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.
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.
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
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. § 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 ...