Dissenting Opinion by
Judge Crumlish, Jr. :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 *536to try to prove what it has failed to do to this writing. The majority concedes that no additional admissible evidence was adduced to support its motion for summary judgment electing to rely on the records it made in seeking the preliminary injunction. It had available to it Pa. R.C.P. No. 1035 which permits parties to take and file depositions, make and file answers to interrogatories, and offer admissions and affidavits in support of the motion. Yet, to the contrary, the Commonwealth and the Defendants, by filing motions for summary judgment, have acknowledged that there exist no genuine issues of material fact, and by so doing have agreed to have the legal issue of Section 12(b) determined on the state of the record as of the time of those filings. I would grant Defendants’ motion for summary judgment on the misrepresentation issue.
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.