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filed: April 24, 1981.


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.

Author: Lipez

[ 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 within 20 days of the complaint, Pa.R.C.P. 1026,*fn5 it was waived. Pa.R.C.P. 1032.*fn6

[ 286 Pa. Super. Page 460]

The motions to strike were eventually denied on August 29, 1978 in an order by Judge Papadakos.*fn7 That order also allowed plaintiff*fn8 to file replies to defendants' pleadings by September 5, 1978, and plaintiff timely filed these replies. The case was then assigned for trial to Judge Wekselman, before whom a jury was empanelled on September 26, 1978. After jury selection, the parties agreed to submit to Judge Wekselman the issue of whether section 205 of the Workmen's Compensation Act barred the suit. The jury was dismissed. Counsel for the parties entered into and filed a stipulation of facts relevant to the workmen's compensation defense. Based on the stipulated facts, Judge Wekselman determined that section 205 barred the suit. He also stated that he believed the appropriate motion for defendant to make would be for a compulsory non-suit.*fn9 Defendants' counsel made these motions, which were granted and entered by Judge Wekselman.

[ 286 Pa. Super. Page 461]

Plaintiff filed a motion to take off the compulsory non-suit, which was denied by a court en banc consisting of Judges Wekselman and Silvestri. In this appeal from that denial, plaintiff contends: (1) that Judge Papadakos erred in denying the motions to strike the pleadings raising the workmen's compensation defense; and (2) that Judge Wekselman erred in his determination that the workmen's compensation defense was applicable. We need not decide the second issue, because we agree with plaintiff that the court below should have struck defendants' pleadings, because they were filed untimely without leave of court or plaintiff's filed consent.

Defendants both contend that section 205 of the Workmen's Compensation Act does not provide an affirmative defense, but rather deprives the common pleas court of subject matter jurisdiction of a common law action against a person "in the same employ." Thus, defendants argue, it did not matter when or how the workmen's compensation defense was raised, since any party, or even the court sua sponte, may raise the question of subject matter jurisdiction at any time. Pa.R.C.P. 1032(2).*fn10 This argument would appear to be answered in an opinion last year by Judge Hester:

We must first of all reject appellant's contention that the [Workmen's Compensation] Act, where applicable, is a bar to a court's subject matter jurisdiction, which would allow the defense to be raised at any time, even by the court sua sponte. Rule 1032(2); [citing cases]. The Supreme Court has long held that the Act does not deprive the courts of jurisdiction over the subject matter of common law causes of action. Repyneck v. Tarantino, 403 Pa. 300, 169 A.2d 527 (1961); Welser v. Ealer, 317 Pa. 182, 176 A. 429 (1935). "[T]he fact that a plaintiff is precluded from recovering damages for injuries because of an affirmative defense or by any method or procedure other than that prescribed by statute . . . does not raise a question of jurisdiction . . . over the cause of action."

[ 286 Pa. Super. Page 462]

    response. In its opinion, the lower court stated: "Since plaintiffs' objections to the answer and new matter have been raised only in the briefs they are not part of the record and cannot be considered at this time."

On May 29, 1975, minor plaintiff petitioned the court below for reargument, alleging that the court erroneously considered appellee's new matter in passing on the motion for summary judgment. The court denied the motion orally in order to enable minor plaintiff to effect a timely appeal from the order granting the motion for summary judgment. The court later placed a memorandum on the record which responded to minor plaintiff's petition for reargument:

"Plaintiffs in this case contend that this court's decision is based on conclusions of law contained in new matter filed by the defendant.

"In its decision, the court did state that plaintiffs could not attack the answer and new matter by way of their brief, but rather the proper means was by way of preliminary objections.

"In arriving at its decision, the court only relied on the complaint, depositions, and the motion for summary judgment, in resolving whether there was a genuine issue as to any material fact. The court found none and granted the motion for summary judgment.

"This is an action in trespass in which a complaint and entry of appearance for the defendant were filed. The late answer improperly filed without court permission or stipulation of counsel, was not considered by the court."

