Appeal from order of Court of Common Pleas of Erie County, Sept. T., 1959, No. 122, in case of Frank P. Vendetti v. Dr. James L. Schuster.
John G. Gent, with him Curtze, Gent & McCullough, for appellant.
J. S. Jiuliante, Sr., with him Mario P. Restifo, and Jiuliante, Jiuliante, Kelleher & Restifo, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.
The plaintiff, an armed services veteran, was operated on by defendant while plaintiff was a patient in the United States Veterans' Hospital in Erie. Plaintiff's action in trespass was brought on the theory that the defendant's surgery was performed in a negligent manner and resulted in severe damage to the plaintiff's left knee.
Defendant appeals from an Order of the lower Court which dismissed two motions filed by him. Defendant first moved for judgment on the pleadings, based upon his alleged immunity from suit for negligent conduct. Defendant contends that as a surgeon employed by the Government in a Veterans' Hospital, he was engaged in a policy-making function for a Sovereign, and consequently was clothed with the immunity to which officers of the United States are entitled.
Defendant also filed a motion to dismiss plaintiff's action because (1) the complaint failed to state a claim or cause of action upon which relief could be granted, and (2) because ". . . the plaintiff's remedies are limited to an action against the United States under the Federal Tort Claims Act [28 U.S.C., Sec. 1346 et seq.]. . . ."
An Order denying a defendant's motion for judgment on the pleadings and likewise an Order denying a defendant's motion to dismiss is interlocutory: Reading Company v. Willow Development Co., 407 Pa. 469, 181 A.2d 288; Nosal v. Nosal, 410 Pa. 304, 189 A.2d 262; Hair v. Ference, 352 Pa. 164, 166, 42 A.2d 535; Becker v. Saylor, 317 Pa. 573, 576, 177 A. 804; Branna Construction Co. v. West Allegheny Joint School Auth., 414 Pa. 251, 253, 199 A.2d 414. Interlocutory Orders are not appealable, unless expressly made so by statute: Branna Construction Co. v. West Allegheny Joint School Auth., 414 Pa., supra; Reading Company v. Willow Development Co., 407 Pa., supra.
The Act of April 18, 1874, P. L. 64, § 1, 12 P.S. § 1097, relied upon by defendant, is inapplicable because that Act applies only to appeals from a denial of plaintiffs' motions in assumpsit cases: Weste v. Grayson-Robinson Stores, Inc., 417 Pa. 6, 207 A.2d 851; Reading Company v. Willow ...