Walker v. Flitton, 4:cv-01-02252.

• Decision Date: 14 April 2005
• Docket Number: No. 4:cv-01-02252.,4:cv-01-02252.
• Citation: 364 F.Supp.2d 503
• Parties: Michael WALKER, Ernie Heffner, Jefferson Memorial Funeral Home and Betty Frey, Plaintiffs, v. Jodi FLITTON, Joseph A. Fluehr, III, Michael J. Yeosock, Janice Mannal, Anthony Scarantino, Michael D. Morrison, Donald J. Murphy, and James O. Pinkerton, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

364 F.Supp.2d 503

Michael WALKER, Ernie Heffner, Jefferson Memorial Funeral Home and Betty Frey, Plaintiffs, v. Jodi FLITTON, Joseph A. Fluehr, III, Michael J. Yeosock, Janice Mannal, Anthony Scarantino, Michael D. Morrison, Donald J. Murphy, and James O. Pinkerton, Defendants.

No. 4:cv-01-02252.

United States District Court, M.D. Pennsylvania.

April 14, 2005.

COPYRIGHT MATERIAL OMITTED

Allen C. Warshaw, Klett Rooney Lieber & Schorling, Harrisburg, PA, James J. Kutz, Barbara A. Zemlock, Post & Schell, P.C., Camp Hill, PA, for Plaintiffs.

Sarah C. Yerger, Office of Attorney General, Harrisburg, PA, for Defendants.

MEMORANDUM AND ORDER

JONES, District Judge.

Pending before the Court are a Motion for Summary Judgment (Rec.Doc.30) filed by the Plaintiffs Michael Walker, Ernie Heffner, Jefferson Memorial Funeral Home, and Betty Frey ("Plaintiffs"), which seeks a declaratory judgment against the Defendants, Jodi Flitton, Joseph A. Fluehr, III, Michael J. Yeosock, Janice Mannal, Anthony Scarantino, Michael D. Morrison, Donald J. Murphy, James O. Pinkerton, ("Defendants" or "Board members") and a Motion for Summary Judgment (Rec.Doc.34) filed by the Defendants seeking dismissal of Plaintiffs' action.¹ The aforementioned Defendants are all members of the Pennsylvania Board of Funeral Directors and are named parties in their official capacities as members of that Board. Plaintiff Ernie Heffner is a licensed funeral director at Plaintiff Jefferson Memorial Funeral Home, which employs Plaintiffs Betty Frey and Michael Walker, the former through a subsidiary, Preneed Associates, Inc.² Both Frey and Walker are licensed insurance salespersons but are not licensed funeral directors.

This Court has jurisdiction over the individual Board members based on federal question jurisdiction pursuant to 28 U.S.C. § 1331 as this action for declaratory relief is brought pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act codified at 28 U.S.C. § 2201.

For the reasons stated below, we will grant Plaintiffs' Motion for Summary Judgment insofar as we will afford the Plaintiffs declaratory relief. The Defendants' Motion for Summary Judgment will be denied and this case closed.

PROCEDURAL HISTORY:

On November 27, 2001, Plaintiffs filed a complaint against the Defendants, who at that time were the members of the Pennsylvania State Board of Funeral Directors (the "Board").³ In their complaint, Plaintiffs argue that their First Amendment right to free speech has been violated insofar as the Defendants have taken affirmative steps to restrict Plaintiffs' ability to have unlicensed funeral directors distribute price lists of funeral services and to interact with customers interested in preneed funeral services.⁴ (Cmplt.¶ 1). According to the Plaintiffs, the Defendants' actions have restricted their ability to allow unlicensed individuals to solicit preneed funeral plan customers or to distribute accurate funeral price lists to those customers. They argue that these restrictions violate their right to free speech under the United States Constitution. Defendants contest this, arguing that the speech at issue is not entitled to First Amendment protections.

