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THOMAS CARPITELLA v. CONSOLIDATED RAIL CORPORATION T/A CONRAIL AND SEPTA AND NORTH PENNSYLVANIA RAILROAD AND READING COMPANY AND NATIONAL RAILROAD PASSENGER CORPORATION T/A AMTRAK AND NORTHEAST COMMUTER SERVICES CORPORATION AND AMTRAK COMMUTER SERVICES CORPORATION AND PHILADELPHIA ELECTRIC COMPANY. APPEAL SEPTA (11/13/87)

filed: November 13, 1987.

THOMAS CARPITELLA, A MINOR BY HIS PARENT AND NATURAL GUARDIAN, SHIRLEY CARPITELLA AND SHIRLEY CARPITELLA IN HER OWN RIGHT
v.
CONSOLIDATED RAIL CORPORATION T/A CONRAIL AND SEPTA AND NORTH PENNSYLVANIA RAILROAD AND READING COMPANY AND NATIONAL RAILROAD PASSENGER CORPORATION T/A AMTRAK AND NORTHEAST COMMUTER SERVICES CORPORATION AND AMTRAK COMMUTER SERVICES CORPORATION AND PHILADELPHIA ELECTRIC COMPANY. APPEAL OF SEPTA



APPEAL FORM THE ORDER ENTERED JANUARY 8, 1987 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CIVIL NO. 3142 NOV. 1984.

COUNSEL

Joseph R. Livesey, Philadelphia, for appellant.

Bruce D. Hess, Huntingdon Valley, for appellees.

Cirillo, President Judge, and Beck and Tamilia, JJ.

Author: Cirillo

[ 368 Pa. Super. Page 154]

Thomas Carpitella, a minor, and Shirley Carpitella, his parent and guardian, filed suit against Southeastern Pennsylvania Transportation Authority (SEPTA) in the Court of Common Pleas of Philadelphia County on November of 1984. The Carpitellas alleged that Thomas was severely injured when he entered a power substation through an opening under a fence and came in contact with a high

[ 368 Pa. Super. Page 155]

    voltage power line. In February of 1985, SEPTA filed an answer to that complaint; in September of 1986 SEPTA petitioned the court for permission to file an amended answer pleading affirmative defenses available to Commonwealth agencies or parties under 42 Pa.C.S.A. § 8501, et seq. The request was denied. A motion for reconsideration was also denied. SEPTA then appealed to this court.*fn1

Appellant SEPTA argues on appeal that the trial court abused its discretion by denying SEPTA leave to amend its answer to allege as "New Matter" that it was acting as a Commonwealth agency and/or party and so was entitled to the immunities and defenses set out in 42 Pa.C.S.A. § 8501 et seq. SEPTA contends that (1) the relevant authority to support the proposed defenses did not exist at the time the original answer was filed; (2) refusal to allow an amended answer would require a waiver of those defenses; (3) no inconvenience or delay would result from allowing the answer to be amended; and (4) the amended answer was in conformity with Rule 1033 of the Pa.R.Civ.P.*fn2

Appellant SEPTA argues that Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986), settled the issue of whether SEPTA was a Commonwealth agency. As the Carpitellas point out, however, this point does not seem to have been in great dispute. In Feingold, the Pennsylvania Supreme Court affirmed this court's ruling on that issue. The superior court's decision had been handed down before SEPTA's answer was originally filed. The court relied on a federal

[ 368 Pa. Super. Page 156]

    court decision, Crilly v. SEPTA, 529 F.2d 1355 (3rd Cir.1976), also handed down before the answer was filed, as well as the Urban Mass Transportation Law, 55 P.S. § 600.101 et seq. (1980). The decision was not a difficult one. "We have no hesitation in concluding SEPTA was intended to be considered an agency of the Commonwealth." Feingold, 512 Pa. at 579, 517 A.2d at 1276.

Clearly, SEPTA could have relied on the trial court decision and raised the defenses in its original complaint. The federal district court for the Eastern District of Pennsylvania did so in Toombs v. Manning, 640 F.Supp. 938, 944 (E.D.Pa.1986), a case SEPTA cites in arguing precedent has only recently arisen. However, this does not end our analysis of the case. Whether or not SEPTA's delay in pleading these affirmative defenses will bar it from amending its answer ...


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