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CHARLES GUTIERREZ AND LORRAINE GUTIERREZ v. PENNSYLVANIA GAS & WATER COMPANY (04/16/86)

filed: April 16, 1986.

CHARLES GUTIERREZ AND LORRAINE GUTIERREZ, HIS WIFE
v.
PENNSYLVANIA GAS & WATER COMPANY, KAMINSKI BROTHERS, INC., SYRSTONE, INC., AND ANTONIO CONSTANTINO, T/A MIDWAY GARDEN CENTER V. THE CITY OF WILKES-BARRE, APPELLANT



Appeal from the Order of the Court of Common Pleas, Civil Division, of Luzerne County at No. 1121-C of 1983.

COUNSEL

Ralph J. Johnston, Jr., Wilkes-Barre, for appellant.

Rona Totolu, Wilkes-Barre, for Kaminski, appellee.

Cavanaugh, Wickersham and Hoffman, JJ.

Author: Wickersham

[ 352 Pa. Super. Page 283]

The City of Wilkes-Barre appeals from the order of the Court of Common Pleas of Luzerne County denying the City's request for leave to amend its answer.

On March 22, 1983, Charles and Lorraine Gutierrez commenced the instant trespass action against four defendants: Pennsylvania Gas & Water Company; Kaminski Brothers, Inc.; Syrstone, Inc.; and Antonio Constantino, t/a Midway Garden Center. The Gutierrez complaint, filed on April 28, 1983, alleged negligence on the part of the defendants resulting in injuries to Mr. Gutierrez when, on October 30,

[ 352 Pa. Super. Page 2841981]

, he fell over a water shut-off valve exposed during a reconstruction project along North Main Street in Wilkes-Barre. Various pleadings not relevant here followed.

On June 17, 1983, Kaminski Brothers, Inc., appellee herein, filed a praecipe and writ joining the City of Wilkes-Barre, appellant herein, as an additional defendant. In its complaint against appellant, filed on September 30, 1983, appellee alleged that prior to the accident date, it had been instructed by appellant to cease all work in the area and had in fact done so, leaving the areas under appellant's exclusive possession and control. On July 5, 1984, appellant filed an answer and new matter to appellee's complaint. Appellant essentially denied that the area was in appellant's exclusive control and that it had ordered appellee to cease all work in the area. In its new matter, appellant sought indemnification from appellee in the event it should be found liable under the original complaint. Appellee replied to the new matter on July 23, 1984, thus ending the pleadings relevant to this appeal.

On February 15, 1985, appellant filed a petition for leave to file an amended answer and new matter to appellee's complaint. Specifically, appellant sought to raise a notice defense under 42 Pa.C.S. § 5522(a) and a governmental immunity defense under 42 Pa.C.S. § 8541, et seq. On May 2, 1985, the lower court denied appellant's petition for leave to amend. Appellant filed this timely appeal, in which it raises the following two issues:*fn1

[ 352 Pa. Super. Page 285]

I. Whether The City of Wilkes-Barre, Additional Defendant below, should be granted leave to file an ...


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