# C. Jakmian v. City of Philadelphia & SEPTA

> Commonwealth Court of Pennsylvania · July 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10470959

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** July 16, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Covey, J.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10470959

## How later opinions describe it (automated extraction)

- 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[]”

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10470959. Public record. Not legal advice.