Appeal from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1959, No. 3534, in case of Melville A. Love, administrator of estate of Joseph Arthur Love, deceased v. Temple University, Howard W. Baker, M.D., Thomas M. Durant, M.D., et al.
John J. Dautrich, with him John Francis Gough, and White & Williams, for appellant.
Joseph D. Shein, with him Harold K. Don, Jr., for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno dissents.
M. A. Love, personal representative of the Estate of J. A. Love, deceased, on August 20, 1959, instituted a trespass action in the Court of Common Pleas No. 6 of Philadelphia County against Temple University [Temple], and four physicians. Temple filed preliminary objections on the ground that, as a charitable institution, it was immune from liability for the torts of its servants.*fn1 On August 31, 1961, Judge Bernard Kelley sustained Temple's preliminary objections and dismissed the complaint as to Temple. No appeal from that order was ever taken.
The trespass action against the four physicians is still pending. On March 22, 1965, this Court, in Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193, abolished the doctrine which rendered charitable institutions immune from tort liability. Thereafter, on September 17, 1965, Love secured a rule upon Temple to show cause why Judge Kelley's order of August 31, 1961, should not be vacated and, on March 29, 1966, Judge Kelley vacated his previous order and reinstated Love's complaint against Temple. From that order this appeal has been taken.
The rationale of the court below in vacating its previous order is: (a) that the only right to appeal from an order upholding preliminary objections arises under Pa. R.C.P. 1451(b)(7) which grants the right to appeal only when a jurisdictional issue is involved;*fn2 (b) that, since an appeal from the previous order
would not have raised a jurisdictional issue, such an appeal would have been from an interlocutory, not a final, order; (c) since the order was interlocutory, the court retained the power to vacate or modify such order (Markofski v. Yanks, 297 Pa. 74, 77, 78, 146 A. 569).
The thrust of this appeal is as to the power and authority of the court below to vacate its previous order which, in turn, depends upon the nature of the previous order. Stated otherwise, did the failure of Love to appeal from the previous order preclude an attack four years later on the validity of such previous order?
Whether the previous order of Judge Kelley was appealable depends upon whether such order effectively concluded the instant proceeding against Temple so that it constituted a final order.*fn3 The language of the order of August 31, 1961, fully answers ...