J-A21040-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SILVIA SANTO : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHAD BATTERMAN : : Appellant : No. 2720 EDA 2023
Appeal from the Order Entered September 29, 2023 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): PACSES: 267116855
BEFORE: KUNSELMAN, J., NICHOLS, J., and BECK, J.
MEMORANDUM PER CURIAM: FILED JANUARY 15, 2025
Chad Batterman (“Batterman”) appeals pro se from the order entered
by the Philadelphia County Court of Common Pleas (“trial court”) finding him
in contempt for violating a support order, sentencing him to thirty days’
incarceration, and imposing a purge factor of $5,000. After careful review,
we affirm.
Batterman and Silvia Santo (“Santo”) were married in November 2014,
separated in November 2017, and divorced in August 2023. The parties had
two children during the marriage. In December 2017, Santo filed a complaint
for child support against Batterman. On June 22, 2018, the trial court entered
a final child support order calculating Batterman’s monthly obligation for the
two children to be $686.00 per month. J-A21040-24
On October 1, 2018, Batterman filed a petition to modify the support
order. Following protracted proceedings, the trial court entered an order on
February 20, 2020, directing Batterman to pay $674.48 per month in child
support. This Court affirmed that order. See Santo-Batterman v.
Batterman, 1258 EDA 2020 (Pa. Super. Aug. 23, 2021) (non-precedential
decision).
In the interim, on January 17, 2020, Santo filed a petition for contempt
of the initial child support order.1 As a result of the Covid-19 pandemic, the
hearing on the petition was delayed until April 1, 2022. At that hearing,
Batterman did not appear and the trial court issued a bench warrant.
Batterman surrendered three days later, but the trial court did not resolve the
contempt petition and instead scheduled a hearing. At the next scheduled
hearing on September 1, 2022, Batterman again failed to appear, and the trial
court issued another bench warrant. Batterman returned to the courthouse
on September 9, 2022, but the trial court did not decide the petition at that
time. The trial court scheduled a hearing on the contempt petition for October
31, 2022. Once again, Batterman failed to appear at that hearing, prompting
the trial court to issue another bench warrant. Batterman came to the
courthouse the following day, but left before there was any resolution to the
____________________________________________
1 Santo argued that Batterman violated a April 19, 2019 support order in her
contempt petition. However, a review of the record indicates that Batterman had filed a modification petition on that date. At the time of the filing of the contempt petition, the June 22, 2018 support order was still in effect.
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contempt petition. As a result, the trial court issued a bench warrant, which
was subsequently reissued on November 3, 2022.2 On November 15, 2022,
while still a fugitive, Batterman filed three petitions: a petition to assign the
support case as complex, a petition to reinstate his driver’s license, and a
petition to suspend/modify his child support.
Ultimately, Batterman surrendered in September 2023, and the trial
court held hearings on the contempt petition on September 25 and 29, 2023.
Batterman testified that he was unable to make payments because he had
medical problems that inhibited his ability to work. Further, Batterman’s
mother testified that she pays Batterman’s bills and for his vacations, but not
his child support. At the conclusion of the hearing, the trial court found
Batterman in civil contempt of the child support order. The trial court
sentenced Batterman to thirty days in prison with a purge factor of $5,000.
Batterman immediately paid the purge factor, and was released from prison.
Batterman filed a timely appeal, raising numerous claims for our review.
Finding Batterman in Contempt
First, Batterman contends that the trial court abused its discretion in
finding him in contempt. Batterman’s Brief at 2, 37, 39. Batterman claims
he could not comply with the support order because he was unable to work or
earn an income and has no assets. Id. at 9, 19; see also id. at 9-10 (noting
2 Batterman also did not appear at the November 8, 2022 hearing on his petition to suspend/modify child support and alimony pendente lite.
