Argued: October 10, 2013
BEFORE: HONORABLE P. KEVIN BROBSON, Judge, PATRICIA A. McCULLOUGH, Judge (P.), ROCHELLE S. FRIEDMAN, Senior Judge
PATRICIA A. McCULLOUGH, Judge
Renee Hunter (Plaintiff) appeals from the August 6, 2012 order of the Court of Common Pleas of Philadelphia County (trial court) denying her motion for post-trial relief following entry of a compulsory non-suit in favor of the City of Philadelphia (City) on May 10, 2012. We affirm.
Facts and Procedural History
On August 17, 2010, Plaintiff filed a complaint against the City and Saint John the Evangelist Catholic Church (Church) alleging that she sustained a fractured left foot/ankle, multiple contusions and abrasions, and other injuries when she fell on a broken or un-level sidewalk at the northeast corner of 13th and Ludlow Streets in the City on September 23, 2008. Plaintiff also alleged that the City and the Church allowed this dangerous and defective condition of the sidewalk to exist at the aforesaid location for an unreasonable period of time. Plaintiff further alleged that the City was liable under section 8542(b)(7) of the Judicial Code, 42 Pa.C.S. §8542(b)(7), commonly referred to as the sidewalks exception to governmental immunity. (Trial court op. at 1-4.)
During a subsequent deposition on April 27, 2011, Plaintiff testified that she actually fell in the street when her cane went into a hole as she was crossing the street at the intersection of 13th and Ludlow Streets. Plaintiff acknowledged that her complaint incorrectly stated that she fell on the sidewalk. Following this deposition, the Church was voluntarily dismissed from the case. (Trial court op. at 1-2.) Shortly thereafter, on May 25, 2011, the City filed a motion for summary judgment alleging that "there is no evidence to support Plaintiff's allegation regarding the location of her fall . . . ." (R.R. at 215a.) Additionally, the City alleged that "[t]o the extent that Plaintiff wishes to amend her Complaint to alter the location of her fall to conform with the evidence now in the record . . . any such amendment would be barred by the statute of limitations." Id. However, the trial court denied the City's motion.
The City later filed a motion in limine seeking to preclude any evidence of pain and suffering on the ground that Plaintiff had a long history of injuries, pain, and surgeries to her left ankle. At the same time, the City requested entry of a nonsuit reiterating the allegations in its motion for summary judgment. The trial court took these matters under advisement and the case proceeded to a jury trial. Plaintiff again testified that she fell in the street and not on the sidewalk adjacent to the Church as alleged in her complaint. Plaintiff also testified regarding her long history of left ankle problems and surgeries which required her to use a cane to walk. In addition, Plaintiff presented the videotaped deposition of Mark Allen, M.D., her treating physician. Prior to resting her case, Plaintiff moved to amend her complaint to reflect the proper location of her fall. However, after the trial court noted that such a change essentially raised a new cause of action which would prejudice the City, Plaintiff withdrew her motion. (Trial court op. at 1-4.)
The City orally moved for entry of a non-suit alleging: (1) a lack of evidence as to the correct location of Plaintiff's fall and her inability to amend her complaint to allege a new cause of action because the two-year statute of limitationswith respect to her claim had expired; (2) a failure to establish that the City was negligent, i.e., a lack of evidence that the City had actual or constructive notice of a defect; and (3) a failure to establish a permanent loss of a bodily function. (R.R. at 443a-46a.) The trial court again took the matter under advisement and allowed the City to present its case, which consisted solely of the videotaped deposition of its own medical expert. On May 10, 2012, the trial court entered a non-suit in favor of the City. (Trial court op. at 2-3.)
Plaintiff filed a motion for post-trial relief alleging that the matter of whether the amendment of Plaintiff's complaint would create a new cause of action was previously settled when the trial court denied the City's earlier motion for summary judgment and that Plaintiff presented objective evidence establishing that her injuries were permanent and serious. (Trial court op. at 3.)
By order dated August 6, 2012, the trial court denied Plaintiff's motion. In a subsequent opinion, the trial court first noted that the proofs differ under the sidewalks and streets exceptions to governmental immunity,  with the City being primarily liable under the latter and only secondarily liable under the former. The trial court explained that Plaintiff failed to produce sufficient evidence to establish a right to relief under either exception.
The trial court also rejected any allegation that entry of a non-suit violated the coordinate jurisdiction rule, which "refers to the long recognized principle that judges of coordinate jurisdiction sitting in the same case should not overrule each others' decisions." Lock v. City of Philadelphia, 895 A.2d 660, 668 (Pa. Cmwlth. 2006). The trial court noted that the earlier motion for summary judgment differed in kind procedurally from the request for non-suit and that there was an intervening change in the facts once evidence and testimony was presented at trial. (Trial court op. at 3, 5-9.)
On appeal to this Court,  Plaintiff first argues that the trial court violated the coordinate jurisdiction rule by granting the ...