C. Jakmian v. City of Philadelphia & SEPTA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Caroleen Jakmian, :

Appellant :

:

v. :

:

City of Philadelphia and Southeastern : No. 665 C.D. 2023

Pennsylvania Transportation Authority : Submitted: June 4, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge (P.)

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: July 16, 2024

Caroleen Jakmian (Appellant) appeals from the Philadelphia County

Common Pleas Court’s (trial court) February 7, 2023 order (entered February 9,

2023) granting nonsuit in favor of the City of Philadelphia (City) and Southeastern

Pennsylvania Transportation Authority (SEPTA) (collectively, Appellees).1

Essentially, Appellant presents two issues for this Court’s review: (1) whether the

trial court erred and abused its discretion by entering nonsuit in Appellees’ favor;

and (2) whether the trial court erred and abused its discretion by granting SEPTA’s

Motion in Limine to preclude Appellant from asking SEPTA’s witnesses questions

regarding statements made by SEPTA spokeswoman, Jerri Williams (Williams).2

After review, this Court affirms.

1

The trial court denied Appellant’s post-trial motions on June 7, 2023.

2

In Appellant’s Statement of the Questions Involved, she presented four issues. The first

two issues were (1) whether the trial court erred and abused its discretion by entering nonsuit in

favor of Appellees when the trial court improperly removed the question of negligence from the

jury’s consideration; and (2) whether the trial court erred and abused its discretion by entering

On August 21, 2020, the front tire of Appellant’s bicycle became stuck

in a SEPTA trolley track located on 12th Street in the City causing Appellant to be

thrown from her bicycle and suffer, among other injuries, a fractured right arm. On

October 20, 2020, Appellant filed a Complaint against Appellees in the trial court

alleging negligence and seeking damages.3 Specifically, Appellant averred that

SEPTA and the City had a duty to remove all trolley tracks from the street and/or

pave over the rails where trolley service is not in use.

nonsuit in favor of Appellees where the trial court improperly applied a heightened standard of

care to a straightforward negligence action. See Appellant Br. at 4. This Court has combined these

issues in its stated first issue and will address them accordingly herein. The third issue Appellant

presented is this Court’s stated second issue. The fourth issue Appellant presented was whether

the trial court erred and abused its discretion in granting SEPTA’s Motion in Limine to preclude

Appellant from presenting evidence of a 2011 accident. See Appellant Br. at 5. However,

Appellant does not specifically identify this issue in her argument, therein referring only to a 2014

and a 2015 accident; therefore, she presented no argument concerning a 2011 accident for this

Court to address. See Pennsylvania Rule of Appellate Procedure 2119(a), which provides: “The

argument shall be divided into as many parts as there are questions to be argued; and shall have at

the head of each part--in distinctive type or in type distinctively displayed--the particular point

treated therein[.]” Pa.R.A.P. 2119(a).

Notwithstanding, relative to the 2011 accident, the trial court ruled:

SEPTA’s motion is partially granted[] [and] partially denied.

[Appellant’s] Counsel shall not be permitted to refer to any hearsay

information in the newspaper articles about that 2011 accident.

[Appellant’s C]ounsel is permitted to ask the corporate designee

whether . . . he or she was aware of a 2011 accident and whether he

or she was aware of any action SEPTA took in regard to that.

Reproduced Record at 24a. Appellant’s Counsel replied: “Thank you, Your Honor. Understood.”

Id. Appellant’s Counsel did not object to the trial court’s ruling, and Appellant’s Counsel did not

ask SEPTA’s corporate designee any questions relating thereto.

3

Appellant also named the Commonwealth of Pennsylvania, Department of Transportation

(DOT) as a defendant; however, DOT was dismissed from the action by joint stipulation of the

parties filed on July 26, 2022.

2

During the jury trial, Appellant testified that she was riding her bicycle

on August 21, 2020, southbound on 12th Street, a route she often traveled between

her residence and the gym. See Reproduced Record (R.R.) at 88a-90a. Appellant

described that there are trolley tracks that run down the middle of the street, and that

she was riding in the center of the tracks, so there was a track to her right and a track

to her left. See R.R. at 119a-120a. She related that as she moved to her right to clear

the roadway for a car that was tailgating her, the bike tire got stuck in the trolley

track, and she was thrown off her bike and crashed into a parked vehicle. See R.R.

at 90a. Appellant stated that she took photographs of the tracks where she fell and

explained that her bicycle tire got stuck in the opening between the rails. See R.R.

at 92a-94a. Appellant did not identify any defect in the rails themselves.

