IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jacob Keith, :

Petitioner :

 :

v. : No. 591 C.D. 2015

 : SUBMITTED: October 16, 2015

Workers’ Compensation Appeal :

Board (SEPTA), :

Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE LEADBETTER FILED: January 19, 2016

Claimant Jacob Keith petitions this Court for review of an order of the 

Workers’ Compensation Appeal Board (Board) that affirmed the decision of a 

Workers’ Compensation Judge (WCJ) denying his claim petition. We affirm.

Claimant was a bus driver for the Southeastern Pennsylvania 

Transportation Authority (SEPTA or Employer) on February 10, 2012, when he

allegedly suffered injuries during an altercation with a passenger who did not pay 

his fare. Claimant filed a claim petition on May 31, 2012, asserting that he 

sustained a work-related right shoulder injury, a facial scar and ongoing disability 

due to the incident. Employer then filed an answer alleging, inter alia, that 

Claimant was not in the course and scope of employment when he was injured and
2

that, therefore, his claim was barred. Employer also filed a Notice of Workers’ 

Compensation Denial, averring that Claimant was not in the course and scope of 

employment at the time of his injury. The WCJ held a number of hearings in this 

matter, including a hearing on July 24, 2012, in which the WCJ agreed to bifurcate 

the case on the question of whether Claimant was in the course and scope of his 

employment when he was injured.

Both Claimant and Employer submitted evidence to the WCJ on this 

discrete issue. Claimant testified on his own behalf regarding the incident, and 

Employer submitted video evidence taken from Employer’s bus. By decision dated 

March 14, 2014, the WCJ denied Claimant’s claim petition because she concluded 

that, based on the evidence before her, Claimant was beyond the course and scope 

of employment when he suffered the alleged injuries. 

In the WCJ’s third finding of fact attendant to her March 2014 

decision, she specifically recounted Claimant’s pertinent testimony at the July 24, 

2012, hearing, as follows:

(a) On February 10, 2012, while working as a driver 

for SEPTA, [Claimant] picked up a passenger at 

Jonestown Avenue, heading southbound. (N.T., p. 7). A 

male passenger came aboard the vehicle, using a female 

Transpass (bus pass specific to a female passenger). The 

Claimant asked the passenger if he was male or female. 

(N.T., pp. 7-8). The passenger flippantly asked the same 

question back to Claimant.

(b) Claimant testified that the passenger continued to 

swipe the female Transpass and “proceeded to walk to 

his seat.” The Claimant then “immediately pushed the red 

button for police help” because “I felt that there was 

going to be an emergency at hand.” (N.T., p. 8). The 

Claimant kept his eye on his passenger, and after pushing 
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the red button, “... immediately got up and approached 

the passenger, asking the passenger several times to 

vacate the vehicle.” (N.T., p. 9). The passenger allegedly 

indicated that he was not going to leave the bus, and 

Claimant returned to his seat.

(c) Claimant testified that when he approached his bus 

seat, he saw the reflection of the passenger taking a 

“Mike Tyson” stance. He indicated that the passenger 

lunged at him, and therefore, he lunged back. (N.T., p. 

10). Then the passenger struck him in the left eye in the 

aisle of the bus. (N.T., pp. 10-11). Claimant testified that, 

after sustaining the blow, he was “delirious,” stumbled 

and fell backwards on the seats, with the passenger on 

top of him. (N.T., p. 12). Claimant sustained injuries to 

his right shoulder and his face was bloody. (N.T., p. 13). 

Claimant testified that the passenger then ran off of the 

bus and Claimant picked up a “chock” [wheelstop] and 

proceeded to run after him. (N.T., pp. 12-16). Claimant 

testified that he was trying to catch the passenger to hold 

him until the police arrived. (N.T., p. 17).

(d) ... On cross-examination, Claimant admitted that 

he knew that the passenger was male before he asked the 

passenger whether he was male or female. (N.T., p. 26). 

Claimant admitted that he did not ask the passenger to 

pay the fare. (N.T., p. 26). Claimant admitted that there 

were training procedures that he had undergone in 

reference to handling fare disputes. (N.T., p. 27). 

