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Check the Certified Trial Court Record for Omissions

Did you know that Pennsylvania appellate courts may find an issue waived where a document relevant to the issue is omitted from the original record certified by the trial court, even though the document is available to the appellate court in the reproduced record and there is no dispute that the document was admitted into evidence and relied on by the trial court?

It happens with maddening frequency, usually in unpublished memorandum opinions, but not always.  There is only one way to prevent this type of Draconian result:  as soon as the trial court transmits the certified record to the appellate court, review the certified record at the appellate court prothonotary’s office to make certain that every material document in the trial court record has in fact been transmitted by the trial court.  If documents are missing, the omission can be cured easily (by stipulation, trial court action, or appellate court action — look at Pa. R.A.P. 1926).  The key point is that an omission from the certified record cannot be cured by including the document in the reproduced record.

Suggested further reading:  Darlington, McKeon, Schuckers and Brown, Pennsylvania Appellate Practice 2010-2011(West) §§ 1921:2, 1926:1-7.

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