Appeal from judgment of Court of Common Pleas of Northumberland County, Dec. T., 1964, No. 269, in case of Gertrude T. Nolan and Thomas M. Nolan v. Tifereth Israel Synagogue of Mount Carmel, Pa., Inc.
Peter Krehel, with him W. J. Krencewicz, for appellant.
Louis Cohen, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Chief Justice Bell.
On March 9, 1963, Gertrude T. Nolan, wife appellant, fell on the sidewalk in front of appellee's Synagogue building. The fall resulted in personal injuries
of various kinds, including an alleged permanent partial disability of wife appellant's right hand and arm. To recover damages stemming from the alleged fall, husband and wife appellants filed an action of trespass against appellee, alleging that the fall was occasioned by appellee's negligence in failing to maintain the sidewalk in proper repair.
Appellee filed preliminary objections in the nature of a demurrer to appellants' complaint, averring that the complaint lacked sufficiency in stating a cause of action; that the complaint did not constitute a legal claim, and raising the defense of charitable immunity. The court below sustained the demurrer on the sole ground that appellee, being a nonprofit religious organization, was immune from tort liability under the doctrine of immunity of charitable organizations from such liability. The court, however, granted leave to appellants to amend the complaint to cure the defect, if possible. Appellants filed an amended complaint which, while different from the original complaint, made no essential change in the cause of action pleaded. Appellee once again filed preliminary objections in the nature of a demurrer, again raising the issues raised in the preliminary objections to the original complaint.
The second preliminary objections were filed on March 18, 1965, and the court below, on September 27, 1965, sustained the preliminary objections and entered judgment for appellee, again on the sole ground that the doctrine of charitable immunity applied. In the interim, on March 22, 1965, this court filed its decision in Flagiello v. Pa. Hosp., 417 Pa. 486, 208 A.2d 193 (1965).
The opinion of the court below concludes that our decision in Flagiello abrogated the doctrine of charitable immunity only insofar as it related to an action of trespass brought by a paying patient in a hospital.
This position is also taken by appellee in this appeal.*fn1 Appellants, on the other hand, contend that Flagiello intended to, and did, put an end to the ...