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STRANK v. MERCY HOSPITAL JOHNSTOWN (01/04/54)

January 4, 1954

STRANK
v.
MERCY HOSPITAL OF JOHNSTOWN, APPELLANT



Appeals, Nos. 15 and 17, March T., 1954, from decree of Court of Common Pleas of Cambria County, March T., 1953, No. 81, in case of Mary Catherine Strank, a minor, by John Strank, her guardian, v. The Mercy Hospital of Johnstown and M. John Joseph. Decree reversed; reargument refused February 9, 1954.

COUNSEL

Leonard Shapiro, with him Edward J. Harkins, Robert J. Wharton and Harkins & Wharton, for appellants.

Frank P. Barnhart, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 376 Pa. Page 307]

OPINION BY MR. JUSTICE CHIDSEY

These two appeals were taken by the respective defendants, under the Act of March 5, 1925, P.L. 23, 12 PS ยง 672, from an order of the court below refusing to dismiss an action of mandamus for want of jurisdiction.

As the merits of the case are not involved in this appeal, it is not necessary to state the facts in detail. The complaint in mandamus sets forth that the plaintiff enrolled as a student nurse and paid the expenses incidental thereto, at the defendant institution, The Mercy Hospital of Johnstown. This institution conducts a School of Nursing in conjunction with its primary purpose of maintaining a hospital in Johnstown, Pennsylvania. She alleges that after having successfully completed the work prescribed for the first two years, she was dismissed from the School of Nursing in her third and final year of training because she had broken a rule of the school in remaining away overnight without permission. The rules provided that an infraction of any of them would automatically cause the dismissal of the student from the nursing school and in the event of such dismissal no transfer

[ 376 Pa. Page 308]

    of credits of such student nurse would be given. The other defendant, known in this proceeding as M. John Joseph, occupied the position of Director of Nurses and was joined as a defendant in accordance with Pa. R.C.P. No. 1094 (b) as the particular person concerned in the performance of the act or duty.

By her complaint, the plaintiff sought to obtain a judgment against both defendants, commanding them to give to her transfer credits for the two years' work she had completed in order to secure advanced standing in some other nursing school. She does not seek reinstatement as a student in the school of Nursing and in fact acquiesces in the action of defendants in dismissing her from the school.

From the petition raising a question of jurisdiction under Pa. R.C.P. 1017(b)-1 and the answer filed thereto by the plaintiff, it is admitted by the plaintiff that The Mercy Hospital of Johnstown is a non-profit corporation, incorporated under the laws of Pennsylvania, operating a school of nursing for the education and training of nurses. It is also admitted that Mercy Hospital is a privately conducted institution, which receives no State aid, having a Board of Incorporators, a Board of Directors and a Board of Managers. Although the averment in the petition that defendant is a private institution, receiving no State aid, was not specifically admitted, an averment of lack of knowledge is not a sufficient denial under Pa. R.C.P. 1029 (c) when it is manifest from the fact averred in the pleading that the means of proof are matters of public record. If a defendant has no ...


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