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decided: July 2, 1970.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1968, No. 1933, in case of Beryl E. Hoffman, administrator of estate of Margaret Theresa Sullivan, deceased v. Misericordia Hospital of Philadelphia et al.


David C. Harrison, with him Mitchell A. Kramer, and Kramer and Harrison, for appellant.

Francis E. Shields, with him Dolores B. Spina, and Pepper, Hamilton & Scheetz, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Eagen

[ 439 Pa. Page 503]

This action in assumpsit instituted against the Misericordia Hospital of Philadelphia [Hospital], the American Red Cross and the National Blood Service of Philadelphia seeks damages for death allegedly caused by a transfusion of impure blood.

The Hospital filed preliminary objections to the complaint in the nature of a demurrer, contending that the complaint did not state a valid cause of action. These preliminary objections were sustained in the court below, and the action was "dismissed" as to the Hospital. From this order the plaintiff appealed.*fn1

The complaint alleged, inter alia, that Margaret Sullivan, plaintiff's decedent, was admitted as a medical patient to the Hospital on May 2, 1967, where she remained until May 10, 1967; that during this period the Hospital "sold" to the decedent "for a consideration" quantities of blood which were transfused into her circulatory system; that the blood, in part, was obtained from the Hospital's own blood bank; and that as a result of the transfusions the decedent contracted serum hepatitis, which caused her death on June 29, 1967.

The action is based on the alleged breach by the Hospital of the implied warranty of merchantability and/or the implied warranty of fitness for the particular purpose.

In determining whether a demurrer should be sustained and the complaint dismissed the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible: King v. U.S. Steel Corp., 432 Pa. 140, 247 A.2d 563 (1968); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262

[ 439 Pa. Page 504]

(1951). In considering the demurrer, every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, must be taken to be admitted: Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Mistick v. Cammack, 397 Pa. 296, 154 A.2d 588 (1959). A demurrer does not, however, admit the pleader's conclusions of law: Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964); Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Of course, where the complaint shows on its face that the claim is devoid of merit, the demurrer should be sustained: Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.S. 907, 88 S. Ct. 2063 (1968). But if there is any doubt as to whether the demurrer should be sustained, such doubt should be resolved in favor of refusing to enter it: Sun Ray Drug Co. v. Lawler, supra; Moran v. Bair, 304 Pa. 471, 156 A. 81 (1931).

Whether a hospital should be liable in assumpsit for breach of an implied warranty of merchantability and/or for breach of an implied warranty of fitness for a particular purpose due to death caused by a transfusion of blood containing hepatitis virus is an issue of first impression in the appellate courts of Pennsylvania. Various other states have rendered decisions on or related to this issue, but none has so far explicitly determined that a hospital is liable for such an occurrence.

In most instances, liability of the hospital has been denied on the authority of Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E. 2d 792 (1954).*fn2 The

[ 439 Pa. Page 505]

New York Court of Appeals (in a 4-3 decision) there reasoned that the transfer of whole blood for the purpose of transfusion, even for a consideration, is an incident to the paramount function of the hospital of providing medical services by making available the human skill and physical material by means of which the patient's health may be restored. Thus the overall contractual relationship between the hospital and the patient is viewed as one for services to which concepts of sale are not applicable, even with respect to transfers of individual healing materials for separate consideration. The Majority of the Court further reasoned that implied warranties of merchantability and fitness for a particular purpose arise from sales, and thus concluded that no such warranties could arise in this situation.*fn3

The Perlmutter analysis has been criticized,*fn4 questioned*fn5 and rejected.*fn6 Some courts, including possibly

[ 439 Pa. Page 506]

    those in New York itself (see Carter v. Inter-Faith Hospital of Queens, 60 Misc. 2d 733, 304 N.Y.S. 2d 97 (1969)), have followed Perlmutter as to hospital defendants but have rejected it as to commercial blood banks.*fn7

Although one Pennsylvania case,*fn8 involving a construction agreement, does seem to require the existence of a technical sale before implied warranties may arise, in many cases*fn9 we have implied warranties in non-sales transactions. Although these cases were decided prior

