J-A26017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FIRST NATIONAL BANK OF PA,                     IN THE SUPERIOR COURT OF
FORMERLY KNOWN AS LEGACY BANK                        PENNSYLVANIA

                            Appellee

                       v.

ALVIN AND ANNA ROMAN

                            Appellants               No. 135 MDA 2014


                Appeal from the Judgment Entered April 24, 2014
                In the Court of Common Pleas of Luzerne County
                      Civil Division at No(s): 5027 of 2007


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                       FILED NOVEMBER 20, 2014

       Appellants, Alvin and Anna Roman (the Romans),1 appeal from the

April 24, 2014 judgment entered in favor of Appellee, First National Bank of

PA (First National), in the amount of $176,109.56 on its action to conform its

confession of judgment against Alvin Roman (Roman). After careful review,

we affirm.


____________________________________________


1
  While Anna Roman is nominally a party to this appeal, we note that the
trial court order that is the subject of the instant appeal entered a verdict
against only Alvin Roman. Trial Court Order, 12/19/13, at 4. The trial court
previously, on November 7, 2011, entered default judgment in favor of First
National and against Anna Roman for $176,109.56. Trial Court Order,
11/7/11, at 1. On November 9, 2011, First National filed a praecipe for the
entry of default judgment in accordance with that order, and the
prothonotary entered judgment. Trial Court Entry of Judgment, 11/9/11, at
2. Anna Roman did not appeal that judgment.
J-A26017-14



       We summarize the factual and procedural history of this case as

follows. On April 6, 2006, Roman executed a promissory note in his capacity

as president of No. 1 Contracting Corporation (No. 1 Contracting) in favor of

First National. Trial Court Opinion, 12/19/13, at 1.2 Roman also personally

guaranteed the loan made by First National to No. 1 Contracting. Id. This

personal guarantee contained a separate warrant of authority to confess

judgment, which Roman signed in his individual capacity. Id. at 2. Upon

the execution of the promissory note and personal guarantee, First National

tendered the proceeds of the loan of $150,000.00 to No. 1 Contracting.

       The purpose of the loan, as set forth in paragraph 9 of the promissory

note, was to enable No. 1 Contracting “to pay a subcontractor (US Seal,

Inc.) for work performed while the company waits to collect on its receivable

with Allen Myers, Inc.” Id. at 1 (quoting April 6, 2006 promissory note). In

accordance, No. 1 Contracting, at the direction of Roman, applied the net

proceeds of $149,454.00 from the First National loan to an account of US

Seal, Inc. Id. at 2.

       No. 1 Contracting defaulted on the $150,000.00 loan after making

some interest payments on the loan. Id. As of the filing of the confession

of judgment on May 10, 2007, No. 1 Contracting owed First National

$176,109.56. Id.

____________________________________________


2
  We rely on the trial court’s findings of fact because the Romans have not
requested that the trial transcript be made part of the certified record.



                                           -2-
J-A26017-14



       On May 10, 2007, First National exercised the warrant of authority

provision of the personal guarantee and confessed judgment against Roman

individually.   First National’s Confession of Judgment, 5/10/07, at 1.    On

June 17, 2010, First National filed a complaint to conform confessed

judgment. First National’s Complaint, 6/17/10, at 1. The case proceeded to

a nonjury trial in July 2013. On December 19, 2013, the trial court issued

an opinion and order finding Roman personally liable to First National for

$176,109.56. Trial Court Opinion, 12/19/13, at 3.

       On January 6, 2014, the Romans filed an untimely motion for post-trial

relief incorrectly captioned as a motion for reconsideration.3 On January 17,

2014, the Romans filed a notice of appeal.4
____________________________________________


