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FRANCIS MARTIN AND BARBARA MARTIN v. DR. P. CALVIN GERNER (08/24/84)

filed: August 24, 1984.

FRANCIS MARTIN AND BARBARA MARTIN, AS PARENTS AND NATURAL GUARDIANS OF JOHN F. MARTIN, FRANCIS MARTIN AND BARBARA MARTIN, H/W IN THEIR OWN RIGHT
v.
DR. P. CALVIN GERNER, DR. ROBERT L. BELL AND CHESTER COUNTY HOSPITAL. (2 CASES) APPEAL OF DR. P. CALVIN GERNER AND CHESTER COUNTY HOSPITAL. FRANCIS MARTIN AND BARBARA MARTIN, AS PARENTS AND NATURAL GUARDIANS OF JOHN F. MARTIN, FRANCIS MARTIN AND BARBARA MARTIN, H/W IN THEIR OWN RIGHT, APPELLANTS, V. DR. P. CALVIN GERNER, DR. ROBERT L. BELL AND CHESTER COUNTY HOSPITAL. APPEAL OF DR. ROBERT L. BELL



No. 3311 Philadelphia, 1981, No. 24 Philadelphia, 1982, No. 198 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 262 May Term, 1981.

COUNSEL

Steven Berk, Philadelphia, for appellants in No. 24 and for appellees in Nos. 198 and 3311.

Daniel J. Zucker, Philadelphia, for appellants in No. 3311 and for appellees in Nos. 24 and 198.

Cavanaugh, Montemuro and Hester, JJ.

Author: Cavanaugh

[ 332 Pa. Super. Page 510]

In this case, the plaintiffs below, Francis Martin and Barbara Martin, as parents and natural guardians of John F. Martin, and Francis Martin and Barbara Martin in their own right, commenced an action in trespass against Dr. P. Calvin Gerner, Dr. Robert L. Bell and Chester County Hospital for alleged medical malpractice. The defendants filed preliminary objections to the amended complaint alleging improper venue and lack of jurisdiction and by order of the court below dated November 6, 1981, the preliminary objections of all defendants were dismissed.*fn1 In addition, the plaintiffs' preliminary objections to the defendants' preliminary objections were overruled. The defendants filed petitions for reconsideration of the order of November 6, 1981. On December 3, 1981, Judge Biunno denied the

[ 332 Pa. Super. Page 511]

    defendants' petition for reconsideration. On December 18, 1981, the court entered the following order:

AMENDED ORDER

AND NOW, this 18th day of December, 1981, it is hereby ORDERED that defendants' Petition for Reconsideration of the Order issued November 6, 1981, is hereby DENIED and further that the issues raised therein regarding improper venue present a substantial issue of jurisdiction.

On December 23, 1981, Dr. Gerner and Chester County Hospital filed their notice of appeal. Plaintiffs below filed their notice of appeal on December 30, 1981, and Dr. Bell filed his notice of appeal on January 4, 1982. All notices of appeal were stated to be from the amended order of December 18, 1981, and all were pursuant to Pa.R.A.P. 311(b)(2). Initially, we must determine if the appeals were timely filed. Pa.R.A.P. 311(b)(2) provides:

(b) Order sustaining venue or personal or in rem jurisdiction. An appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real or personal property if:

(2) the court states in the order that a substantial issue of jurisdiction is presented.

If the thirty day appeal period under Pa.R.A.P. 903 runs from the date of the original order of November 6, 1981, then all appeals were untimely filed and must be quashed. However, in this case it was not until the order of December 18, 1981, that the unappealable interlocutory order of November 6, 1981, became appealable as of right under Pa.R.A.P. 311(b)(2). By that time, the thirty day appeal period would have already expired if the date of November 6, 1981, were considered the date on which the appeal clock commenced running.*fn2 The order of November 6, 1981, was

[ 332 Pa. Super. Page 512]

    interlocutory and unappealable in the absence of an exception to the rule prohibiting appeals from interlocutory orders. To conclude that the time for taking an appeal commenced on November 6, 1981, would obviously be anomalous and indefensible. In the circumstances of this case the appealable order was entered on December 18, 1981, even though it was construed by the court below as an amendment to its earlier order.

We now proceed to dispose of the case on the merits.*fn3 The first issue is whether the court below properly dismissed the preliminary objections of the plaintiffs below to the defendants' preliminary objections. After the complaint in trespass was filed the defendants, Chester County Hospital and Dr. Gerner, filed preliminary objections to the complaint on the grounds that the ad damnum clause was defective. These preliminary objections were later joined in by Dr. Bell. The plaintiffs filed an amended complaint before any disposition was made by the court of the defendants' first preliminary objections. All of the defendants then filed preliminary objections to the amended complaint alleging that the court lacked jurisdiction over the person of the defendants and requesting that the case be transferred to Chester County.*fn4 The plaintiffs filed preliminary objections to the defendants' preliminary objections to the

[ 332 Pa. Super. Page 513]

    amended complaint which the court below overruled by its ...


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