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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

M. Musser v. SEPTA

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 60 C.D. 2025

• Judges: Fizzano Cannon

• Opinion

• Authorities (17)

• Cited By (0)

• Summaries (0)

• Similar Cases (12K)

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Lead Opinion

                        by Fizzano Cannon

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Margaret Musser, :
Appellant :
:
v. :
:
Southeastern Pennsylvania : No. 60 C.D. 2025
Transportation Authority : Argued: February 3, 2026

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STELLA M. TSAI, Judge

OPINION
BY JUDGE FIZZANO CANNON FILED: February 27, 2026

Margaret Musser (Musser) appeals from a judgment entered by the
Court of Common Pleas of Philadelphia County (Trial Court) following a jury trial
and the Trial Court’s denial of Musser’s motion for post-trial relief. Upon review,
we affirm the Trial Court’s judgment.

I. Background
Musser’s complaint alleged that she was injured on April 24, 2022,
when she fell after boarding a Southeastern Pennsylvania Transportation Authority
(SEPTA) bus in Philadelphia. Reproduced Record (R.R.) at 13a. Musser testified
that she was seating herself in one of the side-facing seats in the front of the bus and
was “almost in the seat” when the bus restarted, at which point the bus “felt like it
went off to the left a little bit and [she] was thrown to the floor.” Id. at 42a. She
characterized the motion of the bus in restarting as “aggressive.” Id. SEPTA
presented contrary evidence at trial, including a video of the incident. See id. at 39a-
40a (describing video) & 64a-65a (indicating that the video was shown a second
time without interruption at the jury’s request).
Musser’s legal theory of liability was a negligence doctrine known as
the jerk and jolt doctrine, under which a common carrier, such as SEPTA, may be
liable for negligence that causes an injury to a bus passenger who falls because the
bus experiences a sudden, unusual, or extraordinary jerk or jolt. However, and of
relevance in this appeal, merely restarting a bus before a boarding passenger is seated
is not negligence in the absence of such a jerk or jolt, unless the passenger has
requested that the driver wait until the passenger is seated. See Asbury v. Port Auth.
Transit, 863 A.2d 84 (Pa. Cmwlth. 2004). Here, Musser’s allegation was not that
the bus should have waited until she was seated before moving, but rather, that the
restart constituted a sudden, unusual, or extraordinary jerk or jolt that caused her to
fall. R.R. at 59a.
At trial, SEPTA presented brief testimony that it trains its drivers that
they need not wait until a passenger is seated before moving unless the passenger
has requested that they do so. R.R. at 66a. Musser objected that this testimony was
presented without proper notice and that it was not relevant to the jerk and jolt theory
of liability and would confuse the jury. Id. at 56a-60a. The Trial Court overruled
the objections and allowed the testimony. See id. at 60a & 66a-73a. However, the
Trial Court sustained an objection by SEPTA and limited Musser’s cross-
examination by disallowing questions relating to Federal Transit Administration
(FTA) training standards for bus drivers, ruling that the FTA standards at issue were
irrelevant because they were federal and postdated Musser’s fall, and that the
proposed cross-examination was beyond the scope of direct examination. Id.

2
At the conclusion of the trial, the Trial Court gave a standard jury
instruction explaining the jerk and jolt doctrine. SEPTA requested an addition to
that instruction advising the jury that restarting a bus before a passenger is seated is
not negligence unless the passenger has asked the driver to wait. The Trial Court
gave the additional instruction over Musser’s objection. R.R. at 76a-78a & 92a.
After deliberating, the jury returned a verdict finding that both parties
were negligent, attributing 26% fault to SEPTA and 74% fault to Musser. R.R. at
97a & 272a. Musser filed a motion for post-trial relief, which the Trial Court denied,
and judgment was thereafter entered in SEPTA’s favor.1 Id. at 274a. This appeal
followed.

