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COMMONWEALTH PENNSYLVANIA v. SOCIETY 28TH DIVISION (12/02/87)

decided: December 2, 1987.

COMMONWEALTH OF PENNSYLVANIA, ACTING BY ATTORNEY GENERAL LEROY S. ZIMMERMAN, PLAINTIFF
v.
SOCIETY OF THE 28TH DIVISION, A.E.F., CORP., AND JOHN L. ARNOLD, ROBERT KOWALESKI AND CHARLES W. SHERIFF, DEFENDANTS



Original Jurisdiction in the case of Commonwealth of Pennsylvania, Acting by Attorney General LeRoy S. Zimmerman v. Society of the 28th Division, A.E.F., Corp., and John L. Arnold, Robert Kowaleski and Charles W. Sheriff.

COUNSEL

John J. Calabro, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for plaintiff.

Joel Weisberg, with him, Lacy Hayes, Jr., for defendant, John Arnold.

Senior Judge Bucher. Opinion by Senior Judge Bucher.

Author: Bucher

[ 113 Pa. Commw. Page 457]

This is an action pursuant to this Court's original jurisdiction requesting permanent injunctive relief against defendants, John L. Arnold and Charles W. Sheriff.

On October 8, 1986, plaintiff, Commonwealth of Pennsylvania (Commonwealth) acting by its Attorney General LeRoy S. Zimmerman, filed a complaint in equity and an application for preliminary injunction. Plaintiff alleges that defendants have engaged or are engaging in unfair methods of competition and unfair or deceptive acts or practices in violation of Section 3 of the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224 as amended, 73 P.S. ยง 201-3. Defendants, Society of the 28th Division, A.E.F., Corp. (Society), John R. Arnold, Robert

[ 113 Pa. Commw. Page 458]

Kowaleski and Charles Sheriff entered into consent petitions for preliminary injunction and this Court entered said petitions as orders of the Court on October 31, 1986.

On June 17, 1987, plaintiff filed a praecipe to list the matter for hearing on plaintiff's complaint for permanent injunction. On June 23, 1987, this Court approved and entered as Orders the consent petitions for permanent injunction entered into by defendants, Society and Robert Kowaleski and the Commonwealth.

A hearing on the complaint for permanent injunction as to the remaining defendants, John L. Arnold and Charles W. Sheriff was held on July 27, 1987. Upon consideration of the evidence presented at trial and after reviewing the posttrial briefs submitted by counsel, we hereby make the following findings of fact:

1. The plaintiff is the Commonwealth of Pennsylvania acting by Attorney General LeRoy S. Zimmerman, through the Philadelphia Office of the Bureau of Consumer Protection;

2. Defendant John Arnold (Arnold) is an adult individual engaged in trade and commerce within the Commonwealth through the solicitation of money from a principal place of business located at 4213 "B" King George Drive, Harrisburg, Dauphin County, Pennsylvania, (P5 of Arnold's Answer)

3. Defendant Charles Sheriff (Sheriff) is an adult individual engaged in trade and commerce within the Commonwealth through the solicitation of money on behalf of Society from a principal place of business located at 2440 Parkway Blvd., Penbrook, Dauphin County, Pennsylvania; (P7 of Sheriff's Answer)

4. Defendant Society of the 28th Division A.E.F. is a Pennsylvania non-profit corporation with no permanent office or place of business; (P4 of Society's Answer)

[ 113 Pa. Commw. Page 4595]

. Society is composed of veterans of the 28th Division, A.E.F. who have served in the armed services whose purpose is to provide services and assistance to its members; (P8 of Society's Answer)

6. Society has entered into and on June 23, 1987, this Honorable Court approved a Consent Petition for Permanent Injunction wherein Society has agreed to affirmatively disclose the following:

     a. The solicitation is being conducted by a "paid solicitor" if such is the case;

     b. The dollar amount of gross contributions which will be forwarded to the Society;

7. Defendant Robert Kowaleski (Kowaleski) is an adult individual engaged in trade and commerce within the Commonwealth through the solicitation of money on behalf of Society from a principal place of business located at 2200 West Chester Pike, Suite B-9, Broomall, Delaware County, Pennsylvania;

8. Kowaleski entered into, and on June 23, 1987 this Court approved, a consent petition for permanent injunction wherein he agreed to disclose the following:

     a. The solicitation is being conducted by a "paid solicitor";

     b. The dollar amount or percentage of gross contributions which will be forwarded to the organization on whose behalf he solicits;

9. Society, in order to raise funds, enters into yearly contracts with Arnold to solicit funds on behalf of Society; (P9 of Society's and Arnold's Answers)

10. Said contracts provide as follows:

     a. In exchange for Arnold's right to solicit on behalf of Society, Arnold must pay an annual fee of $3,000 to the Society plus the cost of printing the Society's Convention Book; (P11 of Arnold's Answer, N.T. 28-29)

     b. The funds received by Society from Arnold are to be used for internal expenses and not for charitable purposes; (P15-C of Arnold's Answer)

[ 113 Pa. Commw. Page 460]

    c. Arnold is to open a bank account carried under the name of Society into which he is to deposit all funds collected.

11. Prior to and at the time of the filing of the Commonwealth's Complaint in Equity, Arnold, pursuant to contract, solicited money on behalf of Society; (P5 of Arnold's Answer)

12. Subsequent to the filing of the Commonwealth's Complaint in Equity, Society advised Arnold that his solicitation contract had been terminated; (P5 of Arnold's Answer)

13. Sheriff, pursuant to an agreement with Arnold, solicits funds on behalf of Society; (P10 of ...


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