No. 104 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. 3040 October Term 1974.
David A. Scott, Pittsburgh, for appellant.
Asher Winikoff, Pittsburgh, for Adamski, appellee.
John E. Kunz, Pittsburgh, for Donnelly, appellee.
Cercone, President Judge, and Montgomery and Lipez, JJ. Cercone, President Judge, concurs in the result.
[ 286 Pa. Super. Page 458]
On September 10, 1972, plaintiff Edith Mackey was injured while riding as a passenger in a car, operated by defendant Rita Donnelly, which collided with a car operated by defendant Catherine Adamski. Plaintiff commenced this trespass action, alleging negligence by both operators,*fn1 on September 5, 1974. Both defendants entered appearances, but neither filed an answer.*fn2
Over the next three and a half years, the parties engaged in extensive discovery and other pre-trial proceedings, and the case was finally placed on the master trial list to be called on March 8, 1978. On March 1, 1978 defendant Adamski filed in the court below a paper labeled "ANSWER,"
[ 286 Pa. Super. Page 459]
raising for the first time the defense of section 205*fn3 of the Workmen's Compensation Act, which provides:
If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.
On March 2, 1978 defendant Donnelly filed a paper labeled "NEW MATTER," also raising this defense for the first time.
On March 3, 1978 plaintiff filed motions to strike both Adamski's "ANSWER" and Donnelly's "NEW MATTER," on the ground that the workmen's compensation defense was an affirmative defense which must be raised in a responsive pleading, Pa.R.C.P. 1045(b),*fn4 and since defendants failed to raise the defense in an answer filed ...