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Foust v. Southeastern Pennsylvania6/29/2000
filed in 1987 and 1988, there were no class action allegations. It was not until January of 1993 that several individuals moved to amend their complaints to add class action claims. Defendants assert that claims for medical monitoring accrued at the very latest by the midpoint of 1986 when news stories about the site were widely disseminated and the federal court action for alleged injuries from PCB exposure had already been filed and was pending for several months. Defendants contend that by failing to limit the class to individuals who have a pending lawsuit in which medical monitoring is sought, the trial court's order adds nearly 2,000 individuals to the litigation after the statute of limitations has run.
Plaintiffs counter, arguing that it was not the court's class certification decision that added the claims of the absent class members; it was the trial court's July 21, 1993, order granting Plaintiffs leave to amend. Because Defendants chose not to appeal the decision permitting amendment, Plaintiffs characterize this argument as specious.
We note that an order granting a motion to amend a pleading is interlocutory and appealable only by permission. See Noll v. Paddock Pool Builders, Inc., 611A.2d 219 (Pa. Super. 1992), reversed on other grounds, 537 Pa. 274, 643 A.2d 81 (1994); Tate v. McFarland, 449 A.2d 639 (Pa. Super. 1982). Consequently, Plaintiffs' assertion that Defendants somehow waived this argument because they failed to appeal the July 21, 1993, order is without merit. Accordingly, we will address the merits of Defendants' argument.
Pa. R.C.P. No. 1033 addresses amendments to pleadings and states in part, "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." Our Supreme Court has recognized that amendments to pleadings under Rule 1033 "should be granted with liberality so as to secure determination of cases on their merits whenever possible." Saracina v. Cotoia, 417 Pa. 80, 83, 208 A.2d 764, 765 (1965). Furthermore, an amendment of a pleading will not be permitted where the effect would be to prejudice the opposing party. Newcomer v. Civil Service Commission of Fairchance Borough, 515 A.2d 108 (Pa. Cmwlth. 1986), petition for allowance of appeal denied, 514 Pa. 626, 522 A.2d 51 (1987). A trial court may not deny a party leave to amend unless unfair surprise or some comparable prejudice will result from the amendment. Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 516 A.2d 299 (1986).
Here, Defendants have not shown how they were prejudiced by the amendment. Prior to the alleged expiration of the statute of limitations, Defendants had notice that they would be defending suits for, inter alia, medical monitoring. Regardless of the amendment, the facts, legal theories and defenses remained the same. Further, the addition of extra plaintiffs did not result in undue surprise on Defendants or, for that matter, add any new causes of action. Finally, with regard to the statute of limitations, we emphasize that class certification does not preclude a defense of statute of limitations as to one or more of the class members. The statute of limitations defense was available, was pleaded by Defendants and can presumably be addressed elsewhere during the course of the litigation. Hence, we conclude that the trial court did not err in granting the amendment.
Next, Defendants argue that the trial court improperly certified the class of medical monitoring claimants. The criteria that must be met for class certification are as follows:
(1) the class is so numerous that joinder of all members is impractica
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