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AMERICAN FUTURE SYS. v. PENNSYLVANIA STATE UNIV.

December 21, 1982

AMERICAN FUTURE SYSTEMS, INC., et al., Plaintiffs
v.
THE PENNSYLVANIA STATE UNIVERSITY, et al., Defendants



The opinion of the court was delivered by: MUIR

 I. Introduction.

 Plaintiffs, American Future Systems, Inc., Steven Brubaker, Richard J. Wingert, W. Bruce Del Valle, Joan D. Varsics, Dennis C. Habecker, John B. Spillar and Kevin Graves, filed this action alleging violations of their constitutional rights and of rights granted by Pennsylvania law on February 5, 1981. Also on February 5, 1981, Plaintiffs filed a motion for a preliminary injunction which was denied by this Court in American Future Systems v. Pennsylvania State University, 510 F. Supp. 983 (M.D. Pa. 1981). On July 17, 1981, Defendants, Pennsylvania State University, the Board of Trustees of the Pennsylvania State University, John W. Oswald and M. Lee Upcraft, filed a motion for summary judgment. By opinion and order of September 16, 1981, this Court granted the Defendants' motion for summary judgment. American Future Systems v. Pennsylvania State University, 522 F. Supp. 544 (M.D. Pa. 1981). On August 9, 1982, the Court of Appeals reversed this Court's grant of summary judgment, American Future Systems v. Pennsylvania State University, 688 F.2d 907 (3d Cir. 1982), and remanded the case to this Court for further proceedings. On September 21, 1982, the Court of Appeals issued an opinion Sur Petition for Rehearing. American Future Systems v. Pennsylvania State University, 688 F.2d 907, 916 (3d Cir. 1982).

 On October 18, 1982, Plaintiffs filed a motion for a preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure and a supporting brief. By order of October 21, 1982, this matter was placed on the Court's December 1982 list for trial and by order of November 10, 1982, the Court scheduled the hearing in this case to commence on a day certain, Thursday, December 2, 1982, a most unusual event because of this Court's normal adherence to trailing dockets.

 On November 29, 1982, at the pre-trial conference, Plaintiffs filed a concurred in request to amend the complaint and consistent therewith to amend the motion for a preliminary injunction. By order of December 2, 1982, the foregoing motions were granted.

 The hearing on the Plaintiffs' motion for a preliminary injunction commenced at 11:00 A.M. on Thursday, December 2, 1982 and concluded at approximately 7:15 P.M. on Saturday, December 4, 1982. On December 9, 1982, Plaintiffs petitioned the Court for leave to present additional relevant information to the Court and for leave to file supplemental findings of fact. The petitions were opposed on December 17, 1982. The motion for leave to present additional relevant information relates to certain events which occurred subsequent to the close of the trial. First, the proposed additional relevant information relates to AFS's activities. Since AFS does not request injunctive relief in its own behalf, such evidence is not relevant to the present matter. Second, the additional information, since it is not subject to cross examination, may not properly be considered to be "evidence" in this proceeding. The motion to present additional relevant information will be denied. The Plaintiffs' request for leave to file supplemental findings of fact will be granted although the supplemental proposed findings should have been presented in handwritten form by the close of the hearing. Also on December 9, 1982, the Plaintiffs presented a form of proposed injunction order which grants no relief to the corporate Plaintiff, A.F.S..

 Following are the Court's findings of fact, discussion, conclusions of law, and order.

 II. Findings of Fact.

 1. The original Plaintiffs were American Future Systems, Inc. ("AFS") Steven Brubaker, Richard J. Wingert, W. Bruce Del Valle, Joan D. Varsics, Dennis C. Habecker, John B. Spillar and Kevin Graves. (U)

 2. Plaintiff AFS is a corporation incorporated under laws of the Commonwealth of Pennsylvania and having its principal place of business at 715 Lancaster Avenue, Bryn Mawr, Pennsylvania, 19019. (U)

 3. Edward M. Satell is the President of AFS. (U)

 4. AFS is a private enterprise engaged in the business of retail sales of table china, tableware, crystal, and cookware through the presentation of group demonstrations of its merchandise to students at colleges and universities throughout the United States.

 5. Plaintiff Kevin Graves is a student enrolled at the Pennsylvania State University ("Penn State" or "University") who resides at 12 Jordan Hall which is a dormitory room in a University residence hall.

 6. Richard J. Wingert is not a student at Penn State.

 7. Joan D. Varsics is not a student at Penn State.

 8. Dennis C. Habecker is not a student at Penn State.

 9. John B. Spillar is not a student at Penn State and is no longer a Plaintiff in this litigation.

 10. W. Bruce Del Valle is not a student at Penn State.

 11. Defendants are Penn State, the Board of Trustees of Penn State ("Board of Trustees"), John W. Oswald and M. Lee Upcraft. (U)

 12. Defendant Penn State is an institution of higher education established in 1855 by Act of the Pennsylvania Legislature as a corporation for educational purposes and operates under a charter consisting of various legislative acts supplemented by decrees of the Court of Common Pleas of Centre County, Pennsylvania.

