The opinion of the court was delivered by: CLARY
The matter is before the Court on a motion of defendant, Community Memorial Hospital, to dismiss for failure to state a claim upon which relief can be granted. Jurisdiction of the Court is based upon diversity of citizenship. The suit is one for personal injuries claimed to be sustained as a result of the negligence of the defendant, Community Memorial Hospital, and the operating surgeon during the performance of an operation upon the plaintiff.
The ground for the motion to dismiss is based upon the allegation that defendant, Community Memorial Hospital, is a charitable institution and under the law of Pennsylvania, the controlling law in this action, is immune from suits for negligence.
Both parties to this motion have adduced facts in support of their respective positions. The allegation on behalf of the Community Memorial Hospital is that it is a charitable institution. This averment has been categorically denied by the plaintiff. It would appear, therefore, that the holding of the Court of Appeals for the Third Circuit in the case of Frederick Hart & Co., Inc. v. Recordgraph Corporation, 169 F.2d 580 (1948), and following cases, would present an insurmountable barrier to the granting of this motion which, in effect, under the present status of the record, is to be considered as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, Title 28 U.S.C.A., Funk v. Peoples Natural Gas Co., 137 F.Supp. 625 (W.D.Pa.1956). However, at argument, counsel for the plaintiff conceded that every relevant fact, except the amount of liability insurance protecting the hospital at the time of the incidents complained of, has already been established of record, and the only additional facts which might be developed in the future would necessarily have to be the result of a 'fishing expedition', and that plaintiff had no present knowledge or conception that any further helpful facts would ever be available to him. It was further generally conceded by both plaintiff and defendant, Community Memorial Hospital, that a single question was involved in the disposition of this motion, to wit, whether the determination of the status of the hospital was a question of fact to be submitted to the jury or a question of law to be decided by the Court. The plaintiff argued that even admitting the existence of the doctrine of charitable immunity under Pennsylvania law, under the facts in the instant case, defendant does not qualify as a charity entitled to that immunity. The pleadings, affidavit and depositions established the following undisputed facts:
1. The defendant is a nonprofit corporation, incorporated under the Non-Profit Corporation Law of Pennsylvania, on September 1, 1955. The defendant has no stockholders.
2. The defendant is a forty-six bed hospital serving seven townships in a rural section of Chester County.
3. The hospital was built at a cost of $ 1,200,000, of which $ 600,000. was raised by gifts from the public at large. The mortgage has since been reduced to approximately $ 207,000., again by public donations.
4. The hospital has continued to seek gifts from the public of money, equipment and food. The Community Chests of various communities served by the hospital aid it in its financial needs by donating money. The ladies in the community have conducted various activities in order to raise funds for the hospital.
5. All of the funds received by the hospital are used solely in the maintenance of the hospital.
6. Patients who are unable to pay are treated free of charge in both the accident ward and the hospital itself.
7. From the time it began operations on June 9, 1959, through the period ending September 30, 1961, the defendant admitted a total of 9,214 persons. Of this total, 158 were qualified as indigent patients, and the rest were admitted as either private, semiprivate, or ward full pay. For treating these indigent patients, the hospital received from the State $ 10,410.32, and $ 162.40 from the patients themselves. The services rendered to the indigent patients were valued at $ 13,799.00.
8. The County gives the hospital $ 5,000 each year, in addition to State aid, regardless of the number of patients treated.
9. The defendant has a tax-exempt status under the Federal Income Tax law.
10. The hospital's financial report for the fiscal period ending May 31, 1961, shows an accounting surplus of $ 75,250.00 and a current assets to current liabilities ratio of almost 2.5 to 1.
11. The hospital's financial statement also shows that its total income was $ 3,529.32, short of ...