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MCKINLEY v. STATE BOARD FUNERAL DIRECTORS (03/28/72)

decided: March 28, 1972.

MCKINLEY
v.
STATE BOARD OF FUNERAL DIRECTORS



Appeal from an alleged adjudication of the State Board of Funeral Directors which appeal is fully captioned Maytor H. McKinley, Jr. v. Charles V. Wackerman, Chairman, Fred B. Levy, Raymond C. Waples, Jr., Ralph M. Sheldon, William L. Shannon, Henry H. Kaplan, individuals constituting the State Board of Funeral Directors.

COUNSEL

Peter Platten, with him William Y. Webb and Matthew M. Strickler, and, of counsel, Ballard, Spahr, Andrews & Ingersoll, for appellant.

J. Justin Blewitt, Jr., Deputy Attorney General, with him J. Shane Creamer, Attorney General, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Concurring Opinion by Judge Crumlish, Jr.

Author: Blatt

[ 5 Pa. Commw. Page 43]

The appellant asks this Court to set aside a ruling of the State Board of Funeral Directors, which was contained in a letter*fn1 from the said Board to the appellant. The letter was written in response to a written inquiry by the appellant as to what action the Board would take if he, as the licensed owner of five licensed Pennsylvania funeral director businesses, were also to acquire the ownership of a cemetery. The Board's letter advised that, if the acquisition of the cemetery were to be consummated while the appellant

[ 5 Pa. Commw. Page 44]

    continued to be the owner of the funeral director businesses, he would be in violation of the Board's Regulation 16.17,*fn2 and appropriate action would then be taken.

The appellant contends that Regulation 16.17 is invalid because it is not authorized by the Funeral Director Law,*fn3 and also invalid under the terms of the federal and state constitutions providing for due process and equal protection of the law. He asks this Court to reverse the Board and to rule that the acquisition and operation of the cemetery, at least if openly advertised and reported, would not be prohibited under the law, would not impair the licensure of the appellant or his employees, would not be cause for other preventive or disciplinary action by the Board, and would not require the approval of the Board.

The appellee Board has filed a motion to quash the appeal on the ground that its letter to the appellant was not an appealable adjudication. It contends that any appeal is premature because the letter contained no specific findings as required by law and because the appellant is not a person aggrieved by an adjudication. It also argues that its Regulation 16.17 is authorized by the Funeral Director Law and is constitutional within the terms of the federal and state constitutions.

We are of the opinion that the Board's letter was not an adjudication appealable under the terms of the

[ 5 Pa. Commw. Page 45]

Administrative Agency Law.*fn4 That it was a letter, rather than a formal adjudication, is of no particular significance, for, as this Court has noted previously, a letter can under certain circumstances, constitute an ...


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