J-S41032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RIVERSIDE MANAGEMENT GROUP,                :     IN THE SUPERIOR COURT OF
    LLC AND FRED ONORATO AND                   :          PENNSYLVANIA
    EDWINA ONORATO, H/W                        :
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :     No. 3407 EDA 2017
                                               :
    HOWARD A. FINKELMAN, ESQUIRE               :
    AND BOCK AND FINKELMAN, P.C.               :

              Appeal from the Judgment Entered October 13, 2017
               In the Court of Common Pleas of Delaware County
                      Civil Division at No(s): 2012-08630


BEFORE:      GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

CONCURRING MEMORANDUM BY OLSON, J.:                    FILED DECEMBER 17, 2018

       I agree with the learned Majority that the trial court correctly granted

Howard A. Finkelman, Esquire (“Finkelman”), and Bock and Finkelman, P.C.

(“the Firm” and, together with Finkelman, “Appellees’”) motion for judgment

on the pleadings with respect to all claims purportedly brought by Riverside

Management Group, LLC (“Riverside”).               I also agree that the trial court

properly granted Appellees’ motion for judgment on the pleadings with respect

to Fred Onorato and Edwina Onorato (“the Onoratos’”) breach of fiduciary duty

claim against Finkelman.1        I write separately to explain why I reach those


____________________________________________


1Appellees filed a single motion for judgment on the pleadings; however, the
Onoratos only asserted a breach of fiduciary duty claim against Finkelman.
____________________________________
* Former Justice specially assigned to the Superior Court.
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conclusions for different reasons than the Majority and to clarify that I believe

that the certified record we are permitted to consider is insufficient to review

the trial court’s decision to grant Appellees’ motion for judgment on the

pleadings with respect to the Onoratos’ legal malpractice claim. Accordingly,

I concur only in the judgment.

      Preliminarily, the Majority fails to address Appellees’ argument that this

appeal should be quashed pursuant to Pennsylvania Rule of Appellate

Procedure 2101, which provides that:

      Briefs and reproduced records shall conform in all material
      respects with the requirements of these rules as nearly as the
      circumstances of the particular case will admit, otherwise they
      may be suppressed, and, if the defects are in the brief or
      reproduced record of the appellant and are substantial, the appeal
      or other matter may be quashed or dismissed.

Pa.R.A.P. 2101.

      I agree with Appellees’ averment that Riverside’s and the Onoratos’

reproduced record fails to comply with the relevant rules of appellate

procedure. I believe, however, that we should exercise our discretion and not

quash or dismiss the appeal. I would caution Appellants’ counsel to comply

with the Pennsylvania Rules of Appellate Procedure in all respects.

      Turning to the merits of this appeal, I agree with the trial court’s decision

to grant Appellees’ motion for judgment on the pleadings with respect to

claims purportedly brought by Riverside.       The amended complaint defines

“Plaintiffs” as “Frederick P. and Edwina Onorato.”         Amended Complaint,

10/7/13, at 1.    Thereafter, the amended complaint asserts only claims on

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behalf of “Plaintiffs” against Appellees. See generally id. As Riverside was

not included in the definition of “Plaintiffs,” the amended complaint did not

assert any claims against Appellees. Hence, the trial court properly granted

Appellees’ motion for judgment on the pleadings with respect to the purported

claims brought by Riverside.

      Second, I agree with the trial court’s decision to grant Finkelman’s

motion for judgment on the pleadings on the Onoratos’ claim for breach of

fiduciary duty. The elements of a breach of fiduciary claim are: (1) a fiduciary

relationship between the plaintiff and defendant; (2) that the defendant (a)

negligently or intentionally failed to act in good faith and solely for the benefit

of the plaintiff in all matters for which he or she was employed and/or (b)

negligently or intentionally failed to use reasonable care in carrying out his or

her duties; (3) that the plaintiff suffered injury; and (4) that the defendant’s

failure (a) to act solely for the plaintiff’s benefit and/or (b) to use the skill and

knowledge demanded of him or her by law was a real factor in bringing about

the plaintiff’s injuries.   See Pa.S.S.J.I. (Civ.) § 6.210 (2015); see also

Conquest v. WMC Mortgage Corp., 247 F.Supp.3d 618, 633 (E.D. Pa. 2017)

(citation omitted); Snitow v. Snitow, 2016 WL 6916537, *9 (C.C.P.

Philadelphia 2016), aff’d, 181 A.3d 1262 (Pa. Super. 2017) (unpublished

memorandum) (citation omitted).

      The Onoratos argue that they pled the requisite facts for purposes of

establishing the second element of the tort by alleging that


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      Finkelman breached the fiduciary duty of loyalty he owed [the
      Onoratos] by placing his own professional and pecuniary interests
      above the duty of loyalty, honesty and fidelity that he owed [the
      Onoratos] in failing to disclose his conflict of interest through his
      representation of Phelan and his authorization of the misuse of the
      Riverside/Penn Business Credit loan proceeds.

Amended Complaint, 10/7/13, at 12.          Another averment in the amended

complaint, however, completely refutes this assertion.         Specifically, the

Onoratos admitted that “Section 11(g) of the Release provides that []

Finkelman was representing Phelan, Collins, Rose, and [the Onoratos].” Id.

at 5 (emphasis removed). Hence, the pleadings unambiguously confirm that

Finkelman disclosed his relationship and did not breach his fiduciary duty in

this respect. Accordingly, the trial court properly granted Finkelman’s motion

for judgment on the pleadings with respect to the Onoratos’ breach of fiduciary

duty claim.

