Appeal from the Order of January 3, 1986, of Superior Court at 866 Philadelphia 1985, affirming the Judgment of the Court of Common Pleas of Montgomery County, Civil Division, at No. 79-23086 entered on March 16, 1984 as modified by Order of May 30, 1985.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Hutchinson, former Justice, did not participate in the consideration or decision of this case. Larsen, J., files an opinion in support of affirmance in which Flaherty and Papadakos, JJ., join. Nix, C.j., files an opinion in support of reversal in which McDermott and Zappala, JJ., join.
The Court being equally divided, the Order of the Superior Court 349 Pa. Super. 115, 502 A.2d 1300 (1986) is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
The issue presented for our consideration in this case is whether a pre-trial order which precludes a party from asserting an affirmative defense is final and thus appealable.
Appellee, Hope Mineo, sustained serious personal injuries as the result of a collision which occurred on January 1, 1978. The vehicle in which she was a passenger was struck in the rear by a dump truck operated by a driver who was employed by appellant, Commonwealth of Pennsylvania, Department of Transportation (PennDOT). Appellee filed a complaint in trespass in the Court of Common Pleas of Montgomery County against PennDOT and several co-defendants. PennDOT filed an answer and new matter raising sovereign immunity as a defense.
During a pre-trial conference held on June 2, 1981, PennDOT argued that appellee's then-discharged attorney had agreed to settle the case on behalf of his client. The court ruled that no settlement had occurred in that appellee did not sign a release and did not accept a settlement check from PennDOT. On October 30, 1981, PennDOT petitioned the court to have the matter marked settled and discontinued, arguing again that appellee's former attorney had agreed to settle the case. PennDOT's petition was denied. On November 28, 1981, PennDOT filed a petition for leave to amend new matter to plead settlement as a defense. PennDOT did not file a praecipe for argument on its petition, as required by local rule of court, until July 9, 1982. Following oral argument on September 14, 1982, the trial court issued an order denying PennDOT's petition for leave to amend new matter. PennDOT did not file an appeal from this order. Instead, PennDOT requested that the court certify its order as involving a controlling question of law for purposes of lodging an immediate appeal. On October 14, 1982, the trial court entered an order denying the requested certification. Pursuant to Pa.R.A.P.Rule 1311 (Interlocutory Appeals by Permission), on October 14, 1982, PennDOT filed a petition for review with Commonwealth Court from the October 14, 1982 order denying PennDOT's request to certify the trial court's September 14, 1982 order denying PennDOT's petition for leave to amend new matter, as involving a controlling question of law, and that petition was denied. No appeal was taken from this denial.
On October 18, 1982, the first day of trial, PennDOT renewed its motion to amend to plead a joint tortfeasor release. The trial court denied this motion. The case was tried by a jury which returned a verdict in favor of appellee in the amount of $2,360,000.00. Eighty-five percent of the negligence was attributed to the dump truck driver who was found to be in PennDOT's employ at the time of the accident. The trial court molded the verdict to include delay damages, interest and costs, and later, reduced the verdict to reflect a joint tortfeasor release entered into between appellee and the driver of another vehicle involved in the accident, co-defendant Tancini. PennDOT, on March 21, 1984, appealed to Superior Court the verdict and the issue raised by the trial court's September 14, 1982 order denying PennDOT's petition to amend new matter to plead a settlement. Superior Court affirmed (per Spaeth, P.J.; Johnson, J.; and Shoyer, JJ.), ruling that the trial court's September 14, 1982 order denying PennDOT's petition for leave to amend new matter was a final order, consideration of which had been waived by PennDOT's failure to take a direct appeal from that order by filing a notice of appeal within thirty days of the date it was entered. We granted PennDOT's petition for allowance of appeal.
In Hull v. Tolentino, 517 Pa. 328, 536 A.2d 797 (1988), this Court stated that a "pre-trial order precluding the assertion of an affirmative defense which 'prevented factual proof of matters which the trier of fact could have determined in favor of the pleader so as to provide him with a complete factual defense,' is final" and thus, appealable. 517 Pa. at 330, 536 A.2d at 798.
It is clear that Superior Court correctly dismissed as waived PennDOT's challenge to the trial court's September 14, 1982 order denying it leave to amend new matter to assert settlement as a defense. Had PennDOT been given leave to amend to plead a settlement, it would have had to prove at trial that a settlement in fact existed. The underlying dispute was ...