Appeal from order of Court of Common Pleas of Erie County, Sept. T., 1965, No. 424, in case of John R. Bellotti v. Francis X. Spaeder et al.
Irving O. Murphy, with him MacDonald, Illig, Jones & Britton, for appellant.
John R. Falcone, with him Petrillo, Cavanaugh & Falcone, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Musmanno did not participate in the decision of this case.
This action was brought to recover damages for personal injuries suffered in an automobile accident. The original defendant moved for judgment on the pleadings on the ground that the action was barred by the statute of limitations. From the denial of this motion, the present appeal was filed. It must be quashed.
An order denying a defendant's motion for judgment on the pleadings is interlocutory and is not appealable. McGee v. Singley, 382 Pa. 18, 114 A.2d 141 (1955), and Vendetti v. Schuster,*fn1 418 Pa. 68, 208 A.2d 864 (1965). But it is asserted that a question of jurisdiction is involved, and hence, an appeal lies under the Act of March 5, 1925, P. L. 23, 12 P.S. § 672. This is not correct.
The Act of 1925, supra, allows an appeal "whereever in any proceeding in law or in equity the question of jurisdiction over the defendant or the cause of action for which suit is brought is raised in the court of first instance . . . ." In the instant case, there can be no question of the court's competence to hear the controversy or of its jurisdiction over the person of the defendant after valid service of process. The defense raised does not go to the judicial power of the court as to the cause or its jurisdiction over the person of the defendant, but rather to the mode in which the case is brought before the court.
In personal injury actions, the defense of the statute of limitations does not divest the court of power to hear the action and may be waived by consent or conduct of the parties. It is merely a procedural bar to recovery. Echon v. Penna. R.R. Co., 365 Pa. 529, 76 A.2d 175 (1950), and Goldstein v. Stadler, 417 Pa. 589, 208 A.2d 850 (1965).*fn2