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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DAVID PAUL WASHINSKY, EXECUTOR OF THE ESTATE OF PAUL WASHINSKY

v.

THOMAS NICHOLAS WASHINSKY

Appellant : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 468 WDA 2023

Appeal from the Order Entered March 23, 2023 In the Court of Common Pleas of Cambria County Orphans' Court at No(s): 11

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BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J. MEMORANDUM BY KUNSELMAN, J.: FILED: AUGUST 6, 2024 Thomas Washinsky appeals from the order declaring that his father’s purported power of attorney (“POA”) was invalid and further directing return
of certain assets to his father’s estate

. Upon review, we affirm

. Paul Washinsky (“Decedent”) died on January 8, 2022 ; he was a widower survived by four children : David Paul Washinsky, John Matthew Washinsky, Karen Ann Crawford, and Thomas N. Washinsky (“T homas ”)

. Decedent’s wife, Rose Washinsky, predeceased him on January 11, 2021.
Decedent had a will and named David Paul Washinsky as executor of his estate (“D a vid ”)

. Prior to his death, De cedent purportedly executed a power

- of

- attorney (“POA”) on May 4 , 2021 , designating T homas as agent. Thomas made the following transactions pursuant to the POA or by signing Decedent’s name :J

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1) executed a deed dated July 9, 2021, conveying three parcels of decedent's property, including a house, garage, and shed, to himself
for one dollar ($1.00) ; 2) added his name as joint tenant with right of survivorship on Decedent’s existing account with TD AmeriTrade , dated October 15,

2021 , calling several times in January 2022 to check the status of
this application and representing he was Decedent ; 3) completed a TD Ameritrade Transfer on Death Beneficiary Agreement purporting to add his name as joint tenant on an existing a ccount titled in the names of Decedent and his wife, o n October 1, 2021; 4) added his name to a savings account in the name of Decedent and
his wife at U SSCO Credit Union, by account change card dated July
12, 2019 , withdrew funds in the amount of $215,249.53 from this

account on S eptember 21, 2020, and the n closed it ; 5) transferred ownership of a 2014 Ford vehicle owned by D ecedent to
himself for no consideration on August 17, 2021 ; and 6) wrote nine checks on Decedent’s AmeriS e rv e Trust and Financial

Services account for various household expenses while Thomas lived
with Decedent ; 7) w ithdrew $7,259 from Decedent’s CNB bank account; and 8) s ubmitted a beneficiary designation form to Decedent’s UMWA Health
and Retirement fund designating him as the primary b eneficiary ,J

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- listing Decedent’s wife as contingent beneficiary , and withdr aw ing $ 1,589

. See Orphans’ Court O rder , 2/9/23, at 1

- 4, 6.

On February 22, 2022 , D avid , acting on behalf of Decedent’s estate , filed a petition for declaratory judgment with the orphans’ court. Specifically,
David sought a declaration that the P OA was invalid, and an accounting of

as sets transferred pursuant thereto. D avid further requested that other assets, which T homas improperly transferred to himself, be returned to the

est ate , and any beneficiary designations or ownership status be invalidated

. The orphans’ court held a hearing on D avid’s petition. Thereafter, on February 9, 2023, the orphans’ court granted David ’s petition declar ing the

20 21 POA invalid and invalidating the real estate and vehicle transactions

T homas m ade . The court further found that T homas improperly transferred
other assets to himself and established himself as account owner or beneficiary . The court directed that T homas reimburse or return to the estate
assets he transferred to himself and directed entities to re e stablish account ownership and beneficiary designations to their original status. 1

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1 This order was amended twice: on March 23, 2023, to vacate the paragraph regarding the estate’s litigation costs per stipulation of the parties; and, on April 13, 2023, to address several ministerial issues.J

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On February 2 7 , 2023 , T homas filed a post

- trial motion. 2 D avid filed a

motion to quash the mot ion as untimely ; the court de nied it

. On March 2 1 , 2023 , the court denied T homas ’ re quested relief. Thomas filed this timely appeal. 3 Thomas and the orphans’ court complied with Pennsylvania Rule of Appellate Procedure 1925. Thomas raises the following single issue for our review:

Whether the court erred on determination of estate assets, distribution of, and award based upon evidence and testimony.

Thomas’ Brief at 4

. Preliminarily, we must address whether this appeal is properly before

us. 4 “ T he appealability of an order directly implicates the jurisdiction of the

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2 We note that, although the Orphans’ Court Rules provide that no post

- trial motions may be filed to any order or decree of the orphans’ court,” Rule 5.1 provides that an action for declaratory judgment may brought in accordance with the petition rules and t he Pennsylvania Declaratory Judgments Act, 42 Pa.C.S.A. § 7531, et seq. “‘[P]ost

- trial declaratory judgment orders, just like other post

- trial orders, are subject to the post

- trial motion procedures in Rule 227.1.’” Crystal Lake Camps v. Alford , 923 A.2d 482, 488 (Pa. Super. 2007) (quoting Motorists Mutual Ins. Co. v. Pinkerton , 830 A.2d 958, 963 (Pa. 2003)). No one disputes whether the parties followed the pr oper procedure here , therefore, we do not address it.

