NO. 1021 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Action-Law, at No. G.D. 81-16654.
Andrew J. Achman, Pittsburgh, for appellant.
Richard F. Lerach, Pittsburgh, for appellee.
Hester, McEwen and Johnson, JJ. Hester, J., files a concurring and dissenting statement.
[ 302 Pa. Super. Page 404]
We here review an Order of the Court of Common Pleas of Allegheny County which sustained preliminary objections in the nature of a demurrer and dismissed the complaint.
[ 302 Pa. Super. Page 405]
Plaintiff brought this action to recover lost earnings and punitive damages from his former employer, the defendant-appellee in this lawsuit. The employee filed a complaint in trespass and assumpsit which alleged that the employer committed a tortious act and committed a breach of an oral employment contract when it discharged the plaintiff.
The appellant presents the following questions for our review: (1) whether the trial court properly decided that the complaint failed to state a cause of action upon which relief could be granted?; and (2) whether the plaintiff should be given the opportunity to amend his complaint?
We have carefully reviewed the record and we conclude that the distinguished Allegheny County Common Pleas Court Judge Emil E. Narick has very ably addressed and quite correctly ruled that the complaint failed to state a cause of action.
As a result of this ruling we must now consider whether the plaintiff should be afforded the opportunity to amend his pleading. The defendant-corporation contends that the plaintiff has lost any right to so amend his pleading as a result of the failure of the plaintiff to seek amendment of the complaint in the Common Pleas Court. The Common Pleas Court made no mention in its Order of dismissal of leave to amend the complaint nor did plaintiff himself then seek leave of the court to amend the complaint.
While plaintiff would have been better advised to attempt to amend the complaint in the Common Pleas Court, the decision of our Supreme Court in the case of Otto v. American Mutual Insurance Co., 482 Pa. 202, 393 A.2d 450 (1978), dictates that we grant the plaintiff leave to amend his complaint. Associates of Philipsburg v. Hurwitz, 292 Pa. Super. 406, 437 A.2d 447 (1981). Contra Coyne v. Porter-Hayden Co., 286 Pa. Super. 1, 428 A.2d 208 (1981); Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980); ...