author: SAIDIS, Member,

text:
    Office of Disciplinary Counsel v. Raney

      Disciplinary Board Docket No. 22 D.B. 2004.
    January 21, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SAIDIS, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its' findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On February 11, 2004, Office of Disciplinary Counsel filed a petition for discipline against Brian P. Raney, respondent. The petition charged respondent with violation of the Rules of Professional Conduct and Rules of Disciplinary Enforcement arising out of allegations that he engaged in the unauthorized practice of law and made false statements to a tribunal. Respondent did not file an answer to petition for discipline.

A pre-hearing conference was held on May 10,2004, before Martin N. Lisman, Esquire, member of Hearing Committee 1.17. Respondent did not appear at the conference.

A disciplinary hearing was held on June 10,2004, before Hearing Committee 1.17, comprised of Chair Gilbert J. Scutti, Esquire, and Members Heather Gallagher Tucker, Esquire and Martin N. Lisman, Esquire. Respondent did not appear. Respondent was personally served with notice of the date and time of the disciplinary hearing.

The Hearing Committee filed a report on September 29, 2004, finding that respondent violated the rules charged in the petition for discipline and recommending that he be disbarred.

No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of November 17, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Pa.R.D.E. 207, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.

(2) Respondent, Brian P. Raney, was born in 1971 and was admitted to practice law in Pennsylvania in 2001. He does not maintain an office for the practice of law in the Commonwealth of Pennsylvania. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has no prior history of discipline.

(4) On July 23,2002, respondent filed with the Disciplinary Board of the Supreme Court of Pennsylvania his 2002-2003 Attorney’s Annual Fee form, in which he requested to transfer to inactive status and cease the practice of law in Pennsylvania, and accordingly, was transferred to inactive status effective July 1, 2002.

(5) On May 10, 2002, respondent filed with the Virginia Board of Law Examiners (VABLE) a sworn application for re-examination for the July 2002 bar examination.

(6) In the sworn supplemental questionnaire, respondent answered “no” to the following questions:

(a) In response to question 2(C) — Have you permitted a business, trade or professional license to expire?

(b) In response to question 3 — Llave you been disqualified from practicing law?

(c) In response to question 5 — Have there been any charges filed, proceedings initiated or complaints made involving allegations that you have committed any act which may constitute the unauthorized practice of law?

(d) In response to 15(ii) — he stated, “I hereby affirm under oath that none of the preceding questions apply to me and I submitted my ‘Character and fitness questionnaire’ to the Virginia Board of Bar Examiners on the date set out above and that all information contained was true and complete.”

(7) Respondent did not advise the VABLE of his transfer to inactive status in Pennsylvania prior to the bar examination which he took on July 30-31, 2002.

(8) Respondent did not pass the July 2002 Virginia Bar examination.

(9) On December 11, 2002, respondent filed with the VABLE a sworn application for re-examination for the February 2003 bar examination.

(10) Respondent did not append a certificate of good standing, as required.

(11) Respondent acknowledged that he was required to notify the VABLE in writing if any answer on his application changed prior to admission to the bar.

(12) Respondent submitted a sworn supplemental questionnaire in which he responded as he had in the May 2002 questionnaire, as set forth above.

(13) By notice dated January 22, 2003, the VABLE advised respondent of the requirement that he supply a certificate of good standing from the Supreme Court of Pennsylvania.

(14) By letter dated February 6,2003, respondent advised the VABLE that he was unable to obtain a certificate of good standing in Pennsylvania because he had been on inactive status since July 2002.

(15) Respondent subsequently supplied the VABLE with a certification of disciplinary history from Chief Disciplinary Counsel.

(16) Respondent did not pass the February 2003 Virginia Bar examination.

(17) On May 5,2003, respondent filed with the VABLE an application for re-examination for the July 2003 bar examination and a supplemental questionnaire, in which he responded as he had to the May 2002 questionnaire, as set forth above.

(18) On or about June 5, 2003, respondent signed his 2003-2004 Pennsylvania fee form, which he subsequently filed with the board, in which he listed as his residence and office addresses: 1440 Cool Spring Way, Virginia Beach, VA 23464, and requested active status for the period July 1, 2003 to June 30, 2004.

(19) Respondent stated on the fee form that he was covered by a professional liability insurance carrier named Jamison Special Risk Inc. This was false, as he was not a named insured or listed employee under the referenced policy.

(20) Respondent stated that he was engaged in the private practice of law, but he did not state the name of the firm, which was Titus Law Group, located at 575 Lynnhaven Parkway, Suite 101, Virginia Beach, VA 23452. '

(21) On June 25, 2003, the Titus Law Group filed in Virginia Beach Circuit Court a notice of hearing for June 20 [sic] 2003, in the matter of In re: Estate of Ruby B. Swanson, Chancery no. CH03-605, on behalf of James Blaine, on which respondent’s name appears in the caption as “special counsel,” along with the names of two attorneys from the Titus Law Group, Kristina M. Card-well and Stephen M. Gunther.

(22) Respondent did not at any time file a motion to appear in the Swanson matter pro hac vice, as required by Va. Code Ann. §54.1-3900.

(23) At the time the Titus Law Group filed the pleading, respondent:

(a) had been admitted to practice in Pennsylvania for two years and was on inactive status;

(b) was not admitted to practice in any jurisdiction other than Pennsylvania;

(c) did not meet requirements to waive into the Virginia Bar because he had not been engaged in the active practice of law in Pennsylvania for five years, as required by Rules of the Supreme Court of Virginia, Rule 1A:1 and the court’s guidelines with respect thereto.

(d) was eligible for admission to the Virginia Bar only if he passed the Virginia Bar examination and fulfilled all other requirements for admission; and

(e) was not eligible to apply for admission pro hac vice in Virginia under the Rules of the Supreme Court of Virginia, Rule 1 A:4, which has a reciprocity provision, because an attorney admitted to the Virginia Bar but on inactive status would not be eligible for pro hac vice admission in Pennsylvania under Pa.B.A.R. 301(a).

(24) On June 27, 2003, respondent appeared in Circuit Court before the Honorable H. Thomas Padrick Jr., in the Swanson estate matter.

(25) Respondent made misleading or materially false representations and/or admissions as to his eligibility to practice in Virginia courts.

(26) These statements included the following:

(a) Respondent stated he was licensed in Pennsylvania;

(b) Respondent stated he was in “the process” of getting qualified in Virginia;

(c) Respondent stated that he could appear in court pursuant to Rule 1 :A(4) of the Virginia Court Rules;

(d) Respondent stated the only thing he could not do was sign documents;

(e) Respondent stated he had been practicing law for five years;

(f) Respondent stated he was just under the five-year Virginia waive-in rule and was trying to waive into Virginia;

(g) Respondent stated he was admitted to practice law in Pennsylvania in 2000.

(27) Respondent knew that the foregoing representations were materially false and misleading in that:

(a) Respondent was on inactive status in Pennsylvania and his restoration to active status would not be effective until three days after the hearing;

(b) Respondent was scheduled to take the Virginia Bar examination and had no guarantee of passing;

(c) Respondent was admitted in Pennsylvania in 2001 and at the time of the hearing was admitted to the Pennsylvania Bar for two years;

(d) Respondent was not eligible for reciprocal admission or admission by waiver in Virginia and had not applied for such admission; and

(e) Under Virginia Court Rule 1: A (4), respondent was not eligible to appear in court without a supervising Virginia lawyer.

(28) Judge Padrick issued a rule to show cause why sanction should not be entered against respondent and Titus Law Group attorneys, and scheduled a hearing for July 3,2003.

(29) On July 1,2003, Attorney Kristina Cardwell filed a motion for leave to allow Brian P. Raney to practice pro hac vice, in which she stated that respondent “is in the process of obtaining his license to practice law in the Commonwealth of Virginia.”

(30) That representation was misleading in that respondent had not retaken the Virginia Bar examination. Respondent did not clarify or correct the information contained in the motion.

(31) By letter to Judge Padrick dated July 1, 2003, respondent apologized for his failure to file a timely and appropriate motion for pro hac vice admission, and forwarded a copy of the motion filed by Attorney Cardwell.

(32) By letter dated July 2, 2003, Judge Padrick advised respondent that he was removing the show cause matter from the docket, reporting the incident to the Virginia State Bar and deferring action on respondent’s pro hac vice motion.

(33) By letter dated July 8, 2003, the Committee on Unauthorized Practice of Law of the Virginia State Bar (CUPL) notified respondent of allegations that he had engaged in the unauthorized practice of law in the Swanson matter.

(34) By letter to the VABLE dated July 10, 2003, respondent asked to transfer his July 2003 bar examination application to the February 2004 examination.

(35) By letter dated July 8, 2003, to the Virginia State Bar, copied to respondent and the Pennsylvania State Bar Association, Richard H. Roston, Esquire, opposing attorney in the Swanson matter, brought the transcript of the Swanson proceeding to the attention of bar authorities.

(36) By letter dated August 12, 2003, to the Virginia State CUPL, copied to respondent, Judge Padrick forwarded the transcript of the Swanson proceedings.

