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filed: April 28, 1987.


Appeal from the Order of November 23, 1984 in the Court of Common Pleas Philadelphia County, Civil No. 203 Jan. Term 1980.


John J. McGrath, Philadelphia, for appellant.

Allen L. Feingold, Philadelphia, for appellee.

Cirillo, President Judge, and Wickersham,*fn* Brosky, McEwen, Olszewski, Montemuro, Beck,*fn** Kelly and Johnson, JJ.

Author: Mcewen

[ 362 Pa. Super. Page 524]

This appeal has been taken from an order which denied appellant's motion for leave to file an answer and new matter. Appellant claims that the trial court erred as a matter of law when it denied the motion solely because it was untimely, without regard to whether the appellee had been prejudiced by the delay. Alternatively, appellant claims that the trial court abused its discretion in failing to balance the equities of the situation prior to denying the motion. We affirm.

This litigation began on January 7, 1980, when appellee filed a complaint. More than eight months later, on September 17, 1980, counsel for appellant provided for the entry of an appearance but did not file any pleading. That

[ 362 Pa. Super. Page 525]

    appearance for appellant was withdrawn on April 25, 1984, when present counsel*fn1 for appellant filed an appearance. Almost six months thereafter, on October 23, 1984, eight days before the case was scheduled for trial before a panel of arbitrators, appellant filed a Motion for Leave to File an Answer to Plaintiff's Complaint with New Matter. Appellant did not seek to delay the trial before the arbitrators pending disposition by the court of that motion, but participated in the proceedings before the arbitrators. When the arbitrators entered an award in favor of appellant, appellee undertook an appeal to the Court of Common Pleas. On November 23, 1984, the hearing court denied the motion of appellant which sought leave to file an answer and new matter, and this appeal followed.

It is necessary, of course, to first address the assertion of appellee that this appeal should be quashed because the order denying appellant's motion for leave to amend was not a final order. "It is well settled that an appeal will lie only from a final order unless otherwise permitted by statute." Praisner v. Stocker, 313 Pa. Super. 332, 336, 459 A.2d 1255, 1258 (1983). Our study of whether an order is final and appealable must go beyond the technical effect of the order to an examination of the practical ramifications of the ruling. That study here requires a finding that the order is sufficiently final to allow review, since the refusal to allow appellant an opportunity to present the proposed affirmative defense of the statute of limitations put appellant "out of court" as to that defense. See Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 24, 218 A.2d 350, 351 (1966); Urban v. Urban, 332 Pa. Super. 373, 378, 481 A.2d 662, 665 (1984); Sechler v. Ensign-Bickford Co., 322 Pa. Super. 162, 166, 469 A.2d 233, 235 (1983); Hughes v. Pron, 286 Pa. Super. 419, 423, 429 A.2d 9, 11

[ 362 Pa. Super. Page 526]

(1981). Having determined that the order was final and appealable, we proceed to consider the merits of the appeal.

It is not uncommon, of course, for an answer to be filed more than twenty days after service of the complaint and some would even assert that the greater number are so filed. The custom among trial counsel, pursuant to Pennsylvania Rule of Civil Procedure 1003, is to routinely agree to waive the rules regarding "the time for serving process or for filing or serving pleadings". Even when the parties have not agreed to waive such rules, trial counsel are not inclined to enforce strict technical compliance since such measures would be counterproductive. As a general rule, the failure of a plaintiff to proceed to a default judgment, in the absence of an agreement between the parties to waive the rules for a timely filing, is an indication that the plaintiff has not been prejudiced by the delay and may even be considered an implicit extension of the period for filing an answer. Allison v. Merris, 342 Pa. Super. 571, 572, 493 A.2d 738, 739 (1985). We cannot, however, excuse the abject indifference here reflected by an intervening period of almost five years between the service of the complaint and ...

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