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decided: June 24, 1966.


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.

Author: Jones

[ 422 Pa. Page 31]

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

[ 422 Pa. Page 32]

    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 this inquiry. In that order the court stated: "Preliminary objections

[ 422 Pa. Page 33]

    of defendant Temple University sustained. The Complaint as to Temple University is dismissed (Kelley, J.). . . ." It is clear beyond question that Judge Kelley dismissed the complaint against Temple; such action rendered definitive and final the order and an appeal therefrom would have been from a final order.

Love could and should have taken an appeal from the previous order: the failure to do so renders the doctrine of res judicata applicable and precludes the vacation of the order after the time of appeal has passed.

Love relies upon Alexander Estate, 414 Pa. 474, 200 A.2d 865 and unreported opinion in Driver v. St. Joseph's Hospital (E.D. Pa. Civil Action 34521); the former is inapposite and the latter not controlling. Moreover, the policy against "piece-meal determination" of litigation recently expressed in Adcox v. Pa. Manufacturers' Association Casualty Insurance Co., 419 Pa. 170, 175, 213 A.2d 366, has no application to the instant situation.

[ 422 Pa. Page 34]

That the order of August 31, 1961, was an appealable order is clear: Griffith v. United Air Lines, Inc. 416 Pa. 1, 203 A.2d 796; Michael v. Hahnemann Medical College, 404 Pa. 424, 172 A.2d 769; Stouffer v. Morrison, 400 Pa. 497, 162 A.2d 378; Ciletti v. Washington, 378 Pa. 641, 107 A.2d 871. The failure of Love to attack by way of appeal the order of August 31, 1961, renders that order res judicata of his present contention. Cf. Delaware River Port Authority Page 34} v. Pennsylvania Public Utility Commission, 408 Pa. 169, 182 A.2d 682.

In view of the conclusion reached we need not consider Temple's contention as to the propriety of the manner of service of the petition to vacate the order.

Order reversed.


Order reversed.

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