II. Issues
On appeal, Musser raises several interrelated issues, which we
consolidate in part and summarize as follows. First, Musser asserts that the Trial
Court erred by ruling, in its denial of her post-trial motion, that she had waived her
objection to the testimony of SEPTA’s witness, its Chief Training Instructor, by not

1
The pertinent portion of Pennsylvania’s comparative negligence statute, Section 7102(a)
of the Judicial Code, provides:

(a) General rule. — In all actions brought to recover damages for
negligence resulting in death or injury to person or property, the fact
that the plaintiff may have been guilty of contributory negligence
shall not bar a recovery by the plaintiff or his legal representative
where such negligence was not greater than the causal negligence of
the defendant or defendants against whom recovery is sought, but
any damages sustained by the plaintiff shall be diminished in
proportion to the amount of negligence attributed to the plaintiff.

42 Pa.C.S. § 7102(a). Here, because the jury apportioned a greater share of causal negligence to
Musser than to SEPTA, the comparative negligence statute barred Musser from recovery of any
damages.

3
making a timely objection to that testimony. Second, Musser contends that the Trial
Court abused its discretion in certain evidentiary rulings by allowing the testimony
of SEPTA’s Chief Training Instructor at trial, as well as by limiting her cross-
examination of SEPTA’s Chief Training Instructor so as to preclude questions
relating to certain reports by the FTA concerning training of bus drivers. Finally,
Musser posits that the Trial Court abused its discretion by adding an improper non-
standard jury instruction concerning absence of a duty for a bus driver to wait until
boarding passengers are seated before restarting the bus. We address each argument
in turn.

III. Discussion
A. Waiver of Objection
At trial, SEPTA presented testimony from its Chief Training Officer
that its bus drivers are trained that they may pull away without waiting for boarding
passengers to be seated, unless a passenger requests the driver to wait until that
passenger is seated. R.R. at 66a. Musser objected to this testimony on two bases –
first, that the proposed subject matter of the testimony had not been disclosed by
SEPTA in advance, and second, that the testimony was not relevant and was
potentially confusing because Musser’s legal theory was that the driver restarted the
bus with an improper jerk or jolt, not that the driver pulled away without waiting for
Musser to be fully seated. Id. at 56a-60a. The Trial Court overruled the objection
and allowed the testimony. Id. at 60a & 66a-73a. At trial, in her post-trial motion,
and again on appeal to this Court, Musser asserted error in the Trial Court’s
allowance of this testimony. In its written opinion pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure (1925 Opinion), the Trial Court opined

4
that Musser had waived her objection by not asserting it in a timely manner. 1925
Opinion2 at 3-4. We discern no reversible error in the Trial Court’s ruling.
Rule 103(a)(1)(A) of the Pennsylvania Rules of Evidence provides that
“[a] party may claim error in a ruling to admit or exclude evidence only: (1) if the
ruling admits evidence, a party, on the record: (A) makes a timely objection, motion
to strike, or motion in limine . . . .” Pa.R.E. 103(a)(1)(A); see also Commonwealth
v. Heckathorn, 241 A.2d 97, 102 (Pa. 1968). Here, the Trial Court’s 1925 Opinion
does not provide clarity as to why Musser’s objection was untimely. It offers only
a conclusory statement that “[t]he record does not reflect [Musser] making a timely,
contemporaneous objection at trial as to [SEPTA] calling [its Chief Training Officer]
as a witness.” 1925 Opinion at 4. The trial transcript reflects extended discussion
of Musser’s objection concerning the proposed testimony. See R.R. at 60a & 66a-
73a. Within that discussion, however, the Trial Court observed that Musser had
failed to object to SEPTA’s opening statement describing the proposed testimony to
the jury. Id. at 58a-59a. We acknowledge, as persuasive, Superior Court decisions
indicating that objections to matters included in an opening statement must be raised
immediately at the end of that opening statement. See Commonwealth v. Hutchison,
164 A.3d 494, 500 (Pa. Super. 2017) (citing Commonwealth v. Rose, 960 A.2d 149,
154 (Pa. Super. 2008), appeal denied, 980 A.2d 110 (Pa. 2009)).3 Here, the record
reveals that Musser made no objection, either during or immediately after SEPTA’s
opening statement, to SEPTA’s opening statement that it intended to present the

2
The Trial Court’s 1925 Opinion is attachment A to Musser’s principal appellate brief.
3
Although not binding on this Court, Superior Court decisions may be cited as persuasive
authority where they address analogous issues. Lerch v. Unemployment Comp. Bd. of Rev., 180
A.3d 545, 550 (Pa. Cmwlth. 2018).