Claimant admitted that a proper check-in procedure 

would involve asking the passenger for the proper fare. 

(N.T., p. 28). 

(e) Claimant admitted that nothing happened with the 

passenger until the Claimant physically got out of the 

driver’s seat and approached the passenger. Claimant 

testified that the passenger was walking towards the back 

of the bus when Claimant approached him and that is 

when the fight started. (N.T., pp. 31-32). Claimant 

testified that, after the passenger ran off of the bus, he 

chased him with a chock outside of the bus. (N.T., pp. 
4

34-35). Although he applied for unemployment 

compensation, Claimant is not physically ready to return 

to work.

[WCJ’s Decision (dated March 14, 2014) at 3-4, Finding of Fact (FF), No. 3

(emphasis in original)].

In her eighth Finding of Fact, the WCJ states that Claimant’s lawyer

eventually withdrew all objections to the DVD of the incident; that, during a 

review of the video evidence, “Claimant is seen making the first overture towards 

the passenger by running into him”; and that “[t]here has been no physical contact 

made by the passenger to the Claimant prior to the Claimant jumping towards 

him.” [Id. at 5, FF, No. 8 (emphasis in original)]. The WCJ also stated in this 

finding that “[t]he outside-of-bus video recorder shows Claimant running around 

the back end of the bus with the chock in his right hand, raised above shoulder 

level, chasing the passenger.” [Id. at 5-6]. 

Moreover, in her tenth finding of fact, the WCJ recounted that, at the 

June 20, 2013, hearing, after Claimant’s attorney withdrew previously voiced 

objections to the video, Claimant “testified ... contrary to his prior testimony, he 

forgot to indicate that the passenger ‘threw the first jab’”.....” [Id. at 6, FF, No. 

10]. The WCJ rejected Claimant’s testimony to the effect that he was in the course 

and scope of his employment when he was injured and instead relied on the 

videotape surveillance to determine that Claimant was “outside the scope of his 

employment when he confronted the passenger in an aggressive manner, engaged 

in a physical altercation and chased the passenger after the passenger had 

voluntarily exited the vehicle.” [Id., FF, No. 11]. The WCJ further credited the 

testimony of Employer’s witnesses Paul Berger, who authenticated the bus video, 

Jerrick Croston, who testified that all of the rules in Employer’s operations manual 
5

are in effect with respect to all of its employees, and Thomas Ropars, who testified 

to Claimant’s violation of Employer’s rules, including those against fighting and

assault of a passenger. [Id. at 4-6, FF, Nos. 4-6 and 12]. The WCJ also rejected the 

testimony of Claimant’s union representative, Andre Jones, that Claimant acted in 

self-defense when he fought with the passenger, noting Claimant’s aggressive 

stance on the video. The WCJ found Claimant would not have sustained his 

injuries had he not violated Employer’s positive work order against fighting. [Id. at 

5-7, FF, Nos. 7 and 13]. The WCJ also found the video to be more credible than 

Claimant’s testimony and that “[t]he videotape depicted Claimant as the aggressor 

and instigator, not the passenger.” [Id. at 7, FF, No. 14]. The WCJ further 

determined that “Claimant took himself out of the course of employment when he 

decided to get out of his driver’s seat to pursue the passenger, rather than follow 

SEPTA procedure.” [Id.]

After the WCJ denied Claimant’s claim petition, Claimant appealed to 

the Board, which affirmed the WCJ’s decision. In doing so, the Board noted, inter

alia, that the video evidence sufficiently supported the WCJ’s finding “that 

Claimant made the first overture towards the passenger by running into him” and 

that, in this way, he violated a positive work order of Employer. [Board Decision, 

No. A14-0341, at 6.] The Board further noted that “because Claimant actually 

engaged in a physical altercation with the passenger, including chasing him outside 

the bus, his actions were wholly foreign to his regular duties [so] as to take him 

outside the scope of his employment.” [Id. at 6-7]. Claimant’s appeal to this Court 

followed.

