Two weeks ago, at the Jenkins Memorial Law Library, I taught a course about the laws surrounding death and burial. One topic of interest to the lawyers and judges who enrolled in the course, because of the Constitutional issues involved, was the controversy surrounding Pennsylvania's Funeral Laws. Our laws are in a state of flux following a suit brought by a contingent of funeral directors who are now asking the United States Supreme Court to find them so anti-competitive and protectionist, that they are unconstitutional. On the other hand, the State Board of Funeral Directors and the Commonwealth are trying to defend the laws.
This disagreement started when a York County, PA funeral director named Ernie Heffner challenged some of the state's laws, as well as the actions of the Board of Funeral Directors. Hefner was later joined by consumer groups such as the Funeral Consumers Alliance and the Institute for Justice. He brought suit in federal court where the judge found the Pennsylvania laws, passed in 1952, outdated and patently unconstitutional.
Some of the contested Pennsylvania laws are:
*Every funeral home must have an embalming room, including those funeral homes that engage exclusively in cremations or green funerals, neither of which use embalming fluid.
* The Pennsylvania board is given the authority to inspect funeral homes with no advance warning, and without a warrant.
* Funeral homes are banned from offering food of any kind although there is no proof of any safety concerns. The funeral directors who brought the suit felt that offering some light refreshments might be appropriate to any gathering of family and friends.
* Funeral homes must be named after the current or former funeral director operating them, despite the fact similar rules in other professions have been ruled unconstitutional.
*A wife of a deceased funeral director may continue to operate the funeral home even though she does not hold a license, but that exception does not apply to any other person.
Following defeat in the lower court, the state board appealed to the Third Circuit Court of Appeals who reversed. The Third Circuit agreed that the laws are outdated, but that alone did not make them unconstitutional, with one exception. They struck down the law mandating the funeral home must be named after one of the owners. They correctly held that state law does not in any way serve to protect the public. After all, Ernie Madoff operated under the insignia of his own name, but nevertheless cheated many of his customers. And so, in the months ahead we may see funeral homes with names such as "Happy Ending Funeral Services" or any derivation thereof.
Undaunted by the loss in the Third Circuit, the original plaintiffs have filed a writ of Certiori with the United States Supreme Court and is asking them to weigh in on the issue. The U.S. Supreme Court is not obligated to take every case that is filed with them, and we will see if they take on the Pennsylvania case or allow the antiquated laws to stand.
Stay well until the next post,
Bob Gasparo, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
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