5
training testimony at issue. See R.R. at 39a-41a. Therefore, we cannot conclude
that the Trial Court erred in its finding of waiver.
Moreover, any such error would not have supported reversal of the Trial
Court’s order denying a new trial. As explained in the next section, any error in
admitting the testimony at issue would have been harmless because Musser has
failed to demonstrate prejudice arising from the admission of the testimony at issue.
Inasmuch as any error in admitting the testimony was harmless, it necessarily
follows that any error in finding a waiver of objection to that same testimony is
likewise harmless. Accordingly, we conclude that even had the Trial Court erred in
finding that Musser waived her objection to the testimony of SEPTA’s Chief
Training Officer, that error would not support awarding a new trial. See James Corp.
v. N. Allegheny Sch. Dist., 938 A.2d 474, 483 n.7 (Pa. Cmwlth. 2007) (explaining
that even if a trial court has made one or more mistakes, a new trial is not warranted
unless the moving party demonstrates harm resulting from the error); Moore v.
Phila., 571 A.2d 518, 524 n.9 (Pa. Cmwlth. 1990) (stating that the denial of a request
for a new trial will not be reversed on appeal based on an error of law that did not
control the outcome of the case) (citing Martin v. Owens-Corning Fiberglas Corp.,
528 A.2d 947 (Pa. 1986)).

B. Evidentiary Rulings4
1. Testimony by SEPTA’s Chief Training Officer
Musser asserts several errors by the Trial Court in its evidentiary rulings
concerning testimony by SEPTA’s Chief Training Officer. As stated previously, the

4
Evidentiary rulings are committed to the sound discretion of trial courts. Commonwealth
v. Distefano, 265 A.3d 290, 297 (Pa. 2021) (citing Commonwealth v. Laird, 988 A.2d 618, 636

6
testimony at issue was that SEPTA trains its bus drivers that they need not wait until
a boarding passenger is seated before restarting the bus unless the passenger has
requested that the driver wait.
In one of her assertions of error, Musser maintains that the Trial Court
should not have allowed the testimony of the Chief Training Officer because it was
not disclosed until the day before it was offered at trial. The discussion among the
parties and the Trial Court suggests there may have been an inadvertent error on the
part of SEPTA in serving Musser with a non-final or incomplete draft of SEPTA’s
pretrial disclosures that may not have included the proposed testimony at issue. See
R.R. at 56a-57a. The Trial Court did not specifically rule on whether the proper
advance disclosure was or was not provided to Musser, but in any event, the Trial
Court found that SEPTA acted in good faith. Id. at 58a. We discern no error in the
Trial Court’s denial of Musser’s objection.
Rule 4019(i) of the Pennsylvania Rules of Civil Procedure provides:
A witness whose identity has not been revealed as
provided in this chapter shall not be permitted to testify on
behalf of the defaulting party at the trial of the action.
However, if the failure to disclose the identity of the
witness is the result of extenuating circumstances beyond
the control of the defaulting party, the court may grant a
continuance or other appropriate relief.
Pa.R.Civ.P. No. 4019(i). Here, regarding the specific identity of the witness,
SEPTA’s counsel explained to the Trial Court that the originally designated witness
was unable to testify, so another officer was designated instead. R.R. at 57a. We

(Pa. 2010)). A party appealing from a trial court’s evidentiary ruling bears a heavy burden to
demonstrate an abuse of discretion. Id. (citing Commonwealth v. Norton, 201 A.3d 112, 120 (Pa.
2019)). An abuse of discretion is not a mere error of judgment; rather, it occurs only where the
trial court’s conclusion “overrides or misapplies the law, or where the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.” Id. at 298 (citing
Commonwealth v. Gill, 206 A.3d 459, 466-67 (Pa. 2019)).