 13. The main campus of Penn State is located at University Park, Centre County, Pennsylvania, and the University maintains 21 other campuses situated in locations throughout the Commonwealth of Pennsylvania. (U)

 14. Defendant Board of Trustees is the corporate body established by the charter of Penn State with ultimate control and responsibility for the management and government of the University. (U)

 15. The Board of Trustees consists of 32 members, ten of whom are public officials of the Commonwealth of Pennsylvania. (U)

 16. Defendant John W. Oswald is an individual residing at 639 Kennard Road, State College, Pennsylvania. (U)

 17. Oswald is President and Chief Administrative Officer of Defendant University and has final authority, subject to revisions and orders by Defendant, Board of Trustees, to establish and implement policy concerning student affairs. (U)

 18. Defendant M. Lee Upcraft is an individual residing at 188 Le Nor Drive, State College, Pennsylvania. (U)

 19. Upcraft is Director of Residential Life Programs of Defendant University and is responsible for development, effectuation, and enforcement of policy concerning the residence halls of the University. (U)

 20. Penn State owns and operates over 40 residence halls containing approximately 6900 rooms at its University Park Campus for approximately 12,050 students. (U)

 21. The rooms in the residence halls generally are used by two or more students for sleeping, dressing, studying and socializing.

 22. The students use common facilities for lavatories, study lounges, laundry, storage and organized educational and social functions. (U)

 24. Virtually all of the study lounges within the residence halls are occupied and used as residential living units at the beginning of the fall term.

 25. During the course of the fall term and winter academic term, as regular rooms become available, students are moved from the study lounges.

 26. Penn State's purpose in maintaining residence halls for students involves more than simply providing sleeping quarters for its students. Through programs and services provided to residence hall students, Penn State's goal is to enhance the students' academic experience and assist in the personal growth and development of the students.

 27. Penn State conducts programs within the residence halls intended to assist students in dealing with personal problems and interests, including such matters as Alcohol Awareness, Diet and Nutrition, and Rape Prevention.

 28. Penn State provides trained counselors, who are available to residence hall students for advice and counseling with respect to personal problems, academic matters and financial problems.

 29. Penn State also provides formal and informal social and recreational activities for students in the residence halls. (U)

 30. Arthur Constantino is the Associate Director of Residential Life Programs and is responsible, among other duties, for day-to-day supervision and administration of the programs and staff of the Residential Life Program. (U)

 31. Within each residence hall building, rooms are organized on the basis of floors or parts of floors into units called a "house." The house serves as the basic residential living, social and educational unit for the students living in those rooms. (U)

 32. Each house is assigned a "resident assistant" ("RA") who is a student living in that house. The RA is a member of the staff of the Office of Residential Life Programs of the University, and as compensation for these duties receives a credit for room and board charges and half of the tuition charges. (U)

 33. In order to permit all of the activities which are ongoing in a residence hall to proceed in an orderly fashion, and to protect privacy and a study atmosphere, Penn State has adopted a set of regulations and procedures which control the use of the residence halls.

 34. These regulations deal with (1) the establishment of "quiet hours" for study, (2) visitation within the residence halls, (3) canvassing within the residence halls, (4) fund raising by student organizations, (5) charitable solicitation by student organizations and (6) solicitation of money and sales of products and services in the residence halls.

 35. Quiet hour restrictions require that all noise levels in rooms and hallways be reduced to an absolute minimum.

 36. Certain areas within residence halls have predetermined quiet hour periods, while quiet hours within other areas of the residence halls are determined by a vote of the residents. The typical quiet hour period established by the vote of the residents is 7:00 p.m. to 7:00 a.m.

 37. Visitors of the opposite sex must be escorted by the student resident to and from the student's room.

 38. Visitors of the same sex can enter a residence hall upon an invitation from a resident.

 39. On November 19, 1982, Penn State adopted a new policy as follows:

 
REGULATIONS FOR THE SOLICITATION OF MONEY OR THE SALE OR SOLICITATION OF SALE OF PRODUCTS OR SERVICES IN UNIVERSITY RESIDENCE HALLS
 
1. Definitions.
 
(b) The solicitation of a sale of products or services shall include (1) any attempt to organize a meeting in a residence hall for the purpose of a demonstration or explanation of products or services which are for sale and (2) any demonstration, explanation or distribution of literature in a residence hall concerning products or services which are for sale.
 
2. Except as hereinafter provided, no person (including a student), firm, business entity, charitable organization, religious organization or other organization may solicit money or sell or solicit the sale of any product or service anywhere in a residence hall.
 
3. A student assigned to a room in a residence hall may invite a person, firm, business entity, charitable organization, religious organization or other organization to that student's assigned room to solicit money or to sell or to solicit the sale of products or services with that student only. Such solicitation or sale must occur only in the assigned room of the student-invitor. The solicitation of money or the sale or the solicitation of a sale of products or services to any other student is prohibited anywhere in the residence hall.
 
4. Registered student organizations and residence hall house governments may solicit money or solicit the sale of products or services in a residence hall in accordance with the regulations governing Student Organizations at Paragraph B, Funding and Financial Affairs of Registered Student Organizations, subparagraph 3, Fund Raising on Campus and subparagraph 4, Solicitation on Campus.
 
5. Nothing in these regulations shall be deemed to preclude any solicitation or sale by mail, telephone or other communication media. (U)

 40. Subparagraph 3, above, of the November 19, 1982 policy did not constitute a change in policy.

 41. The new regulation of the solicitation of money and sale of products and services is different from the prior policy regulating commercial activities in only one material respect. Under the new regulations a vendor of products and services may not conduct a group demonstration, explanation, or distribution of literature concerning products or services which are for sale anywhere in a residence hall. Under the old policy a vendor could conduct such a group demonstration in a common area provided there was no solicitation to sell the product or service in that area.

 42. A student may invite a vendor to that student's room to conduct a transaction with that student.

 43. A vendor may solicit a sale or an invitation to a student's room by telephone. Students' telephone numbers are posted in ...


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