(37) By letter to CUPL dated August 12,2003, copied to respondent, respondent’s counsel filed a response to the July 8 notice, based upon information supplied by respondent and with content authorized by respondent.

(38) The August 12 letter stated that respondent filed his application for admission to the Virginia State Bar by examination in May 2003 and is scheduled to take the bar examination in February 2004.

(39) Respondent did not promptly reveal to the VABLE the proceedings to sanction him for the unauthorized practice of law and the complaints to bar authorities.

(40) By letter dated September 9,2003, Office of Disciplinary Counsel, petitioner herein, notified respondent of allegations of professional misconduct relating to the Swanson matter.

(41) Respondent failed to bring the Pennsylvania disciplinary proceeding to the attention of the VABLE until December 2003.

(42) Respondent was personally served with the petition for discipline on February 24, 2004.

(43) Respondent was personally served with notice of the disciplinary hearing.

(44) Respondent did not appear for the disciplinary hearing held on June 10, 2004.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 3.3(a)(1) — A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

(2) R.P.C. 5.5(b) — A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

(3) R.P.C. 8.1(a) — A lawyer is subject to discipline if the lawyer has made a materially false statement in, or if the lawyer has deliberately failed to disclose a material fact requested in connection with, the lawyer’s application for admission to the bar or any disciplinary matter.

(4) R.P.C. 8.4(a) — It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or to do so through the acts of another.

(5) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(6) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(7) Pa.R.D.E. 203(b)(3) — Willful violation of any other provision of the Enforcement Rules is grounds for discipline via Pa.R.D.E. 219(d)(3), which states that every person who has filed an annual attorney registration statement shall notify the Administrative Office in writing of any change in the information previously submitted within 30 days after such change.

IV. DISCUSSION

Respondent is before this board on charges that he engaged in the unauthorized practice of law in Virginia when he was not admitted to practice in that jurisdiction and while on inactive status in Pennsylvania. Respondent is further charged with making materially false and misleading statements to the court.

On June 27,2003, respondent appeared as counsel for a party in the Virginia Beach Circuit Court in the matter of In re Estate of Ruby B. Swanson. Respondent was not a member of the Virginia Bar and did not apply for pro hac vice admission. Pursuant to Va. Code Ann. §54.1-3900, an attorney “authorized and practicing as counsel” in another jurisdiction “may, for the purpose of attending to any case he may occasionally have in association with a practicing attorney of this Commonwealth, practice in the courts of this Commonwealth.” Respondent was on inactive status in Pennsylvania, the only jurisdiction where he was admitted, so he was not permitted to petition for admission under this section of the Virginia Code, as Virginia has reciprocity with Pennsylvania regarding inactive attorneys. Furthermore, even if respondent had been active in Pennsylvania, respondent had not even filed an application for admission in Virginia, pursuant to the Virginia Code, although respondent admitted to the court that he knew he was required to do so and claimed he kept such a motion in his briefcase.

By participating in a Virginia hearing without meeting the requirements for pro hac vice admission, respondent engaged in the unauthorized practice of law, in violation of R.P.C. 5.5(b). His conduct also prejudiced the administration of justice, in violation of R.P.C. 8.4(d), as it required the judge to interrupt the Swanson hearing and direct further proceedings with regard to respondent’s ability to practice law in Virginia.

During the course of the Swanson hearing, as Judge Padrick commenced his questioning of respondent regarding his status as “special counsel,” as respondent was listed in the pleadings, respondent engaged in materially misleading and outright false statements to the tribunal. Respondent stated he was admitted in Pennsylvania, but failed to inform the court he was on inactive status in that jurisdiction. Respondent informed the court that the only thing he was not permitted to do under Virginia law was to sign documents. This was a misstatement of the law. Respondent intimated to the court that he was in the process of gaining admission by waiver. However, respondent was not a candidate for admission by waiver into Virginia, which permits reciprocal admission if the attorney has been licensed to practice law in the jurisdiction of admission for at least five years. Va. Sup.Ct.R. 1A:1. Respondent had not been admitted to Pennsylvania for five years, though he explicitly told the court that he had been practicing for five years. Respondent quickly backed off that false statement by saying he was “just under the five years rule.” Again, this was not true. Respondent was admitted in Pennsylvania in 2001. The court proceeding in Virginia took place in June 2003. Upon direct questioning by the court, respondent continued to misinform the court by telling Judge Padrick he was admitted in 2000. Respondent never did tell the court the true date of his admission to Pennsylvania. Subsequently, respondent wrote a letter of apology to Judge Padrick for inconveniencing the court by his actions.

These facts demonstrate that respondent knowingly made false statements to a tribunal, in violation of R.P.C. 3.3(a)(1); engaged in dishonest conduct, in violation of R.P.C. 8.4(c); and engaged in conduct prejudicial to the administration of justice, in violation of R.P.C. 8.4(d).

Respondent made material misrepresentations in connection with his application to the Virginia Bar. Prior to the July 2002 and February 2003 Virginia Bar examinations, respondent failed to inform the bar authorities in that jurisdiction of his transfer to inactive status in Pennsylvania. Even though respondent voluntarily assumed inactive status in Pennsylvania, and such status was not due to respondent’s deficiency in any administrative obligation in Pennsylvania, he still had the responsibility to inform Virginia of his status in other jurisdictions. It was only after the Virginia Bar authorities requested that respondent supply a certificate of good standing from the Supreme Court of Pennsylvania that he revealed his inactive status.

After the Swanson hearing took place when respondent made his false statements to the tribunal, Judge Padrick and the opposing counsel in the matter filed complaints with the Virginia Committee on Unauthorized Practice of Law. Respondent was duly notified of the allegations and given an opportunity to respond. Respondent obtained counsel, who filed a response to the committee’s notice and made a misstatement regarding when respondent was scheduled to take the Virginia Bar examination. The response was misleading in that it implied respondent’s first bar application was filed in May 2003, and failed to reveal that respondent had taken and failed the Virginia Bar examination on previous occasions. Respondent failed to correct this misleading information.

Respondent also made other more minor representations in his 2003-2004 attorney registration form by stating that he was covered by professional liability insuranee and by failing to list his employment with the Titus Law Group in Virginia Beach. This misconduct violated R.P.C. 8.1(a), making a materially false statement in, or failing to disclose a material fact requested in connection with an application for admission to the bar or any disciplinary matter; R.P.C. 8.4(a), prohibiting violation of the Rules of Professional Conduct through the acts of another; andR.P.C. 8.4(c) prohibiting dishonest conduct. He also violated Pa.R.D.E. 203(b) via Pa.R.D.E. 219(d)(3) because he did not promptly update his attorney registration information.

Respondent’s misconduct is extremely serious and warrants significant discipline. The act of making misrepresentations to a court has been strongly condemned by the Supreme Court. In the matter of Office of Disciplinary Counsel v. Holston, 533 Pa. 78, 619 A.2d 1054 (1993), the attorney attempted to conceal his inaction in a divorce matter by presenting the client with a fake divorce decree purportedly signed by a judge and then lying about the document to the very judge whose signature he had forged. The Supreme Court found that Holston’s conduct undermined the integrity of the process that he was sworn to uphold. The court did consider mitigation, but still disbarred respondent due to the reprehensible nature of his actions.

Respondent’s conduct in the instant matter may be distinguished in such a way that the board believes disbarment is not warranted. Respondent’s false statements did not have to do with his client’s matter, but with his own status as an attorney. Respondent was not attempting to further his client’s matter by proffering a false document with the forged signature of a judge. Review of the transcript of the Virginia court hearing shows a sequence of questions whereby respondent gets into deeper trouble with the court as he foolishly attempts to avoid stating the reality of his inactive admission and the year he was admitted to Pennsylvania. There is no question that respondent’s conduct was dishonest. He was obligated to answer the judge’s questions truthfully and he did not. The board does not find evidence that respondent entered the courtroom with the knowing intent to make false statements to the judge. In comparison, the attorney in Holston went to court with just such intent, that being to tell a judge that a fake divorce decree was the real thing.

Respondent’s conduct is compounded by his unauthorized practice of law, his failure to apprise the Virginia Bar authorities of his inactive status in Pennsylvania, and his misstatements in his Pennsylvania attorney registration form. Respondent’s failure to appear at his disciplinary hearing to explain his motives for these actions also aggravates his misconduct. This demonstrates a lack of interest in defending his right to practice. It also stands as a lost opportunity for respondent to express any feelings of remorse he may have had regarding his actions.

Keeping in mind that the primary purpose of the disciplinary system is to assess lawyer fitness and protect the public, Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994), a five-year suspension accomplishes the goal. Respondent was admitted to practice in Pennsylvania in 2001. The false statements to the tribunal, if viewed as a panic reaction by a young, inexperienced attorney, might be slightly mitigated. However, the respondent thereafter acts like a “deer caught in the headlights,” who starts, stops and then charges full-bore, antlers glistening, head down into an oncoming tractor-trailer. The ruins of the respondent’s legal career are now scattered all over the interstate. The board is clearly troubled by the respondent’s lack of participation, which would have permitted him to express his remorse and explain the web of lies.'A five-year suspension, although perhaps compassionate, appears appropriate under the facts of the case.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Brian P. Raney, be suspended from the practice of law for a period of five years.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Nordenberg did not participate in the November 17, 2004 adjudication.

ORDER

And now, April 6,2005, upon consideration of the report and recommendations of the Disciplinary Board dated January 21,2005, it is hereby ordered that Brian P. Raney be and he is suspended from the bar of this Commonwealth for a period of five years, and he shall comply with all the provisions of Rule 217 Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


source: Caselaw Access Project

author: GRINE, J.,

license: Public Domain

text:
    Weaver v. Zusman

      April L. Strang-Kutay, for plaintiffs.

      Alan R. Krier and Anthony J. Zanoni, for defendants.
    January 4, 2006
   GRINE, J.,

Presently before the court is defendants’, Ehud I. Zusman M.D. and State College Urologic Associates, motion in limine. In their motion, defendants seek to limit the expert medical testimony of Dr. Canning for the limited purpose of indicating his own opinion regarding the particular issue he addressed in the reports. Defendants further seek to preclude the testimony of plaintiffs’ psychological expert in whole. A hearing was held in the matter on November 17,2005. Counsel for defendants filed their brief in support, and counsel for plaintiffs filed her response, both in timely manner. This court is ready to decide the issue. After reviewing the memorandum filed by counsel, this court grants defendants’ motion in part, and denies defendants’ motion in part. By way of further clarification, plaintiffs shall not elicit any testimony from Dr. Canning which is not fairly contained within the expert reports provided. Dr. Masey will be permitted to testify at trial.

DISCUSSION

Plaintiffs, parents of plaintiff-child, initiated this cause of action by filing a complaint with this court on or about June 9, 2003. The complaint alleges negligence in the care and treatment of plaintiff-child by defendants. Specifically, plaintiffs assert that defendants’ medical services fell below the required standard of care, and that this deviation caused certain injuries when defendant-physician performed a medical procedure on the minor child on or about April 22,2001, to remove skin bridges from the child’s penis.

Defendants’ motion in limine seeks to preclude certain testimony of two of plaintiffs’ medical experts, specifically, Douglas A. Canning M.D., a pediatric urologist, and Donald P. Masey Psy.D., licensed psychologist. Dr. Canning is offered relative to the standard of care required of pediatric urologists in connection with newborn circumcision, redundant prepuce, and penile adhesions. Dr. Masey’s testimony is offered regarding any possible future psychological effects of the medical procedures on the plaintiff-child.

Ordinarily, in cases involving alleged negligence, expert testimony is not required when the matter under consideration is simple and the lack of ordinary care is obvious and within the range of understanding of the average juror. However, “[o]ne of the most distinguishing features of a medical malpractice suit is, in most cases, the need for expert testimony, which may be necessary to elucidate complex medical issues to a jury of laypersons. In other words, ‘ [bjecause the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons [,] a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury.’” Yee v. Roberts, 878 A.2d 906, 912 (Pa. Super. 2005). (emphasis added) (citation omitted)

Defendants argue that Dr. Canning’s medical report and deposition fail to link the alleged failure to remove all of the adhesions from the child’s penis during the initial surgery with any potential need for a third surgical procedure to remove the remaining adhesions or to any curvature or any other deformity that may develop over time. As such, defendants specifically request Dr. Canning’s testimony at trial to be limited to Dr. Zusman’s alleged failure to remove all of the adhesions requiring a second surgery.

In letters dated June 9,2005 and September 30,2005, Dr. Canning provides: “In my opinion, had [adhesions been present on the right side of the child’s penis before Dr. Zusman’s surgery in April 2001], it would have been in Jordan’s best interest for Dr. Zusman to have incised all of the preputial glanular adhesions at the time of the surgery. In my estimation, by failing to incise all of the glanular adhesions, Dr. Zusman failed to meet the standard of care in correcting this condition.” See exhibit B, pp. 2,4. Dr. Canning does not, however, give an opinion as to whether the potential for curving of the penis, or any other deformity that may arise, was or would be caused by the manner in which Dr. Zusman performed the initial corrective surgery.

Therefore, after a careful review of Dr. Canning’s medical report and deposition, and plaintiffs’ admittance that they do not intend to elicit any testimony from Dr. Canning “which is not fairly contained within the expert reports provided,” this court agrees that, at trial, Dr. Canning’s testimony shall not extend beyond the scope of Dr. Zusman’s failure to meet the standard of care when not removing all adhesions during the original surgery.

Plaintiffs have offered Dr. Masey’s report in support of their claim of injuries and request for damages. Dr. Masey had performed a psychological evaluation on the child “in order to provide information about [the child’s] psychological status, especially as it relates to his medical history.” See exhibit A, p. 1. The relevance of Dr. Masey’s observations pertaining to the child’s current and potential psychological status presupposes that Dr. Zusman’s care was negligent and the proximate cause of the physical anomalies which might require additional surgeries, which would potentially have a negative impact upon the child.

Defendants contend that Dr. Masey’s opinions, provided in his report, lack any degree of certainty relative to any future psychological or emotional impact upon the child resulting from the medical procedures and his course of care. Specifically, defendants argue that Dr. Masey was unable to form an opinion regarding the child’s future psychological status relative to the issues attendant to this medical malpractice action because the child was too young to properly evaluate any potential future impact. Because Dr. Masey’s observations, concerns, and conclusions are “saturated with conjectures and statements of mere possibility,” defendants argue that Dr. Masey should be precluded from testifying at trial.

In his first report, dated August 22, 2005, Dr. Masey did give his opinion on the child’s emotional reaction to his prior urologic surgeries, indicating “increased anxiety” in the child when coping with his medical problems, which may become exacerbated with the possibility of future medical procedures. See exhibit A, p. 7. Specifically, the doctor indicated, “[i]f additional surgeries are required and/or there are cosmetic or structural problems with his genitalia, it is the opinion of this examiner that there would be a considerably increased possibility for increased anxiety, depression, and impact on interpersonal relationships.” Id. All of the opinions Dr. Masey provided in his evaluation were offered within a reasonable degree of psychological certainty. Id. at p. 8.

More problematic, however, Dr. Masey indicated, “[o]f some concern to this examiner is the fact that it is too early to determine if there will be any negative impact on [the child’s] sense of sexuality, due to his young age ... it is not possible to determine the impact of [the child’s] problematic circumcisions in regard to his sense of sexuality until he is at least 11 to 12 years of age.” Exhibit A, p. 7. It is with these statements that defendants argue that Dr. Masey does not, and cannot, state with any degree of certainty that the child is presently suffering a negative psychological impact from the corrective surgeries.

Even where it has been established that a defendant has breached some duty of care owed to a plaintiff, it is incumbent on the plaintiff to establish a causal connection between defendant’s conduct and the plaintiff’s injury; that is, a plaintiff must show that a defendant’s conduct was a proximate cause of his/her injury. Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284 (1978). However, although medical experts are required to give or state their opinion with a “reasonable degree of medical certainty” regarding causation, the Pennsylvania Supreme Court has recognized the limitations on the degree of certainty relative to the medical prognosis of a plaintiff’s physical condition in the future for the purpose of determining damages. See Hamil v. Bashline, 481 Pa. 256, 273, 392 A.2d 1280, 1289 (1978); see also, Boyle v. Pennsylvania Railroad, 403 Pa. 614, 170 A.2d 865 (1961); Walsh v. Brody, 220 Pa. Super. 293, 286 A.2d 666 (1971); Schwegel v. Goldberg, 209 Pa. Super. 280, 228 A.2d 405 (1967).

In light of these decisions, it is clear that in the case before this court, the reports and anticipated testimony of Dr. Masey is sufficient to create a prima facie case of causation. Although the effects of the medical procedures on the child’s sense of sexuality are still unclear and, therefore, unforseeable, this court finds that Dr. Masey clearly stated with a psychological degree of certainty that the child, in fact, is presently suffering a negative psychological impact from his medical procedures. On the contrary, in his supplemental report, dated September 27, 2005, Dr. Masey provides:

“ [I]t is not the opinion of this examiner that [the child’s] psychological state at the time of the evaluation is best referred to as ‘appropriate anxiety.’ Rather, this examiner’s findings indicated a more intense level of anxiety which went beyond self-consciousness upon genital examination.” See exhibit A, p. 9. Therefore, Dr. Masey, plaintiffs’ psychological expert, is permitted to testify at trial.

The court enters the following order.

ORDER

And now January 4, 2006, after a review of the arguments and memorandum submitted by counsel, it is hereby ordered and decreed that defendants’ motion in limine is granted in part and denied in part.

It is further ordered, at trial, plaintiffs shall not elicit any testimony from Dr. Douglas A. Canning which is not fairly contained within the expert reports provided. Specifically, Dr. Canning’s testimony at trial is limited to Dr. Zusman’s alleged failure to remove all of the adhesions requiring a second surgery.

It is further ordered, Dr. Donald P. Masey Psy.D. is permitted to testify at trial.


author: GEORGE, J,

text:
    Washington Mutual Bank FA v. Carr

      MarkJ. Udren, for plaintiffs.

      Dusan Bratic, for defendants.
    January 18, 2006
   GEORGE, J,

This action was commenced when Washington Mutual Bank filed a complaint in mortgage foreclosure against Christopher S. Carr. The complaint was met by preliminary objections, which raised Bank’s lack of capacity to sue and improper verification of the complaint. Following the filing of preliminary objections, Bank filed a praecipe to substitute verification thereby making Carr’s second preliminary objection moot. For the reasons set forth below, Carr’s preliminary objection on the basis of lack of capacity to sue is granted.

Carr’s preliminary objection, alleging lack of capacity to sue, recognizes that PNC Mortgage Corporation was the original mortgagee on the instrument at issue. Carr further points out that the complaint indicates that the mortgage was never assigned. Finally, Carr observes that even though the caption identifies the plaintiff as “Washington Mutual Bank FA, f/k/a PNC Mortgage Corp. of America,” the complaint fails to contain any allegation as to the relationship between PNC Mortgage Corporation of America and Bank.

Pennsylvania Rule of Civil Procedure 2002 states, “[e]xcept as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest, without distinction between contracts under seal and parol contracts.” Pa.R.C.P. 2002. It is well known that a party is allowed to litigate as a real party in interest after becoming the assignee of a mortgage. American Society for Testing & Materials v. Corrpro Companies Inc., 292 F. Supp.2d 713, 718 (E.D. Pa. 2003) (where an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of his rights). It should be noted, however, that a real party in interest is simply defined as a party who “has the legal right under the applicable substantive law to enforce the claim in question.” See Cole v. Boyd, 719 A.2d 311, 313 (Pa. Super. 1998) (quoting Black’s Law Dictionary 874 (6th ed. 1991)); see also, American Society for Testing & Materials, 292 F. Supp.2d at 718 (defining a real party in interest as someone who, by substantive law of the state, has the duty or right sought to be enforced). There are several exceptions listed in Pennsylvania Rule of Civil Procedure 2002, aside from the assignor/assignee rule, which can be utilized so that a party may be considered a real party in interest. See Cole, 719 A.2d at 313 (finding that the general rule that all actions shall be prosecuted by and in the name of the real party in interest shall not be mandatory where a subrogee is a real party in interest; where there is no evidence of a subrogation agreement, none will be presumed); Bizmart Inc. v. Facility Construction Management Inc., 65 D.&C.4th 359, 366 (Schuylkill Cty. 2004) (allowing a subsidiary of a parent corporation to be considered a party in interest where the subsidary’s litigious cause was for the benefit of the parent corporation); Manor Building Corp. v. Manor Complex Associates Ltd., 435 Pa. Super. 246, 257, 645 A.2d 843, 848 (1994) (allowing a corporation, which was a successor in interest to the corporation initially involved in the suit, to be considered a party in interest where an assignment was effectuated). However, in order for one of these exceptions to apply in the instant case, it is imperative that the plaintiff detail its relationship to PNC Mortgage Corporation in its pleadings.

While the plaintiff, in the complaint, specifically stated that the mortgage was not assigned from PNC Mortgage Corporation to Washington Mutual Bank, it failed to clarify exactly how the mortgage was transferred from PNC Mortgage Corporation to Washington Mutual Bank. In the plaintiff’s reply to defendant’s preliminary objections, the plaintiff merely stated that “[a]n assignment is not required as Washington Mutual Bank is not the assignee but is the successor in interest to PNC Mortgage Corp. of America.” While the plaintiff may, in fact, be qualified to bring suit as a real party in interest as a result of his status as “successor in interest,” the plaintiff failed to aver any facts that show that the defendant had a duty to pay the plaintiff, Washington Mutual Bank, rather than PNC Mortgage Corporation.

Pennsylvania Rule of Civil Procedure 1019 requires that “material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019. The instant complaint appears to be a form complaint that has failed to accommodate the allegations concerning the status or legal relationship between the original mortgagee and the current plaintiff. Although it is likely that this deficiency can be cured, I cannot presume the same under the guise of promoting the prompt and efficient resolution of the claim between the parties. Since this court cannot ignore reasonable compliance with the Pennsylvania Rules of Civil Procedure, the preliminary objection is granted. Bank, however, will be given the opportunity to amend its complaint.

For the foregoing reasons, the attached order is entered.

ORDER

And now, January 18, 2006, the defendant’s preliminary objection based upon lack of capacity to sue is granted. The plaintiff is given 20 days from the date of this order to file an amended complaint.


author: KISTLER, J.,

text:
    Coudriet v. Inserra

      David D. Engle, for plaintiff.

      J. Michael Dorezas, for defendants.
    December 20, 2005
   KISTLER, J.,

Presently before this court is Louis and Patricia Inserra’s (defendants) motion for summary judgment. This motion pertains to plaintiff Michael L. Coudriet’s slipping and falling in defendants’ driveway. Plaintiff slipped on an ice patch that was covered by a thin layer of fresh snow. Plaintiff contends defendants were negligent in failing to inspect or discover the condition, for permitting the driveway to remain in an unsafe or dangerous condition, for failing to adequately warn of the condition, and for failing to correct, remedy, repair or eliminate the condition.

FACTUAL BACKGROUND

At approximately 11 a.m. on February 24,2003, plaintiff, a Federal Express delivery man, was attempting to deliver a package to defendants’ house. After exiting his vehicle, plaintiff stepped onto defendants’ driveway and slipped. Plaintiff’s feet went out from underneath him, and he landed on his elbow. As a result of this fall, plaintiff sustained injuries.

It had snowed earlier that day, roughly between 8 a.m. and 9 a.m. (Michael Coudriet deposition at 32.) Plaintiff noted the entire driveway was covered with a small amount of snow when he arrived. (Michael Coudriet deposition at 44.) Plaintiff also observed snow from previous snowfalls underneath the dusting that fell earlier in the morning. (Michael Coudriet deposition at 46-47.) In addition, plaintiff noticed snow had been removed from the driveway because there were piles of snow on either side of the driveway. (Michael Coudriet deposition at 42.)

DISCUSSION

The “hills and ridges” doctrine is a long-standing and well entrenched legal principle that protects an owner or occupier of land from liability for generally slippery conditions resulting from ice and snow, where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations. Harmotta v. Bender, 411 Pa. Super. 371, 601 A.2d 837 (1992). In order to recover for a fall on an ice- or snow-covered surface, a plaintiff is required to prove: “(1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.” Rinaldi v. Levine, 406 Pa. 74, 78, 176 A.2d 623, 625 (1962).

Summary judgment is appropriate “whenever there is no genuine issue of any material fact as to any necessary element of the cause of action or defense which could be established by additional discovery or expert report....” Pa.R.C.P. 1035.2(1). Furthermore, summary judgment is appropriate “if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(2).

A grant of summary judgment is likewise appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, demonstrate there exists no genuine issue of fact. Accu-Weatherv. Prospect Communications, 435 Pa. Super. 93, 644 A.2d 1251 (1994). The moving party has the burden of proving that no genuine issue of material fact exists. Id. In addition, the court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Stidham v. Millvale Sportsmen’s Club, 421 Pa. Super. 548, 618 A.2d 945 (1992), alloc. denied, 536 Pa. 630, 637 A.2d 290 (1993); Pa.R.C.P. 1035(b). Finally, summary judgment should only be entered in cases where the right to it is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa. Super. 613, 561 A.2d 1261 (1989).

In the present case, defendants believe summary judgment is appropriate because the “hills and ridges” doctrine protects a landowner from generally slippery conditions resulting from ice and snow. Defendants note that plaintiff admitted in his deposition that he slipped on an area of smooth ice covered by a dusting of snow, not an area covered by snow and ice accumulated in ridges or elevations which would unreasonably obstruct his travel or constitute danger. (Michael Coudriet deposition at 45.) Defendants further note that plaintiff admitted the driveway had been cleared to permit traffic to cross without being hindered by hills and ridges. (Michael Coudriet deposition at 55.) In short, defendants believe plaintiff cannot support his allegation that defendants unreasonably allowed snow and ice to accumulate in dangerous elevations, because plaintiff stated he slipped on a smooth patch of ice, and the driveway had recently been shoveled. As such, plaintiff cannot meet the first requirement set out by the Rinaldi court — that snow and ice had accumulated in hills and ridges to the extent that the size unreasonably obstructs travel and constitutes a danger to others.

Plaintiff, on the other hand, disagrees with defendants that the ice under the snow was an open and obvious danger, and that there was an alternative clear path available to reach defendants’ door. Plaintiff argues the dusting of snow covered up accumulated ice that had not been removed from previous storms on February 17 and 18 of that year. Plaintiff stated the ice was not visible prior to his fall because of the fresh snow. Plaintiff stated there was “nothing obvious” that would make him think twice about stepping onto defendants’ driveway. (Michael Coudriet deposition at 45.)

Having reviewed the relevant facts and the parties’ pleadings, this court believes granting defendants’ motion for summary judgment is appropriate. The “hills and ridges” doctrine applies to generally icy conditions in the community. Harmotta, supra. The purpose of the doctrine is to protect landowners from liability for generally icy conditions so long as the landowner has not allowed the ice or snow to accumulate to a hazardous height or amount. Id. This court finds that a general condition of iciness was present due to the previous snows being concealed by the recent snowfall leading up to the day of the incident, as well as the cold weather in the area. As such, the “hills and ridges” doctrine is applicable in this case.

The fact there was a thin layer of snow suggests defendants had fulfilled their duty to keep their driveway as clear as possible of snow and ice. Plaintiff stated in his deposition that there were piles of snow along the sides of the driveway, suggesting defendants had made a genuine attempt to remove all the snow from the previous storms. To create a duty that landowners be guarantors of “slip free” surfaces in this region of the country, where adverse weather conditions arise suddenly, would be unduly burdensome.

Plaintiff’s contention that the fact he slipped and fell tends to prove that the ice had accumulated in such a size and character as to unreasonably obstruct travel and constitute a danger to pedestrians is without merit. The mere fact that an accident occurred cannot, by itself, prove an unreasonable amount of ice or snow had been allowed to form. This notion would make the first prong of the “hills and ridges” test moot in every slip-and-fall injury suit. As such, this court believes plaintiff slipped and fell on defendants’ driveway because of precipitation generally applicable to this region, and there is no evidence of an unreasonable accumulation of snow or ice.

ORDER

And now, December 20,2005, defendants’ motion for summary judgment is hereby granted.


author: NANOVIC, P.J.,

text:
    Nunemacher v. Sensinger

      Michael S. Bloom, for plaintiffs.

      Frank Procyk, for defendants.

      Jason Banonis, for additional defendants.
    December 15, 2005
   NANOVIC, P.J.,

INTRODUCTION

On October 13, 2001, the plaintiffs, Thomas Nunemacher and Angelina Nunemacher (Husband and Wife), were injured in a motor vehicle accident that occurred when the defendant, Marcus Sensinger, turned onto West Mahoning Drive, a two-lane macadamed highway on which the Nunemachers were riding their motorcycle: Husband, as operator, and Wife, his passenger. The accident happened in this county, in Mahoning Township.

The Nunemachers commenced suit by complaint against Sensinger who, in turn, joined the Nunemachers as additional defendants asserting their sole liability for the injuries of one another and, alternatively, seeking contribution. In their complaint, the Nunemachers claimed that Sensinger negligently pulled out in front of them causing the injuries they sustained in the accident. In his joinder complaint against the Husband, Sensinger alleged that the Husband negligently operated his motorcycle and was the real cause of Wife’s injuries.

Following a two-day jury trial, the jury returned a verdict in favor of Sensinger and against the Nunemachers, finding Sensinger was not negligent. The jury further found in favor of Wife and against Husband on the issues of liability raised in the joinder complaint and returned a verdict awarding Wife medical expenses only.

In their motion for post-trial relief now before us, the Nunemachers claim that we erred in allowing Sensinger’s liability expert, Joseph Tarris, to express opinions he was not qualified to give and which were not based on facts in evidence. Wife individually claims that the jury’s verdict was against the weight of the evidence in not awarding any compensation for pain and suffering. Husband further claims that a miswording in the Wife’s verdict slip confused the jury and influenced them to find against him on the joinder complaint.

I. FACTS AND PROCEDURAL HISTORY

On the day of the accident, Sensinger exited his driveway and made a left-hand turn onto the eastbound lane of West Mahoning Drive. While Sensinger was making his turn, Husband was traveling east on West Mahoning Drive, approaching Sensinger’s driveway from the west. West Mahoning Drive is aligned generally in an east/ west direction and is intersected on the north by Sensinger’s driveway.

According to Husband, he was approximately 300 feet away from Sensinger when he first observed Sensinger’s vehicle stopped at the end of the driveway. (N.T., vol. I, pp. 20-21.) At trial, Husband was uncertain of his speed at the time he first noticed Sensinger’s vehicle but believed he was traveling close to 45 miles per hour, the posted speed limit at the location of the accident. Husband also recalled that as he approached Sensinger’s driveway, there were two vehicles ahead of him driving in the same direction. Wife estimated these vehicles to be 100 to 200 feet in front of them. (N.T., vol. I, p. 67.)

As soon as the two vehicles ahead passed Sensinger’s driveway, Husband testified Sensinger slowly and unexpectedly pulled out in front of him. At this point, Husband estimated he was 100 to 150 feet from the intersection between West Mahoning Drive and Sensinger’s driveway. (N.T., vol. I, p. 22.)

The motorcycle Husband was operating had independent rear and front brakes for the rear and front tires respectively; the rear brake was operated by a foot pedal and the front brake by a lever on the handlebars. (N.T., vol. I, pp. 23-24,143.) When Husband first saw Sensinger pulling out he began to brake: he applied his rear brake fully and his front brake a little. (N.T., vol. I, pp. 23,51-5 3,5 7.) As he did so, the rear wheel locked up, skidding, with the motorcycle continuing to move forward in a straight line. (N.T., vol. I, pp. 82-83.) When Husband realized a collision with Sensinger’s vehicle was imminent if he remained upright — at this point he was approximately 50 to 75 feet from Sensinger’s car — he deliberately lowered his motorcycle to the ground onto its right side. (N.T., vol. I, pp. 24-25, 55-56, 59-60, 85.) The motorcycle slid along the road for approximately 23 feet before coming to rest; neither vehicle came into contact with the other. (N.T., vol. I, pp. 168, 178.)

Sensinger’s account of the accident was as follows. From where he was stopped at the end of his driveway, he had a clear view of about 225 feet looking west along West Mahoning Drive. Before exiting his driveway, he looked in both directions several times, at least twice looking west, observed no oncoming traffic, and had already completed his turn and was heading east on West Mahoning Drive when he heard brakes screeching, looked in his rearview mirror, and observed the Nunemachers’ motorcycle lying on the road behind him. Upon seeing this, Sensinger turned around and returned to his driveway where, for the first time, he saw Husband and Wife. Sensinger estimated his speed at the time he heard the sound of brakes behind him to be 25 miles per hour. (N.T., vol. I, p. 135.)

Wife testified that her right wrist and elbow were injured in the accident. The same day she was transported to the Gnaden Huetten Memorial Hospital and released after receiving a splint for her wrist. Two days later she visited an orthopedic doctor and a cast was placed on her wrist. This was followed by two weeks of physical therapy, after which the injuries she sustained to her wrist and elbow appeared to have healed.

When pain returned in her elbow, Wife went to see Dr. Jay Talsania, an orthopedic specialist, who first examined her in January 2002, three months after the accident. At this time, Wife was complaining of a “snapping” sensation on the inside part of her elbow, with increasing pain and a limited range of motion of the joint. (Talsania deposition, pp. 13-17.) Several months of conservative treatment proved unsuccessful, at which time Dr. Talsania operated on Wife’s right elbow.

The surgery consisted of excising a portion of the triceps muscle and connective tissue, and shaving four millimeters from the cortical bone. This surgery was followed by home therapy. Within two to three months of the surgery, Wife testified that her elbow had returned to its pre-accident condition. Dr. Talsania did not treat Wife for any injury to her right wrist, which Wife admitted had completely resolved by the end of 2001.

Prior to this accident, Wife had injured her right arm and been operated on twice: in 1997 and again in 1998. This injury was work-related, occurred in 1997, and included a detached ulnar nerve. Wife had not fully recovered from this injury prior to the accident, continued to experience pain in her wrist and elbow, and was still receiving medical treatment. She also had not returned to work and was unemployed.

At the time of the accident, the Nunemachers were accompanied by Jose Cruz who was riding behind them on his motorcycle at a distance of at least 50 feet. (N.T., vol. I, pp. 96, 98.) Cruz’ testimony as to how the accident happened, with Sensinger pulling out unexpectedly in front of them and with Husband braking and taking evasive action to avoid a collision, was similar to the Nunemachers’. (N.T., vol. I, p. 101.) Cruz testified that he also braked and left a skid mark of approximately 20 feet in length behind (i.e., to the west of) the skid mark left when Husband braked his motorcycle. (N.T., vol. I, pp. 101-103, 105.)

Two sets of skid marks were observed by the police who investigated the accident as well as by Sensinger’s expert, Joseph Tarris; however, whether the skid marks were caused by two motorcycles, as Cruz testified, or by one motorcycle, Husband’s, as Tarris concluded, became a major issue at trial. Cruz was not injured in the accident and was able to stop without laying his motorcycle on the ground. (N.T., vol. I, p. 103.)

Defendant’s expert witness, Joseph Tarris, was a licensed civil engineer and an accredited accident reconstructionist. Tarris testified that he had investigated or reconstructed more than a 1,000 accidents and that more than 100 of these dealt with motorcycles. (N.T., vol. I, p. 143.) He further testified that as part of his training and expertise he was familiar with the independent braking systems of motorcycles and how they function in the operation of a motorcycle. (N.T., vol. I, pp. 143, 150.) As part of his investigation, Tarris reviewed the police accident report, witness statements and photographs, and conducted a site visit on January 5, 2002, approximately 12 weeks after the accident, at which time he took measurements and determined the sight line from Sensinger’s driveway looking west along West Mahoning Drive. (N.T., vol. I, pp. 156-57, 159.) Tarris also performed a speed analysis of the Husband’s motorcycle and an avoidance analysis. (N.T., vol. I, p. 162.)

Tarris found the sight distance from the middle of Sensinger’s driveway looking to the west along West Mahoning Drive to be 400 feet. (N.T., vol. I, p. 163.) He also found that from the point where Sensinger was stopped, West Mahoning Drive curves to the right up a slight incline with a grade of 6.6 percent. (N.T., vol. I, p. 161.)

Critical to Tarris’ speed analysis was his conclusion that the two skid marks he observed on West Mahoning Drive were caused by Husband’s motorcycle. (N.T., vol. I, p. 182.) The most distant skid mark from Sensinger’s driveway, that which Tarris termed the western mark, began approximately 120 feet from the middle point of the driveway and was measured to be 41 feet in length. (N.T., vol. I, pp. 167-68.) The second skid mark, which Tarris termed the eastern mark, was measured at 78 feet and began approximately 25 to 30 feet after the easternmost edge of the western mark. (N.T., vol. I, pp. 164, 168, 184.)

Tarris testified that from his investigation and visual inspection of the site he was convinced that both skid marks were caused by the same motorcycle, Husband’s, and that both marks were perfectly aligned with one another. (N.T., vol. I, pp. 164-65,169-70.) When confronted on cross-examination with Cruz’ testimony that the western mark was caused by Cruz’ motorcycle, Tarris responded that he was aware of Cruz’ testimony, that it did not affect the opinion he formed after his own investigation, and that he believed Cruz was mistaken. (N.T., vol. I, pp. 181-82,207.)

Tarris also testified that it is not uncommon when investigating motor vehicle accidents to find spaces or breaks in the skid marks caused by the same vehicle, and that various explanations can account for these gaps, including a momentary and partial release of pressure from the brake pedal, permitting the rear wheel to rotate, and then again applying the brake fully, causing the rear wheel to lock, and leaving an additional skid mark. (N.T., vol. I, pp. 185-87.) According to Tarris, the distance he observed between the skid marks represented a half second in elapsed time. (N.T., vol. I, p. 187.)

Based upon Tarris’ investigation, including Husband’s admission that he only partially applied the front brakes, Tarris concluded that Husband’s speed when he began braking — that point being represented by the western edge of the western skid mark — was 50 miles per hour and that had Husband made complete use of the braking system of his motorcycle, including applying the front brakes fully, it would have taken approximately 119 to 120 feet to stop. (N.T., vol. I, pp. 170-76.) Under the same conditions — making complete use of the braking capacity of the motorcycle and applying the brakes at the same point — at a speed of 45 miles per hour {i.e., the applicable speed limit), Tarris stated Husband would have been able to stop before reaching the driveway. (N.T., vol. I, p. 175.) Tarris further testified that if Husband’s speed was in fact 50 miles per hour, based upon the time it would ordinarily take for a stationary driver to pull out from the Sensinger driveway and accelerate to a speed of 25 miles per hour, Husband would not have been within Sensinger’s view at the time he left his driveway. (N.T., vol. I, p. 177.) Tarris ultimately opined that the cause of the accident was Husband’s failure to control his motorcycle. (N.T., vol. I, p. 179.)

At the conclusion of the testimony, the jury was instructed to answer two verdict slips, one for Husband and one for Wife. On both, the jury returned a verdict in favor of Sensinger and against the Nunemachers on the question of negligence. At the time the jury announced its verdict and before the jury was dismissed, it was brought to the court’s attention by counsel that an error existed on Wife’s verdict slip. This verdict slip, which in format was identical to Husband’s, incorrectly directed the jury not to answer any further questions if it found Sensinger was not negligent.

Upon learning of this error, the jury was advised of the error in the verdict slip, instructed to continue their deliberations, and directed to determine whether or not Husband was negligent, whether such negligence,.if any, was a substantial factor in causing Wife’s injuries and, if so, to assess the amount of Wife’s injuries. (N.T., vol. II, pp. 75-76.) After further deliberations, the jury returned a verdict for Wife and against Husband on the issue of negligence, found Husband’s negligence was a substantial factor in causing Wife’s injuries, and, in answer to special interrogatories, awarded Wife her medical expenses of $5,453.29 but made no award for pain and suffering. After announcing this verdict, no objection was raised by any of the parties and the jury was discharged.

II. DISCUSSION

A. Expert Testimony ofTarris

TheNunemachers question the competency ofTarris’ expert witness testimony on two bases: first, that his qualifications as an accident reconstructionist did not qualify him to testify as to the operation of a motorcycle and second, that the factual basis for his opinions conflicted with the description of the facts provided by the Nunemachers and Cruz.

(1) Competency of Expert To Testify

As to the first issue, the Nunemachers do not dispute that Tarris has the necessary qualifications to testify as an accident reconstructionist — to render opinions as to how an accident happened. (N.T., vol. I, p. 137); see also, Davis v. Steigerwalt, 822 A.2d 22, 25 (Pa. Super. 2003) (noting the liberal standard for testing the qualifications of an expert — whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation — and if qualified, that the witness may testify and the weight to be given his testimony is for the trier of fact to determine). They challenge instead his competence to offer opinion testimony that “the cause of the accident was, in part, the manner in which [Husband] braked his motorcycle.” (Nunemacher brief in support of their motion for post-trial relief, p. 6.) Essentially, the Nunemachers argue that a distinction exists between how a motorcycle operates — its design and capabilities— and how the motorcycle was operated: as to the former, the Nunemachers appear to concede Tarris was competent to testify; as to the latter, in the Nunemachers’ opinion, he was not. While the distinction the Nunemachers seek to make may be a true one — certainly it would be if Tarris had been permitted to testify to Husband’s motives (i.e., why he braked the way he did) — when fairly examined, the Nunemachers’ argument lacks support in the record.

In being able to reconstruct a motorcycle accident, Tarris testified that it is necessary for an accident reconstructionist to understand not only the principles of mathematics, physics, and engineering but also how a motorcycle operates mechanically, including an understanding of how the motorcycle braking system works. (N.T., vol. I, p. 150.) Tarris testified specifically that he understood the functions of the braking system and how they relate to the operation of a motorcycle. (N.T., vol. I, pp. 142-43.) Tarris further testified that part of the field of accident reconstruction is an understanding of accident avoidance — “what kind of opportunity [a driver] would have had to avoid impact.” (N.T., vol. I, pp. 147-48.)

In this case, it was Husband who testified that he applied the rear brake fully, causing the wheel to lock and thereby leave skid marks, and intentionally applied the front brake only partially because of his belief that if he made full use of the front brake, the front wheel would lock, he would loose the ability to steer, and he risked having the motorcycle flip end over end. (N.T., vol. I, pp. 24, 59.) In analyzing the physical data, Tams took into account Husband’s testimony and explained how it affected his calculations of Husband’s speed — the more Husband actually applied the front brake the greater would be Husband’s pre-braking speed — and how the stopping distance of Husband’s motorcycle would have been affected had Husband fully utilized the entire braking system of his motorcycle. (N.T., vol. I, pp. 172-74, 177-78, 203.)

Contrary to the Nunemachers’ assumption, Tarris did not testify as to the manner in which Husband braked, Husband did. We see no error and believe Tarris was properly qualified to express the opinions he did and, in doing so, taking into account Husband’s testimony.

(2) Factual Basis of Expert Testimony

The Nunemachers’ second argument — the insufficiency of a factual basis to support Tarris’ opinions— focuses entirely on the premise that “Tarris’ testimony that both skid marks came from the Nunemacher motorcycle was unsupported by the evidence.” (Nunemacher brief in support of their motion for post-trial relief, p. 7.) The record, again, does not support this premise.

In concluding that both the western and eastern skid marks were left by Husband’s motorcycle, Tarris stated that he personally visited the accident site, visually examined the skid marks, measured them, and that they were perfectly aligned. At the speed Tarris calculated Husband was traveling, the separation of the skid marks represented a split second in elapsed time and, according to Tarris, was easily explainable as a momentary relaxing of pressure on the rear brake. Tarris took photographs of the skid marks and their alignment; these photographs were admitted into evidence and were shown to the jury who could see for themselves what Tarris was describing.

Additionally, Husband testified that soon after the two vehicles ahead of him (a distance which Wife estimated to be 100 to 200 feet) passed Sensinger’s driveway, Sensinger pulled out and that Husband was 100 to 150 feet from Sensinger’s driveway when he first began braking. Consistent with this testimony, the western edge of the western skid mark was measured by Tarris at 120 feet from the middle of the driveway; in contrast, the western edge of the eastern mark started at approximately 49 to 54 feet from the middle of the driveway. Further, in Wife’s testimony she confirmed that when the Husband began braking, he continued in a straight line.

“In Pennsylvania, there are no legal restrictions on the information relied upon by an expert, save that the information is made known to the expert at or before the hearing and that the information itself is admissible or is of a type reasonably relied upon by experts in the field.” Readingerv. W.C.A.B. (Epler Masonry), 855 A.2d 952, 956 (Pa. Commw. 2004), appeal denied, 581 Pa. 709, 867 A.2d 525 (2005).

“Traditionally, the opinion testimony of an expert must be narrowly limited to evidence of which he has personal knowledge, which is uncontradicted on the record or which is proffered on an assumed state of facts reasonably shown by the record. Houston v. Canon Bowl Inc., 443 Pa. 383, 385, 278 A.2d 908, 910 (1971); Battistone v. Benedetti, 385 Pa. 163, 170, 122 A.2d 536, 539 (1956); Jackson v. United States Pipe Line Co., 325 Pa. 436, 440, 191 A. 165, 166 (1937)....

“In Pennsylvania, experts have not been permitted to speak generally to the ultimate issue nor to give an opinion based on conflicting evidence without specifying which version they accept. These principles have been designed to permit the expert to enlighten the jury with his special skill and knowledge but leave the determination of the ultimate issue for the jury after it evaluates credibility.” Kozak v. Struth, 515 Pa. 554, 558-59, 531 A.2d 420, 422 (1987).

There is no question that Tarris’ conclusion that the western skid mark was caused by Husband was critical to his opinions. The jury was told this directly by Tarris. In doing so, Tarris testified as to the facts upon which his opinion was based — including evidence that he gathered from personally visiting the scene — as he is required to do under Pennsylvania law. See Pa.R.E. 705. Tarris was confronted by the contrary evidence on cross-examination and the jury heard his explanations. He openly acknowledged that his conclusion that both skid marks came from the Nunemachers’ bike conflicted with the statements of the Nunemachers and Cruz. During our instructions to the jury, we explicitly highlighted the critical nature of this testimony and the need for the jury to resolve this material dispute of facts in determining what weight to give to Tarris’ opinions. (N.T., vol. II, pp. 24-25.)

Contrary to the Nunemachers’ tacit assumption, there is no legal priority in the weight to be given direct or circumstantial evidence. The conflicting evidence as to the source of the skid marks was clearly an issue of fact and credibility for the jury. Kozak, supra.

B. Weight of the Evidence — Inadequacy in the Amount of the Verdict

A new trial based upon a weight of the evidence claim shall be granted to a party:

“only where the verdict is so contrary to the evidence as to shock one’s sense of justice [and not] where the evidence is conflicting [or] where the trial judge would have reached a different conclusion on the same facts.

“We have held that it is the duty of the trial court to control the amount of the verdict; it is in possession of all the facts as well as the atmosphere of the case, which will enable it to do more evenhanded justice between the parties than can an appellate court. Thus, a jury verdict is set aside for inadequacy when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Hence, a reversal on grounds of inadequacy of the verdict is appropriate only where the injustice of the verdict [stands] forth like a beacon.” Womack v. Crowley, 877 A.2d 1279, 1283 (Pa. Super. 2005) (quoting Davis v. Mullen, 565 Pa. 386, 390, 773 A.2d 764, 766 (2001)).

A new trial is warranted on weight of the evidence grounds only “in truly extraordinary circumstances, i.e., when the jury’s verdict is ‘so contrary to the evidence that it shocks one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.’ ” Criswell v. King, 575 Pa. 34, 834 A.2d 505, 512 (2003). (quotations and citations omitted) Because the power of a trial court to nullify a jury’s verdict on the basis of evidentiary weight overrides the primacy of the juiy in determining questions of credibility and evidentiary weight, the remedy of overturning the jury’s verdict on this basis is extraordinary. To do so, “the judicial conscience [must] not merely [be] disappointed, or uncomfortable, but [must be] shocked.” Id., 834 A.2d at 513.

In this case, Wife testified that she injured her right wrist and elbow in the accident. The same day she was taken to the emergency room of the Gnaden Huetten Memorial Hospital where a splint was placed on her wrist and she was released. Two days later her wrist was placed in a cast. For a “couple of weeks” she received physical therapy for strengthening, both her wrist and elbow improved, and the pain apparently subsided. (N.T., vol. I, pp. 70-71.)

No evidence was presented as to the size of her cast, when the cast was removed, or of any discomfort associated with the cast. No evidence was presented as to the number or frequency of physical therapy sessions she attended. No evidence was presented as to any activities Wife was unable to perform or was restricted in performing. Other than stating that on the day of the accident she felt a “gnawing, stabbing pain” and that the pain she experienced in her wrist and elbow was worse and more frequent than before the accident, no evidence was presented as to the severity or frequency of the pain, or of any pain medication prescribed for or taken by Wife. (N.T., vol. I, p. 70.)

In December 2001, according to Wife, the “gnawing, stabbing pain” in her right elbow returned, was “almost constant,” and wouldn’t go away. Wife first saw Dr. Talsania for this pain in January 2002. Tests performed by Dr. Talsania ruled out any fractures or nerve damage. On the basis of a differential diagnosis, Dr. Talsania determined that Wife’s problem was tennis elbow — the triceps of her right arm snapping over the bony ridge of her elbow — and that the problem was attributable to the motorcycle accident. (Talsania deposition, pp. 39-40.) In rendering his opinion on the cause of Wife’s problem, Dr. Talsania explicitly acknowledged that the validity of this opinion was dependent on the truthfulness of Wife accurately reporting the onset of the snapping symptoms. (Talsania deposition, p. 40.)

Dr. Talsania performed surgery on Wife’s elbow on April 15, 2002. Wife received rehabilitative therapy at home and reported that all problems with her right elbow had returned to their pre-accident condition by June or July of 2002. Dr. Talsania did not treat Wife for any injury to her right wrist nor was any expert medical testimony presented with respect to the nature of this alleged injury. In fact, Wife acknowledged that any additional problems she had with her right wrist after the accident had resolved before she met with Dr. Talsania. (N.T., vol. I, p. 77.)

In this case, Sensinger challenged the cause of Wife’s injuries. As to the cause, in awarding Wife all of her claimed medical expenses for the surgery performed by Dr. Talsania, the jury necessarily found that the difficulty Wife experienced with her triceps was caused by the accident. However, it is not insignificant that Wife’s initial complaint of pain appears from the evidence to have resolved itself within the two-week period Wife first received physical therapy and was followed by a one- to two-month period before Wife sought treatment from Dr. Talsania.

“[A] jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” Neison v. Hines, 539 Pa. 516, 521, 653 A.2d 634, 637 (1995). In those circumstances where medical expenses have been awarded without an award of pain and suffering, our courts have held that if the injuries sustained were “of the types that normally involve pain and suffering” the failure to compensate for pain and suffering results in a verdict which “bears no reasonable relation to the injuries suffered.” Burnhauser v. Bumberger, 745 A.2d 1256, 1261 (Pa. Super. 2000); Womack, supra at 1284. Our Supreme Court has also stated that: “a jury’s award of medical expenses without compensation for pain and suffering should not be disturbed where the trial court had a reasonable basis to believe that: (1) the jury did not believe the plaintiff suffered any pain and suffering, or (2) that a pre-existing condition or injury was the sole cause of the alleged pain and suffering.” Davis v. Mullen, supra, 773 A.2d at 767.

In this case, Sensinger also challenged the extent and duration of Wife’s injuries. While Wife complained of increased pain in her right wrist and elbow after the accident, she acknowledged her pre-existing work-related injury to her right arm; that she had received medical treatment for this injury, including surgeries in 1997 and 1998, and was still receiving follow-up medical treatment at the time of the accident; and that she had not returned to work since the injury and was unemployed when the accident occurred.

It is undisputed that Wife met with the treating physician for her pre-existing injury, Dr. Mauthe, on October 1, 2001, less than two weeks before the accident at issue. (Talsania deposition, p. 48.) At that time, Wife was taking medications and wearing a Dynasplint on her right elbow. (Talsania deposition, pp. 48-49.) Additionally, based on Wife’s own testimony, at the time of the accident she continued to experience “numbness and tingling” in the last three fingers of her right hand, had pain in her wrist, and felt some pain in her right elbow. (N.T., vol. I, p. 65.) When asked at trial whether the problems she was having with her elbow after the accident were the same or different than those she was having before the accident, Wife initially responded, “Basically.” (N.T., vol. I, p. 74.)

Under these circumstances, we believe the jury could rationally determine that Wife did not suffer a serious debilitating injury. In Davis, the court stated that whether a defendant caused the plaintiff’s injuries and whether the plaintiff suffered compensable pain are issues peculiarly within the province of the jury to determine. Davis v. Mullen, supra, 773 A.2d at 769. As to the jury’s determination to award medical expenses only, “the existence of compensable pain is an issue of credibility and juries must believe that plaintiffs suffered pain before they compensate for that pain.” Id.; cf. McDermott v. Consol. Rail Corp., 567 Pa. 561, 789 A.2d 203 (2001) (per curiam) (finding that notwithstanding an injury to the nerves requiring two surgeries, an award for lost wages with no accompanying award for pain and suffering is not per se invalid).

