23 Pa. Commw. 526 | Pa. Commw. Ct. | 1976
Lead Opinion
Opinion by
This is an action brought by the Commonwealth of Pennsylvania (Commonwealth) pursuant to the Solicitation of Charitable Funds Act
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.
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, admissions on file and supporting affidavits if any.
“(b) . . . The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Section 12(b) of the Act, 10 P.S. §160-12 (b), here applicable provides:
"No person shall, in connection with the solicitation of contributions for or the sale of goods or services of a person other than a charitable organization, misrepresent to or mislead anyone by any manner, means, practice or device whatsoever, to believe that the person on whose behalf such solicitation or sale is being conducted is a charitable organization or that the proceeds of such solicitation or sale will be used for charitable purposes, if such is not the fact.”
Without detailing the evidence, our examination of all testimony, transcripts and pleadings convinces us that neither the Commonwealth nor any of the defendants has established the absence of issues of fact among those facts which are material to a violation of this section of the Act. The Commonwealth, through the evidence as devel
We now turn to determine whether or not summary judgment will lie with respect to the principal allegation of the Commonwealth’s complaint, which is that the F.O.P. is a charitable organization within the meaning of the Act and that it is therefore subject to the registration and regulatory measures therein provided.
“ ‘Charitable organization’ means a person which is or holds itself out to he a benevolent, educational, philanthropic, humane, patriotic, religious or eleemosynary organization or any person which solicits or obtains contributions solicited from the public for charitable purposes. . . .” (Emphasis added.)
It has long been established under the Common law that “the word ‘charitable,’ in a legal sense, includes every gift for a general public use, to be applied . . . for the benefit of an indefinite number of persons, and designed to benefit them from an educational, religious, moral, physical, or social standpoint. In its broadest meaning it is understood ‘to refer to something done or given for the benefit of our fellows or the public.’ ” Voegetly Estate, 396 Pa. 90, 93, 151 A.2d 593, 595 (1959). See Funk Estate, 353 Pa. 321, 45 A.2d 67 (1946); Taylor v. Hoag, 273 Pa. 194, 116 A. 826 (1922). A total review of the record here convinces us that the F.O.P. is essentially a labor organization existing solely for the benefit of its membership,
The Act, however, defines a charitable organization not only as one which “is” charitable in fact but also in the alternative as one which “holds itself out to be” such an organization. Again, after reviewing this extensive record, we do not believe that the Commonwealth has established the absence of a genuine issue as to whether or not the F.O.P. has held itself out to be a charitable organization even though it may not be one in fact. It would appear that the same evidence which bears upon the determination as to whether or not the F.O.P. and its solicitors have misrepresented to potential contributors the nature and purposes of the F.O.P. also bears upon the determination as to whether or not the F.O.P. holds itself out to be charitable. And in this respect we have already said that there appear to be genuine issues of fact not established by either the Commonwealth or the defendants. These issues, therefore, must be resolved at trial.
In view of the foregoing, we issue the following
Order
And Now, this 3rd day of March, 1976, the motion for summary judgment in behalf of the Commonwealth
. Act of August 9,1963, P.L. 628, as amended, 10 P.S. §160-1 et seq.
. The Commonwealth also requested other equitable relief including an accounting and restitution of monies solicited and collected in violation of the Act. Together with the First Amended Complaint in Equity, the Commonwealth had also filed its Motion for Preliminary Injunction and Motion for Summary Judgment.
. Defendants Swartz and Frantz asserted a Fifth Amendment privilege because of the penal provision found in Section 14(e) of the Act, 10 P. S. §160-14 (e).
. The test of a public charity is the object sought to be obtained or the purpose for which the money is to be applied and not the motive of the contributor. Fire Insurance Patrol v. Boyd, 120 Pa. 624 (1888). The motives and beliefs of the contributors are immaterial and irrelevant, Archambault’s Estate, 308 Pa. 549, 162 A. 801 (1932). There must be some direct proof that F.O.P. had been represented as a charitable organization.
. This Act is clearly aimed at regulating solicitation of charitable funds so that monies obtained for charitable purposes will be so used. Solicitors must register with the Commonwealth, Section 3 of the Act, 10 P. S. §160-3, and the Act calls for the production of records demonstrating the allocation of funds. In further pursuit of
. Membership consists of present and retired employees of the Pittsburgh Bureau of Police. F.O.P.’s primary activity is to act as bargaining agent between the police force and the City of Pittsburgh in contract negotiations, working for passage of both city and state statutes beneficial to its members. We understand the Commonwealth’s argument to fail because it admits that the F.O.P.’s
Dissenting Opinion
Dissenting Opinion by
I dissent.
I must respectfully disagree with the majority’s determination that summary judgment will lie neither in favor of the Commonwealth nor any of the Defendants with respect to alleged violations of Section 12 (b) of the Solicitation of Charitable Funds Act (Act), Act of August 9, 1963, P.L. 628, as amended, 10 P.S. §160-12 (b). Essentially, what the majority is doing by denying summary judgments to both the Commonwealth and all Defendants is to give the Commonwealth yet another chance
I must likewise disagree with the majority’s failure to grant summary judgment on the issue of whether the Fraternal Order of Police (F.O.P.) is or holds itself out to be a charitable, organization. The recitation of the law of charitable organizations is correct, as is the recitation of the mutual benefit characteristics of the organization. While the majority does not, and properly so, hold that under these facts F.O.P. is a charitable organization, it errs when it ignores the existence of sufficient evidence in the record which clearly establishes that F.O.P. does not hold itself out to be a charitable organization. Again, the parties by their pleadings have indicated to this Court the record is closed. Twice now the Commonwealth has failed to sustain its burden of proving either misrepresentation by F.O.P.’s solicitors or the charitable character of the association. Further litigation in this case is unwarranted.
I dissent.
Concurrence in Part
Concurring and Dissenting Opinion by
My study of this record persuades me to concur in the denial of the motions for summary judgment in behalf of Frantz Advertising, Inc., Arthur William Frantz, Lawrence Swartz, J. 0. Swartz, and the Fraternal Order of Police and in the denial of the motion for summary judgment in behalf of the Commonwealth with respect to the alleged violation of Section 12(b) of the Solicitation of Charitable Funds Act
. Act of August 9, 1963, P. L. 628, as amended, 10 P.S. §160-12(b).