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the trial court failed to review the support order). He asserts that he has been
unable to work since January 2019 because of medical issues. Id. at 3-4, 8,
11, 13-14, 15, 23-24; see also id. at 17-18 (stating that Batterman’s mother
corroborated his medical issues). Batterman claims the trial court ignored the
recent undisputed evidence from June 2023 indicating that a doctor ordered
him not to work. Id. at 15; see also id. at 15-16 (noting that the trial court
improperly demanded an order stating Batterman could not work, but could
travel, arguing that the trial court has no legal authority to dictate what a
doctor should order after examining a patient); id. at 23, 25-26 (arguing that
the trial court finding that 98% of Batterman’s medical records were redacted
is not supported by the record, and noting only one doctor’s order has
redactions).
Despite being unable to work, he observes that the trial court assigned
him an earning capacity of $26,000 per year. Id. at 2-3. Batterman asserts
that he needs to pay child and spousal support, the children’s health
insurance, and fund his own needs from his earnings. Id. at 3, 18, 19. He
points out that multiple courts have granted him in forma pauperis status
based on his own inability to pay fees, which he contends establishes his
indigency. Id. at 31, 33-34. Batterman further claims that Santo refuses to
work full-time and does not provide support or pay for extracurricular activities
for the children. Id. at 36.
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He additionally contends that his parents’ money is not relevant in
determining his ability to pay, and the trial court’s reliance on his parents’
wealth is not supported by the record and prejudices him. See id. at 4-5, 19,
31, 38. Batterman acknowledges that his parents pay his purge factors to
keep him out of prison, but asserts that they will not pay support because
they are financially drained. Id. at 27-30, 32, 33 n.22. Batterman further
argues that although he lives in a home owned by his parents and his parents
loan him the money to pay for rent, utilities, and other costs, his parents do
not pay for all his expenses. Id. at 5, 26-27, 29-30, 31-32, 38-39. Batterman
argues that his parents are free to spend their money how they wish. Id. at
22. According to Batterman, and contrary to what he believes to be the trial
court’s finding, the definition of income under the Domestic Relations Code
does not include his parents paying his reasonable living costs. Id. at 5-6,
20.
We will reverse an order granting a civil contempt petition only if the
trial court misapplied the law or exercised its discretion in a manner that
lacked reason. MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super.
2012). “Each court is the exclusive judge of contempts against its process.
The contempt power is essential to the preservation of the court’s authority
and prevents the administration of justice from failing into disrepute.”
Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013) (citation omitted);
see also Pa.R.Civ.P. 1910.25. “The purpose of civil contempt is to compel
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performance of lawful orders, and in some instances, to compensate the
complainant for the loss sustained. When contempt is civil, a court must
impose conditions on the sentence so as to permit the contemnor to purge
himself.” Gunther v. Bolus, 853 A.2d 1014, 1018 (Pa. Super. 2004)
(citations and quotation marks omitted).
The general rule in proceedings for civil contempt is that “the burden of
proof rests with the complaining party to demonstrate, by a preponderance of
the evidence, that the defendant is in noncompliance with a court order.”
Habjan, 73 A.3d at 637 (citation omitted).
To sustain a finding of civil contempt, the complainant must prove certain distinct elements: (1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act constituting the contemnor’s violation was volitional; and (3) that the contemnor acted with wrongful intent.
Id. (citation omitted). “The alleged contemnor may then present evidence
that he has the present inability to comply and make up the arrears.” Hyle
v. Hyle, 868 A.2d 601, 604 (Pa. Super. 2005).
Here, the record establishes that the trial court entered a child support
order, Batterman had notice of the order (indeed, he filed a modification
petition), and failed to make the required monthly payments. To that end,
Batterman had accumulated arrearages of over $32,000, and the last child
support payment was received in March 2021. N.T., 9/25/2023, at 9-10.
Accordingly, Batterman has failed to comply with the support order, which
generally is sufficient to establish his willful violation. See Trial Court Opinion,
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1/31/2024, at 4 (finding that “Batterman’s actions in failing to comply with
his order of support are willful”); see also Godfrey v. Godfrey, 894 A.2d
776, 783 (Pa. Super. 2006) (concluding that the evidence of record supported
the trial court’s finding that the father willfully violated the child support order
where father never complied with the support order and had accumulated
substantial arrearages).