[ 439 Pa. Page 507]

    to our adoption of the Uniform Commercial Code,*fn10 that enactment did not intend to impede the parallel development of warranties implied in law in non-sales situations.*fn11 We therefore do not feel obligated to hinge any resolution of the very important issue here raised on the technical existence of a sale. In this respect, we agree with the following statement made by a court of a sister state: "It seems to us a distortion to take what is, at least arguably, a sale, twist it into the shape of a service, and then employ this transformed material in erecting the framework of a major policy decision": Russell v. Community Blood Bank, Inc., 185 So. 2d 749, 752 (Fla. Ct. App. 1966). In view of our case law implying warranties in non-sales transactions, it cannot be said with certainty that no recovery is permissible upon the claim here made, even if it should ultimately be determined that the transfer of blood from a hospital for transfusion into a patient is a service: See also, Note, A New Principle of Products Liability in Service Transactions, 30 U. Pitt. L. Rev. 508 (1969). It was therefore error for the lower court to have sustained the preliminary objections in the nature of a demurrer

[ 439 Pa. Page 508]

    on the authority of Perlmutter on the present record*fn12 without sufficient inquiry as to whether the policies for which warranties are implied in law would be furthered by their implication in this situation.

Because we feel that recovery was not certainly precluded whether one characterized the transfer of the blood a sale or a service, we do not deem it essential or, due to the sparsity of the record at this stage of the litigation, wise to decide this question at this time. Nevertheless, recognizing that the law in the area of products liability is in a state of flux, we wish to make clear what this decision does not mean. We do not decide that the extent of the warranties implied at common law in non-sales situations need necessarily be the same as those given statutory sanction in sales transactions under the Uniform Commercial Code, supra: Compare the cases cited in footnote 9 with Vlases v. Montgomery Ward & Company, 377 F. 2d 846 (3rd

[ 439 Pa. Page 509]

Cir. 1967). Nor do we decide that all types of sales transactions in all situations necessarily give rise to warranties of the same extent,*fn13 or whether any duty existed on the part of the hospital or the physician to warn the patient of any risk that may exist in the performance of the blood transfusion due to hepatitis virus.*fn14

[ 439 Pa. Page 510]

We do note that in several jurisdictions liability of the hospital has been denied, at least in part, because of the existence of the defense of charitable immunity in those cases: Gile v. Kennewick Public Hospital District, 48 Wash. 2d 774, 296 P. 2d 662 (1956), 59 A.L.R. 2d 761 (1958); Koenig v. Milwaukee Blood Center, Inc., 23 Wis. 2d 324, 127 N.W. 2d 50 (1964). Cf. Goelz v. J. K. & Susie L. Wadley Research Institute and Blood Bank, 350 S.W. 2d 573 (Tex. Civ. App. 1961). In Pennsylvania, a hospital, although a charitable organization, is subject to liability to a paying patient who suffers personal injuries as the result of the hospital's negligence: Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965). We have also held unequivocally that the doctrine of immunity of charitable institutions from liability in tort no longer exists in the Commonwealth of Pennsylvania: Nolan v. Tifereth Israel Page 510} Synagogue, 425 Pa. 106, 227 A.2d 675 (1967). We express no opinion at this time, however, whether any such immunity should exist to causes of action based on the contractual warranties here in issue: See Forrest v. Red Cross Hospital, 265 S.W. 2d 80 (Ky. 1954). Nor do we express any opinion as to any other defenses that could exist to causes of action in warranty, such as assumption of risk or break in the chain of proximate causation: See Jackson v. Muhlenberg Hospital, 96 N.J. Super. 314, 232 A.2d 879 (Law Div. 1967).

We do, however, feel that all of these issues are pertinent to a proper disposition of the cause of action here stated, and we encourage the parties to explore them so as to provide the lower court and/or jury with adequate information upon which to make a decision in conformity with this opinion.

The Order of the lower court is vacated and the record is remanded for further proceedings consistent with this opinion.


Order of lower court vacated and record remanded.

Dissenting Opinion by Mr. Chief Justice Bell:

I disagree with a number of factual statements as well as legal principles and conclusions of law set forth in the Majority Opinion. Moreover, I particularly dissent because of my continued very strong opposition to Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193, and Nolan v. Tifereth Israel Synagogue, 425 Pa. 106, 227 A.2d 675, for the reasons emphatically set forth therein.

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