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July 25, 1958

Ephraim TOMLINSON, II, Administrator of the Estate of Glenn R. Wenrich, Deceased,
TRUSTEES OF the UNIVERSITY OF PENNSYLVANIA and Franklin X-Ray Corporation and Eugene P. Pendergrass, M.D., and John F. McCarthy, Inc., Third-Party Defendant, and Picker X-Ray Corporation, Third-Party Defendant

The opinion of the court was delivered by: DUSEN

The plaintiff, administrator of the estate of Glenn R. Wenrich, deceased, brought this suit against several defendants, alleging negligence resulting in the death of Glenn R. Wenrich. One of these defendants, the Trustees of the University of Pennsylvania, a duly incorporated non-profit corporation, organized under the laws of the State of Pennsylvania (hereinafter called 'University'), moved for a judgment on the pleadings (Document No. 8 in Clerk's file) and plaintiff moved by petition to strike the University's motion (Document No. 33 in Clerk's file). Plaintiff does not deny that University is a charitable and eleemosynary institution operating a hospital under its corporate powers. *fn1"

The plaintiff's decedent, an electrician and employee of John F. McCarthy, Inc., was killed while installing an intercommunication system in the radiology department of University's hospital, located in Philadelphia, Pa. Paragraph 6 of the complaint alleges that plaintiff's decedent 'was in the crawl space, or above the false ceiling, in the radiology department, when he suffered a severe electric shock from the high voltage lines contained, concealed, and not marked, in the aforesaid 'crawl space." Paragraph 11 of the complaint alleges: 'As a result of the aforesaid severe electric shock, deceased suffered multiple burns which caused him great pain and suffering and resulted in his death on March 16, 1956.'

 The parties agree that the law of Pennsylvania is applicable. In Pennsylvania, an eleemosynary institution is immune from tort liability. Knecht v. St. Mary's Hospital, 1958, 392 Pa. 75, 140 A.2d 30; Bond v. Pittsburgh, 1951, 368 Pa. 404, 84 A.2d 328; Siidekum v. Animal Rescue League, 1946, 353 Pa. 408, 45 A.2d 59; Gable v. Sisters of St. Francis, 1910, 227 Pa. 254, 75 A. 1087.

 In the recent case of Knecht v. St. Mary's Hospital, supra, the Pennsylvania Supreme Court refused to change the existing rule concerning immunity of charitable institutions and specifically stated that it was not the province of the judicial branch of the government to abrogate that rule. It is significant that neither this decision nor any other Pennsylvania appellate decision makes a distinction between corporate and other negligence. Considering the rationale of the rule, the argument that a corporation's negligence, as opposed to the negligence of its servants, should not fall within the rule cannot be sustained. *fn2"

 In all the Pennsylvania cases dealing with charitable immunity, the only one found which raises the question of corporate negligence, as opposed to negligence of a servant, held there was no distinction. Ginty v. Y.M.C.A., 1930, 32 Lack Jur. 29. The recent statement in Knecht v. St. Mary's Hospital, supra (392 Pa. 75, 140 A.2d 31), that 'the immunity of an eleemosynary institution from tort liability has long been the established rule in Pennsylvania' and the reasons for that rule *fn3" prevent this court from accepting, under the facts of this case, plaintiff's contention that there is a distinction between corporate negligence and negligence of a servant of a charitable corporation.

 Paragraph 10 of the complaint alleges that 'the defendants, jointly and severally, maintained and operated said radiology department and the crawl space above, in such a way as to be an ultra-hazardous activity, or a nuisance, to the damage of plaintiff's decedent.' In the absence of any Pennsylvania authority stating that the maintenance of an electric wire leading to X-ray equipment is an ultra-hazardous activity, the case of Knecht v. St. Mary's Hospital, supra, and the Pennsylvania cases holding that an electric company must exercise the highest degree of care, but it not subject to absolute liability, *fn4" preclude any basis for imposition of liability on the above-quoted language of the complaint.

 Viewed most favorable to the plaintiff, paragraphs 4, 7 and 9 of the complaint allege that University was the lessor of the above-mentioned hospital and radiology department, that Dr. Pendergrass, a physician specializing in radiology, was the lessee of, and in complete charge of, this radiology department, and that Dr. Pendergrass had offices located in this hospital. There is no allegation that University makes a profit from this lease, *fn5" or that Dr. Pendergrass uses these offices for purposes other than managing this radiology department. On this record, any rent paid by Dr. Pendergrass may not exceed the expenses of operating this department paid by University in doing its charitable work.

 The case of Knecht v. St. Mary's Hospital, supra, holds that a charity such as University is not liable for its torts Siidekum v. Animal Rescue League, 1946, 353 Pa. 408, 417, 45 A.2d 59, cited with approval in the Knecht case, supra, has made clear that this rule is applicable even though the charity receives compensation for rendering the services for which it is chartered. See, also, Gable v. Sisters of St. Francis, supra. The plaintiff must allege in his brief facts sufficient to support his right to recover and the cases relied on by plaintiff *fn6" only apply where a charitable institution engages in a business normally operated for profit. The conduct of a radiology department of an eleemosynary hospital is not a business normally operated for profit and, even if it were such a business, it is 'directly related to the purpose for which the charity was organized.' See Siidekum case, supra, 353 Pa. at page 417, 45 A.2d at page 63. If plaintiff has evidence of the conduct by University of a business normally operated for profit, he should have placed such an allegation on the record. *fn7"

 The fact that a charitable organization carries liability insurance does not affect its immunity from suit. Siidekum v. Animal Rescue League, supra; Kesman v. Fallowfield School District, 1942, 345 Pa. 457, 29 A.2d 17. In this case, the charitable corporation had an insurance contract which stated, in part, that the insurance company would not avail itself of the charitable immunity defense without written consent. The assistant treasurer of the defendant corporation gave such consent to the attorney for the company on March 26, 1957. He executed the answer to the complaint (which raised such defense) on September 18, 1957. Both these actions were confirmed on November 12, 1957, by the Investment and Insurance Company Committee of the corporation by written resolution. *fn8" On February 25, 1958, the President of University wrote its attorney in this matter, 'the University has directed you, as its attorney, to interpose the eleemosynary defense * * *. This is our considered opinion and decision, and you are respectfully requested to proceed in accordance therewith.' *fn9" At a regular meeting of the Executive Board of University on March 14, 1958, at which a quorum was present, it was resolved that the action of the President, in agreeing 'that the use of the charitable defense in the Wenrich case is absolutely unconditional,' be approved. *fn10" On this record, it is clear that defendant University may raise the charitable defense recognized in the Knecht case, supra.


 And now, July 25, 1958, it is ordered that (1) plaintiff's petition to strike defendant's (Trustees of the University of Pennsylvania) motion for judgment on the pleadings (Document No. 33 in Clerk's file) is denied, (2) the above-mentioned defendant's motion for judgment on the pleadings (Document No. 8 in Clerk's file) is granted, and (3) this action insofar as it ...

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