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A. C. GREGG v. GACON CONSTRUCTION COMPANY (10/06/77)

decided: October 6, 1977.

A. C. GREGG, INDIVIDUALLY AND T/A GREGG MOTOR COMPANY, APPELLANT,
v.
GACON CONSTRUCTION COMPANY



No. 938 April Term, 1976, Appeal from the Order and Judgment entered June 24, 1976, of the Court of Common Please of Allegheny County, Pennsylvania, Civil Division at No. 7987 of 1974.

COUNSEL

James F. Israel, Pittsburgh, with him C. Joseph Recht, Pittsburgh, for appellant.

Edward P. Zemprelli, Clairton, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Price, J., dissents. Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 249 Pa. Super. Page 378]

This appeal arises from the order of the court below denying appellant leave to amend its complaint and from the court's judgment for appellee. The issue for our determination is whether the lower court abused its discretion when it refused appellant permission to amend its complaint in assumpsit, despite the fact that the statute of limitations had not run. For the reasons set forth below, we hold that the court abused its discretion in denying leave to amend, and therefore reverse the order and vacate the judgment entered for appellee.

On November 12, 1974, appellant filed a form complaint in assumpsit claiming $3,000.00 damages from appellee under an oral lease of property owned by appellant. Appellee denied the existence of an oral or written lease, and on March 3, 1975, a Board of Arbitrators found in favor of appellee. Appellant thereupon filed a timely notice of appeal from the arbitration award, and the case was listed for de novo review in Common Pleas Court.

On August 4, 1975, prior to trial in common pleas, appellant petitioned the court below to amend its complaint to

[ 249 Pa. Super. Page 379]

    claim $3,000.00 for the fair and reasonable value of use of the property. Judge DOYLE entered an order denying leave to amend and the court en banc dismissed appellant's exceptions to this order.

The case proceeded to trial on January 29, 1976, at which time appellant renewed its petition to amend the complaint to alternatively plead a count in quantum meruit. The court again denied leave to amend, stating that it lacked authority to overrule the prior denial by another judge of the same court, and that amendment immediately before trial would unduly surprise and prejudice appellee. Judge WEKSELMAN entered judgment for appellee at the conclusion of proceedings, and the court en banc subsequently dismissed appellant's exceptions to the non-jury adjudication. A timely notice of appeal was filed in this court on July 13, 1976.

Rule 1033 of the Pennsylvania Rules of Civil Procedure 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 ...


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