3
   The motion for reconsideration indicated that it was filed pursuant to Rule
227.1 of the Pennsylvania Rules of Civil Procedure.          Rule 227.1(c)(2)
provides that “[p]ost-trial motions shall be filed within ten days after … the
filing of the decision in the case of a trial without jury.”         Pa.R.C.P.
227.1(c)(2). Here, the trial court filed its decision on December 19, 2013,
and the prothonotary mailed notice of the decision to the parties in
accordance with Rule 236 on December 20, 2013. Accordingly, Roman had
ten days from December 20, 2013 to file timely post-trial motions. Thus,
the post-trial motions filed on January 6, 2014 were untimely as they were
filed 17 days after the prothonotary mailed notice of the trial court’s
decision. First National did not object to the post-trial motions as untimely
filed. The trial court denied the pending post-trial motions on April 10,
2014. Trial Court Order, 4/10/14, at 1.
4
 The Romans timely complied with Rule 1925 of the Pennsylvania Rules of
Appellate Procedure by filing a Rule 1925(b) statement on February 21,
2014. The Romans’ Rule 1925(b) Statement, 2/21/14, at 1. The trial court,
however, did not issue a 1925(a) opinion. In light of our disposition, we
need not remand for a trial court opinion.

(Footnote Continued Next Page)


                                           -3-
J-A26017-14



      On appeal, the Romans raise the following issues for our review.

             A)        Should not the [trial] court have concluded
                       that since a fraud was commit[t]ed prior to the
                       notes being signed that said notes are void ab
                       initio and were based on major and material
                       misrepresentations of [First National?]

             B)        Should not the [trial] court have ruled that
                       because     of    the   major     and     material
                       misrepresentations by a representative of
                       [First National] that there was not a valid and
                       binding contract between the parties and
                       therefore no personal guarantees existed and
                       said guarantees are invalid due to the
                       fraudul[e]nt actions of [First National?]

Romans’ Brief at 6.

      We begin by noting our scope and standard of review in an appeal

from a non-jury verdict.

             Our appellate role in cases arising from non-jury trial
             verdicts is to determine whether the findings of the
                       _______________________
(Footnote Continued)

       Moreover, the Romans’ notice of appeal was premature because it was
filed before the entry of judgment. See Pa.R.A.P. 301(c) (stating, “a
direction by the lower court that a specified judgment, sentence or other
order shall be entered, unaccompanied by actual entry of the specified order
in the docket, does not constitute an appealable order. Any such order shall
be docketed before an appeal is taken[]”). By per curiam order dated April
17, 2014, this Court directed the Romans to praecipe for entry of judgment
with the trial court prothonotary. The Romans complied on April 24, 2014,
and judgment was entered. Thus, we now have jurisdiction over this appeal
pursuant to Rule 905(a)(5), which provides that “a notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof.” Pa.R.A.P. 905(a)(5).




                                            -4-
J-A26017-14


            trial court are supported by competent evidence and
            whether the trial court committed error in any
            application of the law. The findings of fact of the trial
            judge must be given the same weight and effect on
            appeal as the verdict of a jury. We consider the
            evidence in a light most favorable to the verdict
            winner. We will reverse the trial court only if its
            findings of fact are not supported by competent
            evidence in the record or if its findings are premised
            on an error of law.

Amerikohl Mining Co., Inc. v. Peoples Natural Gas Co., 860 A.2d 547,

549-550 (Pa. Super. 2004) (citations and quotation marks omitted).

            It is not the role of an appellate court to pass on the
            credibility of witnesses; hence we will not substitute
            our judgment for that of the factfinder. Thus, the
            test we apply is not whether we would have reached
            the same result on the evidence presented, but
            rather, after due consideration of the evidence which
            the trial court found credible, whether the trial court
            could have reasonably reached its conclusion.

Hollock v. Erie Ins. Exch., 842 A.2d 409, 414 (Pa. Super. 2004) (citations

and quotation marks omitted).

      Here, the central issue raised by both of Roman’s issues on appeal is

the factual contention that First National made “major and material

misrepresentations,” which voids the promissory note and the personal

guarantee. Romans’ Brief at 6.      Specifically, Roman asserts First National

represented that U.S. Seal had inadequate capital on deposit with First

National and would need additional capital to fulfill payroll requirements. Id.

at 10. First National purportedly represented that the payroll requirements

for the job would be approximately $150,000.00. Roman contends this was



                                      -5-
J-A26017-14


a misrepresentation because exhibit D-6 supposedly established that only

$65,982.00 was needed for the payroll, not $150,000.00 as represented by

First National. Id. at 10-11. The trial court’s opinion stated “[b]ased upon

the credibility of the witnesses, the [c]ourt does not find that [First National]

through its representatives made any misrepresentations to Alvin J. Roman

or any representatives of No. 1 Contracting Corporation.”            Trial Court

Opinion, 12/19/13, at 2.      Roman asks this Court to review this factual

finding. Romans’ Brief at 10.