      Finally, I believe that the certified record we may consider on appeal is

insufficient to review the trial court’s decision to grant Appellees’ motion for

judgment on the pleadings with respect to the Onoratos’ legal malpractice

claims. At the argument on the motion for judgment on the pleadings, the

Onoratos made stipulations of fact relating to their legal malpractice claim.

These stipulations went beyond those stipulations entered into between the

parties at the time Appellees moved for judgment on the pleadings. Without

consideration of these stipulations entered into between the Onoratos and

Appellees, it is impossible to determine whether the trial court properly




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granted Appellees’ motion for judgment on the pleadings for the reasons

articulated by the trial court, or if we could affirm on a different basis.

      In its opinion, the trial court notes that no transcript of the argument

held on July 13, 2017 existed. Trial Court Opinion, 1/16/18, at 20. In their

brief, Appellees also note this deficiency and contend that the certified record

is insufficient for us to decide the questions presented because of certain

stipulations the Onoratos made at that hearing. See Appellees’ Brief at 44.

Approximately three weeks after Appellees filed their brief, the transcript was

filed in the trial court.   The Delaware County Office of Judicial Support

transmitted a supplemental certified record to this Court that included the

transcript. Hence, I turn to whether we may consider the transcript or must

disregard it.

      Pennsylvania Rule of Appellate Procedure 1926(b) provides that:

      If anything material to a party is omitted from the record by error,
      breakdown in processes of the court, or accident or is
      misstated therein, the omission or misstatement may be corrected
      by the following means:

      (1) by the trial court or the appellate court upon application or on
      its own initiative at any time; in the event of correction or
      modification by the trial court, that court shall direct that a
      supplemental record be certified and transmitted if necessary; or

      (2) by the parties by stipulation filed in the trial court, in which
      case, if the trial court clerk has already certified the record, the
      parties shall file in the appellate court a copy of any stipulation
      filed pursuant to this rule, and the trial court clerk shall certify and
      transmit as a supplemental record the materials described in the
      stipulation.

Pa.R.A.P. 1926(b) (emphasis added).

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      Pursuant to the rule, there are two ways in which the certified record

may be supplemented after it is transmitted to this court. First, if something

is omitted from the certified record by error, breakdown in processes of the

court, or accident, the parties may stipulate to such supplementation. In this

case, the parties did not stipulate to supplementation of the certified record.

Hence, the requirements of Rule 1926(b)(2) were not satisfied.

      The second manner by which a certified record may be supplemented

requires that: (1) something is omitted from the certified record by error,

breakdown in processes of the court, or accident; (2) (a) this Court, either

sua sponte or in response to an application, orders supplementation of the

certified record or (b) the trial court, either sua sponte or in response to a

motion, directs supplementation of the certified record.          See Pa.R.A.P.

1926(b)(1).    For the reasons set forth below, I conclude that the first

requirement for supplementation of the record under Rule 1926(b)(1) was not

satisfied.

      The phrase “error, breakdown in processes of the court, or accident”

excludes the situation present in this case, i.e., the Onoratos’ failure to comply

with Pennsylvania Rule of Appellate Procedure 1911(a).             Rule 1911(a)

provides that, “The appellant shall request any transcript required under this

chapter[.]” Pa.R.A.P. 1911(a). The transcript request must be made at the

time the notice of appeal is filed. Pa.R.A.P. 904(c). Failure to comply with

Rule 1911(a) results in waiver.     See Pa.R.A.P. 1911(d).     In this case, the


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transcript request was not filed until months after the required date –

presumably after Appellees’ brief was filed. Cf. Pa.R.J.A. 4011(A) (requiring

court reporter to file transcript within 14 days of receiving transcript request).

       This was not an “error, breakdown in processes of the court, or

accident.” Pa.R.A.P. 1926(b). It was not a breakdown in the processes of the

court because no transcription request was filed with the notice of appeal. It

was not an accident because the Onoratos were on notice, since the filing of

the trial court opinion, that the transcript was not ordered.2 It also was not

an error. Under the canon of construction noscitur a sociis, a word in a series

must be interpreted in light of the other words in that series.              See

Commonwealth v. Null, 186 A.3d 424, 432 (Pa. Super. 2018) (citation

omitted). The other two words in the series indicate that Rule 1926(b) covers

situations where the certified record is incomplete because of an unintentional

act. Deliberate indifference to the requirements of the appellate rules is not

unintentional – it is an intentional decision.

       Moreover, construing the appellate rules in a manner that would permit

consideration of the July 13, 2017 transcript would harm our judicial process.

Appellants could deliberately delay requesting necessary transcripts and/or

delay in ensuring certain documents are included in the certified record until



____________________________________________


2They were also on notice when the list of documents in the certified record
was sent to them pursuant to Pennsylvania Rule of Appellate Procedure
1931(d).

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after the appellee files its brief. The appellant could then use its reply brief to

argue that the relevant transcript and/or document was included in the

certified record and should be considered by this Court. I decline to interpret

Rule 1926(b) in a manner that would incentivize such behavior.

      Without considering the stipulations made at the July 13, 2017

argument, it is impossible to determine if the trial court correctly granted

Appellees’ motion for judgment on the pleadings with respect to the legal

malpractice claims brought by the Onoratos. Hence, I would find that the

Onoratos waived this argument by failing to comply with Rules 904(c) and

1911(a). See Pa.R.A.P. 1911(d).

      Based on the foregoing analysis, I would affirm the trial court’s order on

different grounds. Accordingly, I respectfully concur only in the judgment.

      President Judge Emeritus Stevens concurs in the result.




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