Batterman argues, however, that his noncompliance is not willful, but
that his nonpayment is because he is unable to meet his child support
obligations and therefore cannot be found in contempt. See Hyle, 868 A.2d
at 604. To that end, Batterman seeks to relitigate the calculation of his
earning capacity based upon his inability to work for a period of over four
years. In so arguing, he relies on various doctors’ reports detailing this
inability. We note, however, that Batterman presented this evidence to the
trial court, which found it to be unpersuasive and incredible. See Trial Court
Opinion, 1/31/2024, at 4. We must defer to the trial court’s credibility
determinations and conclude that Batterman’s claim that he was unable to
work is not supported by the record. See Habjan, 73 A.3d at 644.
Additionally, Batterman takes issue with the trial court’s reliance on his
parents’ financial support in the form of living expenses, payment for
vacations, and payment of prior purge factors each time he has been found in
contempt. Batterman argues the trial court erred in finding his parents’
financial aid was properly calculated as part of his income.
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“The starting point for calculation of a parent’s child support obligation
is a determination of each party’s income available for support.” Mencer v.
Ruch, 928 A.2d 294, 297 (Pa. Super. 2007). “The assessment of the full
measure of a parent’s income for the purposes of child support requires courts
to determine ability to pay from all financial resources” and “the court must
consider all forms of income.” Id. (citation and quotation marks omitted).
For purposes of child support, “income” is defined as follows:
“Income.” Includes compensation for services, including, but not limited to, wages, salaries, bonuses, fees, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; income from life insurance and endowment contracts; all forms of retirement; pensions; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; income from an interest in an estate or trust; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workers’ compensation; unemployment compensation; other entitlements to money or lump sum awards, without regard to source, including lottery winnings; income tax refunds; insurance compensation or settlements; awards or verdicts; and any form of payment due to and collectible by an individual regardless of source.
23 Pa.C.S. § 4302. Notably, “[w]hile this definition is expansive, it includes
neither gifts nor loans.” Suzanne D. v. Stephen W., 65 A.3d 965, 970 (Pa.
Super. 2013); see also id. (“Because a gift is given not in exchange for
services, it does not meet the statutory definition of income.”).
We conclude that Batterman is correct that the funds he receives from
his parents cannot be counted as “income.” The record reflects that
Batterman’s parents’ financial assistance includes the cost of his monthly rent
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($3,000), his utilities and other living expenses, children’s health insurance
and extracurricular activities, and $15,000 for a custody evaluation in
Montgomery County. See N.T., 9/29/2023, at 17-18, 19, 48-49, 51, 53-54,
56-57, 58, 60-61; N.T., 9/25/2023, at 13, 14-15, 16-17, 59, 62-64, 66, 71.
Such payments are properly classified as a gift or a loan. See Suzanne D.,
65 A.3d at 971, 973 (finding that paternal grandfather’s payment of private
school tuition, children’s medical expenses, and extracurricular activities were
gifts). As such, the money provided to Batterman cannot be considered
“income” for child support purposes. See id. at 972 (“Monetary gifts from
family members are a common practice, and would not have been unknown
to the drafters of the statute. Had the General Assembly wished to include
gifts as income for support, it would have done so.”). Therefore, the trial
court erred in finding these gifts by Batterman’s parents constitute “income”
under 23 Pa.C.S. § 4302.
Nevertheless, gifts may be included in determining whether a party can
pay child support. See Mencer, 928 A.2d at 297 (noting in determining the
amount of child support, courts may consider all the parent’s financial
resources); see also Suzanne D., 65 A.3d at 973 (noting that gifts, which
are likely to continue, can be considered in supporting an upward deviation
for child support). Batterman does not dispute the trial court’s finding that he
receives support and resources from his parents, yet he “is not using any of it
to pay his support obligations to Santo.” Trial Court Opinion, 1/31/2024, 4.
