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April 14, 2005.


The opinion of the court was delivered by: JOHN E. JONES, District Judge


Pending before the Court are a Motion for Summary Judgment (Rec. Doc. 30) filed by the Plaintiffs Michael Walker, Ernie Heffner, Jefferson Memorial Funeral Home, and Betty Frey ("Plaintiffs"), which seeks a declaratory judgment against the Defendants, Jodi Flitton, Joseph A. Fluehr, III, Michael J. Yeosock, Janice Mannal, Anthony Scarantino, Michael D. Morrison, Donald J. Murphy, James O. Pinkerton, ("Defendants" or "Board members") and a Motion for Summary Judgment (Rec. Doc. 34) filed by the Defendants seeking dismissal of Plaintiffs' action.*fn1 The aforementioned Defendants are all members of the Pennsylvania Board of Funeral Directors and are named parties in their official capacities as members of that Board. Plaintiff Ernie Heffner is a licensed funeral director at Plaintiff Jefferson Memorial Funeral Home, which employs Plaintiffs Betty Frey and Michael Walker, the former through a subsidiary, Preneed Associates, Inc.*fn2 Both Frey and Walker are licensed insurance salespersons but are not licensed funeral directors. This Court has jurisdiction over the individual Board members based on federal question jurisdiction pursuant to 28 U.S.C. § 1331 as this action for declaratory relief is brought pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act codified at 28 U.S.C. § 2201.

For the reasons stated below, we will grant Plaintiffs' Motion for Summary Judgment insofar as we will afford the Plaintiffs declaratory relief. The Defendants' Motion for Summary Judgment will be denied and this case closed.


  On November 27, 2001, Plaintiffs filed a complaint against the Defendants, who at that time were the members of the Pennsylvania State Board of Funeral Directors (the "Board").*fn3 In their complaint, Plaintiffs argue that their First Amendment right to free speech has been violated insofar as the Defendants have taken affirmative steps to restrict Plaintiffs' ability to have unlicensed funeral directors distribute price lists of funeral services and to interact with customers interested in preneed funeral services.*fn4 (Cmplt. ¶ 1). According to the Plaintiffs, the Defendants' actions have restricted their ability to allow unlicensed individuals to solicit preneed funeral plan customers or to distribute accurate funeral price lists to those customers. They argue that these restrictions violate their right to free speech under the United States Constitution. Defendants contest this, arguing that the speech at issue is not entitled to First Amendment protections.

  A. Defendants' Motion to Dismiss

  The Board filed a Motion to Dismiss on January 28, 2002. On September 24, 2002, this Court granted Defendants' Motion to Dismiss on the basis of the Rooker-Feldman doctrine. (See Rec. Doc. 11). See Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 486-87 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923).*fn5 The Third Circuit reversed, holding that, "Rooker-Feldman does not bar individual constitutional claims by persons not parties to earlier state court litigation." Walker v. Flitton, No. 02-3864 at *4 (3d Cir. June 10, 2003) (quoting FOCUS v. Allegheny County Ct. of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996) (other internal citations omitted)). (Rec. Doc. 16). The case was remanded to this Court where, following oral argument, the Defendants' Motion to Dismiss was denied on the merits. (See Rec. Doc. 21).

