By Ben Present
Of the Legal Staff
Just because a company is a cemetery doesn’t make the cemetery a “cemetery company.”
That was made clear in a recent decision from the Commonwealth Court in which a three-judge panel ruled that a Philadelphia cemetery, long past its last lot sale, did not have to pay the costs associated with running cemeteries that are currently open for business.
At issue in the case was whether Mount Vernon Cemetery Co. should be required, under the state Burial Grounds Act, to register for a certificate with the Real Estate Commission as a “cemetery company.”
Under a final order from the commission, sanctions of $10,000 per year for 28 years issued by the commission’s Bureau of Professional and Occupational Affairs (BPOA) would have been required. But the panel, led by Judge P. Kevin Brobson, reversed the commission’s decision.
The unanimous panel refused to hold the cemetery to standards within which it has not fallen since before the law was enacted. The cemetery sold its last plot in 1968, more than a decade before the Burial Grounds Act was enacted.
“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,” Brobson wrote. “Thus, based upon the clear statutory language of both acts, we must conclude that [Mount Vernon] is not a ‘cemetery company.’”
Both parties agreed Mount Vernon was a “cemetery,” as defined in Section 101 of the Burial Grounds Act, Brobson said.
The commission, on the other hand, argued the court must interpret Section 304(a) – the registration requirement – of the law to include all entities that operate cemeteries that aren’t churches or fraternal organizations. Otherwise, Brobson said the commission argued, “‘any other cemetery business’” would be reduced to surplusage.
Alfred W. Putnam Jr. of Drinker, Biddle & Reath, who represented the cemetery, said the commission posted its position on the matter on its website before the case came before the panel.
The attorney added the cemetery’s president would have been out of business had he been forced to pay the BPOA sanctions.
“I think the court’s analysis is right,” Putnam said. “It’s a question of how a cemetery company is defined in the statute. Although the company is named, it is not a cemetery company as that term is defined in a statute.”
“You can’t read that statute when it defines it terms as a cemetery company when you’re dealing with a company that is not selling lots,” he added.