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“[A] parent’s duty to support his minor children is absolute, and the
purpose of child support is to promote the children’s best interests. The court
has no legal authority to eliminate an obligor’s support obligation, where the
obligor can reasonably provide for some of the children’s needs.” Silver v.
Pinskey, 981 A.2d 284, 296 (Pa. Super. 2009) (citation omitted). “The
support of a spouse or child is a priority obligation so that a party is expected
to meet this obligation by adjusting the party’s other expenditures.”
Pa.R.Civ.P. 1910.16-1(a)(4).
Here, the record supports the trial court’s finding that Batterman had
the ability to pay child support in accordance with its order but willfully failed
to do so. We therefore conclude that the trial court did not abuse its discretion
in finding Batterman to be in contempt of the child support order.3
Parents’ Finances
In his second claim, Batterman argues that the trial court erred in
concluding his parents are his private bank account and should pay his child
support obligations. Batterman’s Brief at 39. Batterman contends that the
trial court only focused on his parents’ wealth instead of his own earning
capacity and inability to pay court fees. Id. at 40. Batterman asserts that
the judge improperly focused on the size of the house and property where he
lives, the value of the house, and the payments made by his parents for
3 See Bank of Am., N.A. v. Scott, 271 A.3d 897, 908 (Pa. Super. 2022) (stating that this Court may affirm on any legal basis supported by the record).
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utilities, health insurance, and other items. Id. Batterman believes the trial
court judge is “infatuated and enamored” with his parents. Id. Batterman
further notes that he qualified for supplemental nutrition assistance program
benefits in September 2023, evidencing he can live on a large property and
still qualify for state assistance. Id. at 40-41.
We view this claim as another argument in support of finding his inability
to pay. As we have already determined, the trial court did not abuse its
discretion in utilizing the gifts and loans provided by Batterman’s parents to
conclude that he can afford the child support obligation ordered. See supra,
pp. 8-9. Therefore, we do not find merit in Batterman’s claim.
Trial Court as Advocate
In his third claim, Batterman contends that the trial court judge did not
act as a neutral arbiter and instead acted as an advocate for Santo.
Batterman’s Brief at 41-42. Batterman contends that the judge excessively
questioned him and his mother even though Santo had counsel. Id. at 42.
According to Batterman, the judge did not act impartially at the hearing. Id.
at 41, 42.
Our review of the record reveals that Batterman did not raise this claim
before the trial court. Notably, Batterman does not cite to any place in the
record where he objected to the trial judge’s questions, and instead, asks this
Court to “review the September 25, 2023 and September 29, 2023
transcripts” to establish that the trial judge was not a neutral arbiter. Id. at
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41; see also Pa.R.A.P. 2119(c) (“If reference is made to the pleadings,
evidence, charge, opinion or order, or any other matter appearing in the
record, the argument must set forth, in immediate connection therewith, or in
a footnote thereto, a reference to the place in the record where the matter
referred to appear.”). Therefore, the claim is waived on appeal. See Pa.R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal.”).4
Failure to Allow Batterman’s Exhibits and Testimony
In his fourth claim, Batterman contends that the trial court erred in
refusing to allow him to submit exhibits and testify. Batterman’s Brief at 42.
In support of his contention, Batterman only states “[s]ee error number 1 and
error number 3,” and “note[s] for this Court that the [t]rial [c]ourt failed to
reply to this error in its Opinion.” Id.
Batterman’s incorporation by reference to other portions of his brief is
insufficient to allow this Court to review the separate claim raised. See
Pa.R.A.P. 2119(a) (stating argument must contain analysis and citation to
pertinent analysis); Franciscus v. Sevdik, 135 A.3d 1092, 1097 (Pa. Super.
2016) (noting courts do not permit parties to incorporate by reference
arguments “as a substitute for the proper presentation of arguments in the
4 In any event, we note that pursuant to Pennsylvania Rule of Evidence 614(b), “the court may examine a witness regardless of who calls the witness.” Pa.R.E. 614(b). Notably, Batterman does not point to any specific questions where the trial court acted improperly.
