The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
Plaintiffs American Association of State Troopers, Inc. ["AAST"], and Telcom Telemarketing Services of North Carolina, Inc. ["Telcom"], instituted this action on October 5, 1992, with the filing of a complaint for declaratory relief, i.e., for a judgment by this court that the Pennsylvania Solicitation of Funds for Charitable Purposes Act, 10 Pa. Stat. Ann. §§ 162.1 et seq. ["the Charities Act"], deprives plaintiffs of their rights to free speech under the First Amendment and their right to equal protection under the Fourteenth Amendment. Plaintiffs contend that the Charities Act is unconstitutional both on its face and as applied to them.
Eight days after the filing of the complaint in this court, defendant filed suit against plaintiffs in the Commonwealth Court of Pennsylvania, alleging violations of both the Charities Act as well as the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. Ann. §§ 201-1 et seq. Plaintiffs filed with this court a motion for a preliminary injunction, seeking to stay the proceedings in the Commonwealth Court pending disposition of the instant case.
Before the court is a motion by plaintiffs for reconsideration of the memorandum and order of June 17, 1993, [hereinafter cited as "Mem."] by which the court denied plaintiffs' motion for a preliminary injunction, granted defendant's motion for summary judgment, and denied defendant's motion for sanctions. Plaintiffs claim that the court made errors of both law and fact in granting summary judgment for defendant.
A. ALLEGED ERRORS OF MATERIAL FACT
In its motion, the first error of fact alleged by plaintiffs is a statement by the court in the June 17, 1993, memorandum as follows:
According to defendant, though disputed by plaintiffs, between March 26, 1992, and October 13, 1992, OAG received sixty-one (61) written and oral complaints or inquiries from residents of Pennsylvania who were concerned about telephone solicitation for contributions for AAST.
Mem. at 5. The court added in a footnote that, as of February 16, 1993, the number had risen to over 300 complaints, according to defendant. Mem. at 5 n. 4.
Plaintiffs now argue that the court had no basis for this factual "finding," so that an issue of fact existed, and the granting of summary judgment was inappropriate. This argument fails for three reasons.
First, this alleged "finding" is not a finding at all. The foregoing provision was part of the memorandum to show the context of the bringing of the action, not to resolve the dispute between the parties.
The foregoing leads to the second reason plaintiffs' argument is without merit: the fact that complaints were made, and the exact number of complaints, is not material to the outcome of this case. A fact is "material" if it will affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Whether complaints were made against plaintiffs, or their exact number, does not affect resolution of the issue of whether the Charities Act impermissibly infringes on plaintiff's free speech rights. Nor does the existence of complaints affect whether defendant had the right to apply the Charities Act to plaintiffs, since they could have acted in the manner in which they did absent any consumer complaints.
The third reason that the quoted factual "finding" is not error is that, had the court actually needed to make such a finding, the finding would be entirely justified. In denying this fact, plaintiff merely asserted that it was not true, and indicated that it did not have direct evidence that such complaints were ever made.
Since a motion for summary judgment is designed to go beyond the pleadings, factual specificity is required of a party who opposes such a motion. Celotex Corp. v. Catrett, [477 U.S. 317, 322-323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 ] (1986). Accordingly, in order to defeat a properly supported motion for summary judgment, a party may not rely on unsupported allegations. Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988). Nor can a party rely on self-serving conclusions, unsupported by specific facts in the record. [ Celotex, supra, 477 U.S. at 322-323]. A party must point to concrete evidence in the record which supports each essential element of his case. Id. If ...