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FIRST TRINITY EVANGELICAL LUTHERAN CHURCH APPEAL (03/20/69)

decided: March 20, 1969.

FIRST TRINITY EVANGELICAL LUTHERAN CHURCH APPEAL


Appeal from order of Court of Quarter Sessions of Allegheny County, June T., 1967, No. 161, in re petition of First Trinity Evangelical Lutheran Church in the City of Pittsburgh.

COUNSEL

William H. Markus, with him Charles Covert Arensberg, John P. Papuga, David McN. Olds, and Patterson, Crawford, Arensberg & Dunn, and Reed, Smith, Shaw & McClay, for appellant.

Walter J. Wagner, with him R. R. McWhinney, Richard DiSalle and Edward M. Elliott, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 214 Pa. Super. Page 186]

This appeal reaches us from an order of the Quarter Sessions Court of Allegheny County, refusing the petition of appellant, The First Trinity Evangelical Lutheran Church in the City of Pittsburgh (Church)

[ 214 Pa. Super. Page 187]

    for authority to abandon its Oakland Cemetery, to remove the remains of bodies of deceased persons buried therein, to reinter said remains in Mount Royal Cemetery, Shaler Township, Allegheny County, Pennsylvania, to reset the tombstones of such persons on their graves when reinterred, and to sell the cemetery by general warranty deed to the University of Pittsburgh.

The petition was answered by the following lot owners: Frederick K. Becker, Lot 26, Section B; Emma Hotchkiss, Lots 597-598, Section I; Anna Mae Petote and Margaret Conte, formerly Margaret Kelly, Lot 341, Section B; Dorothy W. Steinbrink, William F. Steinbrink and Walter H. Steinbrink, Lot Nos. 248, Section B, 373 and 374, Section A; Joseph Walter, Lot 273, Section A; Karl Mertzeis, Lot 25, Section B; Edward M. Elliott, Lot 373, Section B.*fn1 Other lot owners appeared at the hearing to object but filed no pleadings. Generally, these persons objected to the removal of the remains of their relatives to Mt. Royal Cemetery because it is too far removed from the Oakland Cemetery, making it inconvenient for them and their friends to visit the new burial places of their loved ones; and they seek to have petitioner remove such remains to cemeteries near the present homes of the objectors at the expense of petitioner. However, it was contended by some that petitioner has failed to comply with the provision of the Act of June 25, 1913, P. L. 551, 9 P.S. § 47, in not first negotiating with the lot owners for the removal of the remains of their relatives; and one claims a fee simple interest in the soil as a further reason for opposing the petition.

Section I of the Act of 1913 provides a method by which churches, etc., operating cemeteries may, under

[ 214 Pa. Super. Page 188]

    certain conditions, negotiate with lot owners for the removal of the remains of persons buried therein, and for the repurchase of lots therein to accomplish the abandonment of the cemetery and the sale of the property.*fn2 Section 2 thereof provided for the accomplishment of the same objectives by court procedure without negotiating with the lot owners. However, Section 2 has been repealed and supplanted by Section 2 of the Act of August 11, 1959, P. L. 676, 9 P.S. § 48.1, which reads, "The courts of quarter sessions . . . upon petition of the proper officials in whom is vested the management of the affairs of any incorporated or unincorporated church, cemetery or burial association, setting forth any one or more of the following reasons:

"(1) That due to the opening of streets, roads or public passages around or through the same, a portion of the property has become angular and partly surrounded by improvements; or

"(2) That due to the proximity of adjacent property, the interment of the dead may, in the interest of public health, be prohibited in the ground belonging to any such church, cemetery or burial association aforesaid; or

"(3) That from other causes, any burial ground belonging to or in charge of any such incorporated or unincorporated church, cemetery or burial association, has ceased to be used for interments and has become so neglected as to become a public nuisance; or

"(4) That the remains of such bodies interred in any such neglected or disused cemetery in any city, township or borough interfere with and hinder the improvements, extension and general progressive interest of the Commonwealth or any city, ...


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