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.
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
(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 ...