Commonwealth Court panel reverses decision in cemetery registration case

By Jon Campisi | Nov 14, 2012

A three-judge state appellate court panel has reversed a decision by the Pennsylvania

Department of State’s Bureau of Professional and Occupational Affairs requiring an Allegheny County cemetery to register with the state’s Real Estate Commission.

The Nov. 13 Commonwealth Court decision says that Mt. Vernon Cemetery Company, which is located in McKeesport, Pa., does not have to register with the commission pursuant to the Real Estate Licensing and Registration Act and the Burial Grounds Act.

The BPOA had initiated disciplinary proceedings against Mt. Vernon Cemetery Co. over the company’s refusal to register with the state.

The State Real Estate Commission ended up adopting a hearing examiner’s proposed adjudication in the case, and the BPOA sought to impose sanctions on the cemetery company in the amount of $10,000 per year for each of the 28 years that the company failed to register with the state following the passage of the two state laws in question.

The cemetery maintained that it was not, by definition, a cemetery “company” anymore, since it hadn’t sold any burial lots since before the enactment of the two laws.

The cemetery’s operation is now limited solely to interring remains and cremains of people holding deeds issued before 1968, court records show.

The cemetery never ended up registering with the commission because its president, Joseph Murphy, believed that it did not need to because it no longer sold lots to the public.

The hearing examiner had determined that, beginning in 1982 and continuing to the present, the cemetery was subject to the registration requirement because it engaged in the business of a cemetery during that period.

On appeal to the Commonwealth Court, the cemetery argued that the commission erred in its decision, and that the cemetery is not technically a cemetery company because it does not sell or offer to sell burial plots and has not done so since before the date of enactments regulating such activity.

The court agreed.

“There is simply no support for a contention that an entity, that is not currently offering for sale or selling a cemetery lot and that has never offered for sale or sold a cemetery lot subsequent to the enactment of the Burial Grounds Act and the Real Estate Act, meets the definition of a ‘cemetery company’ under those acts,” the three-judge appellate decision reads. “Thus, based upon the clear statutory language of both acts, we must conclude that Petitioner is not a ‘cemetery company.’”

The decision was signed by Commonwealth Court Judge P. Kevin Brobson.

The two other participating jurists were Judge Bonnie Brigance Leadbetter and Senior Judge Rochelle S. Friedman.

Arguments had been held before the panel in mid October.

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