FLEMING v. BERARDI, 441 F.2d 732 (3rd Cir. 1971)

Margaret Ann FLEMING, a minor, by her Guardian, Alvin H. Frankel, and Robert Fleming Gladys, his wife v. Donna BERARDI and Anthony Berardi, Appellants. Adele ROCKEY v. Beryle A. RAYMOND, Third-Party Defendant.

No. 18938.United States Court of Appeals, Third Circuit.Argued February 4, 1971.
Decided April 29, 1971.

William T. Campbell, Swartz, Campbell Detweiler, Philadelphia, Pa. (William J. McKinley, Jr., Philadelphia, Pa., on the brief), for appellants.

David I. Grunfeld, Steinberg, Greenstein, Richman Price, Philadelphia, Pa., for appellees.

Before McLAUGHLIN and VAN DUSEN, Circuit Judges and HANNUM, District Judge.

OPINION OF THE COURT
PER CURIAM:

On review of the record, showing, inter alia, that the appeal challenges a district court order denying a motion to dismiss the action, we do not reach the merits.[1]

In accordance with Commonwealth of Pennyslvania v. Brown, 3 Cir., 373 F.2d 771, at 776, where the court said:

“It is settled that denial of a motion to dismiss, even when the motion is based on jurisdictional grounds, is not immediately reviewable.” Catlin v. United States, 324 U.S. 229, 236, 65 S.Ct. 631, 635, 89 L.Ed. 911 (1945).

for lack of an appealable order, this appeal will be dismissed.

[1] Appellants urge the applicability here of Groh v. Brooks, 421 F.2d 589 (3d Cir. 1970), which held merely that the District Court was justified in its discretion in dismissing the complaint without prejudice to its reinstatement if defendants did not in fact waive the statute of limitations in the state court under the facts in that case. The state court had not refused to hear the case as here.

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