7
conclude that, to the extent Musser’s objection related to the identity of the specific
witness rather than the subject matter of the testimony, Rule 4019(i) authorized the
Trial Court to allow the testimony.
Regarding the substance of a witness’s proposed testimony, “[i]n
deciding whether to allow the testimony of a witness not included in a pre-trial
memorandum, the court must balance the facts and circumstances of each case to
determine the prejudice to each party.” Williams v. Se. Pa. Transp. Auth., 741 A.2d
848, 855 (Pa. Cmwlth. 1999) (citing Feingold v. Se. Pa. Transp. Auth., 517 A.2d
1270 (Pa. 1986)). More specifically, relevant facts and circumstances include
prejudice to the party against whom the witness will testify, ability to cure the
prejudice, extent to which allowing the unlisted witness will disrupt the orderly and
efficient trial of the case, and bad faith or willfulness in failing to disclose the witness
earlier. Feingold, 517 A.2d at 1273.
Here, Musser did not point to any prejudice she suffered because of the
late disclosure of the proposed testimony of SEPTA’s Chief Training Officer. The
proposed testimony was disclosed during the first day of trial, giving Musser until
the following day to prepare cross-examination. Given the extremely short and
narrow testimony at issue, Musser had sufficient opportunity to cure any purported
prejudice. Nothing in the record indicates that the testimony, which lasted only a
few minutes, disrupted the orderly conduct of the trial. Finally, as discussed above,
the record suggests that SEPTA did not willfully fail to disclose the proposed
testimony, but rather, inadvertently provided a preliminary or incomplete draft

8
pretrial statement to Musser.5 Accordingly, we discern no abuse of discretion in the
Trial Court’s allowance of the testimony.
In another assertion of error, Musser argues that the testimony of
SEPTA’s Chief Training Officer was not relevant because Musser’s legal theory was
not based on the driver’s failure to wait until Musser was seated before restarting the
bus, but rather, on Musser’s allegation that the restart was sudden and jerked the bus,
thereby causing her to fall. In the discussion of this issue, the Trial Court reasoned
that Musser had raised the issue of restart without waiting for her to be seated, by
discussing it in her opening statement at trial. We agree. See R.R. at 38a (statement
by Musser’s counsel that Musser “never even made it to her seat. . . . [T]he bus
pulled away suddenly, aggressively, unexpectedly. . . . As a result, [Musser] fell.”).
The Trial Court found that this statement raised the issue of the bus driver’s conduct
in restarting the bus sufficiently to make testimony relevant concerning his training
on restarting the bus before boarding passengers were seated. R.R. at 59a. We
additionally observe that Musser herself testified that she was in the process of
sitting down but was not fully seated yet when the bus restarted. See id. at 42a. We
conclude that the jury could reasonably have believed, based on Musser’s opening
statement and testimony, that the restart of the bus before Musser was fully in her
seat was being offered as relevant to her cause of action. As a result, the Trial Court
reasonably determined that contrary evidence by SEPTA that the driver was not
required to wait was also relevant. Accordingly, we discern no abuse of discretion
in the Trial Court’s ruling allowing the testimony.

5
SEPTA also argued that the proposed testimony did not require prior disclosure because
it was offered as rebuttal in response to Musser’s testimony that the bus driver restarted the bus
before she was fully seated. R.R. at 58a. The Trial Court did not expressly rule on this issue.