Minor plaintiff now contends that the "defense" of the applicability of the Workmen's Compensation Act cannot be asserted for the first time in a motion for summary judgment:

". . . all affirmative defenses in trespass are required to be pleaded and when not pleaded are waived and cannot be raised in a motion to satisfy an adverse judgment." Matthews v. Malloy, 217 Pa. Super. 338, 341, 272 A.2d 226, 228 (1970), citing Rules 1032 and 1045, Pa.R.C.P. It is

[ 286 Pa. Super. Page 464]

    certainly true that Rule 1045 requires all affirmative defenses to be pleaded under new matter and Rule 1032 provides, with certain exceptions, that "[a] party waives all defenses and objections which he does not present either by preliminary objection, answer or reply . . ." However, Rule 1032(2) requires that the court dismiss an action whenever "it appears by suggestion of the parties or otherwise that the court lack jurisdiction of the subject matter . . ." This is such a case. If in fact an employer-employee relationship existed, the court below would have no jurisdiction to entertain the instant suit, as the exclusive forum for resolution of the minor plaintiff's claim would be that provided by the Workmen's Compensation Act. Because the defense of lack of subject matter jurisdiction was not waived, appellee could rely on it in support of his motion for summary judgment. The memorandum filed by the lower court precludes our reversing on the basis that the court considered information not properly before it. Thus, the propriety of the summary judgment must be considered on its merits.

Stewart v. Uryc, supra, 237 Pa. Super. at 261-62 n.2, 352 A.2d at 468 n.2.

Turner Construction Company v. Hebner, supra, 276 Pa. Super. at 346 n.1, 419 A.2d at 491 n.1, mentions Stewart v. Uryc, supra, as one of two cases*fn12 containing "dicta" which "might suggest a contrary result." From the abovequoted passage, however, it would appear that Stewart represents a plain holding, rather than a mere dictum,*fn13 that

[ 286 Pa. Super. Page 465]

    the workmen's compensation defense is jurisdictional. Moreover, since Stewart was a majority en banc opinion, it would normally be doubtful whether it could be overruled by the panel opinion in Turner Construction Company v. Hebner, supra. See Commonwealth v. Manley, 282 Pa. Super. 376, 383 n.5, 422 A.2d 1340, 1343 n.5 (1980). Nevertheless, the determination in Stewart, which cited no authority, must yield to the contrary Supreme Court holdings*fn14 on which

[ 286 Pa. Super. Page 466]

    answers.*fn16 Such an attempt would require compliance with Pennsylvania Rule of Civil Procedure 1033,*fn17 by obtaining either filed consent of plaintiff or leave of court. As President Judge Smith stated in Grasso v. City of Philadelphia, 89 D. & C. 136, 141 (C.P. Phila. 1954):

The city has filed a "supplemental answer" without leave of court or without the consent of opposing counsel. Without such leave of court, the answer cannot stand. See Pa.R.C.P. 1033. The city cannot sidestep these requirements by labeling its pleading as a "Supplemental Answer." The city is actually seeking to file an amended answer and the procedure outlined by our rules must be followed. See Pa.R.C.P. 1017(a).

Here, too, regardless of the labels on defendants' pleadings, they were actually amended answers filed without plaintiff's consent or leave of court. Since this was an improper way to raise an affirmative defense, plaintiff quite properly and very promptly*fn18 attacked them by means of the motions to strike. Those motions explicitly raised the argument that the applicability of workmen's compensation is an affirmative defense. The fact that an affirmative defense was being raised untimely without plaintiff's consent or leave of court would, by itself, be sufficient ground to grant the motions to strike. Pa.R.C.P. 1033; Grasso v. City of Philadelphia, supra. Moreover, the motions specifically

[ 286 Pa. Super. Page 468]

    alleged prejudice to the plaintiff if the late pleadings were to be allowed. Defendants never filed answers to the motions, or filed anything contesting any of the motions' allegations. Neither did defendants ever correct the defect in their filings by obtaining leave of court.

The court below never ruled on the question of whether allowance of the late filing would be prejudicial to the plaintiff. Consequently, while we agree with defendant Donnelly's assertion that the lower court's determination on this question should not be reversed absent an abuse of discretion, e. g., Turner Construction Company v. Hebner, supra, 276 Pa. Super. at 348, 419 A.2d at 492, here we have no determination to review under this or any other standard. This is directly attributable to defendants' failure to comply with Rule 1033, both when the late pleadings were originally filed and for more than five months while the motions to strike were outstanding, as well as defendants' failure to oppose the allegations of prejudice in the motions to strike. We hold that defendants have waived their right to raise the workers' compensation defense under Rule 1033, because they elected to rely solely on the subject matter jurisdiction argument*fn19 by failure to comply substantially with the Rule in any manner despite numerous opportunities.*fn20

The order of the lower court is reversed, the non-suit removed, the pleadings raising the workers' compensation defense are stricken, and the case remanded for trial.

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