Appellant presented SEPTA’s Track Department Director, Philip

Metzger (Metzger), who testified that he is responsible for, inter alia, maintenance

of the trolley tracks. See R.R. at 132a. Metzger explained that the Route 23 trolly

line operated on 12th Street; however, SEPTA took the trolleys out of service in

1992 and now runs the Route 23 bus on 12th Street. See R.R. at 134a-135a. Metzger

related that, at the time of Appellant’s accident, the trolley service had not been in

use for at least 30 years, and SEPTA has no plans to reinstate trolley service. See

R.R. at 135a. Metzger also stated that SEPTA is responsible for maintaining the

tracks regardless of whether they are active or inactive. See R.R. at 136a.

Metzger described that the Route 23 line consists of 26 miles of track

and that, in 1992, the Route 23, Route 15, and Route 56 trolleys were removed from

service. See R.R. at 142a-143a. Metzger declared that, although trolley service is

inactive on that line, SEPTA has not abandoned it. See id. Metzger explained that

3

in order for SEPTA to abandon trolley tracks (i.e., to divest itself of responsibility

to maintain the track), it must undertake a formal process that involves executing an

agreement with the City. See R.R. at 149a-151a. He expounded that, at the current

time, SEPTA and the City are considering SEPTA’s request to abandon five trolley

lines; however, the Route 23 line is not one of them. See R.R. at 152a.

Metzger estimated that it would cost SEPTA one million dollars per

mile to pave over trolley tracks. See id. Metzger confirmed that there have been

areas throughout the City, including part of the Route 23 line, where SEPTA had

paved over portions of track. See R.R. at 153a. Metzger explained that SEPTA

paves over areas where the track has created a hazardous road condition - for

example, SEPTA paved over approximately one-third of a mile on 11th and 12th

Streets between Market and Arch Streets, which cost roughly $300,000.00. See id.

Metzger specified that that portion of the track had to be paved because there were

potholes, depressions, and buckled rails. See id. Metzger related that there are times

when SEPTA returns an inactive track to active status due to population changes

(i.e., the Route 15 trolley line was inactive, but put back into active service in the

mid-2000s when Sugar House casino was built). See R.R. at 154a. Metzger added

that the Route 15 trolley line was active for 10 to 12 years, and then became inactive

while SEPTA made changes to the rail line; however, SEPTA expects to reactivate

it in the near future. See id.

Appellant also presented the City Streets Department’s Chief Highway

Engineer, Stephen Lorenz (Lorenz), who confirmed that 15 intersections with trolley

tracks throughout the City have been paved over at The Bicycle Coalition of the City

of Philadelphia’s (The Bicycle Coalition) requests. See R.R. at 168a-170a. Lorenz

4

confirmed that SEPTA is solely responsible for maintaining the trolley tracks in the

City. See R.R. at 171a.

After Appellant rested her case, Appellees moved for nonsuit,4 which

the trial court granted. Appellant filed a post-trial motion seeking removal of the

nonsuit, which the trial court denied. Appellant timely appealed to this Court. On

June 23, 2023, the trial court directed Appellant to file a Concise Statement of Errors

Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure

(Rule) 1925(b) (Rule 1925(b) Statement). On July 11, 2023, Appellant filed her

Rule 1925(b) Statement. On August 4, 2023, the trial court filed its opinion pursuant

to Rule 1925(a).

Initially,

[i]n reviewing the entry of a nonsuit, [an appellate court’s]

standard of review is well[ ]established: we reverse only

if, after giving appellant the benefit of all reasonable

inferences of fact, we find that the fact[-]finder could not

reasonably conclude that the essential elements of the

cause of action were established. Indeed, when a nonsuit

is entered, the lack of evidence to sustain the action must

be so clear that it admits no room for fair and reasonable

disagreement. The fact-finder, however, cannot be

permitted to reach a decision on the basis of speculation or

conjecture.

Munoz v. Children’s Hosp. of Phila., 265 A.3d 801, 805-06 (Pa. Super. 2021)

(quoting Rolon v. Davies, 232 A.3d 773, 776-77 (Pa. Super. 2020)).

