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
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
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
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. §§
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.
STATEMENT OF RELEVANT FACTS:
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
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
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
. . . (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 ...