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FIRST TRINITY EVANGELICAL LUTHERAN CHURCH APPEAL (06/11/70)

decided: June 11, 1970.

FIRST TRINITY EVANGELICAL LUTHERAN CHURCH APPEAL


Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, June T., 1967, No. 161 and Jan. T., 1970, No. 50, in re petition of the First Trinity Evangelical Lutheran Church in the City of Pittsburgh, a nonprofit religious corporation of the Commonwealth of Pennsylvania.

COUNSEL

Charles C. Arensburg, with him William H. Markus, John P. Papuga, and Patterson, Crawford, Arensberg & Dunn, for appellant.

No appearance was entered nor argument made for objectors, appellees.

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

Author: Montgomery

[ 216 Pa. Super. Page 380]

This is the second appeal to reach us in this case. The first resulted in a reversal of the lower court's original order dismissing appellant's petition, with a procedendo, on our opinion reported in 214 Pa. Superior Ct. 185, 251 A.2d 685 (1969). Since that time a new hearing has been held at which the testimony of

[ 216 Pa. Super. Page 381]

    the original hearing was made a part of the record by stipulation of counsel. Following that hearing, the lower court again dismissed the petition. However, in doing so, it failed to make findings of fact, conclusions of law or file a new opinion. Accordingly, since there are no factual determinations by the hearing judge which are binding on us with the weight of a jury verdict, we must review the entire record and make our own determination of the facts and apply the appropriate legal principles. Ballinger v. Howell Manufacturing Company, 407 Pa. 319, 180 A.2d 555 (1962); Smith v. Peacock Construction Company, 214 Pa. Superior Ct. 324, 257 A.2d 592 (1969).

The history of Oakland Cemetery is set forth in our previous opinion, in which much of the evidence taken at the first hearing was recited and the applicable law was discussed. Therefore, we shall affirm what we said in that opinion rather than repeat it herein. Part of the additional testimony taken at the rehearing relates to the present condition of the cemetery and is merely an elaboration of what was previously described. The balance relates to the plans for actual removal of the bodies, the desirability and adequacy of the suggested new burial site, the right of owners of lots in the present cemetery to determine where the remains of their relatives should be reinterred and what are the proper expenditures or allowances for such removals and the unused lots.

Without difficulty, we find that the conditions prevailing at the present cemetery dictate its abandonment as a suitable burial site because of the change in its surroundings, i.e., the closing of streets, which render it angular and the erection of buildings, etc., immediately adjoining it, which terminates its usefulness as a place where proper reverence and respect for the dead may be shown. The statutory authorities for a declaration of abandonment based on these findings are

[ 216 Pa. Super. Page 382]

    the Acts of August 11, 1959, P. L. 676, § 2, 9 P.S. § 48.1, and May 19, 1923, P. L. 281, § 1, 9 P.S. § 51, which we discussed in our previous opinion. We now find that the requirements of these acts have been fully satisfied. Therefore, the removal of the remains of deceased persons now buried in Oakland Cemetery and a declaration of its abandonment after such removals have been accomplished are justified, and for that reason the denial of appellant's petition was improper.

It was competent for the Legislature to pass an act merely authorizing the removal of the remains from the burial ground. Craig v. First Presbyterian Church of Pittsburgh, 88 Pa. 42 (1878). However, it has seen fit to impose certain conditions which must be met before such removals may be made. We have found that those conditions have been met. As stated in Craig v. First Presbyterian Church of Pittsburgh, supra, at page 52, the case must be ". . . considered [on] the law of this case, not its sentiment. Mere sentiment, not based upon rights of persons or property, is not of value in a judicial proceeding." The rights of lot owners in burial grounds are for the burial of their dead therein until such time as the grounds are abandoned, when they must remove the remains of their loved ones at their own expense to burial grounds elsewhere. In Kincaid's Appeal, 66 Pa. 411, 421 (1870), Mr. Justice Sharswood, later Chief Justice, said, "The lot-holder purchased a license -- nothing more -- irrevocable as long as the place continued a burying-ground -- but giving no title to the soil. . . . But if in the course of time it should become necessary to vacate the ground as a burying-ground, all ...


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