4

Appellees’ Counsel each requested a “directed verdict.” R.R. at 176a. However, this

Court and the trial court acknowledge that the proper procedure after a plaintiff rests her case is to

request a nonsuit. See Pa.R.Civ.P. 230.1(c).

5

Appellant first argues that the trial court erred and abused its discretion

by entering nonsuit in Appellees’ favor when the trial court improperly removed the

question of negligence from the jury’s consideration and where the trial court

improperly applied a heightened standard of care to a straightforward negligence

action. Appellant contends that a reasonable fact-finder could clearly find that

Appellant had presented sufficient evidence to demonstrate the existence of a defect

and establish liability against Appellees when viewing all of the evidence in a light

most favorable to Appellant. Appellant cites Cagey v. Commonwealth, 179 A.3d

458 (Pa. 2018), to support her position.

SEPTA rejoins that the trial court correctly entered nonsuit in its favor,

as there was no evidence upon which the jury could have found SEPTA had breached

any duty to Appellant. The City retorts that Appellant’s claim against the City fails

because it has no duty to maintain, repair, or remove SEPTA’s trolley tracks. The

City contends that SEPTA admitted its sole responsibility for the tracks, and

Appellant made no effort to argue otherwise. Alternatively, the City asserts that

Appellant’s claim fails because she did not show that the City breached some

standard of care by not removing or paving inactive tracks.

At the outset,

Section 8542(a) of [the portion of the Judicial Code

commonly known as the Political Subdivision Tort Claims

Act (Tort Claims Act),5] provides that a local agency[FN]9

shall be liable for damages if: (1) the damages would be

recoverable under common law or a statute creating a

cause of action if caused by a person without immunity;

5

42 Pa.C.S. §§ 8541-8542.

6

(2) the injury was caused by a local agency or an employee

thereof; and (3) the negligent act falls within an exception

enumerated in [S]ection 8542(b) of the [Tort Claims Act].

42 Pa.C.S. § 8542(a).

[FN]9

Section 5801 [sic] of the Judicial Code defines

a “[l]ocal agency” as “[a] government unit other

than the Commonwealth [of Pennsylvania

(Commonwealth)] government. The term

includes, but is not limited to, an intermediate unit;

municipalities cooperating in the exercise or

performance of governmental functions, powers[,]

or responsibilities under [Subchapter A of Chapter

23 of the General Local Government Code,] 53

Pa.C.S. [§§ 2301-2317] (relating to

intergovernmental cooperation); and councils of

government and other entities created by two or

more municipalities [there]under . . . .” 42 Pa.C.S.

§ 8501.

Lacava v. Se. Pa. Transp. Auth., 157 A.3d 1003, 1008-09 (Pa. Cmwlth. 2017). The

City is a local agency. In this context, SEPTA is a Commonwealth agency. See id.

Section 8542 of the Tort Claims Act provides, in relevant part:

(b) Acts which may impose liability.--The following acts

by a local agency or any of its employees may result in the

imposition of liability on a local agency:

....

(6) Streets.--

(i) A dangerous condition of streets owned by the local

agency, except that the claimant to recover must establish

that the dangerous condition created a reasonably

foreseeable risk of the kind of injury which was incurred

and that the local agency had actual notice or could

reasonably be charged with notice under the circumstances

of the dangerous condition at a sufficient time prior to the

7

event to have taken measures to protect against the

dangerous condition.

(ii) A dangerous condition of streets owned or under

the jurisdiction of Commonwealth agencies, if all of the

following conditions are met:

(A) The local agency has entered into a written contract

with a Commonwealth agency for the maintenance and

repair by the local agency of such streets and the contract

either:

(I) had not expired or been otherwise terminated prior to

the occurrence of the injury; or

(II) if expired, contained a provision that expressly

established local agency responsibility beyond the term of

the contract for injuries arising out of the local agency’s

work.

(B) The injury and dangerous condition were directly

caused by the negligent performance of its duties under

such contract.

(C) The claimant must establish that the dangerous

condition created a reasonably foreseeable risk of the kind

of injury which was incurred[,] and that the local agency

had actual notice or could reasonably be charged with

notice under the circumstances of the dangerous condition

at a sufficient time prior to the event to have taken

measures to protect against the dangerous condition.

