No. 1406 October Term 1978, Appeal from Order of the Court of Common Pleas, Montgomery County, Civil at No. 77-8589.
W. Roger Simpson, Lancaster, for appellant.
Frederick W. McBrien, III, Norristown, submitted a brief on behalf of Novelli and Carroll, appellees.
Daniel A. Rothman, Spring House, for Whitemarsh Memorial Park, appellee.
Price, Spaeth and Watkins, JJ. Watkins, J., files a dissenting opinion.
[ 278 Pa. Super. Page 144]
This is an appeal from an order enjoining appellant from removing the body of her deceased husband, Bruce Carroll, from its present burial site in Montgomery County to a new site in Lancaster County.
Appellant and Bruce Carroll were married in June 1976. They had both been married before, and had children from the prior marriages. Mr. Carroll was born in Massachusetts
[ 278 Pa. Super. Page 145]
but moved with his parents and family to Norristown, Montgomery County, when he was a child. Appellant was born and raised in Lancaster, Lancaster County. After their marriage they lived for a few months in Lancaster County but later moved to Dallas, Texas. On February 17, 1977, while in Dallas, Mr. Carroll, at the age of 33, committed suicide. On the day of his death, his brother, one of appellees, came to Dallas to comfort appellant and to help her with the funeral arrangements. The evidence regarding their meeting will be discussed in detail later; for the moment it is sufficient to say that appellant wanted to have her husband buried in Lancaster, but the brother persuaded her to have him buried in Montgomery County at the Whitemarsh Cemetery. On February 22, 1977, Mr. Carroll was buried at Whitemarsh. Appellant paid the expenses. Later in May 1977, appellant informed appellees of her intent to have her husband's body removed to Riverview Cemetery in Lancaster County; she did not want the body to remain at Whitemarsh because Whitemarsh was a three hour round trip from her house in Lancaster. Appellees thereupon brought the present action to enjoin the removal.*fn1
In enjoining the removal, the lower court stated that "[t]he facts of this case do not present any exceptional causes for the disinterment of the decedent's body. He is buried in a pleasant setting near to his birthplace,*fn2 clearly within reach of his widow for visits however frequently she desires." Opinion of the Lower Court at p. 4. It is necessary at the outset to note that this statement discloses that the court committed error.
The leading case in Pennsylvania on the right to inter and reinter a body is Pettigrew v. Pettigrew, 207 Pa. 313, 56 A.
[ 278 Pa. Super. Page 146878]
(1904). There the facts were as follows. The decedent died leaving a widow and one child, a daughter. Approximately one year after the decedent was buried, the daughter died and was buried in a different cemetery, where the widow had purchased a lot after her husband's death. A short time after the daughter was buried, the widow had a grave dug beside the daughter's grave for the reinterment of her husband. She did this because there was not enough room for the burial of the daughter and the widow in the lot where the husband was buried unless all were placed in the same grave. Relatives of the husband sought to enjoin the reinterment. In affirming the lower court's order dismissing the bill for an injunction, the Supreme Court examined the pertinent authority and explained:
The result of a full examination of the subject is that there is no universal rule applicable alike to all cases, but each must be considered in equity on its own merits having due regard to the interests of the public, the wishes of the decedent and the rights and feelings of those entitled to be heard by reason of relationship or association.
Subject to this general result it may be laid down first, that the paramount right is in the surviving husband or widow, and if the parties were living in the normal relations of marriage it will require a very strong case to justify a court in interfering with the wish of the survivor.
Secondly, if there is no surviving husband or wife, the right is in the next of kin in the order of their relation to the decedent, as children of proper age, parents, brothers and sisters, or more distant kin, modified it may be by ...