A. Defendants' Motion to Dismiss

The Board filed a Motion to Dismiss on January 28, 2002. On September 24, 2002, this Court granted Defendants' Motion to Dismiss on the basis of the Rooker-Feldman doctrine. (See Rec. Doc. 11). See Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 486-87, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923).⁵ The Third Circuit reversed, holding that, "Rooker-Feldman does not bar individual constitutional claims by persons not parties to earlier state court litigation." Walker v. Flitton, 66 Fed.Appx. 442, 444 (3d Cir.2003)(quoting FOCUS v. Allegheny County Ct. of Common Pleas, 75 F.3d 834, 840 (3d Cir.1996)(other internal citations omitted)). (Rec.Doc.16). The case was remanded to this Court where, following oral argument, the Defendants' Motion to Dismiss was denied on the merits. (See Rec. Doc. 21).

B. Discovery and the Basis for the Cross Motions for Summary Judgment

Following the remand and our subsequent denial of Defendants' Motion to Dismiss, we stated in our Order of October 7, 2003 that "we will revisit the merits of this dispute after the parties have had the opportunity to develop more fully a factual record, either by stipulation or discovery." (Rec. Doc. 21 at 6). Since the time of that Order, not only have the parties developed the factual record, but the Defendants made what we view as a misguided attempt to render this case moot. Specifically, the Board members unanimously repealed this resolution that was, in their view, the central focus of Plaintiffs' litigation. This non-binding resolution, first enacted by the Board on September 1, 1999, and repealed on May 5, 2004 states:

The State Board of Funeral Directors believes that the showing, distribution or summarization of any price list of a specific funeral home or any explanation of the funeral services or merchandise available from any specific funeral home for any commercial purpose whatsoever, except as may be specifically necessary to comply with Regulations of the Federal Trade Commission, for funeral services needed for a person then living, constitutes the practice of funeral directing by engaging in pre-need sales. Section 13(a) of the [Funeral Director] Law limits this practice to licensed funeral directors. The Board may consider it to be unprofessional conduct for any funeral director to authorize or permit any such activity constituting the practice of funeral directing.

Defs.' SMF at 8 (the "Resolution"). Oral argument on the question of mootness was held December 23, 2004. On January 13, 2005, we issued an Order denying Defendants' Motion for Summary Judgment in part and holding that this action presented a facial challenge to a state regulation, namely the actions of the Board in interpreting Pennsylvania's Funeral Director Law (the "Law"), and therefore was not moot. (Rec.Doc.51); 63 Pa. Cons.Stat. §§ 471-80.

Specifically, we held that "It is clear to us that there is every reason to believe that the Board, despite having rescinded the Resolution, still considers the Plaintiffs' conduct in question to be prohibited by the Pennsylvania Funeral Director Law." Id. at 13. See Guardian Plans v. Teague, 870 F.2d 123 (4th Cir.1989)(determining that a challenge to a Virginia funeral services regulation prior to an attempt to enforce the regulation could proceed because of the threat to the plaintiffs' First Amendment rights). Furthermore, we noted that despite the rescission, the Board has continually failed to clarify to funeral directors and their unlicensed employees and agents what conduct was legal and what remained barred. We viewed Plaintiffs' claims as a facial challenge to the Board members' interpretation and application of the Law.

However, our determination that the Plaintiffs have standing is distinct from and not dispositive of their substantive First Amendment challenge. See Nat'l Council for Improved Health v. Shalala, 122 F.3d 878, 881 (10th Cir.1997)(holding that a determination that plaintiffs bringing a First Amendment challenge have standing is separate from a determination on the merits of that action). Having determined that Plaintiffs' action is not moot, we are now able address the merits of their claims pursuant to 42 U.S.C. § 1983 requesting declarative relief.

STANDARD OF REVIEW:

Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir.1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir.1982).

Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325, 106 S.Ct. 2548.

Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. FED.R.CIV.P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.

It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir.1994) (internal citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993) (citations omitted).

Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion...