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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JESSICA KARSKO                                 IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

PAUL KRULICK AND VERONICA KRULICK

                        Appellees                    No. 827 MDA 2014


              Appeal from the Judgment Entered June 20, 2014
              In the Court of Common Pleas of Luzerne County
                   Civil Division at No(s): 08785-C of 2011


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                FILED JUNE 01, 2015

      Jessica Karsko appeals from the judgment entered in the Luzerne

County Court of Common Pleas on June 20, 2014 in favor of Paul Krulick and

Veronica Krulick (collectively, “Krulick”) in this negligence lawsuit.     On

appeal, Karsko claims the court erred and/or abused its discretion in

admitting evidence of Krulick’s insurance coverage and in denying her post-

trial motion. Based on the following, we affirm.

      The facts and procedural history are as follows.    On July 6, 2009, a

vehicle, driven by Paul Krulick, struck the rear end of a vehicle, operated by

Karsko, while Karsko’s car was stopped at a red light.        Karsko filed a

complaint on January 13, 2012, alleging personal injuries as a result of the

accident. The matter proceeded to a jury trial, and a verdict was entered on

October 29, 2013, in which the jury found Krulick was negligent but his
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negligence was not the factual cause of Karsko’s injuries. See Jury Verdict

Slip, 10/29/2013. Karsko filed a motion for post-trial relief on November 8,

2013, alleging the verdict was against the weight of the evidence. The trial

court denied the motion on April 11, 2014, and entered judgment in favor of

Krulick on June 20, 2014. This timely appeal followed.1

       On appeal, Karsko raises two arguments, which we will address

together.    First, she contends the court erred in admitting a statement at

trial regarding Krulick’s insurance coverage because it violated Pennsylvania

Rule of Evidence 411.2        Karsko’s Brief at 10.   By way of background, on

direct examination, the following exchange occurred between Krulick and his

counsel:

              Q. And there was a collision?

              A. Yes, sir, there was.

              Q. And at the scene did you get out of the vehicle?

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1
   The court did not order Karsko to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b), but did issue an opinion
under Pa.R.A.P. 1925(a) on July 9, 2014.
2
    Rule 411 provides:

       Evidence that a person was or was not insured against liability is
       not admissible to prove whether the person acted negligently or
       otherwise wrongfully. But the court may admit this evidence for
       another purpose, such as proving a witness’s bias or prejudice or
       proving agency, ownership, or control.

Pa.R.E. 411.



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            A. Yes, I did.

           Q.   Okay.        Were you on your cell phone when this
      happened?

            A. Well, for the record, I have a different recollection of
      that. The immediate thing I did was to approach the people of
      the other vehicle and make sure they were okay, which they
      were. Mrs. Karsko got out of [the] car. There was [sic] two
      children in the backseat. There was a male passenger in the
      front seat. I extended my condolences to that male passenger,
      and he kind of didn’t want anything to do with me. And
      [Karsko’s] first words were, You better call the cops, and
      I hope you have insurance.

      Q. Okay. To that point, from the time you were driving on Oak
      Street to the time of the impact, were you on your cell phone at
      all?

      A. No.

N.T., 10/29/2013, at 6-7 (emphasis added).

      Karsko notes Rule 411 prohibits the introduction of liability insurance

into evidence. Karsko’s Brief at 10. She states Krulick’s account “was not

an inadvertent, slight mention of insurance[,]” but rather, “[i]t was an

intentional statement made to put [her] in a bad light with the jury, implying

that her seeking of damages was premeditated and based on untruths.” Id.

at 12.   Moreover, Karsko contends the mention of the word, “insurance,”

prejudiced her because while the jury found Krulick was negligent in the

operation of his vehicle, it determined his actions did not cause her injuries.

Id. Karsko claims this leads into her second argument, that the verdict was

against the weight of the evidence based on the following:        (1) she was

taken to the hospital after the accident and treated; (2) she had to have five

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weeks of physical therapy; and (3) her expert witness, a chiropractor,

testified that her injuries were caused by the accident.    Id. at 12-13.   As

such, Karsko asserts Krulick’s “disputed statement about the existence of

insurance was clearly prejudicial to her case and was the reason the jury did

not believe her claim of injuries and damages.” Id. at 13. She concludes

the statement at issue could not be corrected with a limiting jury instruction

and therefore, a new trial is warranted.

      “It is well settled that in reviewing an order to grant a new trial
      our standard of review is limited to determining whether the trial
      court abused its discretion or committed an error of law.”
      Neison v. Hines, 539 Pa. 516, 653 A.2d 634, 636 (Pa. 1995) ….
      “The general rule in Pennsylvania is that evidence of insurance is
      irrelevant and prejudicial and justifies the grant of a mistrial.”
      Dolan v. Carrier Corp., 424 Pa. Super. 615, 623 A.2d 850, 853
      (Pa. Super. 1993) (citing Paxton Nat. Ins. Co. v. Brickajlik,
      513 Pa. 627, 522 A.2d 531, 533 (Pa. 1987)). See Pa.R.E. 411
      (“Evidence that a person was or was not insured against liability
      is not admissible upon the issue whether the person acted
      negligently or otherwise wrongfully.”).       However, the mere
      mention of the word insurance does not necessitate a new trial
      unless the aggrieved party can demonstrate prejudice. Phillips
      v. Schoenberger, 369 Pa. Super. 52, 534 A.2d 1075, 1078 (Pa.
      Super. 1987) (citing Pushnik v. Winky’s Drive In
      Restaurants, 242 Pa. Super. 323, 363 A.2d 1291, 1297 (Pa.
      Super. 1976) (en banc)).

Allied Elec. Supply Co. v. Roberts, 797 A.2d 362, 364 (Pa. Super. 2002),

appeal denied, 808 A.2d 568 (Pa. 2002).

      Here, we find Karsko’s arguments are waived for several reasons.

First, in reviewing the testimony, it is clear that Karsko waived any challenge

to the testimony at issue by failing to make a timely objection during trial.

See N.T., 10/29/2013, at 6-7. “It is axiomatic that, in order to preserve an

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issue for review, litigants must make timely and specific objections during

trial and raise the issue in post-trial motions.” Harman ex. rel. Harman v.

Borah, 756 A.2d 1116, 1124 (Pa. 2000). The “decision to grant or deny an

untimely objection lies within the discretion of the trial court[.]”       Allied

Elec. Supply Co., 797 A.2d at 364 (citation omitted). Moreover, “[i]t is well

established that trial judges must be given an opportunity to correct errors

at the time they are made.” Commonwealth v. Strunk, 953 A.2d 577,

579–580 (Pa. Super. 2008). “[A] party may not remain silent and afterwards

complain of matters which, if erroneous, the court would have corrected.”

Id. As such, Karsko did not properly preserve the evidentiary issue.3

       Second, to the extent Karsko argues she was prejudiced by this

testimony and that the verdict is against the weight of the evidence, we note

she only requested that a portion of the trial transcript, specifically, Krulick’s

testimony, be reproduced for appellate review.          See Order/Request for

Transcript, 5/9/2014.       In order for this Court to address her claims and

____________________________________________


3
   Furthermore, even if the claim were not waived, we agree with the trial
court’s finding that Krulick “was merely quoting or paraphrasing what
[Karsko] had said to him immediately following the accident, i.e. ‘you better
call the cops, and I hope you have insurance.’ This statement is clearly not
the type of evidence that Pa.R.E. 411 renders inadmissible.” Trial Court
Opinion, 7/9/2014, at 2. It is evident that this was a mere mention of
insurance and did not amount to anything more. See also O'Donnell v.
Bachelor, 240 A.2d 484, 487 (Pa. 1968) (“While, of course, we have ruled
that a gratuitous reference to personal liability insurance in personal injury
cases is ground for a mistrial, we have never said that the mention of
insurance, per se, like dynamite with a live fuse, will blow up the case.”).



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conduct a meaningful review, it is necessary that we have the transcript in

toto of the October 29, 2013, trial.    Karsko’s failure to include the whole

transcript of proceedings in the certified record on appeal is in contravention

of Pa.R.A.P. 1921 (“the original papers filed in the lower court, the transcript

of proceedings, if any, and a certified copy of the docket entries prepared by

the clerk of the lower court shall constitute the record in appeal in all

cases”). “It is well established in this Commonwealth that it is the appellant’s

responsibility to order the transcript required and ascertain its presence in

the record prior to certification for appeal.”   Commonwealth v. O’Black,

897 A.2d 1234, 1238 (Pa. Super. 2006) (citation and quotation marks

omitted).   To this extent, we are unable to review Karsko’s arguments on

appeal because we do not have an adequate record. Therefore, her claims

are waived. See O’Black, 897 A.2d at 1239.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2015




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