J-S41032-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RIVERSIDE MANAGEMENT GROUP, 

LLC AND FRED ONORATO AND 

EDWINA ONORATO, H/W 

Appellants

v.

HOWARD A. FINKELMAN, ESQUIRE 

AND BOCK AND FINKELMAN, P.C.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3407 EDA 2017

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 

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1 Appellees filed a single motion for judgment on the pleadings; however, the 

Onoratos only asserted a breach of fiduciary duty claim against Finkelman. 
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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 

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2 They 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.