42 Pa.C.S. § 8542(b) (text emphasis added).

Section 8522 of what is commonly referred to as the Sovereign

Immunity Act, applicable to SEPTA, states in pertinent part:

a) Liability imposed.--The General Assembly, . . . does

hereby waive, in the instances set forth in subsection

(b) . . . sovereign immunity as a bar to an action against

Commonwealth parties, for damages arising out of a

8

negligent act where the damages would be recoverable

under the common law or a statute creating a cause of

action if the injury were caused by a person not having

available the defense of sovereign immunity.

b) Acts which may impose liability.--The following acts

by a Commonwealth party may result in the imposition of

liability on the Commonwealth and the defense of

sovereign immunity shall not be raised to claims for

damages caused by:

....

(4) Commonwealth real estate, highways and

sidewalks.--A dangerous condition of Commonwealth

agency real estate and sidewalks, including

Commonwealth-owned real property, leaseholds in the

possession of a Commonwealth agency and

Commonwealth-owned real property leased by a

Commonwealth agency to private persons, and highways

under the jurisdiction of a Commonwealth agency,

except conditions described in paragraph (5).

42 Pa.C.S. § 8522 (text emphasis added).

“[A] claim for damages for injuries caused by a substance

or an object on Commonwealth real estate must allege that

the dangerous condition ‘derive[d], originate[d] or ha[d]

its source [in] the Commonwealth realty’ itself, if it is to

fall within the Sovereign Immunity Act’s real estate

exception.” Jones v. [Se.] [Pa.] Transp[.] Auth[.], . . . 772

A.2d 435, 443 ([Pa.] 2001) (citation omitted).

“[A]ssuming all other requirements of the statutory

exception at [Section] 8522(b)(4) [of the Sovereign

Immunity Act] are met, the Commonwealth may not raise

the defense of sovereign immunity when a plaintiff

alleges, for example, that a substance or an object on

Commonwealth realty was the result of a defect in the

property or in its construction, maintenance, repair or

design.” Id. at 443-44.

9

Lacava, 157 A.3d at 1013.

In Cagey, Joisse Cagey (Cagey) and her husband brought an action in

the Common Pleas Court (Common Pleas) against the Department of Transportation

(DOT) for negligence for injuries suffered when her vehicle struck a guardrail.

Specifically, Cagey alleged that she and her husband were travelling southbound on

State Route 551 in Beaver County, Pennsylvania, when they encountered snow and

ice on the roadway. As a result of those conditions, Cagey, the car’s driver, lost

control of the vehicle, which spun off the roadway and slammed into a guardrail

adjacent to the road. The guardrail penetrated the side of the vehicle, resulting in

substantial injuries to Cagey.

DOT filed a motion for judgment on the pleadings (motion), in which

it argued that the Sovereign Immunity Act barred the Cageys’ claims. DOT argued

that the Cageys’ causes of action did not fall within any of the enumerated exceptions

to sovereign immunity. Common Pleas granted DOT’s motion. The Cageys

appealed to this Court, which affirmed Common Pleas’ order. The Cageys appealed

to the Pennsylvania Supreme Court, which reversed this Court’s decision.

The Pennsylvania Supreme Court explained, in relevant part:

The term “dangerous condition” is unambiguous and

plainly encompasses any condition that presents a danger.

See [42 Pa.C.S. § 8522(b)(4)]. The Cageys averred that

the guardrail causing their injuries was a “dangerous

condition” in that it was defective, negligently[

]installed[,] and uncrashworthy. Specifically, they

alleged that a dangerous “blunt end” or “boxing glove”

terminal end treatment of the guardrail speared and

penetrated the driver’s side door, resulting in

“significantly more severe injuries” to [] Cagey than if she

had not been speared by the “boxing glove” end treatment.

10

Thus, on the facts averred, it cannot be said that the law

would, with certainty, prevent recovery.

Cagey, 179 A.3d at 464 (emphasis added; internal record citations omitted).

Contrary to the facts in Cagey, Appellant herein did not present

evidence to establish that the trolley rail was defective, negligently installed, or

uncrashworthy, nor did Appellant present evidence that the rail itself caused her

injury. Rather, Appellant’s evidence merely established that her bike tire got stuck

in the rail, causing her to fall off her bicycle. Accordingly, Cagey is inapposite.

