Flynn, H. v. Zawilla, G. ( 2018 )

J-S13014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HARVEY H. FLYNN AND SHARON H. : IN THE SUPERIOR COURT OF
FLYNN, HUSBAND AND WIFE : PENNSYLVANIA
:
Appellees :
:
v. :
:
GEORGE G. ZAWILLA AND BONNIE :
ZAWILLA, HUSBAND AND WIFE, :
T/D/B/A GORILLA BUILT AND :
T/D/B/A GORILLA CONSTRUCTION :
AND T/D/B/A GORILLA :
CONTRACTING :
:
Appellants : No. 917 WDA 2017
Appeal from the Judgment Entered May 30, 2017
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 14-019000
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JUNE 12, 2018
Appellants, George G. Zawilla and Bonnie Zawilla, husband and wife,
t/d/b/a Gorilla Built and t/d/b/a Gorilla Construction and t/d/b/a Gorilla
Contracting, appeal from the judgment entered against them in a breach of
contract action. On February 24, 2012, Appellants and Appellees entered into
a home construction contract. On October 15, 2014, Appellees filed a
complaint against Appellants for breach of contract and violation of the Unfair
Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-1
et seq., for double charging for additions and modifications to the original
project design and performing deficient and incomplete work. Appellants filed
J-S13014-18
an answer, new matter, and counterclaim on December 19, 2014, alleging
Appellees breached the February 24, 2012 contract. The court held a bench
trial from March 20, 2017 to March 23, 2017. On April 21, 2017, the court
entered a verdict in favor of Appellees on all breach of contract claims in the
amount of $49,474.00, and denied relief on Appellees’ UTPCPL claims.
Appellants timely filed a post-trial motion on April 28, 2017. The court held a
hearing on May 23, 2017, and denied Appellants’ post-trial motion on May 25,
2017. On May 30, 2017, the court entered judgment on the verdict in favor
of Appellees. Appellants timely filed a notice of appeal on June 23, 2017. The
court, on June 29, 2017, ordered Appellants to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellants
timely complied on July 17, 2017. Appellants’ issues on appeal include: (1)
the court’s verdict on the breach of contract claims lacked sufficient evidence
and (2) the court erred when it found Bonnie Zawilla, Gorilla Contracting, and
Zawilla Construction were parties to the contract.
As a prefatory matter, the appellant has the responsibility to provide a
complete record for review. Conner v. DaimlerChrysler Corp., 820 A.2d
1266 (Pa.Super. 2003). This Court is limited to considering only those
materials which have been certified in the record on appeal. Pa.R.A.P. 1921;
As a general rule, if a claim is dependent upon materials which are not included
in the certified record, then the claim is waived. Stewart v. Owens-Corning
Fiberglas, 806 A.2d 34 (Pa.Super. 2002). This Court has said:
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With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any
transcript necessary to permit resolution of the issues raised
on appeal. Pa.R.A.P. 1911(a). … 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. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (en banc),
appeal denied, 591 Pa. 663, 916 A.2d 632 (2007). The appellant has the duty
to take the affirmative steps to secure the transcripts necessary to resolve the
issues raised on appeal. Commonwealth v. Houck, 102 A.3d 443 (Pa.Super.
2014). Upon failure of the appellant to take any steps to secure the
transcripts, we can deem the dependent issue(s) waived. Id.Instantly, the court entered judgment in favor of Appellees on their
breach of contract claims. Appellants timely appealed but did not order and
pay for the trial transcripts to ensure we had a complete record needed for
review of their issues. Nothing in the certified record or on appeal indicates
the transcripts are even available. Although Appellants insist the transcripts
are unnecessary, we disagree and deem their issues waived for appeal. See
Preston, supra; Conner, supra. Accordingly, we affirm. See In re K.L.S.,
594 Pa. 194, 934 A.2d 1244 (2007) (noting if appellant waives issues on
appeal, then we should affirm trial court’s decision rather than quash appeal).
Due to our disposition, we deny Appellees’ open motion to dismiss as moot.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2018
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