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BARBARA HULL v. WILFRIDO F. TOLENTINO (02/02/88)

decided: February 2, 1988.

BARBARA HULL, APPELLEE,
v.
WILFRIDO F. TOLENTINO, M.D., APPELLANT



Appeal from the Order of February 3, 1987 of Superior Court at No. 1527 Pittsburgh, 1986, dismissing as interlocutory, the appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 84-8038 entered on October 3, 1986. Pa. Super. , A.2d (1987).

COUNSEL

Gilbert S. Solomon, Solomon & Olszewski, Pittsburgh, for appellant.

Henry H. Wallace, William Peter Chapas, Wallace, Chapas & Associates, Maureen Dunn Harvey, Pittsburgh, for appellee.

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. Nix, C.j., filed a concurring opinion joined by McDermott and Zappala, JJ.

Author: Larsen

[ 517 Pa. Page 329]

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

The issue presented for our consideration by this case is whether a pre-trial order which precludes a party from asserting an affirmative defense is final and thus appealable.

Appellee, Barbara Hull, was injured in an automobile accident on February 25, 1982. Approximately one year later, she executed a release in the amount of $93,000, discharging the driver of the vehicle which struck her and discharging "all other persons . . . who might be liable . . . on account of . . . any and all known and unknown personal injuries and property damage resulting . . . from [the] accident." Appellee was treated for the injuries she received in the accident by appellant, Dr. Tolentino. Appellee filed a

[ 517 Pa. Page 330]

    complaint in trespass against appellant on May 7, 1984, alleging unnecessary and improper surgery. Appellant filed an answer and new matter raising the statute of limitations as a defense. At her deposition in June, 1986, appellee revealed the existence of the aforementioned release. Appellee supplied further details regarding the release when she filed answers to interrogatories on September 4, 1986. On September 24, 1986, without written consent of counsel or leave of court,*fn1 appellant filed an amended new matter, pleading the release as an affirmative defense. The release itself was filed as a second amended new matter on September 30, 1986. Appellee filed a motion to strike appellant's amended new matter and second amended new matter. The Court of Common Pleas of Allegheny County entered an order striking the amended new matter and second amended new matter with prejudice.

Appellant filed an appeal to the Superior Court. The trial court refused to remove the case from the trial list during the pendency of the appeal, and appellant requested that Superior Court issue a stay. Superior Court dismissed the appeal as interlocutory, and appellant applied to this Court for a stay, which was granted. Subsequently, we granted appellant's petition for allowance of appeal, 515 Pa. 607, 529 A.2d 1081.

This Court set forth in Adcox v. Pennsylvania Manufacturers Association Casualty Insurance Co., 419 Pa. 170, 213 A.2d 366 (1965), the rule that a pre-trial order precluding the assertion of an affirmative defense which raised pure questions of law is interlocutory and therefore unappealable; whereas 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 ...


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