In Lacava, the appellant filed an action in Common Pleas alleging that

SEPTA and the City were liable for his injuries that resulted when the wheel of his

motor scooter struck a rail that had been paved over and thereafter exposed. After

trial, a jury found both SEPTA and the City liable, and awarded Lacava $700,000.00

in damages. Thereafter, the City and SEPTA filed post-trial motions seeking, inter

alia, judgment notwithstanding the verdict. Common Pleas denied the post-trial

motions. This Court reversed Common Pleas’ order, explaining:

[A]s [Common Pleas] noted, the record evidence indicates

that the alleged dangerous condition of SEPTA’s real

estate was an exposed rail. However, the rail’s exposure

does not constitute a dangerous condition that derives

or originates in the realty itself. See Jones, 772 A.2d at

443. Rather, as the trial court aptly noted, the exposure of

the rail occurred because “there was a section of pavement

that was depressed and exposed . . . the trolley rail.” . . .

This characterization indicates that the purportedly

dangerous condition derived from the depressed

pavement, not from the rail itself. Indeed, the trial court’s

description of the dangerous condition lends itself more to

the dangerous condition contemplated by [S]ection

8522(b)(5) of the Sovereign Immunity Act, rather than

[S]ection 8522(b)(4) [of the Sovereign Immunity Act].

11

See 42 Pa.C.S. § 8522(b)(5) (“A dangerous condition of

highways under the jurisdiction of a Commonwealth

agency created by potholes or sinkholes or other similar

conditions created by natural elements . . . .”); see also

Cressman v. [Dep’t] of Transp[.], . . . 538 A.2d 992, 994

([Pa. Cmwlth.] 1988) (“We believe that potholes or

sinkholes, as used in Section 8522(b)(5) [of the Sovereign

Immunity Act], are intended to encompass any such holes

in the roadway caused by deterioration resulting from a

combination of water, freezing and thawing and traffic.”).

Moreover, the “real estate” exception expressly excludes

dangerous conditions enumerated in the “pothole”

exception.

Because Lacava failed to present sufficient evidence

establishing a dangerous condition of the trolley rail

sufficient to fall within the “real estate” exception to

sovereign immunity, there was no basis for the jury to

conclude that Lacava’s claims fell within the “real

estate” exception to sovereign immunity. Accordingly,

the trial court’s decision denying judgment

[notwithstanding the verdict] on these grounds was

erroneous.

Lacava, 157 A.3d at 1014-15 (emphasis added; internal record citations omitted).

Similarly, here, the trial court opined:

Appellant argues that she met her burden of proof by

relying on newspaper articles about prior incidents where

trolley tracks were paved over in another part of the [C]ity

due to complaints from cyclists. Appellant seems to be

making a res ipsa loquitur strict liability argument where

the jury would have to find that all trolley tracks not

currently in service are defective. Appellant offered no

expert opinion to support this theory. Further, Appellant

argues that because SEPTA has paved over some track[s]

due to actual defective conditions that existed on the tracks

in other places, SEPTA is negligent for failing to pave over

the trolley tracks where Appellant’s accident occurred.

The bald statement that a condition is defective by its

12

mere existence, without supporting evidence, falls far

below Appellant’s burden of proving negligence.

Unless a condition is so plainly dangerous that a lay

person can come to that conclusion by merely

observing the condition, expert testimony is needed to

explain why the condition is defective. See Walthour v.

. . . Dep’t of Transp., 31 A.3d 762,767 (Pa. [Cmwlth.]

2011) (holding that the plaintiff[’]s claim of a dangerous

condition concerning traffic controls could only go to the

jury “once the requisite expert testimony needed in this

case had established the basis for a jury’s decision[]”).

[“]A danger is known if it is [‘]recognized that it is

dangerous,[’] and obvious if [‘]both the condition and the

risk are apparent to and would be recognized by a

reasonable man, in the position of the visitor, exercising

normal perception, intelligence, and judgment,[’]

[Carrender v. Fitterer, 469 A.2d 120, 123-24 (Pa. 1983)]

(citing [] Restatement [(Second)] § 343A cmt. B [(Am.

Law Inst. 1965)]).[”] Hinerman v. Westmoreland Cnty.

Airport Auth., [297 A.3d 59, 63 (Pa. Cmwlth. 2023).]