3 Regarding declaratory judgment actions, the “judgment for purposes of appeal is the initial order declaring rights as to which post

- trial motions are filed, such that the appeal of judgment is triggered by the order denying post

trial motions, not a subsequent entry of judgment on praecipe[.]” Affordable Outdoor, LC v. Tri
- Outdoor , Inc., 210 A.3d 270, 279 n.12 (Pa. Super 2019).

4 W e issued a rule on June 26, 2023 , directing T homas to show cause why the March 23, 2023, order is appealable. T homas filed a timely response stating that the order is appealable as it dispose d of the declaratory judgment action (Footnote Continued Next Page)J

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court asked to review the order.” See Estate of Considine v. Wachovia
Bank , 966 A.2d 1148, 1151 (Pa. Super. 2009). “[T]his Court has the power
to inquire at any time, sua sponte , whether an order is appealable.” Id. It is
well

- settled that “[a]n appeal may be taken from: (1) a final order or an order certified as a final order; (2) an interlocutory order as of right; (3) an interlocutory order by permission; or (4) a collateral order.” In re Estate of
Cella , 12 A.3d 374, 377 (Pa. Super. 2010) (citations and quotation marks omitted).
Here, the order from which T homas appeals is a final order. The orphans’ court disposed of a ll issues D avid raised in the declaratory judgment petition

. 5 See Pa.R.A.P. 341 (defining “final order” as one that dis poses of all claims and of all parties). The court directed T homas to file an accounting

. Following a hearing, the court declared the POA invalid and unenforceable.
The court directed that the value of the car be deducted from T homas ’ share
of the estate and invalidated the deed transferring the real estate to Thomas
pursuant to the POA. The court further directed that various assets T homas improperly acquired from D ecedent be returned to the estate and account

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an d granted declaratory reli e f in D avid ’s favor. By per curiam order dated October 4, 2023, the rule to show cause was discharged, allowing the appeal to proceed. The order further indicated that the issue of appealability may be revisited by the merits panel assigned to address the merits of the appeal.

5 T homas withdrew his will contest.J

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ownership and beneficia ry designation be returned to their original status

. All

issues D avid raised in the petition were resolved by the court’s order. 6
However, u pon further review, we conclude that T homas ’ sole appellate
issue is waived

. We have stated:
The fundamental tool for appellate review is the official record of the events that occurred in the trial court. To ensure that an appellate court has the necessary records, the Pennsylvania Rules of Appellate Procedure provide for the transmission of a ce rtified record from the trial court to the appellate court. The law of Pennsylvania is well settled that matters which are not of record cannot be considered on appeal. Thus, an appellate court is limited to considering only the materials in the certified record when resolving an issue.

. . . [U]nder the Pennsylvania Rules of Appell ate Procedure, any document which is not part of the officially certified record is deemed non

- existent

— a deficiency which cannot be remedied merely by including copies of the m issing documents in a brief or in the reproduced record. ... Simply put, if a document is not in the certified record , the Superior Court may not consider it. This Court cannot meaningfully review claims raised on appeal unless we are provided with a full and complete certified record. This requirement is not a mere “technicality” nor is this a question of whether we are empowered to complain sua sponte of lacunae in the record. In the absence of an adequate certified record, there is no support for an appe llant's arguments and, thus, there is no basis on which relief could be granted.

***

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6 A dditionally, even if this were not a final order, it would be an interlocutory order appealable as of right. Pennsylvania Rule of Appellate Procedure 342 provides, inter alia , that an appeal may be taken as of right from an order of the orphans’ court det ermining an interest in real or personal property . The order at issue here determined that several assets in the possession of T homas properly belonged to the estate.J

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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.

. . . 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. 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.

Commonwealth v. Preston , 904 A.2d 1, 6

- 7 (Pa. Super. 2006) (cit ations omitted). “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
. at 7; see also Pa.R.A.P. 1911(d) (stating that “[i]f the appellant fails to take the action required by these rules and the Pennsylvania Rules of Judicial Administration for the preparation of the transcript, the appellate court may take such action as it deems appropri ate, which may include dismissal of the appeal.”). Thus, the failure by an appellant to ensure that the original record for appeal contains sufficient information to conduct a proper review constitutes a waiver of the issues sought to be examined. Id.

He re, the certified record does not include a transcript of testimony from the hearing held on December 7, 2022 . According to D avid , T homas did not
request that a transcript be produced. D avid confirmed this with the court reporter and Cambria County Clerk of the Orphans’ Court. See D avid ’s Brief,
at 1 fn. 1. This transcript sets for th the testimony of the expert who examined the signatures on the documents as well as T homas ’ own testimony which isJ

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critical to our review in this matter. Without the trans cript, we have nothing

to review. Consequently, T homas ’ issue is waived, and we cannot consider its

merits.
Order affirmed.

DATE: 8/6/2024