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Bernstein v. Service Corporation International

United States District Court, E.D. Pennsylvania

January 14, 2020

CAROLINE BERNSTEIN, an individual, MARLA UROFSKY on behalf of RHEA SCHWARTZ, an individual, on behalf of themselves and all others similarly situated, Plaintiffs,


          Gerald Austin McHugh, United States District Judge.

         This is a putative class action in which the named Plaintiffs assert claims for negligence, breach of contract, and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL) against Defendants, a multinational cemetery operator and its Pennsylvania subsidiary. The named Plaintiffs are Caroline Bernstein and Marla Urofsky, who with power of attorney sues on behalf of her mother, Rhea Schwartz.[1] Of Plaintiffs' three claims, the first two-for negligence and for breach of contract-are based on similar allegations. According to Plaintiffs, Defendants oversold burial plots, failed to maintain accurate burial records, failed to maintain sufficient space between plots so as to avoid damage to adjacent plots, buried remains in incorrect plots, relocated remains without authorization, failed to handle remains with reasonable care, and failed to take any remedial action even after being notified of problematic incidents. ECF 45, ¶¶ 167, 170. In their third claim, Plaintiffs allege that Defendants violated the UTPCPL's catchall provision, which prohibits “any person” from “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. §§ 201-2(4)(xxi), 201-3.[2]

         Defendants now move for summary judgment as to the named Plaintiffs' individual claims only, arguing that “because Plaintiffs' claims are fatally defective, they cannot lead the proposed class they purport to represent, and thus, this entire action should be dismissed.” ECF 47, at 1; see also Fed. R. Civ. P. 23(a). Plaintiffs have yet to move to certify a class, and the threshold controlling issue is the viability of their individual claims.

         I. Background

         A. Defendants

         Defendant SCI Pennsylvania Funeral Services, Inc., is part of a sizable network of funeral services providers wholly owned by co-Defendant Services Corporation International (SCI Global). SCI Global and companies affiliated with SCI Global own nearly 2, 000 funeral service locations and cemeteries across the United States and Canada. In Pennsylvania, SCI Pennsylvania owns and operates Shalom Memorial Park Cemetery and Roosevelt Memorial Park Cemetery, the two cemeteries at the center of Plaintiffs' claims. ECF 45, ¶ 59; ECF 46, ¶ 59.

         B. Plaintiff Bernstein

         In 1983, after her mother passed away, Caroline Bernstein purchased two adjacent burial plots at Shalom Cemetery, one for her mother and one for her. At Shalom Cemetery, most graves are laid out in 12-foot by 8-foot lots. Each lot includes four graves, with the individual graves typically measuring 32-inches across and 8-feet long. Bernstein's two plots are contained within Shalom Cemetery's Lot Number 771. Bernstein's mother, Irene Zubrin Gordon, was buried in plot 2.

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         To effectuate the purchase of the plots, Bernstein executed a Sepulcher Agreement with Shalom Cemetery. ECF 47-2. That Agreement, among other things, specified that each plot had to be large enough to encompass a “burial space[] . . . of standard size, not less than 26 inches high, 32 inches wide and 92 inches long.” ECF 47-2, ¶ 15; ECF 51-2, Ex. A, ¶ 15. In addition to the Agreement, Bernstein received a “Certificate of Ownership, ” which mandated that “[n]o portion of the Plot shall be transferred to another person or persons for resale.” ECF 51-2, Ex. B.

         Bernstein's Sepulcher Agreement also incorporated Shalom Cemetery's Rules and Regulations. In signing the Agreement, Bernstein “agree[d] to comply at all times with the Rules and Regulations promulgated and posted at the Cemetery office, as amended from time to time concerning the operation, care, use, control and preservation of the Cemetery and the improvements thereof.” ECF 47-2, ¶ 14. As relevant here, through regulations in operation since January 2013, “[Shalom] Cemetery reserves and shall have the right to correct any error that may be made in the location of an interment space or placing of an outer burial container, ” and that “[t]he Cemetery shall have no liability as a result of any error of the type described in this section, other than the obligation to correct it.” ECF 47-23, ¶ 80; see also Id. ¶ 31 (noting that “[t]he Cemetery reserves and shall have the right to correct any errors that may be made by it in making interments . . . including the right to substitute and convey in lieu thereof other Interment Rights of comparable value and similar location (to the extent possible) as may be selected by the Cemetery, ” and that “[Shalom] Cemetery shall have no liability as a result of any errors of the type described in this paragraph other than its obligation to take the remedial actions described in this paragraph”); cf. Defendants' Answer, ECF 46, ¶ 53 (citing Roosevelt's Rules and Regulations, which are substantively identical to Shalom's).

         In January 2017, an individual unrelated to Bernstein was buried in the plot to the left of the plot reserved for Bernstein.

