No. 58 April Term, 1978, Appeal from the Judgment Entered on July 12, 1977, of the Court of Common Pleas of Allegheny County, Civil Division, at No. 718 January Term, 1974--In Trespass.
S. Asher Winikoff, with him Rosenberg, Kirshner & Kaleugher, Pittsburgh, for appellant.
Willard R. Crout, Pittsburgh, for appellee.
Jacobs, President Judge and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. The decision in this case was made prior to the retirement of Hoffman, J. Van der Voort, J., dissents.
[ 259 Pa. Super. Page 15]
Appellant contends that the trial court erred in (1) refusing to admit into evidence the allegations contained in appellee's original complaint and (2) holding that the dead man's statute prevented appellant from testifying at trial. We agree that the lower court improperly refused to admit into evidence the allegations in appellee's original complaint. Accordingly, we reverse and remand for a new trial.
On November 19, 1973, appellee and her husband, the decedent's parents, administrators of the decedent's estate,*fn1 filed a complaint in trespass for wrongful death*fn2 and survivorship*fn3 in the Allegheny County Court of Common Pleas. Several paragraphs of the complaint alleged that when the decedent entered appellant's automobile, appellant was "in a very intoxicated condition," "heavily intoxicated," and that this condition was "clearly apparent." Appellee also named as a defendant a tavern which allegedly had served appellant alcohol despite his visibly intoxicated condition. In addition to appellant's intoxication, the complaint alleged numerous counts of negligence as well as statutory violations.
On November 18, 1975, appellant filed a motion for judgment on the pleadings in which he alleged that appellee failed to state a cause of action and that the decedent was contributorily negligent as a matter of law. On December
[ 259 Pa. Super. Page 169]
, 1975, appellee filed a petition for leave to amend the complaint which appellant opposed by alleging prejudice to his outstanding motion for judgment on the pleadings. The motions court granted appellee's motion to amend the complaint but noted that the motion did not specifically state which paragraphs appellee sought to modify. Consequently, the motions court issued the following order:
". . . [P]laintiff is granted 20 days from the date of this Order to Amend the Complaint by striking all paragraph relating to the consumption of alcoholic beverages of the original defendant, and those paragraphs relating to the defendant [tavern]."
The motions court further held that allowing appellee to amend the complaint did not prejudice appellant because appellee sought only to strike averments rather than add to a new cause of action. Moreover, the court concluded that although its order would permit appellee to strike certain averments from the complaint, the facts contained in those stricken averments could be introduced at trial as admissions to relevant issues.
On December 23, 1975, appellee filed an amended complaint which named appellant as the only defendant and alleged only appellant's negligent operation of his automobile. On April 19, 1976, the trial court denied appellant's motion for judgment ...