      After careful review of the record, we have determined that Roman

has waived his issues on appeal for his failure to ensure a transcript of the

trial was included in the certified record.      Without a full and complete

certified record, this Court cannot conduct a meaningful review of issues

raised on appeal. Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super.

2006) (en banc). “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.” Id. The certified record is comprised of “[t]he original

papers and exhibits filed in the lower court, paper copies of legal papers filed

with the prothonotary by means of electronic filing, 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.




                                      -6-
J-A26017-14


       As the note to Rule 1921 explains, Rule 1931 provides a safeguard

against waiver for lack of a complete certified record.    Id. at 1921 Note.

Rule 1931(d) directs the clerk of the trial court to provide the appellant with

a copy of the list of record documents. Pa.R.A.P. 1931(d). If, upon review

of this list, the appellant discovers material has been omitted from the

certified record, Rule 1926 establishes processes to correct any omissions by

obtaining a supplemental certified record. Id. at 1926(b). “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.” Preston, supra.

       Under Rule 1911(a), it is solely the appellant’s duty to order and pay

for any transcript necessary to permit the resolution of the issues raised on

appeal. Pa.R.A.P. 1911.5

____________________________________________


5
    Rule 1911. Request for Transcript

                    (a) General rule. The appellant shall request
              any transcript required under this chapter in the
              manner and make any necessary payment or deposit
              therefor in the amount and within the time
              prescribed by Rules 5000.1 et seq. of the
              Pennsylvania Rules of Judicial Administration (court
              reporters).

                                               …

                    (d) Effect of failure to comply.        If the
              appellant fails to take the action required by these
              rules and the Pennsylvania Rules of Judicial
(Footnote Continued Next Page)


                                           -7-
J-A26017-14


             When the appellant … fails to conform to the
             requirements of Rule 1911, any claims that cannot
             be resolved in the absence of the necessary
             transcript or transcripts must be deemed waived for
             the purpose of appellate review. [Commonwealth
             v. ]Williams, 715 A.2d [1101,] 1105 [(Pa. 1998)].
             It is not proper for either the Pennsylvania Supreme
             Court or the Superior Court to order transcripts nor
             is it the responsibility of the appellate courts to
             obtain the necessary transcripts. Id.

Preston, supra.

      Our review of the certified record reveals that Roman has failed to

request the trial transcripts be made part of the certified record in

accordance with Rule 1911. Roman was on notice that the transcript was

not part of the certified record when the trial court prothonotary mailed

Roman the copy of the list of record documents pursuant to Rule 1931(d).

The transcript of the July 2013 trial court hearing is missing from the list of

record documents.          Pa.R.A.P. 1931 List, 3/31/14, at 6.    Despite this

omission, Roman took no action to make the transcript part of the certified

record.

      Absent said transcript, we cannot meaningfully review whether the

record supported the trial court’s determination that First National’s
                       _______________________
(Footnote Continued)

             Administration for the preparation of the transcript,
             the appellate court may take such action as it deems
             appropriate, which may include dismissal of the
             appeal.

Pa.R.A.P. 1911.




                                            -8-
J-A26017-14


representatives did not make misrepresentations to Roman to induce him to

enter the promissory note or personal guarantee. See Amerikohl Mining,

supra.     Accordingly, we deem Roman’s issues waived for his failure to

supply the transcripts necessary for our review of his issues. See Preston,

supra.

       Based on the foregoing, we conclude that both of the Romans’ claims

on appeal are waived.6         Accordingly, we affirm the trial court’s April 24,

2014 judgment.

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2014




____________________________________________


6
  First National also argues in its brief that Roman waived his claims because
he did not file post-trial motions, and he did not file a designation of
contents of the reproduced record. First National’s Brief at 6-9. Given our
conclusion that Roman’s issues are waived for his failure to supply
transcripts, we need not address First National’s remaining waiver issues.



                                           -9-