         (Image Omitted)

         The next month, Bernstein, then eighty-two or eighty-three years of age, went with her grandson to Shalom Cemetery to visit Bernstein's mother's grave. While there, they observed the new grave and became concerned that it overlapped with the plot Bernstein had reserved. See ECF 45, ¶ 14; see also Id. at Ex. B (pictures roughly showing proximity of the various plots). Bernstein and her grandson raised their concern with Shalom Cemetery's General Manager, Scott Nulty. Bernstein's grandson explained to Nulty that Ms. Bernstein was concerned that the new grave (Lot 770, plot 4) did not leave sufficient room for her to be buried next to her mother. Nulty assured Bernstein and her grandson that there was enough room for Bernstein's burial and that “worse case the casket burial containers would touch.” ECF 45, ¶ 17. According to Bernstein's grandson, Nulty's response concerned both him and Bernstein, as it is “against Jewish . . . religion to expose another person's grave who has been buried.” ECF 51-2, at 4 (citing deposition of Bernstein's grandson, at 23:19-25). Nulty recorded the grandson's phone number, but the parties had no further communication. Bernstein then filed suit in November 2017.[3]

         Soon after Ms. Bernstein filed suit, and then twice more over the next year or so, Nulty ordered the plot reserved for Bernstein to be “probed.” Probing of grave plots involves inserting a four-foot long drill into the ground to locate the outer boundaries of the plot. In doing so, probing can confirm whether the boundaries of the plot have been breached. The parties seem to dispute the results of the probing exercises-or at least the implications of the results. Nulty did not record any results from the first probe, and the widths recorded from the second and third probes, while each suggesting that Bernstein's plot contained sufficient room for burial, varied meaningfully. The second probe produced a plot width of 41 inches across at the top of the plot and 37 inches across at the bottom of the plot. The third probe produced a plot width of 51 inches across, a variance of about 25 percent. ECF 52-15, at 67:20-22, 78:6-9.

         According to Defendants, the three probing exercises, notwithstanding the variance in measurement, “demonstrated that Bernstein's grave plot at Shalom was and is unoccupied, and there is adequate room for her to be buried there.” ECF 47, at 2. By contrast, Bernstein takes the variance in measurement to be a feature of a nonscientific, inaccurate process. To Bernstein, the differences in the probing results meant that Shalom Cemetery could not assure her that the plot she had reserved contained sufficient room for her burial.[4] After Shalom Cemetery probed Bernstein's plot for the last time in February 2019, Bernstein remained unconvinced that the plot she reserved contained sufficient space for her burial.

         Counsel for Defendants then sought to assuage Bernstein's concerns. On March 28, 2019, counsel for Defendants advised Bernstein's lawyer that they would be opening the plot reserved for Bernstein to check for space, and invited Bernstein and her lawyer to attend:

In order to confirm that there is ample space for Caroline Bernstein to be buried in her purchased grave space at Shalom Memorial Park, in the David Section, Lot 771, Space No. 1, we plan to open Ms. Bernstein's reserved space on Monday, April 8, 2019 at 11:00 a.m. We would like to invite you and/or your client to come and observe the opening. We would also be willing to place a concrete liner in Ms. Bernstein's purchased grave space once opened (at no cost to Ms. Bernstein) so that she can be assured that when the time comes for her to be buried therein there will be sufficient space for her to be placed alongside her mother. Please advise as to whether you would like to attend the opening. Thank you in advance for your prompt attention to this matter.

         After the parties agreed to an excavation date, Defendants' counsel wrote to Bernstein's lawyer noting that “absent objection from your client, Shalom will pre-install a concrete liner in the space once it is opened at no cost to your client.” In response, Bernstein's lawyer made clear that they “ha[d] not ‘agreed' to your proposed course of action.” ECF 47-15. Bernstein's lawyer continued:

[W]e do not agree that we need to accept or object to your proposal to excavate the grave and or place a liner in the grave. This is a unilateral decision your client has made in response to their inability to confirm that the grave Ms. Bernstein owns is available for her use. We will be present to observe only.

         On May 6, 2019, Defendants excavated Bernstein's grave plot. Bernstein and her grandson both attended. The excavation exposed certain portions of adjacent grave plots, including “portions of the vertical walls of concrete liners in adjacent graves.” Defendants' Answer, ECF 46, ¶ 31. Nevertheless, Defendants were able to install in Bernstein's grave plot a 34-inch by 90-inch concrete liner.

         C* Plaintiff Schwartz

         In 1975, Marc Schwartz passed away. At the time of Marc's death, Marc's parents- Rhea Schwartz and her late husband Jack-purchased three side-by-side grave plots at Roosevelt Memorial Park Cemetery. As at Shalom Cemetery, graves at Roosevelt Cemetery are laid out in lots. Jack and Rhea Schwartz purchased grave plots 1, 2, and 3 in Section N5, Lot 118. Marc was meant to be buried in plot 3 and Jack, when he died in 2011, was buried in plot 1.

         In the fall of 2015, Schwartz, then eighty-six or eighty-seven years of age, went with her daughter Marla to Roosevelt Cemetery to visit Jack's and Marc's graves. While there, they observed what appeared to be “extra space” in the grave lot between Marc's grave and the plot reserved for Schwartz. Schwartz and Marla worried that the apparent extra space would allow Roosevelt to bury another person between Marc and the plot reserved for Schwartz. Schwartz and Marla raised their concern with Roosevelt Cemetery staff. In response, on October 29, 2015, David Gordon, Roosevelt Cemetery's General Manager, wrote to Schwartz. In that letter, Gordon sought to mollify Schwartz and Maria's concerns. ECF 45-E. Gordon acknowledged that Schwartz and Maria were "concern[ed] that there is 'extra' space in the plot," but assured Schwartz that "you will eventually be buried between and next to your husband on one side and next to your son on the other." Id. He closed, "No stranger will separate your family." Id.

         In late September 2017, Schwartz and Maria visited Roosevelt Cemetery and observed that Roosevelt had, indeed, buried another person between Marc and the plot reserved for Schwartz. Defendants have conceded that "Marc Schwartz was buried in . . . grave plot number 4, and not. . . grave plot number 3," and that, as a result, "grave plot number 3 appeared to be ...

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