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WERTHEIMER v. FRANK

May 28, 1962

Frederick P. WERTHEIMER, Administrator of the Estate of Vincent Kozak, Deceased, a/k/a Vincenty Kozak
v.
Herbert B. FRANK and Metropolitan Hospital, Inc.



The opinion of the court was delivered by: DUSEN

This action has been brought by the administrator of the Estate of Vincent Kozak, who died on July 18, 1960, at Metropolitan Hospital while a patient under the case of defendant Frank. The Complaint alleges that the death was caused by the joint and several negligence of the defendants and demands damages therefrom. The jurisdiction of the court is based on diversity of citizenship.

The matter is presently before the court on the Motion of Metropolitan Hospital, Inc. (hereinafter called 'Metropolitan') for Summary Judgment on the ground that it is an eleemosynary institution, was engaged solely in charitable operations at the time of the occurrence in suit, and is, therefore, immune under the applicable Pennsylvania law from liability alleged in this suit.

 Plaintiff does not dispute the fact that under Pennsylvania law a public charitable institution is not liable for the torts of its servants, employees and agents. *fn1" Plaintiff contends that defendant corporation is not a public charitable institution, *fn2" but admits that, if this record contained relevant, undisputed facts surrounding the activities of defendant corporation and the only issue remaining was whether or not it was a charity entitled to the immunity doctrine, the court could determine as a matter of law whether or not the immunity existed. See Fortugno v. Trachtenberg, 202 F.Supp. 177 (E.D.Pa.1962). *fn3" It is plaintiff's contention that the record shows disputes as to material facts relating to defendant hospital's activities and that, therefore, the court cannot determine, as a matter of law, the status of the defendant corporation as to its immunity under the applicable law.

 The record shows that the undisputed facts include the following:

 1. Metropolitan was organized as a non-profit corporation.

 3. The corporation has no stockholders.

 4. The trustees of the corporation are not paid salaries for services in that capacity.

 5. The corporation pays out no amounts called 'dividends.'

 6. The corporation made a profit during the period from July 31, 1961, to October 31, 1961. The net operating profit for that period was $ 21,616.52 and for the month of October 1961 the net operating profit was $ 16,414.07 (see p. 4 of Exhibit 4 to Document No. 11).

 7. The corporation apparently pays out of its surplus amounts for 'Doctors' 'A' Bond Interest.'

 8. The Capital and Surplus of the corporation as of October 31, 1961, was $ 1,808,180.47. 9. The financial statement includes as a long term debt: "Bonds Payable (5% Debenture) $ 549,400.00 "Bonds Payable (6% Series B) 149,500.00"

19620528

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