Nolan v. Tifereth Israel Synagogue , 425 Pa. 106 ( 1967 )

Opinion by

Mr. Justice O’Brien,

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 Flagietto 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.¹ Appellants, on the other hand, contend that Flagiello intended to, and did, put an end to the doctrine of charitable immunity in Pennsylvania.

Flagiello, of course, dealt specifically with personal injuries suffered by a paying patient in a hospital, and specifically overruled Michael v. Hahnemann, 404 Pa. 424, 172 A. 2d 769 (1961) : “. . . and all other decisions of identical effect.” In concluding the opinion of the court, Mr. Justice Musmanno, speaking for the court, said that we: “. . . hold that the hospital’s liability must be governed by the same principles of law as apply to other employers.”

The decision of this court in Flagiello considered, at great length, the doctrine of stare decisis and the bases upon which established legal principles may be changed. We there said: “. . . that where justice demands, reason dictates, equality enjoins and fair play decrees a change in judge-made law, courts will not lack in determination to establish that change.” In that opinion, justification for a change in the rule was amply supplied, and no reiteration of that reasoning or the legal precedents relied upon is required here.

Mr. Justice Roberts, in his concurring opinion in Flagiello, aptly concluded: “I do not believe that we must in any way ‘penalize’ charities for their mistakes. What I do believe is that, in the proven absence of persuasiveness in any of the arguments advanced for maintaining a rule of law which makes negligent injury suffered at the hands of charitable institutions noncompensable, such institutions should be held to the same responsibility as any other entity. . . . Personal injury is no less painful, disabling, costly or damage-producing simply because negligent harm is inflicted in or by a charitable institution rather than a non-charitable one.”

To hold that Flagiello is limited to the extent found by the court below and contended for by appellee would produce an anomalous situation bordering on the bizarre. We would then be required to say that a paying patient in a hospital could recover for injuries sustained by him as the result of the hospital’s negligence, while a non-paying patient could make no such recovery. We would further be required to say that of all of the charitable institutions in the Commonwealth formerly beneficiaries of the doctrine of charitable immunity, only hospitals had lost the protection and all other charitable institutions retained it. Or, we might be required to say that payment of a fee for service is the criterion upon which a determination of who may recover against a charitable institution in tort is based, if indeed the decision in Flagiello is dependent on the circumstance of the plaintiff’s having been a paying patient. Were such a conclusion reached, we might be required to hold that in cases such as the one at bar involving a religious institution, that a dues-paying member of the congregation could recover while another person not so situated could not, if indeed the organization were set up on the basis of fixed membership dues, as many religious organizations are.

We cannot conclude that our decision in Flagiello did nothing more than remove the protection of the doctrine from hospitals involved in tort litigation with paying patients, and therefore, lest the fact that such a situation was involved in Flagiello remain as a source of confusion, we here hold unequivocally that the doctrine of immunity of charitable institutions from liability in tort no longer exists in the Commonwealth of Pennsylvania.²

The judgment of the court below is reversed, and the cause remanded for further proceedings consistent herewith.

1 Siewicz v. Wyoming Valley Hospital, 417 Pa. 533, 208 A. 2d 238, handed down the same day as Flagiello extended its rule to a nonpaying patient.

2 The Supreme Court of Idaho, in an opinion filed December 18, 1966, did away with the doctrine of charitable immunities entirely in the State of Idaho. That State had previously done away with the doctrine, in so far as it applied to paying patients in hospitals. See Bell v. The Presbytery of Boise, 35 Law Week 2417.