Donato v. State Bd. of Funeral Directors

• Decision Date: 27 February 1995
• Citation: 649 A.2d 207,168 Pa.Cmwlth. 177
• Parties: Marie C. DONATO and A.P. Donato Funeral Home, Inc., Petitioners, v. STATE BOARD OF FUNERAL DIRECTORS, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 207

649 A.2d 207

168 Pa.Cmwlth. 177

Marie C. DONATO and A.P. Donato Funeral Home, Inc., Petitioners, v. STATE BOARD OF FUNERAL DIRECTORS, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Sept. 21, 1994.

Decided Oct. 25, 1994.

Petition for Allowance of Appeal Denied Feb. 27, 1995.

Alan M. Bredt, for petitioners.

Gerald S. Smith, Deputy Chief Counsel, and Joyce McKeever, Chief Counsel, for respondent.

Before COLINS, President Judge, and DOYLE, SMITH, PELLEGRINI, FRIEDMAN, KELLEY and NEWMAN, JJ.

PELLEGRINI, Judge.

Marie C. Donato (Donato) appeals an order of the Board of Funeral Directors (Board) denying her application for a restricted business corporation license ¹ for the A.P. Donato Funeral Home.

A.P. Donato was a licensed funeral director and operated the A.P. Donato Funeral Home as a sole proprietor. Donato is his daughter. After A.P.'s death in 1963, his wife was issued a widow's license allowing her to operate the business for the remainder of her life or until remarriage. ² At that time, the Law provided for funeral homes to be operated only by licensed individuals, partnerships or their widows/widowers or estates. However, by the Act of March 3, 1976, P.L. 32, the General Assembly amended Section 8 of the Law to allow licensed funeral directors to operate their funeral homes under a restricted business corporation license. The amendment not only allowed licensed funeral directors to form a restricted business corporation, but allowed the licensed funeral director to include immediate family members as shareholders in the corporation. Through these corporations, immediate family members can carry on the business in a manner similar to the widow's license.

In 1993, Donato applied for a restricted business corporation license for the funeral home as the sole shareholder in the corporation. Although not a licensed funeral director, Donato contended she was entitled to be a shareholder in a restricted business corporation because she was an immediate family member. The Board denied the application finding that under the Law, only a licensed funeral director could grant an ownership interest in the corporation to an unlicensed family member. This appeal followed. ³

On appeal, Donato raises only the following issues:

1. The requirement of Section 8(b)(4) of the Funeral Directors Law, 63 P.S. Section 479.8(b)(4) (the "Law"), that the shareholders of a Restricted Business Corporation must be members of the immediate family of a deceased licensed funeral director who was a shareholder in the same corporation at death, creates a distinction among decendents of funeral home owners that has no rational basis.

2. The requirement of Section 8(b)(4) of the Law, 63 P.S. Section 479.8(b)(4), that shareholders of a Restricted Business Corporation must be members of the immediate family of a deceased licensed funeral director who was a shareholder in the same corporation at death is arbitrary and unreasonable and bears no relation to the purpose of the Law, namely, to provide for the better protection of life and health of the citizens of this Commonwealth through examination, licensure and registration of persons and corporations engaging in the care, preparation and disposition of bodies of deceased persons.

Brief of Marie Donato, p. 6.

These issues raise the question of whether the restricted business corporation provision in the Funeral Director's Law that excludes Donato from being a shareholder in such a corporation violates her due process and equal protection rights. According to Donato, the Law's restriction allowing only licensed funeral directors to form restricted business corporations is not rationally related to the legitimate state interest in protecting the public health and safety. She contends that the state's interest in protecting the public health and safety would not be impaired if the unlicensed descendants of the licensed funeral director formed the restricted business corporation because the Law requires the funeral home to employ a licensed funeral director full-time. ⁴

To be successful in her equal protection challenge, Donato must establish that the legislative classification that allows only licensed funeral directors to designate immediate family members shareholders in a restricted business corporation does not have some valid state purpose. Similarly, Donato's due process challenge requires a showing that no relationship between the challenged statute and the achievement of a legitimate state goal exists. H.P. Brandt Funeral Home v. Department of State, Bureau of Professional and Occupational Affairs, State Board of Funeral Directors, 78 Pa.Commonwealth Ct. 206, 210, 467 A.2d 106, 108 (1983). Moreover, Donato must overcome the presumption that a lawfully enacted statute is constitutional and is not to be declared otherwise unless it "clearly, palpably and plainly" violates the constitutions of the Commonwealth or the United States, and that any doubts as to the statute's constitutionality are to be resolved in favor of sustaining the statute. Cloonan v. Thornburgh, 103 Pa.Commonwealth Ct. 1, 11, 519 A.2d 1040, 1046 (1986).

Regarding the funeral business generally, our courts have long recognized that the General Assembly has a legitimate interest in regulating the licensing of funeral directors in order "to protect the public health from the dangers attendant upon the inexpert conduct of undertaking by those not qualified by the necessary knowledge of principles of sanitation and disease prevention." Board of Funeral Directors v. L. Beinhauer & Son Company, 23 Pa.Commonwealth Ct. 106, 110, 350 A.2d 453, 456 (1976) (quoting Grime v. Department of Public Instruction, 324 Pa. 371, 188 A. 337 (1936)). Because of the specific use, nature and high cost of establishing a funeral home, the General Assembly also has a legitimate interest in the continuation of an established funeral home business after the death of the licensed funeral director. It has addressed this concern in part by providing for "widow's" licenses and the formation of restricted business corporations allowing certain family members to continue the operation of the business after the death of the licensed funeral director.

In Edwards v. Department of State, Commissioner of Professional and Occupational Affairs (State Board of Funeral Directors), 34 Pa.Commonwealth Ct. 249, 383 A.2d 564 (1978), we addressed the General Assembly's policy reasons for allowing widow's licenses, which necessarily applies to its allowance of the participation of unlicensed family members of a licensed funeral director in the ownership of restricted business corporations. In that case, we noted that the purpose for allowing widow's licenses was:

"to prevent or alleviate the considerable losses to survivors...