The opinion of the court was delivered by: LORD, III
Summary judgment has previously been entered against the plaintiffs on Counts 1 and 3 of the complaint. Before the court now is defendants' motion for summary judgment on Count 2.
The second count alleges that plaintiffs operated the Midway Theatre in Allentown, Pennsylvania, from August 15, 1954 until May 23, 1955 when the theatre was destroyed by fire. The complaint further alleges that during this period the defendants conspired against the plaintiffs by refusing to afford plaintiffs the opportunity to bid on first run pictures.
The single issue presented by the defendants' motion is whether plaintiffs are precluded from maintaining this action because they made no demand or request for the license of first run films.
In Milwaukee Towne Corp. v. Loew's, Inc., 190 F.2d 561 (C.A. 7, 1951), the court held that where a conspiracy to refuse to deal with the plaintiff is the basis of an action, the plaintiff must show he made a demand for the product which he was allegedly denied. Subsequent decisions have uniformly followed this rule. See, e.g., Lawlor v. National Screen Service Corp., 270 F.2d 146 (C.A. 3, 1959); Royster Drive-In Theatres Inc. v. American Broadcasting-Paramount Theatres, 268 F.2d 246 (C.A. 2, 1959); Paramount Film Distributing Corp. v. Applebaum, 217 F.2d 101 (C.A. 5, 1954). Cf. Congress Building Corp. v. Loew's, Inc., 246 F.2d 587 (C.A. 7, 1957).
In the present record there is no competent evidence of a demand. Nowhere in the affidavits or depositions of plaintiffs or of their mother, Sarah Rossheim, is there a statement of personal knowledge of a specific demand. An example of the nature of the statements in the affidavits is paragraph 10 of the affidavit of Dorothy Rossheim, one of the plaintiffs:
"During the period of August, 1954 to May, 1955, requests were made to United Artists Corporation, Paramount Film Distributing Corporation, Columbia Pictures Corporation, Metro-Goldwyn-Mayer, Inc., Twentieth Century-Fox Film Corporation, Warner Bros. Pictures Distributing Corporation and Universal Film Exchanges, Inc. for bid forms to be sent the Midway Theatre for first-run Allentown film, and all of these requests were ignored."
General allegations do not raise an issue of fact to prevent an award of summary judgment. See Robin Construction Co. v. United States, 345 F.2d 610, 613 (C.A. 3, 1965); United States v. Mt. Vernon Milling Co., Div. of J. R. Short Milling Co., 345 F.2d 404 (C.A. 7, 1965). The generality and vagueness of the above statement is apparent and typical of other statements. Nowhere are we given a date, the name of the person making such demands or the form and wording of the demand. In addition, there has been no attempt to comply with the requirement of F.R. Civ. P. 56(e) that
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * *"
There is hearsay testimony throughout the depositions of attempts made by plaintiffs' father, Joseph Rossheim, to secure first run films. That Joseph Rossheim told a witness that he made a demand upon a distributor is neither relevant nor competent; only testimony of a demand made by him would be relevant, and that only a witness to the demand could testify to. Admissibility of evidence on a motion for summary judgment is governed by the same rules of evidence applicable at trial. See, e.g., Roucher v. Traders & General Insurance Company, 235 F.2d 423 (C.A. 5, 1956); Chan Wing Cheung v. Hamilton, 298 F.2d 459 (C.A. 1, 1962). We may not consider any testimony which does not affirmatively indicate that the facts related are within the personal knowledge of the witness.
In support of their argument that demands were made, plaintiffs point to one incident involving a Mr. Diamond, a representative of defendant Twentieth Century-Fox Film Corporation. Sarah Rossheim, plaintiffs' mother, testified:
" Q. Now, did you on that trip personally talk to any distributor employee, branch manager or salesman?
" A. I only recall an incident as far as Mr. Diamond from Fox saying, 'Joe - ' meaning Joe Rossheim, 'for heaven's sake, don't ask me for a ...