  B. Discovery and the Basis for the Cross Motions for Summary Judgment

  Following the remand and our subsequent denial of Defendants' Motion to Dismiss, we stated in our Order of October 7, 2003 that "we will revisit the merits of this dispute after the parties have had the opportunity to develop more fully a factual record, either by stipulation or discovery." (Rec. Doc. 21 at 6). Since the time of that Order, not only have the parties developed the factual record, but the Defendants made what we view as a misguided attempt to render this case moot. Specifically, the Board members unanimously repealed this resolution that was, in their view, the central focus of Plaintiffs' litigation. This non-binding resolution, first enacted by the Board on September 1, 1999, and repealed on May 5, 2004 states:
The State Board of Funeral Directors believes that the showing, distribution or summarization of any price list of a specific funeral home or any explanation of the funeral services or merchandise available from any specific funeral home for any commercial purpose whatsoever, except as may be specifically necessary to comply with Regulations of the Federal Trade Commission, for funeral services needed for a person then living, constitutes the practice of funeral directing by engaging in pre-need sales. Section 13(a) of the [Funeral Director] Law limits this practice to licensed funeral directors. The Board may consider it to be unprofessional conduct for any funeral director to authorize or permit any such activity constituting the practice of funeral directing.
Defs.' SMF at 8 (the "Resolution"). Oral argument on the question of mootness was held December 23, 2004. On January 13, 2005, we issued an Order denying Defendants' Motion for Summary Judgment in part and holding that this action presented a facial challenge to a state regulation, namely the actions of the Board in interpreting Pennsylvania's Funeral Director Law (the "Law"), and therefore was not moot. (Rec. Doc. 51); 63 Pa. Cons. Stat. §§ 471-80.

  Specifically, we held that "It is clear to us that there is every reason to believe that the Board, despite having rescinded the Resolution, still considers the Plaintiffs' conduct in question to be prohibited by the Pennsylvania Funeral Director Law." Id. at 13. See Guardian Plans v. Teague, 870 F.2d 123 (4th Cir. 1989) (determining that a challenge to a Virginia funeral services regulation prior to an attempt to enforce the regulation could proceed because of the threat to the plaintiffs' First Amendment rights). Furthermore, we noted that despite the rescission, the Board has continually failed to clarify to funeral directors and their unlicensed employees and agents what conduct was legal and what remained barred. We viewed Plaintiffs' claims as a facial challenge to the Board members' interpretation and application of the Law. However, our determination that the Plaintiffs have standing is distinct from and not dispositive of their substantive First Amendment challenge. See Nat'l Council for Improved Health v. Shalala, 122 F.3d 878, 881 (10th Cir. 1997) (holding that a determination that plaintiffs bringing a First Amendment challenge have standing is separate from a determination on the merits of that action). Having determined that Plaintiffs' action is not moot, we are now able address the merits of their claims pursuant to 42 U.S.C. § 1983 requesting declarative relief.


  Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed .R. Civ. P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

  Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.

  Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23.

  It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (internal citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.


  This case involves the extent to which non-licensed individuals can interact with customers regarding preneed funeral plans and how these individuals can market those plans to potential customers, specifically via accurate price lists. As noted, Plaintiff Ernie Heffner is a licensed funeral home director, Plaintiff Michael Walker is a licensed insurance salesperson who sells life insurance policies that cover funeral expenses, and Plaintiff Betty Frey is also a licensed insurance salesperson. Both Walker and Frey are employees of Heffner and Jefferson Memorial Funeral Home. As noted, it is undisputed that Walker and Frey are not licensed funeral directors. Together, the Plaintiffs are requesting declaratory relief in order to prevent the Board from initiating enforcement action(s) that would limit Plaintiffs' rights to disseminate information about preneed funeral services as well as their ability to interact with consumers. The Defendants argue that their conduct as well as the Resolution, which the Defendants believe remains an accurate statement of the Law, does not impermissibly infringe on the Plaintiffs' free speech rights. As the factual basis which has brought this case before us is quite complicated, we will now proceed to explain it, as well as certain historical references, in some detail.

  A. Plaintiffs' Action and Preneed Sales Prior to the Board's Adoption of the Resolution

  The Defendants believe and accordingly assert that their Resolution was merely a proper interpretation of the Law. Therefore, we first will examine what the Law dictates regarding preneed services. Next, we will examine the state court's interpretation of the Law and the Resolution, and finally we discuss the impact of this on the Plaintiffs and others similarly situated.

