Appeal from the Order of the State Board of Funeral Directors in case of Commonwealth of Pennsylvania v. Carmine J. Parise and Son Funeral Home, No. 76-FU-454.
Paul R. Mazzoni, with him James G. McDonough, II, Judd, Schnessel & McDonough, for petitioners.
Mary R. Shehadi, Assistant Attorney General, with her Charles L. Ford, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.
Judges Wilkinson, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Mencer.
Carmine J. Parise and Louis C. Parise, trading as Carmine J. Parise and Louis C. Parise Funeral Home (Parise) appeal from an order of the State Board of Funeral Directors (Board), which denied Parise's application for approval of a new preparation room. We affirm.
Parise owns a funeral establishment (which includes a preparation room) located at 89 Fairview Street in Carbondale. The preparation room for which approval was sought is located at 7 Forty-First Street, which is directly across the street from the funeral establishment. The street is a public thoroughfare. The Board, after a hearing, denied approval on the basis of 49 Pa. Code § 13.1, which defines premises as follows: "The property on which the funeral home is located which shall consist of a tract of
land not intersected by any public highway or thoroughfare." This appeal followed.
Parise first argues that the Board erred in retrospectively applying this regulation, which was adopted on November 12, 1977, to its application, which was filed prior to that date.*fn1 We disagree. In Ziffrin, Inc. v. United States, 318 U.S. 73, reh. denied, 318 U.S. 800 (1943), a petitioner applied for a permit to engage in contract carrier operations on February 4, 1936. The Interstate Commerce Commission, in denying the permit on May 29, 1941, relied upon an amendment to the motor carrier provisions of the Interstate Commerce Act,*fn2 which amendment was enacted after the date of the application. Mr. Justice Reed, speaking for a unanimous Court, upheld the action of the Commission:
We are convinced that the Commission was required to act under the law as it existed when its order of May 29, 1941, was entered. . . . [A] change of law pending an administrative hearing must be followed in relation to permits for future acts. Otherwise the administrative body would issue orders contrary to the existing legislation. Id. at 78.
See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971); Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969); 51 Am. Jur. 2d Licenses ...