First National Bank of PA v. Roman, A. & A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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