Here, Appellant failed to show how a trolley rail would be

an obvious danger such that expert testimony was not

needed to prove that it was, in fact, dangerous. Appellant

offered no competent evidence, by expert or otherwise, to

show why the existence of trolley tracks presents a

dangerous condition.[6]

6

This reasoning applies to the City’s liability as well because both the Tort Claims Act and

the Sovereign Immunity Act require a “negligent act” before proceeding to the exceptions, 42

Pa.C.S. § 8542(a); 42 Pa.C.S. § 8522(a), and the Tort Claims Act’s relevant exception specifically

refers to “a dangerous condition of” streets owned by the local agency, 42 Pa.C.S. § 8542(b)(6),

and the Sovereign Immunity Act’s relevant exception refers to “a dangerous condition of”

Commonwealth highways. 42 Pa.C.S. § 8522(b)(4). See Jones, 772 A.2d at 443 (“[T]he key to

[Section] 8522(b)(4) [of the Sovereign Immunity Act]’s meaning lies in the polestar of legislative

intent, the plain meaning of the exception’s “dangerous condition of” language. 42 Pa.C.S. §

8522(b)(4); 1 Pa.C.S. § 1921.”).

13

Trial Ct. Op. at 9-10. This Court discerns no error in the trial court’s reasoning.

“[A]fter giving [A]ppellant the benefit of all reasonable inferences of fact, [this

Court] find[s] that the fact[-]finder could not reasonably conclude that the essential

elements of the cause of action were established.” Munoz, 265 A.3d at 806 (quoting

Rolon, 232 A.3d at 776). Accordingly, the trial court properly granted nonsuit in

Appellees’ favor.7

Appellant next argues that the trial court erred and abused its discretion

by granting SEPTA’s Motion in Limine to preclude Appellant from asking SEPTA’s

witnesses about Williams’ statements. Specifically, the trial court precluded

Appellant from presenting evidence of SEPTA spokespeople Williams’ and Andrew

Busch’s comments contained within a news article written about the danger the

Route 23 Trolley line presents to cyclists. The trial court determined that the articles

and statements were hearsay, and that no exclusion or exception applied. Appellant

contends that evidence of a 2015 accident and any other prior accidents are directly

relevant to prove that SEPTA had notice of the trolley tracks’ dangerous nature and

was negligent in failing to remove them. Appellees rejoin, inter alia, that, although

Appellant now complains about not being able to question SEPTA’s corporate

designee about Williams’ statements, and despite the trial court holding it open,

during trial, Appellant never identified for the trial court the purported admission or

made argument as to admissibility.

The law is well settled that “[o]ur standard of review of an

evidentiary ruling made by the trial court is extremely

narrow.” Capoferri [v. Child.’s Hosp. of Phila., 893 A.2d

7

Because this Court concludes that Appellant did not establish a dangerous condition, the

issue of SEPTA’s and/or the City’s alleged duty of care is moot.

14

133,] 143 [(Pa. Super. 2006)]. “The admission or

exclusion of evidence is a matter within the sound

discretion of the trial court, which may only be reversed

upon a showing of a manifest abuse of discretion. To

constitute reversible error, an evidentiary ruling must not

only be erroneous, but also harmful or prejudicial to the

complaining party.” Potochnick v. Perry, 861 A.2d 277,

282 (Pa. Super. 2004).

Charlton v. Troy, 236 A.3d 22, 35-36 (Pa. Super. 2020).

Here, the Motion in Limine that Appellant references is SEPTA’s

Motion to Preclude Newspaper Articles. SEPTA’s Counsel argued before the trial

court:

THE TRIAL COURT: . . . . Let[’s] get to SEPTA’s

motion. SEPTA’s [M]otion to [P]reclude [N]ews[paper]

[A]rticles.

[SEPTA’s Counsel]: Your Honor, in the discovery in this

case in the pretrial submissions, [Appellant] identified

three newspaper articles about Route 23. . . . [W]e filed a

motion to preclude all those as hearsay; the material[]

discuss [sic] prior accidents, it discussed a lot of

inadmissible material.

....

[SEPTA’s Counsel]: It’s a newspaper article called

Hidden City. I think this will help out if Your Honor can

take a look at it. This is a newspaper article that references

an automobile accident -- a bicycle accident that occurred

by someone named Kathy Monroe.

THE TRIAL COURT: In what year?

[SEPTA’s Counsel]: That is what I was looking for, Your

Honor. I believe it happened in 2011. I am looking to see

if it is referenced in the article. So[,] it was 9 years or 10

15

years before this accident. And it’s again, at Exhibit A,

Your Honor.

....

