PETITION FOR REVIEW, (STATE BOARD OF FUNERAL DIRECTORS).
James P. Georghegan, Georghegan & Ozorowski, for petitioner.
Jackie C. Wiest, Counsel, State Bd. of Funeral Directors, with her, Joyce McKeever, Chief Counsel, Bureau of Professional and Occupational Affairs, and Velma A. Boozer, Chief Counsel, Dept. of State, for respondent.
Crumlish, Jr., President Judge, and Craig (p.) and Colins, JJ.
[ 129 Pa. Commw. Page 307]
Emil Ciavarelli (petitioner) appeals an order of the State Board of Funeral Directors (Board) which suspended petitioner's funeral director's and funeral Supervisor's licenses for two (2) years and assessed a One Thousand Dollar ($1,000.00) fine. We reverse.
The Board issued a three count complaint and order to show cause charging petitioner with violations of the Funeral Director Law (Act), Act of January 14, 1952, P.L. (1951) 1898, as amended, 63 P.S. §§ 479.1--479.20 and certain Board regulations that describe examples of unprofessional conduct including gross misconduct. Count I of the complaint alleged that the petitioner was guilty of violating Sections 11(a)(5) and 11(a)(9) of the Act.*fn1 Count II of the complaint alleged that the petitioner violated Section 11(a)(6)*fn2 of the Act by attempting to influence a family's choice of a funeral director as prohibited by the Board's regulations.*fn3 Count III of the complaint again alleged that
[ 129 Pa. Commw. Page 308]
the petitioner was guilty of violating Section 11(a)(6) of the Act by defaming another funeral director as prohibited by the Board's regulations.*fn4 The Board held a hearing on March 7, 1988, and issued its order on December 7, 1988, finding petitioner guilty on Count I, dismissing Counts II and III, and imposing the penalties mentioned above. This appeal followed.
This litigation has its genesis in a December 15, 1986, natural gas explosion in Springfield Township, Montgomery County. This explosion destroyed a residence resulting in the death of three individuals. The Township police summoned Father Steven Guiliano to the scene of the explosion at the request of one of the surviving family members. The bodies after being anointed were then transported to the petitioner's funeral home by the petitioner's son under a refrigeration rental arrangement with the County, since the coroner's office had no morgue.
Carl Gray a family friend was asked by the surviving family members to arrange the funerals for the deceased. While paging through the telephone book, Mr. Gray asked Father Guiliano if he knew of any funeral directors that could handle the burials. The priest responded that he did not care which funeral home was used and, since the telephone book was opened to the page with the May Funeral Home's advertisement, that, in his expertise, they did a good job. Mr. Gray then asked the priest to contact the May Funeral Home to handle the arrangements.
[ 129 Pa. Commw. Page 309]
After the explosion, a cousin of the deceased, who was a medical doctor, arrived from out of town and went to the petitioner's establishment in an attempt to identify the bodies. Petitioner suggested that this would not be a good idea because the bodies were burned beyond recognition. Petitioner then allegedly pulled Father Guiliano aside and asked him why he was recommending the May Funeral Home. Father Guiliano denied recommending the May Funeral Home. Father Guiliano testified that the petitioner "made the statement that because I was Italian that I should think of him because we had to stick together." Father Guiliano continued that the petitioner "proceeded to tell me that he thought I had something against him and that he was very upset and why didn't I . . . not recommend him, why would I recommend May instead."
Petitioner then allegedly told the doctor that it would be cheaper for the petitioner's establishment to handle the burials because the bodies would not have to be transported to May's funeral home. The family then decided to use the petitioner's funeral home. Father Guiliano informed Mr. May that petitioner's establishment would be used. Mr. May then became upset and Father Guiliano informed the family of this, so the family decided to stay with Mr. May.
Father Guiliano alleged that his secretary received an irate telephone call from the petitioner admonishing him for recommending funeral homes. In response, the priest wrote to petitioner a few weeks later stating this was not true. Additionally, a copy of this letter was sent to Mr. May who, in turn, forwarded a copy to the Board which commenced this proceeding. Also, the record does ...