Restland Memorial Park, Matter of, No. 75-2334

CourtU.S. Court of Appeals — Third Circuit
Writing for the CourtBefore ADAMS, HUNTER and WEIS; ADAMS
Citation540 F.2d 626
Parties4 O.S.H. Cas.(BNA) 1485, 1976-1977 O.S.H.D. ( 20,956 In the Matter of Establishment of RESTLAND MEMORIAL PARK, Appellant.
Docket NumberNo. 75-2334
Decision Date30 July 1976

Page 626

540 F.2d 626
4 O.S.H. Cas.(BNA) 1485, 1976-1977 O.S.H.D. ( 20,956
In the Matter of Establishment of RESTLAND MEMORIAL PARK, Appellant.
No. 75-2334.
United States Court of Appeals,
Third Circuit.
Submitted June 22, 1976.
Decided July 30, 1976.

Robert E. McKee, Jr., Feldstein, Bloom, Grinberg, Stein & McKee, Pittsburgh, Pa., for appellant.

William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, Allen H. Feldman, Asst. Counsel for Appellate Litigation, Sidney M. Nowell, Atty., U. S. Dept. of Labor, Washington, D. C., for appellee.

Before ADAMS, HUNTER and WEIS, Circuit Judges.

Page 627

OPINION OF THE COURT

ADAMS, Circuit Judge.

During the consideration of the bills which ultimately became the Occupational Safety and Health Act of 1970 (OSHA), the intention to make the maximum use of the commerce power was repeatedly expressed by various Congressmen. 1 The Act is by its terms applicable to every "person engaged in business affecting commerce who has employees." 2 In this proceeding, a cemetery company seeks some definition of the scope of the phrase "affecting commerce." The issue is raised by way of an appeal from the district court's denial of a motion to quash a civil search warrant authorizing an inspection of the cemetery's business premises.

I.

Restland Memorial Park, a cemetery, is operated by a corporation whose shares are owned by a husband and wife. These two shareholders and their son comprise three of the four employees of the company. The cemetery is located in Pennsylvania; a very high portion of those buried in it were Pennsylvania residents; its supplies and equipment are purchased from Pennsylvania dealers. The Secretary asserts that the caskets used for the burials in Restland have often been imported into Pennsylvania, that each year several persons who died outside of Pennsylvania are buried there, and that Restland's equipment is operated on public highways.

The operations of the cemetery require the use of a backhoe, mowing machinery, and two trucks. In view of the safety hazards created by such equipment, principally amputations that result from improperly guarded mowers, the agency has assumed the responsibility of inspecting cemeteries, golf courses, and similar establishments. At Restland, however, OSHA's representative was ordered off the premises. The Secretary then sought, and obtained, an inspection warrant. Despite this, his representative was again refused entry.

Before the Secretary could obtain enforcement of his warrant from the district court, Restland petitioned that court to quash the warrant, contending that the operations of the cemetery do not bring it within the jurisdiction of the agency under the interstate commerce clause and the provisions of the Act. The district court denied the petition to quash the warrant and ordered the officials and employees of the corporation to permit an authorized safety officer to enter the premises and conduct a reasonable inspection.

Restland has appealed the decision of the district court. We have jurisdiction under 28 U.S.C. § 1291. 3

II.

Pursuant to his duties under the Act, the Secretary is authorized to enter any place of employment "affecting commerce," and to inspect that place, its structures, and equipment for violations of OSHA standards. 4 Whether the agency is authorized to enter Restland Memorial Park depends on whether the cemetery is an employer "affecting commerce." Restland seeks a determination of that issue prior to permitting entry by the Secretary or his representative. This Court, however, is precluded from considering that question at this stage of the proceedings.

The Occupational Safety and Health Act has created a central forum for adjudications

Page 628

in the Occupational Safety and Health Review Commission, 5 which is authorized to pass on all factual and statutory defenses available against the enforcement actions of the...

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25 practice notes
  • Babcock and Wilcox Co. v. Marshall, AFL-CIO and L
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 16, 1979
    ...proceeding. So far as the court is concerned, it is complete in itself. Id. at 330, 60 S.Ct. at 543. See In re Restland Memorial Park, 540 F.2d 626, 627 n.3 (3d Cir.1976); Cf. O'Connor v. O'Connell, 253 F.2d 365, 365-66 (1st Cir. 1958) (order directing compliance with administrative subpoen......
  • Shawnee Coal Co. v. Andrus, No. 80-3220
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 5, 1981
    ...101 S.Ct. 79, 66 L.Ed.2d 23 (1980); Marshall v. Burlington Northern Inc., 595 F.2d 511, 513 (9th Cir. 1979); In re Restland Memorial Park, 540 F.2d 626, 628 (3rd Cir. 1976); Casey v. FTC, 578 F.2d 793, 798 (9th Cir. 1978); cf. United States v. City of Painesville, Ohio, 644 F.2d 1186, 1190 ......
  • Cerro Metal Products v. Marshall, Nos. 79-1760
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 24, 1980
    ...should we make our own assessment. Principal support for the proposition advanced by OSHA is provided by In re Restland Memorial Park, 540 F.2d 626 (3d Cir. 1976), in which we stated that exhaustion was required even though OSHA's jurisdiction was challenged before an inspection had occurre......
  • Murphy v. Garrett, Civ. A. No. 89-1853.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 18, 1990
    ...failed to exhaust his military remedies. Thus, he may not maintain an action under the APA. See, e.g., Matter of Restland Memorial Park, 540 F.2d 626, 628 (3d Cir.1976); Watson v. Arkansas National Guard, 886 F.2d 1004, 1008 (8th Cir.1989); 5 U.S.C. § 702. Furthermore, Murphy's challenge to......
  • Request a trial to view additional results
25 cases
  • Babcock and Wilcox Co. v. Marshall, AFL-CIO and L
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 16, 1979
    ...proceeding. So far as the court is concerned, it is complete in itself. Id. at 330, 60 S.Ct. at 543. See In re Restland Memorial Park, 540 F.2d 626, 627 n.3 (3d Cir.1976); Cf. O'Connor v. O'Connell, 253 F.2d 365, 365-66 (1st Cir. 1958) (order directing compliance with administrative subpoen......
  • Shawnee Coal Co. v. Andrus, No. 80-3220
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 5, 1981
    ...101 S.Ct. 79, 66 L.Ed.2d 23 (1980); Marshall v. Burlington Northern Inc., 595 F.2d 511, 513 (9th Cir. 1979); In re Restland Memorial Park, 540 F.2d 626, 628 (3rd Cir. 1976); Casey v. FTC, 578 F.2d 793, 798 (9th Cir. 1978); cf. United States v. City of Painesville, Ohio, 644 F.2d 1186, 1190 ......
  • Cerro Metal Products v. Marshall, Nos. 79-1760
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 24, 1980
    ...should we make our own assessment. Principal support for the proposition advanced by OSHA is provided by In re Restland Memorial Park, 540 F.2d 626 (3d Cir. 1976), in which we stated that exhaustion was required even though OSHA's jurisdiction was challenged before an inspection had occurre......
  • Murphy v. Garrett, Civ. A. No. 89-1853.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 18, 1990
    ...failed to exhaust his military remedies. Thus, he may not maintain an action under the APA. See, e.g., Matter of Restland Memorial Park, 540 F.2d 626, 628 (3d Cir.1976); Watson v. Arkansas National Guard, 886 F.2d 1004, 1008 (8th Cir.1989); 5 U.S.C. § 702. Furthermore, Murphy's challenge to......
  • Request a trial to view additional results

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