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MAYTOR H. MCKINLEY v. COMMONWEALTH PENNSYLVANIA (12/06/73)

decided: December 6, 1973.

MAYTOR H. MCKINLEY, JR., THE OLIVER H. BAIR COMPANY, SUBURBAN-WEST, THE OLIVER H. BAIR COMPANY, WILLIAM ROWEN GRANT FUNERAL HOME, INC., DAVID G. FRANKENFIELD AND SONS, INC., WILLIAM F. CUSHING, INC., AND HARVEY W. MATLACK, APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF FUNERAL DIRECTORS, APPELLEE



Appeal from the Order of the State Board of Funeral Directors in case of In the Matter of the Suspensions or Revocations of the Licenses to Practice Funeral Directing Issued to The Oliver H. Bair Company, Suburban-West, The Oliver H. Bair Company, William Rowen Grant Funeral Home, Inc., David G. Frankenfield & Sons, Inc., William F. Cushing, Inc. and Harvey W. Matlack, dated March 9, 1973.

COUNSEL

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

Lawrence Alexander, Assistant Attorney General, with him J. Justin Blewitt, Jr., Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

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

Author: Crumlish

[ 11 Pa. Commw. Page 243]

This appeal is from an Adjudication and Order of the State Board of Funeral Directors (Board), dated March 9, 1973, revoking the funeral director licenses of the five corporate Appellants and Appellant Matlack for violating the Board's Regulation 16.17 which prohibits a licensed funeral director from having an interest in or being employed by any corporation or person with an interest in a cemetery or memorial park.

The genesis of the Board's action can be traced to July 14, 1970, when Appellant McKinley entered into an agreement to purchase the assets of a corporation which owned and operated Hatboro Cemetery, located in Hatboro, Montgomery County. McKinley, who was at the time and still remains the sole owner of the five corporate appellants and the employer of Appellant Matlack, requested a ruling from the Board that the acquisition, if consummated, would not constitute a

[ 11 Pa. Commw. Page 244]

    violation of either the Funeral Director Law*fn1 or the regulations promulgated thereunder. The Board responded, by a letter dated September 15, 1971, that it could not issue the requested ruling as the proposed acquisition would be violative of Regulation 16.17.

An appeal was taken from the Board's letter to this Court challenging the validity of Regulation 16.17. This Court held that the letter was not an appealable adjudication, and thus granted the Board's motion to quash the appeal. McKinley v. State Board of Funeral Directors, 5 Pa. Commonwealth Ct. 42, 288 A.2d 840 (1972).

The Board subsequently issued a citation and notice of a hearing alleging that Appellants were in violation of Regulation 16.17. A hearing was held on December 5, 1972, and the parties hereto entered into a Stipulation. Among other things, it was agreed that Appellant McKinley is the sole owner of the stock of the licensed corporations and the equitable owner of Hatboro Cemetery; that if the acquisition of Hatboro Cemetery is consummated, the Cemetery and the licensed funeral director corporations will operate under common management and will be jointly advertised; and that customers of the licensed corporations will be offered, whenever feasible, a plot in the Hatboro Cemetery either separately or as part of an overall funeral arrangement, but with the affiliation between the funeral home and Cemetery affirmatively disclosed. On its part, the Board stipulated that it had never taken any action to prevent the common ownership of a funeral home and cemetery or crematorium, though it acknowledged that five funeral directors operated crematoria in Pennsylvania, and one other licensed funeral director owned a cemetery in the State. The Board further

[ 11 Pa. Commw. Page 245]

    agreed to suspend any sanction imposed on Appellant should an appeal be taken to this Court to determine ...


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