  1. The Funeral Director Law, 63 Pa. Cons. Stat. §§ 471-80

  In 1952, the Pennsylvania General Assembly enacted what is known as the Funeral Director Law ("Law"). See 63 Pa. Cons. Stat. §§ 471-80.*fn6 The Law details numerous aspects of funeral directing, most of which are not relevant to our inquiry here.*fn7 The relevant portion of the Law includes the creation of the Board of [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] Funeral Directors which is tasked with "the enforcement of this [A]ct." Id. at § 479.16(a); see also § 479.19 (establishing the Board and explaining who its members will be). In enforcing the Law, the Board:
shall be empowered to formulate necessary rules and regulations not inconsistent with this act for the proper conduct of the business or profession of funeral directing and as may be deemed necessary or proper to safeguard the interests of the public and the standards of the profession.
Id. Additionally, § 479.13 prescribes when it is permissible for individuals to practice funeral directing without a license, and what duties constitute the practice of funeral directing:
(a) No person shall practice as a funeral director as defined herein, in this Commonwealth unless he holds a valid license so to do as provided in this act.*fn8
. . . (b) No person other than a licensed funeral director or a resident interne shall prepare or embalm the body of any deceased person.
(c) No person other than a licensed funeral director shall, directly or indirectly, or through an agent, offer to or enter into a contract with a living person to render funeral services to such person when needed. If any such licensed funeral director shall accept any money for such contracts, he shall, forthwith, either deposit the same in an escrow account in, or transfer the same in trust to, a banking institution in this Commonwealth, conditioned upon its withdrawal or disbursement only for the purposes for which such money was accepted. This subsection does not apply to a contract by a bona fide institution that it will provide professional funeral services for persons who may die while inmates of the institution, if such contract is made as a part of its contract for housing, maintaining and caring for its inmates.
(d) Tentative funeral arrangements after a death has occurred can be made by an unlicensed member of the funeral home staff in the event the licensed funeral director is temporarily absent.
63 Pa. Cons. Stat. § 479.13 (emphasis added). The Law thus forbids unlicensed individuals from offering for sale or entering into a preneed funeral plan contract under subpart (c). However, under subpart (d), unlicensed individuals are permitted to make tentative funeral arrangements in the event that the licensed funeral director for whom they work is temporarily unavailable. Therefore, although the Law prohibits unlicensed individuals from offering for sale preneed contracts, these same unlicensed individuals are permitted to make tentative funeral arrangements in certain situations.
  The Law also defines what constitutes the practice of funeral directing: A person, either individually or as a member of a partnership or of a corporation, shall be deemed to be practicing as a funeral director within the meaning and intent of this act who:
(1) holds himself out to the public in any manner as one who is skilled in the knowledge, science and practice of funeral directing, embalming or undertaking, or who advertises himself as an undertaker, mortician or funeral director.
(2) permits, either as lessee, employe, [sic] associate, or in any capacity whatsoever, the illegal operation of an establishment or enterprise of any character or description whereby the public is led to believe that therein is offered or available funeral directing or undertaking services or facilities.
Id. at § 479.15.

  Finally, the Board's jurisdiction extends to those who act as funeral directors but are not licensed as such. See 63 Pa. Cons. Stat. § 479.14(c) ("No person shall attempt to practice under guise of a license").

  2. The Plaintiffs' Conduct Prior to the Resolution

  According to the Plaintiffs, prior to the Board's adoption of the Resolution, Walker and Frey both "made themselves available to answer questions posed by consumers concerning funeral/cemetery merchandise and services, along with funding options, available from their respective employe[r]s." (Pls.' Br. Supp. Pls.' Mot. Summ. J. at 3). Both worked under the direct supervision of Heffner and with the full authorization of Heffner and Jefferson Memorial. Frey and Walker submit, and the Defendants do not contest, that at all times they provided "truthful, honest, and accurate information to consumers" despite their lack of formal training as funeral directors. Id. at 4.

  B. The Resolution and its Effect on the Plaintiffs

  At the time this action was filed, the Resolution was in effect. As noted, it has since be withdrawn by the Board. Both the Resolution and subsequent statements by certain Board members have caused the Plaintiffs to ...

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