Appeal, No. 18, May T., 1956, from judgment of Court of Common Pleas of York County, Oct. T., 1953, No. 118, in case of R. C. Keller v. R. C. Keller Motor Company. Judgment affirmed; reargument refused August 20, 1956. Assumpsit. Before SHERWOOD, P.J. Verdict for plaintiff and judgment entered thereon. Defendant appealed.
Arthur Markowitz, with him Robert H. Griffith, and Markowitz, Liverant, Boyle, Rauhauser & Kagen, for appellant.
Henry B. Leader, with him Stock & Leader, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
In this action of assumpsit plaintiff's complaint appropriately pleaded: a contract of hiring by the defendant, by which the defendant promised to pay the plaintiff $100.00 per week for 51 weeks, beginning July
, 1951; a partial default thereof; and also a failure to pay the plaintiff a sum equal to 10% of the net profits of the defendant.
The answer of the defendants denied the offer of performance by the plaintiff and denied generally that it was liable on the contract. The defendant then set forth paragraphs XI, XII and XIII of new matter which would tend to set up an accord and satisfaction. To this pleading under new matter the plaintiff entered a general denial.
The case came on for trial and after proof of his case, the plaintiff rested. Whereupon the defendant offered paragraphs XI, XII and XIII, together with the plaintiff's reply thereto, contending it to be a general denial thereof and establishing an implied admission of the averments in the new matter. Plaintiff's request for leave to amend was granted, and he thereupon made specific denials of the averments raised in the new matter.
The defendant did not plead surprise and offered no testimony; whereupon verdict and judgment were for plaintiff. Defendant appeals, contending that the general denials to the averments of new matter constitute an implied admission which was irrevocable.
Pa. R.C.P. 1033 provides: "A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or ...