the slightest suggestion of either. All moneys received are first used for the customary operational expenses and the balance is plowed right back into the institution which, as stated in Mercersburg College, supra, 'may well be regarded as investments in the line of maintenance.'
On the basis of the admitted facts in the complaint, the answers to interrogatories, and the facts set forth in defendant's affidavit accompanying its motion for summary judgment, which are not denied by plaintiffs, I entertain no doubt that defendant is a public charitable institution.
There can be no question that the law of Pennsylvania grants immunity from tort liability to charitable institutions. That this is the fixed public policy of Pennsylvania was made crystal clear in the opinion of the court in Bond v. City of Pettsburgh, 1951, 368 Pa. 404, 407, 84 A.2d 328, 330, where the court stated in part:
'Nothwithstanding the violent criticisms that have been directed by academic legal writers against the doctrine of the immunity of charitable organizations from tort liability, and notwithstanding also the fact that there is considerable conflict in the judicial decisions on the subject among the several States, our own Commonwealth has, from the earliest times, stood firm in its adherence to the principle of immunity. * * *'
The court then quoted from Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087, as follows:
'* * * 'It is a doctrine too well established to be shaken, and as unequivocally declared in our own state as in any other, that a public charity cannot be made liable for the tort of its servants.' * * *'
Finally, it seems clear that under the authority of Rule 56, Federal Rules of Civil Procedure, where the pleadings and admissions on file, together with the affidavit, show that there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law.
In a situation where the opposing party failed to file opposing affidavits, the court in Surkin v. Charteris, 5 Cir., 197 F.2d 77, 79, in particular reference to the scope of Rule 56, said:
'* * * Its purpose is not to cut litigants off from their right to trial by jury. On the contrary, it is to carefully test this, to separate the mere formal from the substantial, to determine what if any issues of fact are present for a jury to try, and to enable the court to expeditiously dispose of cases by giving judgment on the law where the material facts are not in dispute. * * * The sufficiency of the complaint does not control and, although the burden is on the moving party to demonstrate clearly that there is no genuine issue of fact, the opposing party must sufficiently disclose what the evidence will be to show that there is a genuine issue of fact to be tried. * * *'. (Emphasis supplied.)
In view of the above findings, I feel that it is unnecessary to consider defendant's second reason offered in support of its motion for summary judgment, namely, that plaintiffs assumed the risk of injury to minor plaintiff and therefore cannot recover.
The motion for summary judgment will be granted.