Appeal from order of Superior Court, March T., 1969, No. 36, affirming order of Court of Common Pleas of Dauphin County, No. 243 Commonwealth Docket, 1966, in case of Pennsylvania Board of Funeral Directors v. Victor Errichetti.
Michael A. Marolla, for appellant.
Victor L. Schwartz, Assistant Attorney General, with him John W. Flannery, Assistant Attorney General, Thomas H. Lane, Deputy Attorney General, and William C. Sennett, Attorney General, for appellee.
Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Mr. Justice Roberts dissents and would affirm the order of the lower court. Mr. Justice Jones took no part in the consideration or decision of this case.
Upon information obtained from the Maine Board of Medical Examiners, the Pennsylvania State Board of Funeral Directors issued a citation charging that Victor Errichetti, appellant, had violated § 13(b) of the Funeral Director Law, Act of January 14, 1952, P. L. (1951) 1898, as amended, 63 P.S. § 479.13(b)
which states that, "No person other than a licensed funeral director or a resident trainee shall prepare or embalm the body of any deceased person." After a hearing, the Board found that appellant had violated that section, and it ordered that his funeral director's license be revoked. On appeal the Commonwealth Court affirmed, 89 Dauph. 378 (1968), as did the Superior Court, 215 Pa. Superior Ct. 461, 258 A.2d 534 (1969). We granted allocatur.
After a careful reading of the record, we conclude that there is substantial evidence to support the finding that appellant violated § 13(b). As to the penalty, however, at oral argument, counsel for the Board admitted that in making its decision to revoke appellant's license the Board considered matters outside the record in this action. As this was clearly improper, we must vacate the order of the Superior Court and remand the record to the Commonwealth Court which under the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, § 44, 71 P.S. § 1710.44, has the power to affirm, modify or set aside the revocation order.
The order is vacated, and the record is remanded for proceedings consistent with this opinion.
Order vacated and record ...