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ANNE V. KENNEY v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ET AL. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (12/12/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 12, 1988.

ANNE V. KENNEY, ADMINISTRATRIX OF THE ESTATE OF ANNSON KENNEY, DECEASED
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ET AL. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, APPELLANT

Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the cases of Anne V. Kenney, Administratrix of the Estate of Annson Kenney, Deceased v. Southeastern Pennsylvania Transportation Authority, No. 4139 August Term, 1983 and Anne V. Kenney, Administratrix of the Estate of Annson Kenney, Deceased v. Southeastern Pennsylvania Transportation Authority; St. Louis Car Company; National Roll Company; Lukens Inc.; and Joseph Thompson, No. 4055 December Term, 1983.

COUNSEL

Richard C. Biedrzycki, with him, John M. Phelan, Of Counsel: Phillips and Phelan, for appellant.

Andrea J. Chilnic, with her, Charles Jay Bogdanoff, Of Counsel: Gekoski & Bogdanoff, for appellee.

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.

Author: Narick

[ 122 Pa. Commw. Page 2]

The Court of Common Pleas of Philadelphia County denied Appellant Southeastern Pennsylvania Transportation Authority's (SEPTA's) motion for leave to amend its answer and new matter to the complaint filed by Anne V. Kenney as administratrix of the estate of Annson Kenney (Appellee).

The accident in which Annson Kenney was killed occurred December 31, 1981. Appellee filed her original complaint against SEPTA on August 22, 1983. She filed a second complaint*fn1 on December 29, 1983 against SEPTA and various other defendants. SEPTA filed its answer and new matter on January 25, 1984.

Over three years later, on March 9, 1987, SEPTA sought leave to amend in order to assert the defense

[ 122 Pa. Commw. Page 3]

    that Appellee's failure to notify SEPTA of her claim within six months of the date of the accident operated as a bar to her suit under 42 Pa. C.S. ยง 5522. Because of SEPTA's "unexplained and exceedingly lengthy delay in asserting [this] defense," trial court opinion at 3, the trial court denied the motion to amend.

The threshold issue we must address is whether the trial court abused its discretion in denying the amendment.*fn2

It is clear that "[a] party, either by filed consent of the adverse party or by leave of court, may at any time . . . amend his pleading." Pa. R.C.P. No. 1033. Further, Pa. R.C.P. No. 126 provides for liberal construction of the Rules of Civil Procedure. It is equally clear, however, that the decision of whether or not to allow amendment of a pleading is within the discretion of the trial court judge. Commonwealth v. Bethlehem Steel Corp., 486 Pa. 186, 404 A.2d 692 (1979).

The trial court refused to allow amendment here because of the unexplained delay of approximately three and one-half years from the time the complaint was filed. It relied upon Bethlehem Steel (where our Supreme Court upheld this Court's refusal to allow the amendment of an answer to plead a statute of limitations defense over three years after the complaint had been filed) and Hightower v. Bekins Van Lines Co., 267 Pa. Superior Ct. 588, 407 A.2d 397 (1979) (amendment not allowed where two and one-half years elapsed between filing of original answer and amended answer).

[ 122 Pa. Commw. Page 4]

SEPTA argues that the trial court erred because it did not consider whether Appellee had been prejudiced by the delay.*fn3

Prejudice to the opposing party is, indeed, one factor to be considered when amendments are sought. Our Supreme Court in Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972), cert. denied, 409 U.S. 1108 (1973), summarized the relevant concerns:

'All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed . . . .' (Citation omitted) (emphasis in original).

At oral argument, counsel for SEPTA referred us to a recent Superior Court decision which reversed a trial court order denying SEPTA leave to amend its answer one year and seven months after its original answer. Carpitella v. Consolidated Rail Corp., 368 Pa. Superior Ct. 153, 533 A.2d 762 (1987). The trial court had based

[ 122 Pa. Commw. Page 5]

    its decision on SEPTA's undue delay in seeking leave to amend. The Superior Court reversed on the ground that the plaintiffs were unable to show that they were or would be prejudiced by the amendment, noting that it had held in Brooks v. McMenamin, 349 Pa. Superior Ct. 436, 503 A.2d 446 (1986), that a trial court's denial of leave to amend based solely on unreasonable delay was an abuse of discretion. We find Brooks to be distinguishable in that the amendment to the answer in that case was sought six months after the original answer was filed. Similarly, in Tanner v. Allstate Insurance Co., 321 Pa. Superior Ct. 132, 467 A.2d 1164 (1983), upon which the Carpitella court principally relied, the delay involved was six months. Significantly, the court in Tanner distinguished Bethlehem Steel and Hightower on the ground that those cases involved long unexplained delays. In Carpitella, the court acknowledged that delay was the only factor involved in Hightower. It distinguished Bethlehem Steel by noting that, in addition to the three-year delay, discovery had been proceeding following the close of the pleadings, which is also the case here.

We read Tanner, Brooks, and Carpitella together to stand for the proposition that unreasonable delay alone will not ordinarily justify the denial of leave to amend a pleading in the absence of prejudice to the opposing party. However, because this case is factually more similar to Bethlehem Steel, involving a delay of more than three years, during which time the case was being prepared for trial, we will follow our Supreme Court's deference to the trial court's discretion and affirm that court's order denying the petition to amend.*fn4

[ 122 Pa. Commw. Page 6]

Order

And Now, this 12th day of December, 1988, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is hereby affirmed.

Judge MacPhail did not participate in the decision in this case.

Disposition

Affirmed.


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