December 18, 1962
PENNSYLVANIA POWER & LIGHT COMPANY
Appeal, No. 378, Oct. T., 1962, from order of Court of Common Pleas of Schuylkill County, Sept. T., 1953, No. 232, in case of Pennsylvania Power & Light Company v. John Stoppi, Sr. Appeal quashed.
W. J. Krencewicz, for appellant.
Charles L. Frank, with him E. Mac Troutman, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P. J., absent).
[ 200 Pa. Super. Page 102]
OPINION PER CURIAM
While the defendant had an absolute right to file an amended answer and counterclaim by filed consent of the plaintiff under Pa. R.C.P. 1033, the court below had the right to require that this be done in accordance with its Rule 240 by filing an entire new pleading, properly executed, rather than by a stipulation that the "prior Amended Answer and Amended New Matter and Counterclaim is reinstated".
Under the circumstances in this case the court below no doubt will give the defendant an opportunity to reinstate his counterclaim by filing an amended answer and counterclaim. The refusal of the court to accept the stipulation has not put the defendant out of
[ 200 Pa. Super. Page 103]
court as to his counterclaim and the appeal must be quashed.
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