The opinion of the court was delivered by: FOLLMER
This matter is before the Court on defendant's motion for summary judgment for the following reasons:
(a) Defendant is a public charity and as such immune from liability for negligence.
(b) Plaintiffs, father and minor son, assumed the risk of injury to minor son while playing football and cannot recover for negligence as alleged in the complaint.
The complaint furthermore alleges that the defendant allowed the minor plaintiff to engage in the playing of football without having the consent of the parents of the said minor plaintiff; that the athletic coach negligently ordered and directed minor plaintiff to engage in a football game with the varsity team which consisted of players of considerably greater age, weight, size, and experience; that while so playing football minor plaintiff sustained a fractured collarbone and was otherwise injured.
In denying the various allegations of the complaint last above indicated, the answer avers that the parents of the minor plaintiff consented to have their son play football at defendant's school; that said parents had notice and knowledge of the fact that football was a part of the curriculum and daily activity of the student body of defendant school and that minor plaintiff intended to play and was playing football; that minor plaintiff had voluntarily gone out for the Junior High School team of defendant school and was participating with said squad in supervised blocking and tackling practice with other boys of said Junior High School squad which included grades 7, 8, and 9; furthermore, that while minor plaintiff did sustain a fracture of his collarbone he did not sustain other injuries.
Defendant supported its motion for summary judgment by affidavit of its President, Edward L. Holman. This affidavit sets forth, inter alia, that Carson Long Institute was founded in 1916 by Theodore K. Long to perpetuate the name and memory of his deceased son, William Carson Long, using as a basis for such foundation the New Bloomfield Academy, which was organized in 1936; that in 1920 defendant was incorporated as a nonprofit corporation, under the Act of 1874, April 29, P.L. 73, 15 P.S.Pa. 1 et seq., for the purpose of the education of youth; that no shares in said defendant have ever been authorized or issued by its Board of Directors or under its Charter; that it is managed by a Board of Trustees or Regents and is comprised of a Junior School for Boys in the 6th, 7th, and 8th grades, and an Academic Department for more advanced students seeking preparation for college or other advanced work; that the educational curriculum is conducted in accordance with the standards of the Pennsylvania Department of Public Instruction for public education; that the tuition is considerably lower than other private schools of comparable status in the same area and is geared to cover only the actual cost of keeping and educating a boy at the institution and the maintenance of the buildings and facilities thereon, all of which was made possible by the endowment created by Theodore K. Long and wife. The affidavit sets forth further that there is no restriction on color or creed in the selection of students; that the campus comprises fifty acres of land, much of which was given to defendant by the late Theodore K. Long and Kate C. Long, his wife, shortly before the incorporation. Defendant also owns a three hundred fifty-one acre tract of woodland, part of which is used as a camp site; that defendant has always been considered a charitable educational institution by Perry County Commissioners and placed on list of real estate exempt from taxation pursuant to 72 P.S.Pa. § 5453.202(3); that defendant was treated as a charitable educational organization by the Federal taxing authorities upon the death of Theodore K. Long, whose will endowed the school, and that the school is now on the United States Treasure Department list of exempt institutions for income and estate tax purposes; that because of its charitable nature, defendant carried no liability insurance, but it did provide accident insurance for its students at the parents' expense, which plaintiff, Michael Matute, failed to purchase; that the endowment of defendant institute consists of buildings and land conveyed to defendant by the late Theodore K. Long and Kate C. Long, his wife, and the residue of the estate of Theodore K. Long, comprising securities valued at approximately $ 62,485.37; that the interest from these securities and the small profit from operation are presently being used for the erection of needed buildings; that when the building program is completed it is contemplated that the interest from these securities will be used for the establishment of scholarships for worthy students.
The affidavit was supported by a number of exhibits, including a copy of Charter of defendant institution; letter of Lawrence G. Mohler, Chairman, County Commissioners, Perry County, Pennsylvania; letter of W. F. Blackman, Senior Trust Officer, Girard Trust Corn Exchange Bank of Philadelphia, Pennsylvania; letter of Charles I. Russell, Deputy Commissioner of Internal Revenue, Treasury Department, Washington, D.C.,; application of plaintiff Michael Matute for admission of his son, plaintiff Louis A. Matute, as a student at defendant institution, and finally a copy of prospectus of said defendant.
Plaintiffs, in their brief, indicated that on motion for summary judgment, for the purpose of determining liability of defendant for torts committed by its servants, agents, or employees, they do not question the facts alleged and offered by defendant in its affidavit or in its answers to interrogatories and for that reason they would not file counter affidavits.
Rule 56, Federal Rules of Civil Procedure, 28 U.S.C., relating to summary judgment, provides, in part, as follows:
'(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
'(c) Motion and Proceedings Thereon. * * * The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'
In view of the fact that plaintiffs do not deny the allegations of the affidavit and have filed no counter affidavits, it is obvious that there remains here no material issue of fact. On the basis, therefore, of the admitted facts, is defendant entitled to summary judgment?
Defendant is a corporate citizen of Pennsylvania. The accident which forms the basis of this suit occurred in Pennsylvania. Consequently, the rights and liabilities arising out of the said ...