Appeals from the Orders of the Court of Common Pleas, Lehigh County, Civil Division, at Nos. 84-C-1265 and 84-C-1266.
Joseph G. Manta, Philadelphia, for appellant (at 1203 and 1211) and for appellee (at 1201 and 1202).
Michael J. Piosa, Allentown, for Grim, appellees.
Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, McEwen, Olszewski, Beck, Tamilia and Popovich, JJ. Beck, J., files a concurring opinion. Cavanaugh, J. joins Beck, J., concurring opinion as well as the majority.
[ 372 Pa. Super. Page 616]
This is an appeal from an order denying appellants' petition for leave to file an amended answer, with new matter pleading the affirmative defense of comparative negligence.*fn1 Appellants now contend that the denial constituted an abuse of discretion on the part of the trial court. Upon review of the record, and the briefs of counsel, we now affirm.
This matter arises from an automobile accident which occurred on May 26, 1983, at approximately 6:00 p.m., near the intersection of Route 100 and Spring Creek Road, in Lower Macungie Township, Lehigh County. Appellee Gloria Grim was operating a 1983 Chevrolet Monte Carlo north on Route 100, when a tractor trailer operated by appellant James H. Betz, in his capacity as an employee of appellant Dallas and Mavis Forwarding Company,*fn2 careened out of control on the wet pavement, across the center line of Route 100 into the oncoming lane of traffic, thereby colliding head-on with the Grim vehicle. Richard Grim, Gloria's three year old son, received severe internal injuries, and died later that evening. The remaining occupants of the Grim vehicle, including Gloria; Gloria's seven year old son, Robert; Gloria's sister-in-law, Susan Grim; and Susan's two minor children, Amy, age eleven, and Donna, age six, received injuries of varying severity. Gloria and Susan were occupying the front seat of the vehicle at the time of the accident, while all four minor children were seated in the rear passenger seat. None of the occupants in the Grim vehicle were wearing seat belts or other restraining devices.
[ 372 Pa. Super. Page 617]
On July 25, 1984, two separate suits were filed in the Court of Common Pleas of Lehigh County. In the first action, the named plaintiffs were Larry and Gloria Grim, in their own right, and as the parents and natural guardians of Robert Grim,*fn3 while in the second action, suit was filed by Bruce and Susan Grim, in their own right, and as the parents and natural guardians of Amy Grim and Donna Grim. The named defendants in both actions were James H. Betz, Dallas and Mavis Forwarding Company, Columbus Truck Center, Inc., and the Commonwealth of Pennsylvania, Department of Transportation.*fn4 On February 28, 1985, both complaints were amended to add Freightliner Corporation as a named defendant, by stipulation of the parties.
After pleading and discovery had proceeded for approximately one year, appellants Betz, and Dallas and Mavis, filed a petition for leave to file an amended answer and new matter in both actions, in order to plead the following:
8. After a thorough review of the records and information received from plaintiffs, Betz and Dallas have concluded that use of seatbelts and/or a child restraining seat by the occupants of the plaintiffs' vehicle would have prevented and/or mitigated the injuries suffered by the plaintiffs.
9. Betz and Dallas aver that plaintiffs Gloria Grim and Susan Grim may be liable on each of the minor plaintiffs' claims due to their failure to have their children use seat belts and/or child restraining seats.
10. Betz and Dallas aver that plaintiff Susan Grim and plaintiff Gloria Grim may be comparatively negligent for their failure to wear their seat belts.
11. Betz and Dallas request leave to file an Amended Answer with New Matter so as to join plaintiffs Gloria Grim and Susan Grim as additional defendants under Pa.R.C.P. 2252(d) and also to plead Susan Grim's and
[ 372 Pa. Super. Page 618]
Gloria Grim's comparative negligence as an affirmative defense.
Appellant Freightliner Corporation joined in this petition, and filed a separate memorandum of law. On March 31, 1986, the petition was denied as a "violation of a positive rule of law". All appellants timely appealed, and the appeals were consolidated by stipulation of the parties, pursuant to Pa.R.A.P. 513.
A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.
The courts of this Commonwealth have been liberal in permitting the amendment of pleadings. Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa. Super. 311, 484 A.2d 148, 150 (1984); Tanner v. Allstate Ins. Co., 321 Pa. Super. 132, 467 A.2d 1164, 1167 (1983). Their discretion, however, is not unfettered; a defendant will not be permitted to amend his answer, to plead a new defense, where surprise or prejudice to the plaintiff will result, or where the proposed amendment is against a positive rule of law. Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350, 351-52 (1960); Goodrich Amram 2d § 1033.7.
Appellants contend that the trial court erred in finding that their request to amend, in order to plead a "seat belt defense", was contrary to a positive rule of law.*fn5 Appellants cite to the decision in Parise v. Fehnel, ...