concurring and dissenting:
Appellee brought suit for $10,958. The complaint divided this claim into five items. By his amended complaint appellee withdrew one item of $2,000, and another of $167; at trial he withdrew a third item of $2,500. That left $6,291, made up of an item of $5,000 for engineering services, and $1,291 for expenses. The lower court ruled that appellant’s answer to the amended complaint was ineffective to deny appellee’s claim for both of these items, and therefore directed the jury to return a verdict in appellee’s favor in the amount of $6,291. As to the $5,000 claim, the majority affirms; as to the $1,291 claim, it reverses, and orders a new trial. In my opinion we should reverse and order a new trial *576as to both claims. In support of this opinion, I should like to offer two arguments.
1
Appellee’s suit is based on a written agreement, a copy of which appellee attached to his complaint. The agreement was between appellant and the Commonwealth of Pennsylvania. By the agreement appellant undertook to design and develop a better truck for railroad freight cars. The agreement stated that appellee would be responsible for “[engineering, design, r and d, testing” at the rate of “100 man days at $100/day,” or $10,000. R. 24a. Paragraphs, 3, 4, and 5 of appellee’s complaint alleged these facts; paragraph 5 also alleged that “[w]hile [appellee] performed the work, he has only been paid the sum of Five Thousand Dollars ($5,000.00) of that amount [i. e., of the $10,000 promised].” Appellant answered each of these paragraphs of the complaint as follows:
Paragraph 3 [4, and 5] is denied in that after reasonable investigation, he [sic; appellant is a corporation] is without knowledge or information sufficient to form a belief as to the truth of the averment and proof thereof is demanded at trial of this case.
In answering in this manner, appellant copied the formula stated in Pa.R.Civ.P. 1029(c), which provides in part that
[a]n averment shall be deemed to be denied if proof thereof is demanded and the pleader states that after reasonable investigation he is without knowledge or information sufficient to form a belief as to the truth of the averment .
In explaining why it held appellant’s answer insufficient, the lower court noted that both the agreement between appellant and the Commonwealth and the answer to appellee’s complaint had been signed by appellant’s president. “It seems to us incredible,” said the court, “that [appellant] as a party to said documents and the party responsible for carrying out the building of the prototype should be so completely ignorant of what transpired in that process of *577construction as to be unable to answer the clear and simple allegations of the Complaint.” R. 96a. The majority expresses its agreement with this statement, quoting from — as did the lower court — a passage from Goodrich-Amram to the effect that the treasurer of a corporation, who had custody of the corporation books and was responsible for its fiscal affairs, could not credibly plead that after a reasonable investigation he had no knowledge of the corporation’s debts. Majority Opinion at 682-683.
I submit that the passage from Goodrich-Amram does not support the majority’s position but rather demonstrates its error. As the passage makes plain, the question is: Can it be determined from the pleadings alone that the defendant’s statement is incredible? In the example of the corporate treasurer, the answer is that it can be so determined. In the present case, however, the answer is that it cannot be so determined. The president of a corporation, who has signed an agreement promising that the corporation would undertake certain work, may or may not be in a position to know whether the work has been done. To appraise the president’s position one must know the answer to such questions as: Where was the work to be done? What reports of it were to be made? In what form were the results of the work manifested? The lower court could not, and the majority of this court cannot, know the answer to any of these questions. If in fact appellee did work 100 hours, where did he do it? And when? And did he ever give appellant any evidence of his work, such as time sheets? If these questions referred to the work or responsibilities of one of appellant’s officers or employees — in other words, to someone arguably comparable to a corporate defendant’s treasurer — then it might be said that the president was in a position to know the answer to the questions, and his denial of knowledge was therefore incredible^ However, here there is no suggestion that appellee was either an officer or employee of appellant, or in any way under appellant’s supervision or control.
*578In fact, the matter may be stated more strongly: To the extent that any conclusion can be drawn from the pleadings, it is that appellee was not under appellant’s supervision or control, and that whatever work he did do was done on his own, away from appellant’s premises, and without consultation with appellant. In these circumstances, the denial by appellant’s president of knowledge would be not only credible but to be expected.
