No. 727 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas Somerset County, Civil Division, at No. 157 Civil 1978
Ronald W. Crouch, Pittsburgh, for appellant.
John P. Joyce, Pittsburgh, for appellees.
Cavanaugh, Brosky and Montgomery, JJ. Cavanaugh, J., filed a dissenting opinion.
[ 322 Pa. Super. Page 163]
This is an appeal from the order denying appellant's motion to amend its Answer and New Matter. Appellant contends that the order was final and thus appealable and that the denial of its motion constituted an abuse of discretion by the lower court. We find that the order was interlocutory and non-appealable and, accordingly, quash this appeal.
This action was instituted on May 8, 1978, when appellees filed a Complaint in Assumpsit. The Complaint alleged, inter alia, that appellant manufactured a defective fuse; that the defect caused personal injuries to Jeffrey Lynn Sechler following an explosion of dynamite; that appellant failed to provide warnings of the danger inherent in the fuse; and that appellant breached warranties of merchantability and fitness for a particular purpose. Appellant, in its original Answer, denied that there was any latent defect in the fuse and that it had breached any warranties. Extensive discovery followed and after numerous delays trial was set for September, 1981. Appellant engaged additional counsel on April 20, 1981, who filed the motion to amend the Answer and New Matter on May 22, 1981. In its amended Answer and New Matter, appellant sought to raise the
[ 322 Pa. Super. Page 164]
following defenses: (1) that instructions on the proper use of its product were provided with the product; (2) that all warranties of merchantability and fitness for a particular purpose were disclaimed at the time of sale; (3) that the act of parties not associated with Ensign-Bickford in changing, removing, or otherwise making unavailable warnings and instructions in the use of the product was an intervening and/or superseding cause of the Sechlers' injuries; and (4) that the product did not reach Jeffrey Sechler in the same condition in which it was manufactured and sold by Ensign-Bickford, but rather had been materially altered. The motion was denied and this appeal followed.
Appellant first contends that the order of the court below is not interlocutory, but a final and thus appealable order.*fn1 See 42 Pa.C.S.A. § 742; Pa.R.A.P. 341. "'Finality' exists when the practical effect of an order is to put the defendant out of court . . ." Balter v. Balter, 284 Pa. Super. 350, 355, 425 A.2d 1138, 1140 (1981).
Appellant argues that several Pennsylvania cases holding that the denial of a defendant's motion to amend its answer to allege a new affirmative defense is a final order support its contention that the instant order is a final one. For example, in Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350 (1966), the Supreme Court stated:
The new defense proposed is affirmative in nature and must be pleaded, otherwise it is waived. See, Pa.R.Civ.P. 1030, 1032, and Lang v. Recht, 171 Pa. Super. 605, 91 A.2d 313 (1952). The order involved effectively precludes proof at trial of what might possibly be a complete defense to the cause sued upon. As to this defense, at least, the order appealed from puts the defendant "out of court". It is, therefore, an appealable order.
Id., 421 Pa. at 24, 218 A.2d at 351. Accord Hughes v. Pron, 286 Pa. Super. 419, 429 A.2d 9 ...