It bears repeating that, in a claim petition proceeding, the claimant 

maintains the burden of establishing his right to compensation and of proving all of 
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the elements necessary to support a benefits award, including proof that he 

sustained the injury in the course and scope of employment. Miller v. Workers’ 

Comp. Appeal Bd. (Millard Refrigerated Servs. & Sentry Claims Serv.), 47 A.3d 

206, 208 (Pa. Cmwlth. 2012). Key to ascertaining whether an employee was in the 

course of employment is whether he was injured while actually engaged in 

furtherance of the employer’s business or affairs, whether on the employer’s 

premises or elsewhere. Scher v. Workers’ Comp. Appeal Bd. (City of Phila.), 740 

A.2d 741, 749 (Pa. Cmwlth. 1999); Section 301(c)(1) of the Workers’ 

Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 

411(1).

As a general rule, injuries that are sustained either on or off of the 

employer’s premises while the employee is actually engaged in the furtherance of 

the employer’s business or affairs are compensable as occurring in the course of 

employment. Bachman Co. v. Workmen’s Comp. Appeal Bd. (Spence), 683 A.2d

1305, 1311 n.17 (Pa. Cmwlth. 1996). Moreover, the definition of “course of 

employment” is more broadly interpreted for traveling employees, i.e., when a 

traveling employee is injured after embarking on an employer’s business, it is 

presumed that the employee was furthering the employer’s business at the time that 

he was injured. Id. In order to rebut this presumption, the employer bears the 

burden of proving that the claimant’s actions were so removed from and foreign to 

his usual employment as to amount to an abandonment thereof. Id. Whether an 

employee is acting in the course and scope of his employment at the time of injury 

is a question of law to be determined based on the WCJ’s findings of fact. 

Pennsylvania State Univ. v. Workers’ Comp. Appeal Bd. (Rabin), 53 A.3d 126, 131 

(Pa. Cmwlth. 2012). 
7

On appeal, Claimant initially argues that he sustained injuries in the 

course and scope of his SEPTA bus driver job because his fight with the passenger

emanated from his essential job function of collecting bus fares. While, in limited

circumstances not found here, Claimant’s argument might have some merit, in this 

case, Claimant testified and the WCJ specifically found that Claimant did not ask 

the passenger involved in this incident for bus fare; instead, Claimant merely asked 

him if he were a man or a woman, knowing before he did so that the passenger was 

a man. [FF, No. 3(d)]. Moreover, video evidence from the bus, as well as portions 

of Claimant’s testimony, support the WCJ’s finding that, despite pushing the police 

call button and waiting for aid in the event he needed it, Claimant physically

confronted the passenger when there was no immediate reason to do so. [FF, Nos. 

8 and 11].1It is beyond cavil that Claimant’s aggressive physical actions, not 

required in self-defense, were wholly foreign to his job as a bus driver. As in 

Stevens v. Workmen’s Compensation Appeal Board (Pennsylvania Gas and Water 

Company), 556 A.2d 522 (Pa. Cmwlth. 1989), where the claimant therein, a 

traveling customer repairman being taunted by people in another vehicle, was “not 

in an accident or attacked, but instead walked toward the vehicle, opened the door, 

challenged and exchanged words with the driver and removed his jacket” prior to a 

fistfight, id. at 524, Claimant in this instance also abandoned his employment by 

spoiling for a fight and unnecessarily engaging in an altercation that substantially 

deviated from Employer’s objectives. Claimant’s first argument therefore fails.

 

1 Claimant testified that, while the passenger threw the first punch, the passenger did so after 

Claimant approached him while he was walking to the back of the bus. [Notes of Testimony, 

Hearing of July 24, 2012, at 30-32.]
8

Next, Claimant asserts that the WCJ’s decision was not supported by 

substantial, competent record evidence because it was based (1) on an operator’s 

manual that was issued after Claimant was hired as well as (2) on video evidence 

that was not properly safeguarded. Both arguments lack merit. First, Employer 

introduced the operator’s manual to show that Claimant was trained in various 

SEPTA procedures, but, as set forth above, Claimant’s actions in physically 

confronting the passenger were so foreign to his employment as to take him out of 

the course of that employment in any event. Second, because Claimant’s counsel 

withdrew any previous objection to the video at the June 20, 2013, hearing, [Notes 

of Testimony, (N.T.), Hearing of June 20, 2013, at 4], Claimant cannot properly 

raise any issues with respect to the video or its chain of custody at this late date.

