Appeal from Common Pleas Court, Franklin County, Honorable William H. Kaye, Judge.
John N. Keller, Patterson, Kaminski, Keller & Kiersz, Waynesboro, for appellants.
Michael E. Kosik, Angino & Rovner, P.C., Harrisburg, for appellees.
Jessie L. Smith, Harrisburg, for Dept. of Transp.
William A. Addams, Fowler, Addams, Shughart & Rundle, Carlisle, for Christine E. Stouffer.
Barry and Palladino, JJ., and Narick, Senior Judge. Palladino, Judge, dissenting.
[ 127 Pa. Commw. Page 612]
Defendant Beverly Neuder appeals an order of the Court of Common Pleas of the 39th Judicial District, Franklin County Branch, which denied her request to amend her new matter to include an affirmative defense.
Plaintiffs Christine Stouffer and her four and one half year old son Jason were injured in an automobile accident when their auto collided with Neuder's on January 18, 1985. The plaintiffs sued both Neuder and the Department of Transportation by writ of summons; the complaint was filed shortly thereafter. Neuder filed an answer and new matter raising a number of defenses not relevant here; she also joined Mrs. Stouffer as an additional defendant. At a deposition of Mrs. Stouffer taken some seven months later, she testified that neither she nor her son were wearing seat belts when the accident occurred. Neuder, on November 23, 1987, sought leave to amend her new matter to include such failure as a defense to the plaintiff's complaint. The trial court denied the request and this appeal followed.
In Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967), the Supreme Court held that an order denying one permission to amend pleadings to include something in the nature of an affirmative defense is a final and appealable order. While there is a current of disenchantment with that holding, Grim v. Betz, 372 Pa. Superior Ct. 614, 539 A.2d 1365 (1988) (concurring opinion by Beck, J.), the order appealed from here is final.
The decision on whether to allow an amendment to the pleadings is within the discretion of the trial court. Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966). That discretion is not unfettered since amendments are to be liberally permitted unless (1) the amendment will surprise or prejudice the opposing party, or (2) the amendment is against a positive rule of law. Berman ...