate an
     appellant's ability to comply with this requirement, our Supreme
     Court adopted the following procedural rule effective as of June
     1, 2004:

        The clerk of the lower court shall, at the time of the
        transmittal of the record to the appellate court, mail a copy
        of the list of record documents to all counsel of record, or
        if unrepresented by counsel, to the parties at the address
        they have provided to the clerk. The clerk shall note on the
        docket the giving of such notice.

     Pa.R.A.P. 1931(d). As the explanatory comment to Rule 1931
     indicates, if counsel (or a party) discovers that anything material
     has been omitted from the certified record, the omission can be
     corrected pursuant to the provisions of Rule of Appellate
     Procedure 1926. Under Rule 1926, an appellate court may direct
     that an omission or misstatement shall be corrected through the
     filing of a supplemental certified record. However, this does not
     alter the fact that the ultimate responsibility of ensuring that the
     transmitted record is complete rests squarely upon the appellant
     and not upon the appellate courts. Pa.R.A.P. 1931.

           In the absence of specific indicators that a relevant
     document exists but was inadvertently omitted from the certified
     record, it is not incumbent upon this Court to expend time, effort

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J-S31019-15


     and manpower scouting around judicial chambers or the various
     prothonotaries' offices of the courts of common pleas for the
     purpose of unearthing transcripts, exhibits, letters, writs or PCRA
     petitions that well may have been presented to the trial court
     but never were formally introduced and made part of the
     certified record. Commonwealth v. Blystone, 421 Pa.Super. 167,
     617 A.2d 778, 783 n. 4 (1992). If, however, a copy of a
     document has been placed into the reproduced record, or if
     notes of testimony are cited specifically by the parties or are
     listed in the record inventory certified to this Court, then we
     have reason to believe that such evidence exists. O'Black, 897
     A.2d at 1238. In this type of situation, we might well make an
     informal inquiry to see if there was an error in transmitting the
     certified record to this Court. Id. We might also formally
     remand the matter to the trial court to ascertain whether notes
     of testimony or other documentation can be located and
     transmitted. Id. If a remand is necessary, it is appropriate to
     direct the trial court to determine why the necessary
     documentation was omitted from the certified record. Williams,
     715 A.2d at 1107. An appellant should not be denied appellate
     review if the failure to transmit the entire record was caused by
     an “extraordinary breakdown in the judicial process.” Id. at
     1106.     However, if the appellant caused a delay or other
     problems in transmitting the certified record, then he or she is
     not entitled to relief and the judgment of the court below should
     be affirmed. Id. See Commonwealth v. Barge, 560 Pa. 179, 743
     A.2d 429, 429–30 (1999) (holding that if documents are missing
     from the certified record because of a default by court personnel,
     an appellant is entitled to have his claims resolved on the merits,
     but if the absence of the evidence is attributable to the
     appellant's failure to comply with the relevant procedural rules,
     the claims will be deemed to have been waived).


Commonwealth v. Preston, 904 A.2d 1, 6-8 (Pa. Super. 2006) (en banc);

see also Commonwealth v. Spotti, 94 A.3d 367, 381-382 (Pa. Super.

2014) (internal citation omitted) (“We are unable to conduct a meaningful

review of [a]ppellant's challenge because [the crime victim’s] medical

records are not a part of the certified record.    We may not review that

which an appellant, despite bearing the burden to so include, has failed to

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J-S31019-15



remit within the certified record.”); Commonwealth v. Gonzalez, 109 A.3d

711, 725 (Pa. Super. 2015) (waiver found where appellant failed to ensure

that the certified record was complete, and our review was “thwart[ed]” by

appellant’s failure to include the audiotape or “even a transcript” of a party’s

statement); Richner v. McCance, 13 A.3d 950, 957 n.2 (Pa. Super. 2011)

(internal citation omitted) (“References in appellate briefs to missing

documents do not remedy their lack of inclusion in the certified record.”);

compare Commonwealth v. Almodorar, 20 A.3d 466, 467 (Pa. 2011)

(appeal remanded for supplementation of the record where appellant

requested inclusion of correct transcript and took steps to monitor such

inclusion but an incorrect transcript from unrelated petitioner’s hearing was

included in record by the clerk of courts and “the absence of the correct

transcript from the certified record on appeal is attributable to an

‘extraordinary breakdown in the judicial process,’ and not to [appellant’s]

actions”).

      While Pa.R.A.P. 1926 permits remand for correction or modification of

the record, remand is not warranted in this instance where the trial court

specifically ordered Appellants to file a statement of the transcripts which

would be needed for appellate review. Appellants did not comply with this

directive and did not list a single transcript to be produced. As a result, the

trial court then ordered the official court reporter not to produce any

transcripts for inclusion in the certified record. While Appellants sought to

produce the October 22, 2013 transcript upon motion to the trial court,

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Appellants did not ensure that the certified record contained even that

limited production from the October 22, 2013 hearing. Appellants made no

efforts to produce any of the transcripts from the July 30, 2013, September

17, 2013, February 18, 2014, or March 13, 2014 hearings. The inclusion of

the October 22, 2013 transcript within Appellants’ reproduced record, and

the inclusion of the transcripts of the July 30, 2013 and March 13, 2014

proceedings within the Smiths’ supplemental reproduced record, does not

cure the deficiency within the certified record before us because materials

within reproduced records are de hors the record, and we are precluded

from considering them. Ruspi v. Glatz, 69 A.3d 680, 690-691 (Pa. Super.

2013) (internal citations omitted). Hence, the certified record before us is

deficient and precludes our meaningful review of the issues raised by

Appellants regarding the sufficiency of the evidence adduced by the Smiths

in support of their judgment, and the trial court’s alleged disregard of

Appellants’ expert’s testimony. Accordingly, Appellants’ issues are waived.

      We note that we are not confronted with a scenario where “the failure

to transmit the entire record was caused by an ‘extraordinary breakdown in

the judicial process.’”   Preston, 904 A.2d at 8 (internal citation omitted).

Nor is this a case where the issue to be examined concerns one single

hearing. Compare Parr v. Ford Motor Co., 109 A.3d 682, 695 n.10 (Pa.

Super. 2014) (en banc) (we were “compelled to seek supplementation of the

record through our Prothonotary,” where appellants “initially failed to include

any notes of testimony in the record certified to us on appeal” and we were

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“hamper[ed in] our ability to address” appellants’ challenge to the trial

court’s denial of a motion in limine). Rather, Appellants “caused a delay or

other problems in transmitting the certified record” such that they are “not

entitled to relief and the judgment of the court below should be affirmed.”

Preston, supra.

     In sum, finding waiver of Appellants’ issues, we affirm the trial court’s

judgment in favor of the Smiths.

     Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015




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