Nor, in the absence of an obvious injury with which pain is naturally associated, is the jury, when faced with complaints of subjective pain, “obliged to believe that every injury causes pain or the pain alleged.” Boggavarapu v. Ponist, 518 Pa. 162, 167, 542 A.2d 516, 518 (1988). Further, in Majczyk v. Oesch, 789 A.2d 717, 726 (Pa. Super. 2001) (en banc), the court noted that for some injuries, the jury may appropriately conclude that the plaintiff’s “discomfort was the sort of transient rub of life for which compensation is not warranted.” See also, Andrews v. Jackson, 800 A.2d 959, 965 (Pa. Super. 2002), appeal denied, 572 Pa. 694, 813 A.2d 835 (2002) (a jury may find negligence and causation based on the uncontradicted testimony of both parties’ medical experts but then “deny damages on the basis that the injury was not serious enough to warrant compensation”); Kennedy v. Sell, 816 A.2d 1153 (Pa. Super. 2003).

In this case, the jury may have believed that Wife’s subjective complaints of pain were not credible because the part of her body injured in the accident was the same part for which she was receiving treatment and experiencing pain immediately before the accident. In other words, the jury may have believed Wife suffered no additional pain for any injuries sustained in the accident above and beyond those problems which pre-existed and were unrelated to the accident. The jury may also have found that any pain caused by injuries Wife sustained in the accident was not only transient, but incrementally minor and virtually indistinguishable from the pain and discomfort attributable to her pre-existing injury and, therefore, noncompensable.

Clearly, we cannot presume to know what happened in the jury room or what was the basis of the jury’s reasoning. We are constrained, however, by what are reasonable possibilities explaining the jury’s verdict and whether the jury properly exercised its prerogative to believe all, some, or none of the evidence.

Ultimately, the determination of “what is a compensable injury is uniquely within the purview of the jury.” Majczyk, 789 A.2d at 726. With the foregoing in mind, the jury’s decision not to award damages for pain and suffering is not inconsistent with its award of medical expenses only and does not offend our sense of overall justice in this case.

III. CONCLUSION

In accordance with the foregoing, the Nunemachers’ motion for post-trial relief will be denied in total and judgment entered on the jury’s verdict.

      . At the time of the accident, the plaintiffs, Thomas Nunemacher and Angelina Nunemacher, were married to one another. The Nunemachers separated in May 2002, and have since divorced.

      . Sensinger’s joinder complaint against Wife was withdrawn by stipulation shortly before trial.

      . Husband was knocked unconscious in the accident. He was medivaced to the Lehigh Valley Hospital and did not regain consciousness until four days later. Husband sustained serious head injuries in the accident. Husband testified that after the accident he also experienced short-term memory loss, headaches and dizziness. Husband had no recollection of what occurred between the point when he began braking to avoid contact with Sensinger’s vehicle and when he regained consciousness in the hospital. (N.T., vol. I, pp. 25, 56.)

      . The Nunemachers’ argument that the police independently determined Cruz’ motorcycle was the cause of the western skid mark is misleading. The police initially thought both skid marks were attributable to Husband’s motorcycle. Only after Cruz insisted that the western most mark was caused by his motorcycle did the police attribute this mark to Cruz. (N.T., vol. I, p. 103.) Since the qualifications of the investigating police officer to render this opinion were never presented, at best, the police accident report served as a basis for impeaching Tarris on this issue, not as substantive evidence.

      . The police report documented the length of the western mark to be 45 feet and that of the eastern mark to be 83 feet. While differing from Tarris’ measurements, Tarris explained this difference to be attributable to time: Tarris did not visit the site and take his measurements until approximately 12 weeks after the accident and, as stated by Tarris, skid marks fade with time. (N.T., vol. I, p. 168.) Tarris also testified that the police report did not identity the length of the gap between the two marks and although the space between these marks may have been less at the time of the accident, for purposes of his calculations he used the distance of 25 to 30 feet measured by him when he visited the site. (N.T., vol. I, pp. 184-85.)

      . The verdict slip for Husband was correct. Having found Sensinger to be non-negligent, the need to also evaluate whether or not Husband was negligent for purposes of comparative negligence was moot. In contrast, notwithstanding the jury’s finding in favor of Sensinger on the issue of negligence, because of the issues raised in the joinder complaint against the Husband, it was still necessary on the Wife’s verdict slip for the jury to determine whether the Husband was negligent and whether any negligence by him was a cause of Wife’s injuries.

      . On cross-examination by the Nunemachers’ counsel, Tarris testified that the belief that use of the front brake will cause the motorcycle to somersault is a myth, not supported by fact, and that in not using the front brake fully, a great percentage of the braking capacity of a motorcycle is lost. (N.T., vol. I, p. 198.)

      . The Nunemachers rely heavily on Tarris’ statement during voir dire on qualifications that “I do not consider myself an expert in the operation of a motorcycle, just as I don’t consider myself an expert in the operation of a car.” (N.T., vol. I, p. 149.) We believe the Nunemachers read more into this statement than was intended. Certainly in the context of the questions asked of Tarris on voir dire, it was clear that Tarris was qualified by education, training and experience to testily how this accident happened, and how the manner in which Husband braked affected the happening of the accident.

      . To the extent Sensinger argues this issue has been waived because no objection was made at the time the jury returned its verdict, Sensinger’s legal premise is incorrect. Unlike a facially inconsistent verdict which requires the making of a timely, contemporaneous objection upon the rendering of the verdict to preserve the issue for post-trial relief and appellate review, Straub v. Cherne Indus., 583 Pa. 608, 616 n.8, 880 A.2d 561, 567 n.8 (2005), a challenge based on the weight of the evidence need not be made before the juiy is discharged and the verdict recorded in order to preserve the issue for review. Criswell v. King, 575 Pa. 34, 45, 834 A.2d 505, 506 (2003). While conceptually an inconsistent verdict is manifestly unreasonable and objectively discernible at the time of trial and, therefore, capable of being corrected before the jury is discharged, a claim challenging the weight of the evidence “is not premised upon trial court error or some discrete and correctable event at trial”; such a challenge does not allege any facial error in the verdict of the jury but instead is dependent on the court’s independent review and evaluation of the verdict and its conclusion that “the verdict was so contrary to what it heard and observed that it will deem the jury’s verdict such a miscarriage of justice as to trigger the court’s time-honored and inherent power to take corrective action.” Id. at 512. And, unlike an inconsistent verdict which the court can bring to the jury’s attention and request be reconciled, “a trial judge cannot issue a corrective instruction to the jury suggesting that the weight of the evidence does not support its verdict without invading the province of the jury by essentially directing a verdict.” Id.

      . Husband’s argument that he was somehow prejudiced when the error in Wife’s verdict slip was detected and the jury was directed to resume its deliberations is speculative and finds no support in the record.
      Both Husband’s and Wife’s verdict slips were reviewed and approved by counsel prior to being distributed to the jury. (N.T., vol. I, pp. 239-42.) At the conclusion of the court’s closing instructions and before the jury began its deliberations, counsel were provided with an opportunity to voice any objections they might have to the verdict slip or the court’s closing instructions: none did so. (N.T., vol. II, p. 68.) Only after the jury announced its verdict as to the Nunemachers’ claims against Sensinger, did it become apparent that the jury had not rendered a verdict with respect to the claims of the Wife against Husband raised in the joinder complaint.
      In instructing the jury further on these issues and directing the jury to resume its deliberations, the court did not suggest one way or another how the jury should decide the issue of Husband’s liability to Wife or what amount of damages to find. (N.T., vol. II, pp. 76-78.) What the jury had already decided, that Sensinger did not act negligently, was an issue separate and distinct from whether the Husband was negligent and whether such negligence, if any, caused damages to the Wife.
      In directing the jury to answer these remaining questions, the court did not introduce any issues into the case which counsel had not expected the jury to decide. Instead, the court properly and appropriately corrected an error on the face of the Wife’s verdict slip, which incorrectly instructed the jury not to decide the issues of Husband’s liability to Wife in the event it found Sensinger was non-negligent, and explained that these issues still needed to be decided.
      While we believe counsel’s initial failure to timely object to the wording on Wife’s verdict slip constituted a waiver of the issue, at the time we first became aware of the error the juiy was still present and had not been discharged, and the error was then capable of being corrected without prejudice to any party. Counsel has not argued that our subsequent instructions to the jury were in themselves erroneous or prejudicial, but that our decision to correct an error which was capable of being corrected was itself error. Cf. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) (noting the policy considerations underlying the contemporaneous objection rule: that timely and specific objections advance judicial economy by allowing a trial court to immediately address errors which are subject to correction before the trial ends). Having failed to establish any basis for prejudice on this issue, Husband’s motion for a new trial will be denied. See Berger v. Schetman, 883 A.2d 631, 636 (Pa. Super. 2005) (stating that the occurrence during trial of some irregularity does not in and of itself warrant the grant of a new trial in the absence of demonstrated prejudice resulting from the mistake).