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body of the appellate brief”) (citation omitted). Therefore, Batterman waived
this claim for appellate review. See Moranko v. Downs Racing LP, 118
A.3d 1111, 1117 n.3 (Pa. Super. 2015) (en banc) (“It [is] well settled that a
failure to argue and to cite any authority supporting any argument constitutes
a waiver of issues on appeal.”).
Attorney-Client Privilege
In his fifth claim, Batterman argues that the trial court judge erred in
ordering him “to break attorney[-]client privilege and to go against his
attorney’s advice and direction.” Batterman’s Brief at 42. He contends that
he is involved in a lawsuit and his counsel in that case advised him against
disclosing any information related to that case in the instant matter. Id. at
42-43. Batterman asserts that he invoked this privilege at the hearing. Id.
at 43.
The applicability of the attorney-client privilege is a question of law for
which “our standard of review is de novo and our scope of review is plenary.”
Ford-Bey v. Pro. Anesthesia Servs. of N. Am., LLC, 229 A.3d 984, 990
(Pa. Super. 2020) (citation omitted).
“[T]he attorney-client privilege operates in a two-way fashion to protect
confidential client-to-attorney or attorney-to-client communications made for
the purpose of obtaining or providing professional legal advice.” Gillard v.
AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011).
Pennsylvania law imposes a shifting burden of proof in disputes over disclosure of communications allegedly protected by
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attorney-client privilege. The party invoking a privilege must initially set forth facts showing that the privilege has been properly invoked; then the burden shifts to the party seeking disclosure to set forth facts showing that disclosure will not violate the attorney-client privilege, e.g., because the privilege has been waived or because some exception applies. Accordingly, if the party asserting the privilege does not produce sufficient facts to show that the privilege was properly invoked, then the burden never shifts to the other party, and the communication is not protected under attorney-client privilege.
Four elements must be satisfied in order to invoke successfully the protections of attorney-client privilege:
1) The asserted holder of the privilege is or sought to become a client.
2) The person to whom the communication was made is a member of the bar of a court, or his subordinate.
3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.
4) The privilege has been claimed and is not waived by the client.
Newsuan v. Republic Servs. Inc., 213 A.3d 279, 284-85 (Pa. Super. 2019)
(citations, brackets, and quotations marks omitted).
The record reflects that during the hearing, Santo’s counsel asked
Batterman whether he had settled a personal injury lawsuit on “August 10th.”
N.T. 9/29/2023, at 20. Batterman indicated he had been advised by his
counsel in that case not to discuss the case until it had been resolved and that
it was privileged information under the attorney-client privilege. Id. at 20-
21. The trial court responded “give us the information on this lawsuit, sir.
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Stop telling me vague information. … Sir, I’m ordering you to give me the
information.” Id. at 21. Batterman then stated to his knowledge, the lawsuit
had not been settled. Id. Santo’s counsel then asked if it was a personal
injury claim, to which Batterman said “[y]es,” and further acknowledged the
suit was filed in Philadelphia County Court of Common Pleas. Id. at 22-23.
Batterman has not produced sufficient facts to establish that the
privilege was properly invoked or that any of the above statements were
communicated or intended to be communicated with his attorney for the
purpose of obtaining or providing legal advice. Indeed, Batterman merely
made general statements about a personal injury lawsuit in Philadelphia
County; he provided no specific information, such as the injuries sustained or
settlement discussions that may (or may not) have occurred. Batterman cites
no authority supporting his contention that general statements about the
existence of an ongoing suit are protected from disclosure under the attorney-
client privilege. See Pa.R.A.P. 2119(a). We therefore conclude that
Batterman fails to establish error.
Purge Amount
In his sixth claim, Batterman argues that the “judge erred as a matter
of law by setting a purge amount of $5,000.” Batterman’s Brief at 43. In
support of his claim, Batterman only states “[s]ee error number 1.” Id.
Again, Batterman’s incorporation by reference to other portions of his
brief is insufficient to allow this Court to review the separate claim raised. See
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Pa.R.A.P. 2119(a); Franciscus, 135 A.3d at 1097. Therefore, Batterman
waived this claim for appellate review. See Moranko, 118 A.3d at 1117 n.3.
