dissenting:
I respectfully dissent because in my opinion the appeal is interlocutory and should be quashed.
The Pennsylvania Supreme Court has addressed the question of the appealability of a pre-trial order denying a motion to amend an answer and/or new matter, or striking new matter which raised an affirmative defense, and has repeatedly held that such an order is final if it precludes *526proof of factual matters which the fact finder could have determined in favor of the defendant thereby establishing a complete factual defense. However, where the pre-trial order merely precludes a legal defense which does not require proof of disputed facts to establish the legal defense, the order is interlocutory.
This rule was first set forth in Adcox v. Pennsylvania Manufacturers Association Casualty Insurance Co., 419 Pa. 170, 213 A.2d 366 (1965). In Adcox, new matter of the defendant was stricken, and an immediate appeal was taken from the order striking the new matter. The substance of the new matter was that the defendant was immune from liability under a workmen’s compensation insurance policy because the injury occurred beyond the scope of the Workmen’s Compensation Act inasmuch as it was due to the alleged failure of the company to inspect the machine which caused the injury, which inspection the company was not required to perform. The appellee filed a motion to quash the appeal as interlocutory. The court held that the order striking the new matter was interlocutory because it raised exclusively a legal question as to whether there was a duty to make the inspection and the status between the employer and the defendant insurance company. The court expressly distinguished Adcox from prior cases in which
the striking of new matter prevented factual proof of matters which the trier of fact could have determined in favor of the pleader so as to provide him with a complete factual defense.
Adcox, Id., 419 Pa. at 174, 213 A.2d at 368. Therefore, the appeal was quashed.
Recently, in Hull v. Tolentino, 517 Pa. 328, 536 A.2d 797 (1988), an appeal was taken from an order striking a defendant doctor’s new matter which had raised the affirmative defense of a release from liability. Although there is only a plurality opinion of three justices in this case, all six justices participating in the decision agreed that the issue raised by the doctor’s new matter presented only a question of law, *527and for that reason, the order precluding him from raising the legal defense was interlocutory.
The same day that Hull was decided, the Supreme Court also handed down its decision in Mineo v. Tancini, 517 Pa. 335, 536 A.2d 1323 (1988). Mineo involved an appeal from a final judgment which raised the issue of whether a pre-trial order which had denied the defendant permission to amend its new. matter to assert the affirmative defense of settlement was a final or interlocutory order. The three justices who joined in the Opinion in Support of Affirmance applied the rule that if the determination to preclude the amendment to new matter raised a factual issue, then the order denying permission to amend the new matter was final and had to be appealed, if at all, within 30 days of the entry of the order. Because the new matter which the defendant wanted to include in the new matter was a settlement by the plaintiff, and because this raised a factual question as to whether or not the prior settlement which had been reached had been authorized by the plaintiff, the Opinion in Support of Affirmance determined that the order denying permission to amend the new matter was final and appeal-able. The plurality further determined that since no appeal was taken from the pre-trial order denying permission to amend the new matter until after judgment was entered on the jury’s verdict, the issue of whether the court erred in denying permission to amend the new matter to raise the affirmative defense had been waived.
The three justices who joined in the Opinion in Support of Reversal did not address the issue of whether the order denying permission to amend the new matter was final or interlocutory. Rather, they stated that assuming the order was final and appealable, they would still reverse because the appellant had in fact tried to take an appeal from the order immediately after it was entered, but the Commonwealth Court had denied them the opportunity to do so. Therefore, they would not consider the issue of the propriety of the order denying permission to amend the new *528matter to have been waived for failure to take an immediate appeal from the order relating thereto.
Based on this review of the Supreme Court’s decision in Adcox, Hull and Mineo, it is my opinion that the rule initially established in Adcox has not been abandoned or abrogated by the Supreme Court. Although neither Hull nor Mineo is a majority decision, the Adcox rule appears to have been at least implicilty followed by a majority of the court in Hull, and although not applied by a majority in Mineo, it also was not rejected by any of the justices. The majority in the present case do not apply the Adcox rule, but instead rely on Joyce v. Safeguard Mutual Ins. Co., 362 Pa.Super. 522, 524 A.2d 1362 (1987), in which an en banc panel of the Superior Court decided that an order precluding a party from presenting an affirmative defense based on the statute of limitations was final and appealable because it put the defendant out of court on that defense.
In my opinion, we cannot ascertain definitively from the published decision in Joyce whether or not the Adcox rule was in fact followed. In Joyce, the defendant did not file any answer to the complaint. Eight days before the case was scheduled to be heard by a board of arbitrators, defendant filed a motion to file an answer and new matter in which it wanted to raise the statute of limitations as a defense. The motion was denied, and an appeal was immediately taken. On appeal, appellant argued that the trial court erred as a matter of law when it denied the motion as untimely without consideration of whether there was any prejudice. After noting that an appeal will lie only from a final order, the court en banc set forth its entire discussion of the appealability of the order in question as follows:
Our study of whether an order is final and appealable must go beyond the technical effect of the order to an examination of the practical ramifications of the ruling. That study here requires a finding that the order is sufficiently final to allow review, since the refusal to allow appellant an opportunity to present the proposed affirmative defense of the statute of limitations put ap*529pellant “out of court” as to that defense. (Citations omitted.) Having determined that the order was final and appealable, we proceed to consider the merits of the appeal. (Emphasis added.)
Joyce, Id., 862 Pa.Superior Ct. at 525, 524 A.2d at 1363.
It cannot be determined from the limited facts recited in Joyce if the court’s order refusing to allow the defendant in Joyce to raise the statute of limitations defense “prevented factual proof of matters which the trier of fact could have determined in favor of the pleader so as to provide him with a complete factual defense.” Whether a statute of limitations defense is a legal or factual question depends on the circumstances of each case. As we stated in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 139, 471 A.2d 493, 502 (1984), “Whether the statute of limitations has run on a claim is usually a question of law for the judge; however at times, a factual determination by the jury may be required.”
In light of the fact that we cannot determine that the defense which was precluded in Joyce raised only a legal issue, only a factual issue, or a mixed question of law and fact, and despite the fact that the court in Joyce did not expressly apply the Adcox rule, I think it is inappropriate to presume that the Supreme Court’s Adcox rule was not in fact followed in Joyce. Moreover, if it could be determined that Joyce did not follow the Adcox rule, in my opinion we would nevertheless be bound to follow the Adcox decision especially in light of the the Supreme Court’s subsequent decision in Hull in which all of the justices agreed on at least the narrow issue that because the pre-trial order precluding pleading of an affirmative defense raised only a legal issue, the pre-trial order was interlocutory. Therefore, I would apply the Adcox test to the facts of the present case to determine whether or not the order appealed from is interlocutory or final.
In the present case, appellant was precluded from amending its new matter to raise the affirmative defenses of the statute of limitations and contractual limitations. However, *530in the proposed amendment to the new matter, no factual allegations are set forth. Rather the only assertion in the proposed new matter is the legal conclusion that the claims are precluded by the period of limitations described in the insurance summary and by the statute of limitations, 42 Pa.C.S. § 5525(8). Appellant does not argue, and my review of the record does not reveal that the order denying appellant permission to amend its new matter raises any factual issues. Therefore, I would quash the instant appeal.