The indication that appellee worked on his own, and not on appellant’s premises or under its supervision or control, derives from appellee’s claim for expenses. Paragraph 7 of appellee’s complaint alleged:
That the Defendant abandoned the project and failed to carry out the contract so that it was necessary for the Plaintiff to obtain other manufacturers to complete the same. That the cost of the completion of the work left unfinished was One Thousand Two Hundred Ninety-one Dollars ($1,291.00)=
In response to appellant’s preliminary objections in the nature of a motion for more specific pleading — an objection that the lower court sustained — appellee filed an amended complaint, alleging:
Paragraph 7 of the Plaintiff’s Complaint is amended pursuant to Preliminary Objection No. 6. The Plaintiff incurred the following expenses:
(a) Ciccone Welding $ 845.20
(b) J. C. Moore Industries 220.00
(c) DeBolt Transfer, Inc. 55.00
(d) Bearings, Inc. 6.62
(e) Bearings and Transmission, Inc. 31.03
(f) Gilbert Iron and Steel 80.03
(g) Glenn Machine Company 45.00
(h) Roy H. Mecklem 8.41
$ 1291.29
See statements attached hereto and marked Exhibit “A”. R. 43a.
The Exhibit “A” thus referred to is reproduced in the record. R. 45a-^49a. It includes: six invoices, each addressed to appellee at his home address; two checks, each drawn to *579Ann L. Scales (presumably appellee’s wife) on her bank account; two receipts, each by a lumber, hardware and building supply firm, addressed to no one but acknowledging payment in cash; one receipted bill for items “Sold To” appellee (no address stated); and finally a receipted bill for a cash sale, with an address on it but no name identifying whose address it is. It therefore appears that appellee worked out of his home, and made purchases on his own, without consultation with appellant. The majority acknowledges that it was proper, i. e., credible, for appellant’s president to say that after investigation he did not know about appellee’s expenses. This acknowledgment, it seems to me, should carry the majority to the further conclusion that so was it credible for appellant’s president to say that after investigation, neither did he know about appellee’s services.
2
A second argument also leads to the conclusion that the new trial should not be limited to appellee’s claim for expenses but should extend also to appellee’s claim for services.
In arguing that appellant’s answers were insufficient, appellee’s counsel stated to the lower court that he was “askpng] for judgment on the pleadings.” R. 85a. Appellant’s counsel first objected — properly—that a motion for judgment on the pleadings should not be made after the jury was sworn and after the plaintiff’s opening statement. Id. When the court responded that it did not agree “with your analysis of the situation,” id., appellant’s counsel asked leave “at this time to amend the Answer so as to include specific denials of the items in question.” R. 86a. Appellee’s counsel objected, and the court sustained the objection. Id. This, in my opinion, represented an abuse of discretion:
When the nature of the claim and the defense is such that it is likely that Rule 1029(c) applies, the court will give the defendant leave to amend and will not give judgment on the pleadings.
*580Goodrich-Amram, supra, at p. 281.
Unless the other party will be prejudiced, leave to amend should be liberally granted. Id. § 1033:1.
In response to this argument the majority says that the lower court did not abuse its discretion because “the right to amend is not absolute and may be denied when necessary, as here, to prevent dilatory tactics.” Majority Opinion at 683, footnote 6. One difficulty with this response is that it depends upon the assumption that appellant was engaged in “dilatory tactics”; for reasons I have just discussed, that assumption is, I believe, unwarranted. There is a further difficulty, however. It seems to me that the parties have been dealt with unevenly. A strict view has been taken of appellant’s practice, but a lenient view of appellee’s. If appellee had been dealt with as strictly as appellant, his motion for judgment on the pleadings would have been denied as too late. Why should appellant’s request to amend be denied, but appellee’s motion for judgment on the pleadings be construed as a motion for directed verdict? At least, why should not appellant’s request to amend be allowed now? No doubt the lower court thought that a trial would be avoided, and time therefore saved, by denying appellant’s request to amend. In fact, however, the lower court was in error, for a trial will be necessary after all, at least as to appellee’s claim for expenses. Given this fact, would it not be the fairer course to permit appellant to amend its answer, and order that the trial proceed on both the claim for expenses and the claim for services? I think it would be.
Accordingly, I should reverse and remand to the lower court with instructions to permit appellant to amend its answer, after which the case should proceed to trial.