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COMMONWEALTH PENNSYLVANIA BY ATTORNEY GENERAL ISRAEL PACKEL v. FRANTZ ADVERTISING (03/03/76)

decided: March 3, 1976.

COMMONWEALTH OF PENNSYLVANIA BY ATTORNEY GENERAL ISRAEL PACKEL, PLAINTIFF
v.
FRANTZ ADVERTISING, INC., ARTHUR WILLIAM FRANTZ, LAWRENCE SWARTZ, J. O. SWARTZ AND FRATERNAL ORDER OF POLICE FORT-PITT LODGE NO. 1, DEFENDANTS



Original jurisdiction in case of Commonwealth of Pennsylvania by Attorney General Israel Packel, Plaintiff v. Frantz Advertising, Inc., a corporation, Arthur William Frantz, Lawrence Swartz, J. O. Swartz and Fraternal Order of Police Fort-Pitt Lodge No. 1, an unincorporated association.

COUNSEL

Allen C. Warshaw, Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Robert P. Kane, Attorney General, for plaintiff.

Frederick N. Frank, with him Robert Raphael, and Raphael, Sheinberg & Barmen, P.A., for defendants, Frantz Advertising and Arthur William Frantz.

James L. Weisman, with him Weisman, Passafiume, Swartz and Trimm, for defendant, Swartz.

Bryan Campbell, with him Mansmann, Beggy & Campbell, for defendant, Fraternal Order of Police.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Concurring and Dissenting Opinion by Judge Mencer. Dissenting Opinion by Judge Crumlish, Jr.

Author: Blatt

[ 23 Pa. Commw. Page 528]

This is an action brought by the Commonwealth of Pennsylvania (Commonwealth) pursuant to the Solicitation of Charitable Funds Act*fn1 (Act) to obtain equitable and other relief against The Fraternal Order of Police, Fort-Pitt Lodge No. 1 (F.O.P.) and against soliciting contributions in its behalf. Cross-motions for summary judgment by the plaintiff, Commonwealth, and by each of the defendants are presently before us.

The Commonwealth has alleged in its Complaint in Equity and First Amended Complaint in Equity that the F.O.P. is a charitable organization within the meaning of the Act which should be enjoined from committing various violations of the Act, including failing to register with the Department of State, failing to have its solicitors register as professional fund raisers, and retaining of fees exceeding the amount permitted under the Act.*fn2 After having deposed various contributors, the Commonwealth requested leave to file an Amendment to the Amended Complaint in Equity alleging in the alternative

[ 23 Pa. Commw. Page 529]

    that, if F.O.P. was not a charitable organization, then its solicitors who are herein named as defendants misrepresented the nature and purposes of the organization when soliciting contributions through the sale of associate memberships, dance tickets and advertising space. When the Commonwealth moved for a preliminary injunction, a hearing was held at which depositions, exhibits and testimony were submitted to Judge Crumlish of this Court. By order dated March 22, 1974, Judge Crumlish granted leave to file the Amendment to the First Amended Complaint in Equity and denied the Motion for Preliminary Injunction "because it [was] not established to the satisfaction of [the] Court that the F.O.P. [was] a charitable organization within the meaning of the [Act]." Following lengthy disputes over further discovery,*fn3 the Commonwealth filed its Motion for Summary Judgment pursuant to Pennsylvania Rule of Civil Procedure 1035. Shortly thereafter each defendant filed its respective Motion for Summary Judgment.

Pursuant to Pa. R.C.P. 1501, equity proceedings must conform to the rules which apply to actions in assumpsit. Pa. R.C.P. 1035 here applicable provides in relevant part:

"(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings, depositions, answers to interrogatories, ...


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