THE TRIAL COURT: What -- [Appellant’s Counsel],

what is your intended purpose of referencing a newspaper

article?

[Appellant’s Counsel]: My intended purpose in

referencing the newspaper article is not to elicit any

hearsay things that are said in the newspaper articles. It’s

merely to elicit that the fact there was a 2011 fall of a -- of

a bicyclist who was a member of The Bicycle Coalition.

THE TRIAL COURT: Okay.

[Appellant’s Counsel]: And after that, The Bicycle

Coalition worked with [t]he City . . . and SEPTA to pave

over certain intersections which is acknowledged.

THE TRIAL COURT: Okay. What does that have to do

with the newspaper article? So[,] you know that there was

this accident, right? You know that whatever you alleged

happened, happened. What does it have to do with the

newspaper? Because this is all hearsay, what’s in the

newspaper article.

[Appellant’s Counsel]: Well, if it is -- if it says that SEPTA

or [t]he City did something or said something, I should be

able to question about it. It’s admissions of party

opponents. SEPTA’s spokesperson has statements, in

the article, and I want to question -

THE TRIAL COURT: Well did you take a deposition of

SEPTA’s spokesperson?

[Appellant’s Counsel]: No. She was their spokesperson,

you know, years and years ago. I -- no. I -- but I took a

corporate designee[,] and I asked him about it. If SEPTA

made a statement, I should be able to ask [its]corporate

16

designee about it. If he doesn’t know, he can say he

doesn’t know.

THE TRIAL COURT: Okay. Since you took the

deposition of the corporate designee, he didn’t do that

though?

[Appellant’s Counsel]: No, he didn’t. He was not aware

of statements made by the corporate designee [sic].

THE TRIAL COURT: All right. So[,] there are -- are there

certain statements in here that are made by SEPTA that

relates to this issue?

[SEPTA’s Counsel]: I don’t believe so, Your Honor. I am

looking at --

THE TRIAL COURT: What statements are you talking

about? We are not talking about what the reporter said.

We are talking about what someone from SEPTA may

have said.

[Appellant’s Counsel]: Your Honor, SEPTA is quoted in

some portions. I’m just trying to find it.

[SEPTA’s Counsel]: I’m not sure what article [Appellant’s

Counsel] is referring to.

THE TRIAL COURT: All right. Let’s move on. Because

I -- I don’t want to take the time for [Appellant’s Counsel]

to sift through every page. There’s a lot here. So[,] if you

have certain statements that you [are] saying are

attributable directly to SEPTA, I would [sic] consider

that. As far as anything else in the newspaper articles,

those are not - it’s not admissible.

[Appellant’s Counsel]: All right.

THE TRIAL COURT: So, do you want me to hold this

motion open?

[Appellant’s Counsel]: Yes, Your Honor.

17

THE TRIAL COURT: All right. So[,] let’s move on.

R.R. at 14a-18a (emphasis added). Appellant’s Counsel did not raise the issue again,

before or during the trial, nor did Appellant object on the record to the trial court’s

ruling.

Based on the above-quoted discussion, the trial court concluded:

Appellant did not object to the aforesaid rulings; in fact,

she assented to the [trial] court’s decisions. However[,]

even assuming Appellant had not waived this issue, the

[trial] court properly determined that [] the hearsay

evidence contained in the newspaper accounts, other than

direct statements made by a SEPTA spokesperson, were

inadmissible. Appellant[’s Counsel] was permitted to

establish constructive notice by questioning [] Metzger

about spokesperson statements, and he declined to do so.

Trial Ct. Op. at 13. This Court discerns no error in the trial court’s reasoning. After

a thorough review of the record, this Court cannot conclude that the trial court

committed “a manifest abuse of discretion[.]” Charlton, 236 A.3d at 35.

Accordingly, the trial court did not err by granting SEPTA’s Motion in Limine.

For all of the above reasons, the trial court’s order is affirmed.

_________________________________

ANNE E. COVEY, Judge

Judge Wolf did not participate in the decision in this matter.

18

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Caroleen Jakmian, :

Appellant :

:

v. :

:

City of Philadelphia and Southeastern : No. 665 C.D. 2023

Pennsylvania Transportation Authority :

ORDER

AND NOW, this 16th day of July, 2024, the Philadelphia County

Common Pleas Court’s February 7, 2023 order (entered February 9, 2023) is

affirmed.

_________________________________

ANNE E. COVEY, Judge