No. 51 May Term, 1978, Appeal from Order Dated August 4, 1978, as Amended by Order Dated August 28, 1978, of the Commonwealth Court at No. 132 C.D. 1975
Roger T. Shoop, Harrisburg, for appellant.
Stuart J. Moskovitz, Harrisburg, for appellee Dept. of Transp. Edward E. Knauss, III, Harrisburg, for appellee Brookhart & Tyo & Tyo & Fleischer. Henry W. Rhoads, Harrisburg, for appellee Tensorex. David E. Lehman, Harrisburg, for appellee Bethlehem Steel.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., files a dissenting opinion.
This appeal is dismissed. Permission to appeal was granted to consider the continued validity of the rule that the statute of limitations does not run against the Commonwealth in light of Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). But that issue should not be decided in this case because the Commonwealth Court's refusal to allow an amendment to the answer in order to raise the statute of limitations in new matter does not constitute an abuse of discretion even if we were to hold the statute of limitations applies to the Commonwealth.
The complaint instantly was filed over three years prior to the request to amend. The pleadings had closed over five months before the request, and discovery had been proceeding during that period. Accordingly, the controlling question we sought to review need not now be considered.
MANDERINO, Justice, dissenting.
I am compelled to dissent from the majority's per curiam dismissal of this appeal involving an important question of constitutional dimensions. The original complaint in this case was filed in the Commonwealth Court by the Commonwealth of Pennsylvania, Department of Transportation, appellee and hereinafter "Commonwealth" on January 30, 1975, against Bethlehem Steel Corporation and Sanders and
Thomas, Inc., appellant. Both defendants filed preliminary objections and Bethlehem Steel Corporation filed complaints against additional defendants, No. 1 Contracting Corporation and Tensorex Company, Inc. Numerous other papers were subsequently filed by all parties but are not germane to this appeal.
The underlying facts which gave rise to the initial complaint are as follows. On March 31, 1967, the Commonwealth and Bethlehem Steel entered into a written agreement whereby Bethlehem Steel was to engage the services of a consulting engineer to furnish design plans and drawings for the improvement of the New Street Bridge. Accordingly, Bethlehem retained appellant. The contract for the construction of the bridge was awarded by the Commonwealth to No. 1 Contracting Corporation. Tensorex Company, Inc., then contracted with Bethlehem Steel to submit detail drawings for use by Bethlehem Steel in fabricating the steel members of the bridge. Work ...