Fleming v. Berardi

441 F.2d 732, 14 Fed. R. Serv. 2d 1493

• Court: Court of Appeals for the Third Circuit
• Decided: April 29, 1971
• Docket: No. 18938
• Status: Published

Opinion

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 prejudiee 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.