Dissenting Opinion by
Judge Palladino:I respectfully dissent.
The issue in this case is whether the court of common pleas abused its discretion by denying a motion to amend the pleadings on the basis of the merits of the proposed defense. The decision to grant or deny an amendment to the pleadings is a matter of judicial discretion. An examination of Pennsylvania cases addressing this issue reveals that a denial of an amendment is justified (1) if surprise or prejudice would result; (2) if the amendment is against a positive rule of law. Posternack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966); *215Tanner v. Allstate Insurance Co., Pa. Superior Ct. , 467 A.2d 1164 (1983).
The Commonwealth moved to amend its pleadings to avail itself of the immunity provisions granted to owners of land in the Recreation Use of Land and Water Act (Recreation Act).1 In our judgment, this case does not fall within the scope of either reason set forth in Posternack for denying an amendment to the pleadings. Allowing the amendment would not result in unfair surprise or prejudice to the plaintiffs in this case (Appellees),2 and there is no settled positive rule of law concerning the applicability of the Recreation Act to the Commonwealth as an “owner of land.” The issue of whether the Recreation Act applies to the Commonwealth has never been addressed by an appellate court, and in his opinion below, Judge Wettick noted that of courts of common pleas which have, two held the provisions of the Recreation Act inapplicable to the Commonwealth and one has held that the Act does apply to the Commonwealth.
Given the lack of appellate precedent on this issue, and the split of common pleas precedent, the court below erred in passing on the merits of the proposed defense, in the context of a petition for leave to amend. When a court makes a determination that a particular defense has no merit, before it allows the defense to be pleaded, the court is simply offering an advisory opinion on a matter that is not yet in the case. Commonwealth of Pennsylvania, Department of Transportation v. Bethlehem Steel Corp., 486 Pa. 186, 189, 404 A.2d 692, 694 (1979) (Manderino, J., dissenting).
*216Although the abuse of discretion issue has not been previously addressed by this Court, the Superior Court has firmly held that it is an abuse of discretion for a court to deny an amendment on the basis of the merits of a proposed defense. Hughes v. Pron, 286 Pa. Superior Ct. 419, 429 A.2d 9 (1981); Tanner. This rule applies even when the proposed defense involves a pure question of law.3 I believe the approach of the Superior Court is correct.
In Posternack, the Pennsylvania Supreme Court held that a denial of a motion to amend, based on the merits of the proposed collateral estoppel defense, was an abuse of discretion. This holding was premised on the idea that an error of law must be patently evident on the face of the amendment to justify the denial. The court found in Posternack that questions of fact needed to be resolved before disposing of the collateral estoppel defense. Because the collateral estoppel defense could not be disposed of as a patently evident error of law, the court found that it was an abuse of discretion to deny the amendment.
Prom this holding, the majority has inferred that a court may deny a motion to amend when the question involved is solely an issue of law. This inference is not acceptable. As stated above, an error of law must be patently evident on the face of the amendment in order to justify its denial. Although the instant case involves a pure question of law, the asserted defense is in no way a patently evident error of law. As noted above, the courts of common pleas have split on the applicability issue, and we have found no prior appellate court decision resolving the question.
The court below abused its discretion in denying the amendment on the basis of the merits of the Com*217monwealth’s proposed defense. I would reverse and remand with an order to the court below to allow the Commonwealth to amend its pleadings and assert the defense of the Recreation Use of Land and Water Act.
Act of February 2, 1966, P.L. (1965) 1860, 68 P.S. §§477-1—477-8.
Only one of the three Appellees opposed the Commonwealth’s motion to amend, and that opposition was premised solely on the issue of applicability.
Tanner held that it was an abuse of discretion to deny an amendment asserting a statute of limitations defense.