Mazurek, E. v. Russell, J.

J-A28016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD MAZUREK IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOANNE RUSSELL
Appellee No. 257 EDA 2014
Appeal from the Order Entered November 14, 2013
In the Court of Common Pleas of Montgomery County
Civil Division at No: 08-14339
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
CONCURRING MEMORANDUM BY JENKINS, J.: FILED DECEMBER 18, 2014
I join in Judge Wecht’s memorandum for the following reasons.
This Court has held, pursuant to Pa.R.A.P. 1911, that when the
certified record does not include all transcripts necessary for meaningful
review, the appellant waives all issues that cannot be resolved in the
absence of the transcripts. Commonwealth v. Preston, 904 A.2d 1, 7
(Pa.Super.2006) (en banc). Preston observes that when transcripts are
missing from the record, “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. There is one exception to this principle: Pa.R.A.P. 105 prescribes that
the Rules “shall be liberally construed,” and that for good cause, an
appellate court may “disregard” the Rules “in a particular case on application
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of a party or on its own motion.” Pa.R.A.P. 105(a). Based on Rule 105(a),
this Court has decided, in the interest of justice, to consider transcripts not
included in the certified record, where neither party disputes the veracity of
the transcripts. Commonwealth v. Felty, 662 A.2d 1102, 1105 n. 7
(Pa.Super.1995).
In this case, footnote 1 of Judge Wecht’s memorandum states that the
April 201 and August 21 hearing transcripts are not in the certified record,
but that he was able to obtain them “through informal inquiries.” I conclude
that consideration of these transcripts is in harmony both with Preston and
Rule 105(a). While it is not our “responsibility. . .to obtain necessary
transcripts,” Preston, 904 A.2d at 7, when a panelist decides to take this
step, and when neither party disputes the veracity of the transcripts, the
interests of justice weigh in favor of reviewing them.
I consider the interests of justice to weigh most heavily in favor of this
measure when the appellant is pro se and unschooled in the law. The
appellant in this case is an attorney; this is his third appeal against his
former spouse. This appellant does not have any excuse for failing to make
sure that the record was complete. His failure to take this simple step
speaks ill of his attention to detail and indicates his cavalier disregard for
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1
It appears from other citations in Judge Wecht’s memorandum that he
meant to refer to a hearing on April 30, 2013.
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this Court and his opponent. If he fails to take similar steps in any future
appeal, he should not expect lenient treatment.
With these observations, I join Judge Wecht’s well-reasoned
memorandum.
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