9
Moreover, as stated in the preceding section, any purported error by the
Trial Court in admitting the testimony at issue was insufficient to justify awarding a
new trial. Our Supreme Court has explained:
The harmless error doctrine underlies every decision to
grant or deny a new trial. A new trial is not warranted
merely because some irregularity occurred during the trial
or another trial judge would have ruled differently; the
moving party must demonstrate to the trial court that he or
she has suffered prejudice from the mistake.
Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000); see also Luzerne Cnty. Flood
Prot. Auth. v. Reilly, 825 A.2d 779, 786 (Pa. Cmwlth. 2003) (quoting Harman).
In Nifas v. Wetzel (Pa. Cmwlth., No. 1782 C.D. 2019, filed Dec. 23,
2021),6 this Court considered the burden of demonstrating prejudice sufficient to
support a new trial. Nifas involved a three-day jury trial in which the challenged
testimony lasted only a few minutes. Observing that the jury also heard testimony
from other witnesses, opening and closing arguments, and the trial court’s jury
charge, this Court concluded that, in the context of the trial as a whole, the testimony
at issue was insufficiently significant to justify a new trial. We explained: “While
the amount of time a jury hears an improper statement does not directly equate to
the prejudice involved, we believe that it is an important factor to consider when
weighing the potential influence the inappropriate remarks had on the jury’s
verdict.” Id., slip op. at 23. Therefore, this Court concluded that the appellant “failed
to demonstrate sufficient prejudice to warrant a new trial, and, consequently, the trial
court did not abuse its discretion when it denied his post-trial motion.” Id.
Here, as in Nifas, the testimony at issue lasted only a few minutes in a
trial that took place over multiple days. The sole point made in the testimony was
6
This unreported opinion is cited as persuasive authority pursuant to Section 414(a) of this
Court’s Internal Operating Procedures. 210 Pa. Code § 69.414 (a).

10
that SEPTA trains its drivers that they need not wait until passengers are seated
before pulling away from a stop, unless a passenger asks them to do so. By contrast,
the jury heard about the jerk and jolt theory multiple times, in the opening and
closing statements of both parties as well as in the Trial Court’s jury instructions.
The related portion of the jury instruction consisted of a single sentence within the
context of the lengthy instruction concerning the elements of the jerk and jolt
doctrine. Considering the testimony within the entire context of the trial, as we did
in Nifas, we likewise conclude here that the Trial Court’s allowance of the testimony
at issue did not constitute error sufficient to merit a new trial.

1. Limited Cross-Examination by Musser In her cross-examination of SEPTA’s Chief Training Officer, Musser attempted to question the witness about FTA reports relating to appropriate training for bus drivers. SEPTA objected to cross-examination using the FTA reports, maintaining that the reports were irrelevant to the narrow issue of training regarding restarts while passengers were not seated and, further, that the reports were irrelevant because they were federal and, in any event, were not issued until after the date of Musser’s injury. SEPTA also asserted that any questions regarding the FTA reports were beyond the scope of the very limited direct testimony. The Trial Court sustained the objection. Musser contends that the Trial Court erred by precluding cross-examination relating to the FTA reports. We find no error by the Trial Court. We observe that the testimony of the Chief Training Officer was very short. It lasted only a few minutes, and its substance consisted solely of a short, bare statement that SEPTA bus drivers are trained that they need not wait to restart until a boarding passenger is seated, unless the passenger asks the driver to wait. See R.R.

11
at 42a. In light of the brevity and extremely narrow scope of the direct testimony,
we conclude that SEPTA’s objections were meritorious, and we discern no abuse of
discretion by the Trial Court in precluding cross-examination concerning the FTA
reports.
In addition, applying the harmless error analysis set forth above, we
conclude that Musser has failed to establish any harm she incurred by reason of the
Trial Court’s ruling. Accordingly, we conclude that the Trial Court’s ruling did not
constitute an error supporting an award of a new trial.

C. Non-Standard Jury Instruction7
Section 13.130 of the Pennsylvania Suggested Standard Civil Jury
Instructions (SSJI) addresses what is known as the jerk and jolt doctrine, as it applies
to common carriers. Section 13.130 provides:
13.130 Common Carrier’s Duty of Care to
Passenger--Sudden Stop
A “common carrier” is a transportation service licensed to
carry passengers or property.
Under Pennsylvania law, a “common carrier” must use the
highest standard of care in [operating its vehicle] [and]
[maintaining its equipment and facilities] [and]
[transporting its passengers].
[Name of defendant] is a “common carrier” and must use
the highest standard of care.

