State Bd. of Funeral Directors v. Cieslak

• Decision Date: 09 April 1976
• Citation: 24 Pa.Cmwlth. 315,355 A.2d 590
• Parties: The STATE BOARD OF FUNERAL DIRECTORS v. Edward Charles CIESLAK, Appellant. license, and he filed administrative agency
• Court: Pennsylvania Commonwealth Court

355 A.2d 590

24 Pa.Cmwlth. 315

The STATE BOARD OF FUNERAL DIRECTORS v. Edward Charles CIESLAK, Appellant. license, and he filed

administrative agency

Commonwealth Court of Pennsylvania.

April 9, 1976

Argued March 4, 1976.

Norbert A. Michalski, Pittsburgh, for appellant.

Alan M. Bredt, Deputy Atty. Gen., Pa. Dept. of Justice Harrisburg, for appellee.

Before WILKINSON, Jr., MENCER and BLATT, JJ.

MENCER Judge.

Edward Charles Cieslak (appellant) brings this appeal to contest the adjudication and order of the State Board of Funeral Directors (Board), dated September 15, 1975, which suspended for 6 months, appellant's license to act as a funeral director. After hearings held on March 7, 8, and 20, 1973 the Board found appellant in violation of Sections 6 and 13(c) of the Funeral Director Law ^[1] (Act) and regulation 16.3 of the Rules and Regulations of the Board in effect prior to October 20, 1973 and guilty of conduct that would be the basis of a suspension under Section 11 of the Act. ^[2] Appellant asserts, first, that the Board's findings of fact are not supported by substantial evidence. Alternatively, appellant insists that, even if supported by substantial evidence, the facts as found by the Board do not, as a matter of law, constitute violations of the Act. Finally, appellant alleges violations of his due process rights under the Fourteenth Amendment to the United States Constitution in that there was almost a two and one-half year delay between the close of hearings and the Board's issuance of its adjudication and that membership of the Board had so changed in the interim that two of the four members of the Board who decided the case were not present at the hearings in 1973. Notwithstanding these objections, we must affirm.

The misconduct charges against appellant stemmed from certain alleged irregularities in financial arrangements during his tenure as manager of the C. C. Cieslak Funeral Home. The Board also found that appellant failed to display a widow's license as required by law after the death of the owner of the funeral home. Our review of the record and the extensive findings of fact made by the Board convinces us that there was substantial evidence to support findings that appellant failed to display the proper license in contravention of Section 6 of the Act; that appellant failed, in two instances, to place monies for prepaid funerals in escrow accounts, contrary to Section 13(c) of the Act; and that certain other financial irregularities existed in the conduct of the business.

We next turn to the question of whether these transgressions are grounds for the suspension of a license as a matter of law. Appellant argues that the Act was designed primarily to protect the public from health hazards and irreverent treatment of a deceased and that it was not designed to deal with financial matters. We disagree. Section 11 of the Act provides in part:

'The board, by a majority vote thereof, may refuse to grant, refuse to renew, suspend or revoke a license of any applicant or licensee, whether originally granted under this act or under any prior act, for the following reasons:

'(5) Gross incompetency, negligence or misconduct in the carrying on of the profession.

'(6) Violation of or non-compliance with the provisions of this act or the rules and regulations of the board.'

'Profession' in this context is defined in Section 2 of the Act, 63 P.S. § 479.2, as follows:

'The term 'profession' as used in this act shall mean the aggregate of all funeral service licensees and their duties and responsibilities in connection with the funeral as funeral directors licensed under this act.'

The same section defines some of the duties and responsibilities of a funeral director:

'The term 'funeral director' shall include any person engaged in the profession of a funeral director or in the care and disposition of the human dead, or in the practice of disinfecting and preparing by embalming the human dead for the funeral service, burial or cremation, or the supervising of the burial, transportation or disposal of deceased human bodies, or in the practice of funeral directing or embalming as presently known, whether under these titles or designation or otherwise. The term 'funeral director' shall also mean a person who makes arrangements for funeral service and who sells funeral merchandise to the public incidental to such service or who makes financial arrangements for the rendering of such services and the sale of such merchandise.' (Emphasis added.)

The sections of the Act noted above clearly evince a legislative recognition of the financial aspects of the funeral director's profession and an intent that some of those aspects should be subject to the Board's scrutiny.

Appellant's reliance on McKinley v. State Board of Funeral Directors 11 Pa.Cmwlth. 241, 313 A.2d 180 (1973), for the proposition that misconduct does not encompass activities unrelated to the public health or reverential treatment of the dead is misplaced. In McKinley, the sole issue was whether the Board Had the power to issue regulations prohibiting ownership of cemeteries by funeral directors. In this case, with the exception of the charge relating to regulation 16.3, the Act itself has been violated. The Board, moreover, is allowed wide latitude in defining what constitutes 'misconduct'. Beatty v. State Board of Undertakers, 352 Pa. 565, 43 A.2d 127 (1945). Sections 6 and 13(c) of the act clearly have been violated, thus incurring the penalties under Section 11(6). In addition, the financial irregularities are separately cognizable as...