Prohibiting Batterman from Speaking with Counsel
In his seventh claim, Batterman contends that the trial court judge
continually violated his Sixth Amendment rights by prohibiting from speaking
with counsel during the hearing. Id. at 43-44. In support of this claim, he
states only that the trial court judge “would make interruptions throughout
the hearings if his Honor believed [Batterman] was speaking to his attorney
and yell at [Batterman] to stop and in some instances[, the trial court judge]
bullied [Batterman] to tell [him] he was correct despite his Honor being
wrong.” Id. at 44 n.32 (citing N.T., 9/29/2023, at 84, 87, 88). He does not
cite any place in the record where the trial court prohibited him from speaking
with his attorney, or that he raised this contention before the trial court. See
Pa.R.A.P. 2119(c). Therefore, the claim is waived on appeal. See Pa.R.A.P.
302(a).
Continuance
In his final claim, Batterman contends that the trial court erred in
denying his continuance request for the October 31, 2022 hearing and issuing
a bench warrant. Batterman’s Brief at 44-45. He argues that the trial court
ignored that he had tested positive for Covid-19 on that date and should have
granted the continuance on that basis. Id. at 45. Batterman states that he
appeared at the court on November 1, 2022, and explained his illness. Id. at
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46. He contends that the trial court judge subsequently issued bench warrants
despite him voluntarily appearing at court and failed to schedule hearings
when issuing a new bench warrant on November 3, 2022. Id. at 46-47.
According to Batterman, the trial court should have lifted the bench warrant
after he turned himself in. Id. at 46.
It is well settled that “a trial court has broad discretion regarding
whether a request for continuance should be granted, [and] we will not disturb
its decision absent an apparent abuse of that discretion.” In re K.J., 27 A.3d
236, 243 (Pa. Super. 2011) (citation omitted). “An abuse of discretion is more
than just an error in judgment and, on appeal, the trial court will not be found
to have abused its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will.” Id. (citation and brackets omitted).
Here, the trial court scheduled the hearing on the underlying contempt
petition for October 31, 2022. On that date, Batterman did not appear,
allegedly because he had tested positive for Covid. N.T., 9/25/2023, at 85.
He admits that he did not file a request for continuance with the trial court;
instead, he claims that he faxed a letter to the trial court judge’s chambers
affirming that he had Covid and both emailed and mailed a copy of the letter
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to Santo. Id. at 89-90.5 The trial court issued a bench warrant for
Batterman’s arrest. Order, 10/31/2023. Batterman then came to the trial
court on November 1, 2022, but left the courthouse before any claims were
resolved. N.T., 9/25/2023, at 85-86. The trial court entered another order
issuing a bench warrant for Batterman. Order, 11/3/2022.6 According to the
record, Batterman did not turn himself in until September 2023.
Based upon the information contained in the certified record on appeal,
we conclude that Batterman waived his claim. Batterman never requested a
continuance of the October 31, 2022 hearing, and the trial court never ruled
on such a motion. Instead, he cites to an extra-record letter he purportedly
faxed to the court on the date in question. The law is well settled that this
Court cannot consider any documents or information that are not contained in
the certified appellate record. See Parr v. Ford Motor Co., 109 A.3d 682,
695 n.10 (Pa. Super. 2014) (en banc) (stating that “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 missing
documents in a brief or in the reproduced record.”). Furthermore, Batterman
did not raise any claims related to this continuance until he appeared in court
5 Batterman attached a letter dated October 31, 2022, to his brief but it was
not included in the certified record and this Court cannot independently confirm that the letter was sent to either the trial court or Santo on that date.
6 As noted above, the trial court initially entered the order on November 1,
2022, but amended the order on November 3, 2022.
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in September 2023. Because Batterman seeks the requested relief for the
first time on appeal, we find the claim waived. See Pa.R.A.P. 302(a).
Order affirmed.
Date: 1/15/2025
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