7
In reviewing jury instructions, this Court’s review is limited to determining whether the
Trial Court abused its discretion or committed an error of law controlling the outcome of the case.
Nardo v. City of Phila., 988 A.2d 740, 741 n.2 (Pa. Cmwlth. 2010) (citing Stewart v. Motts, 654
A.2d 535, 540 (Pa. 1995)). A jury charge is not inadequate “unless the issues are not made clear
to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission
in the charge which amounts to fundamental error.” Id.

12
Common carriers must sufficiently explain [sudden]
[unusual] [extraordinary] [stops] [jolts] [jerks].
To prove that [name of defendant] was negligent, [name
of plaintiff] must prove the following:

1. [name of defendant] suddenly [stopped] [jolted] [jerked] the [vehicle type]; and
2. the passenger[s] could not reasonably anticipate the sudden [stop] [jolt] [jerk]; and
3. [name of defendant] did not sufficiently explain the [stop] [jolt] [jerk].

[Name of plaintiff] does not have to prove other [persons]
[passengers] were also injured in order for you to find
[name of defendant] negligent.
Pa. SSJI (Civ), §13.130 (2024) (footnote omitted).
The Trial Court in this action gave the standard jury instruction and
also, at SEPTA’s request, instructed the jury that a bus driver is not required to wait
until an entering passenger is seated before restarting the bus unless requested by the
passenger to do so. Musser insists this instruction was an abuse of discretion because
the standard instruction covered the jerk and jolt doctrine fully and the driver’s
failure to wait until Musser was seated before restarting the bus was not raised as a
basis of liability. Musser posits that including this expanded instruction potentially
confused the jury by implicitly suggesting that the case could be decided on the basis
that the driver was not required to wait until Musser was seated, before restarting the
bus. We discern no merit in this argument.
Musser asserts that a trial court is not required to give a non-standard
jury instruction requested by a party where the standard suggested jury instruction
states the law fully and accurately. Although this statement is true, it does not
support Musser’s argument that the Trial Court here, was, in effect, not permitted to

13
add the requested language to its jury instruction, such that it abused its discretion
by doing so. Musser cites no authority supporting such a proposition.
Further, we cannot agree with Musser’s suggestion that the additional
instruction was irrelevant. As recited above, Musser alleged that the bus restarted
with an improper jerk or jolt that occurred as she was in the process of seating
herself. Thus, while Musser’s legal theory was expressed in terms of the jerk and
jolt doctrine, the bus’s restart before Musser was fully seated was a potentially
significant factor in the occurrence of the incident. The Trial Court did not abuse its
discretion by giving an instruction clarifying to the jury that the jerk and jolt doctrine
was not satisfied merely by restarting the bus before Musser was fully seated.
Notably, the Subcommittee8 Note to SSJI § 13.130 specifically includes
a comment relevant to the situation that occurred here, pointing to a case in which
“the court found the evidence insufficient to demonstrate an extraordinary stop or
jerk where the driver started up the bus before the plaintiff was seated and the
plaintiff had not asked the driver to wait until she was seated . . . .” SSJI § 13.130
(citing Asbury, 863 A.2d at 84). The drafting subcommittee evidently found it
important to clarify that restarting a bus before a passenger was seated, without more,
was insufficient to satisfy the jerk and jolt doctrine. We agree with that view.
We conclude that the Trial Court here did not abuse its discretion by
clarifying in its jury instructions the legal principle that merely restarting a bus
before a boarding passenger is fully seated is not negligence.

8
The Pennsylvania Suggested Standard Civil Jury Instructions were drafted by the Civil
Instructions Subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard
Jury Instructions.

14
IV. Conclusion
Based on the foregoing discussion, the judgment of the Trial Court is
affirmed.

---

CHRISTINE FIZZANO CANNON, Judge

15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Margaret Musser, :
Appellant :
:
v. :
:
Southeastern Pennsylvania : No. 60 C.D. 2025
Transportation Authority :

ORDER

AND NOW, this 27th day of February, 2026, the judgment of the Court
of Common Pleas of Philadelphia County is AFFIRMED.

---

CHRISTINE FIZZANO CANNON, Judge