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JAMES A. MANN v. UPPER DARBY SCHOOL DISTRICT AND PAUL W. GETZ (07/29/86)

decided: July 29, 1986.

JAMES A. MANN, INC.
v.
UPPER DARBY SCHOOL DISTRICT AND PAUL W. GETZ, INDIVIDUALLY AND PAUL W. GETZ AND ASSOCIATES, ARCHITECT, P.C. UPPER DARBY SCHOOL DISTRICT, APPELLANT



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of James A. Mann, Inc. v. Upper Darby School District, Paul W. Getz, No. 82-10645.

COUNSEL

Charles T. Roessing, with him, I. Steven Levy, White and Williams, for appellant.

Richard E. Geschke, Jr., with him, Hugh J. Hutchison, Sprecher, Felix, Visco, Hutchison & Young, for appellee.

Judge MacPhail, and Senior Judges Rogers and Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 99 Pa. Commw. Page 277]

This is an appeal by the Upper Darby School District (District) from an Order of March 11, 1985, in the Court of Common Pleas of Delaware County, which denied the District leave to amend its answer to the complaint in trespass and assumpsit filed by the plaintiff, James A. Mann, Inc. The District desired to amend its answer to include the affirmative defenses of governmental immunity and statute of limitations. We reverse.

The following facts are pertinent. On or about August 18, 1982, Mann filed a complaint in trespass and assumpsit against the District and its Board of Directors. The complaint contained six counts in assumpsit which alleged various breaches of a contract which Mann had with the District for the removal of asbestos from the Upper Darby High School Administration Building and the Beverly Hills Junior High School. The two counts in trespass alleged slander and tortious interference with Mann's contractual relationships. The District's initial answer to the eight count complaint raised no affirmative defenses. Counsel for the District's insurance carrier advised the District's counsel to amend the answer to raise the defenses of governmental immunity and statute of limitations. The District's counsel

[ 99 Pa. Commw. Page 278]

    failed to do so, however. When the District's counsel was later joined as an additional defendant, the insurer's counsel took over as trial counsel. Following the successful raising of governmental immunity and statute of limitations by the District's initial counsel whereby counsel was dismissed as an additional defendant, the District sought leave to amend its answer to raise those affirmative defenses. The common pleas court denied leave to amend and the District appealed.

In this appeal, the sole issue raised by the District is whether the common pleas court abused its discretion when it denied the District leave to amend its answer to include the affirmative defenses of governmental immunity and statute of limitations. In addition, Mann has filed a motion to quash the appeal contending that the common pleas court's order is interlocutory and not appealable. We shall deal first with the motion to quash.

Our appellate courts have consistently held that, unless a special right to appeal is expressly given by statute, an appeal may only be taken from a final order. Pa. R.A.P. 311 and 702(a); Pellegrine v. Home Insurance Co., 200 Pa. Superior Ct. 48, 186 A.2d 662 (1962). A "final order" for purposes of appeal is one which is separable from and collateral to the main cause of action, the right involved is too important to be denied review, and the question presented is such that if review is postponed until final judgment the claimed right will be irreparably lost. Brink's, Inc. v. Pennsylvania Public Utility Commission, 68 Pa. Commonwealth Ct. 196, 448 A.2d 709 (1982). Generally, orders granting or denying leave to amend pleadings are interlocutory and are not immediately appealable. Tate v. MacFarland, 303 Pa. Superior Ct. 182, 449 A.2d 639 (1982). However, an order denying a motion to amend an answer is final and appealable when that proposed amended answer sought

[ 99 Pa. Commw. Page 279]

    to raise a new affirmative defense. Sechler v. Ensign-Bickford Co., 322 Pa. Superior Ct. 162, 469 A.2d 233 (1983). Such an order is final in that it effectively puts the litigant out of court insofar as that issue is concerned. See Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350 (1966). Therefore, the order of the common pleas court which denied the District leave to amend its answer to raise the affirmative defenses of ...


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