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ROBERT E. SCHROEDER v. ACCELLERATION LIFE INSURANCE COMPANY PENNSYLVANIA (08/17/88)

filed: August 17, 1988.

ROBERT E. SCHROEDER, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED,
v.
ACCELLERATION LIFE INSURANCE COMPANY OF PENNSYLVANIA, APPELLANT



Appeal from the Order entered July 28, 1987 in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 86-7036.

COUNSEL

Anthony F. Jeselnik, Pittsburgh, for appellant.

Ellen M. Doyle, Pittsburgh, for appellee.

Rowley, Del Sole and Montgomery, JJ. Rowley, J., files a dissenting opinion.

Author: Del Sole

[ 377 Pa. Super. Page 522]

This is an appeal from a trial court order which denied Appellant the right to amend its New Matter to assert as an affirmative defense a three year contractual limitation period.*fn1

[ 377 Pa. Super. Page 523]

The underlying action was initiated on April 18, 1986 when a complaint was filed by Robert E. Schroeder, on behalf of himself and all others similarly situated, against Appellant, Acceleration Life Insurance Company of Pennsylvania. Mr. Schroeder had purchased Credit Life and Disability Insurance from Appellant and had attached a copy of the disability insurance policy to his Complaint. Contained within the policy was language limiting the time in which an action may be brought to "3 years after the time written proof of loss is required to be furnished." On July 14, 1986, Appellant filed an Answer, New Matter and Counterclaim. The contractual limitation period was not referred to in Appellant's pleadings. Appellee replied to Appellant's New Matter and Counterclaim and interrogatories were filed. In December a hearing was held on the Motion for Class Certification. The court granted the certification and identified the class as insureds who made payments to their creditors after April 17, 1980. In accordance with the court's order Appellee filed a proposed form of notice. Appellant filed objections to the proposed notice to class members on February 13, 1987. These objections to the proposed notice made reference to the restriction contained in the contractual limitation. However, it was not until July 10, 1987, when Appellant presented to the court its Motion for Leave to File Amendment to Answer and New Matter which sought to include as an affirmative defense the contractual limitation. The trial court's denial of this motion is the subject of the instant appeal.

A decision to grant a motion to amend a pleading is a matter for the exercise of judicial discretion in the trial court. Kilian v. Allegheny County Distributors, 409 Pa. 344, 347, 185 A.2d 517, (1962). However, amendments to pleadings should be liberally allowed in order to secure a determination of cases on their merits, except in those

[ 377 Pa. Super. Page 524]

    instances where surprise or prejudice to the other party would result, or where the proposed amendment is against a positive rule of law. Posternack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966). Although not dispositive of the issue, long unexplained delay between the original pleading and the motion to amend will be considered as a factor in deciding whether to permit the amendment. Tanner v. Allstate Ins. Co., 321 Pa. Super. 132, 467 A.2d 1164, 1169 (1983).

In denying Appellant's motion to amend the trial court stated:

Counsel for the defendant, as evidenced by the total record in this case, has vigorously resisted the claims asserted herein, both substantively and procedurally, not only in this court but also in the Superior Court, and, in so doing, has proven what Janicik, supra, presumes; this coupled with the defendant's long-time knowledge of the contractual limitation as well as its counsel's acquiring knowledge thereof prior to the filing of the Answer and New Matter evidences a deliberate choice not to raise the defense of the contractual limitation. Having done so we will not permit the defendant to change its position for its sole profit ...


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