See Rox Coal v. Workers’ Comp. Appeal Bd. (Snizaski), 807 A.2d 906, 913-914 

(Pa. 2002) (providing that issues not sufficiently preserved below are deemed 

waived).

Claimant further argues that the WCJ’s decision crediting Employer’s 

fact witnesses was not reasoned and fails to provide a sufficient basis for this 

Court’s meaningful review. We disagree with Claimant’s assessment. The WCJ 

outlined in a detailed manner the proofs submitted to her, including all of the live 

witness testimony and the video evidence. She specifically recounted the testimony 

of Messrs. Berger, Croston and Ropars to the extent that they, in toto, explained 

their work duties, Claimant’s work duties, Employer’s rules and regulations and

the reasons for Claimant’s discharge, and she credited these witnesses based on 

that testimony. She also made clear that she did not believe Claimant’s explanation 

of the incident based on the video that she reviewed and the fact that Claimant

altered his testimony regarding the specifics of what occurred after the objection to 
9

the video was withdrawn by his counsel.2 She further rejected the testimony of 

Claimant’s union representative, Mr. Jones, that Claimant acted in self-defense 

because she believed, based on her review of the evidence, that Claimant acted 

aggressively in confronting the passenger, fighting the passenger and chasing the 

passenger from the bus. Our Supreme Court explained in Daniels v. Workers’ 

Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1053 (Pa. 

2003), that, “in a case where the fact-finder has had the advantage of seeing the 

witnesses testify and assessing their demeanor, a mere conclusion as to which 

witness was deemed credible, in the absence of some special circumstance, could 

be sufficient to render the decision adequately ‘reasoned.’” Such is the case here, 

and more. Thus, Claimant’s argument that the WCJ’s decision was insufficiently 

reasoned also lack merit. 

Finally, Claimant argues that, in the event the above allegations of 

error are rejected, the case should be remanded for consideration of after-acquired 

evidence. Specifically, Claimant asserts that there is now a witness, named on 

more than one police report involving this incident, who will corroborate 

Claimant’s statements that he acted in self-defense and defense of the bus 

passengers and not in an aggressive manner. We decline Claimant’s request for 

rehearing in this regard. 

First, Claimant offers no reason why the testimony he describes as 

“after acquired” was previously unavailable given Claimant’s acknowledgement 

that the witness’s “statement was taken by Police Detective White” and that the 

 

2 Claimant stated at the June 20, 2013, hearing that he did not initially mention that he got 

out of his seat due to “the initial first blow from the individual” because Claimant “was just 

going by what I recommend” [sic] and “I wasn’t actually asked that by, of course, [former 

counsel] at the time.” [N.T., Hearing of June 20, 2013, at 6-7]. 
10

witness “was named on both the Philadelphia and SEPTA Transit Police Reports.” 

[Claimant’s brief at 45]. Claimant’s assertion that the witness “did not come 

forward until a recent arbitration on the same set of facts,” id., is clearly not 

adequate explanation to support a rehearing request. Second, although the Board 

has broad powers to grant a rehearing “when justice requires,” Puhl v. Workers’ 

Compensation Appeal Board (Sharon Steel Corp.), 724 A.2d 997, 1001 (Pa. 

Cmwlth. 1999), a rehearing will not be granted where the alleged after-acquired 

evidence is merely cumulative evidence offered to strengthen weak proofs that 

have already been presented. Id. at 1002 n.10. The WCJ in this case had before her 

not only the live testimony of Claimant with respect to what occurred, but also 

video evidence of the incident. The additional testimony Claimant seeks to offer at 

this late date is not substantially new, and it is certainly not required for a just 

result.

Accordingly, we affirm. 

 

 

 

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jacob Keith, :

Petitioner :

 :

v. : No. 591 C.D. 2015

 :

Workers’ Compensation Appeal :

Board (SEPTA), :

Respondent :

O R D E R

AND NOW, this 19th day of January, 2016, the order of the Workers’ 

Compensation Appeal Board in the above-captioned matter is hereby affirmed.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge