A recent federal court ruling that struck down several key provisions of Pennsylvania's 60-year-old set of laws governing the funeral industry including ownership, locations and trade names, whether food and beverages can be served in funeral homes, and whether the state can come perform unannounced inspections has triggered strong reactions among local funeral directors.
U.S. District Judge John Jones III on May 8 handed down a 159-page ruling that struck down parts of the state law, enacted in 1952. The ruling was in response to a lawsuit filed on May 20, 2008, by Lancaster County funeral director Ernest Heffner on behalf of himself and 32 others against the state Board of Funeral Directors, which enforces the Funeral Director Law: Donald J. Murphy, Joseph A. Fluehr, III, Michael J. Yeosock, Bennett Goldstein, James O. Pinkerton, Anthony Scarantino, Michael Gerdes and Basil Merenda, all members of the board; as well as former officials Peter Marks and C.A.L. Shields.
The group filed the suit in order to force change in the law, which the suit describes as antiquated.
According to the suit, it restricts competition, violates the right to commercial speech and, ultimately, is unconstitutional. Jones gave the board three months to respond to his ruling.
Some local funeral directors are wary.
"Because the ruling is a little less than two weeks old, it's still being digested in large part. The Pennsylvania Funeral Directors Association (a trade group representing 1,100 members), which was part of this whole process, is still digesting this as well. The full impact not felt for a long time," said Richard Taylor of the T.K. Thomas Funeral Home in Palmerton. "The law had traditionally sought to protect consumers, so they know who they are dealing with. Funeral homes can't do business under fictitious names; the law also specified that any given funeral business have only one main and one branch location. That's one of the aspects that the decision in the suit addresses one of several."
Taylor wonders whether "it might be that the judge in the case was sending a message to the legislature that certain aspects of law should be updated."
It's not clear yet just how Jones' ruling will affect the industry in Pennsylvania.
"At this moment, a lot of funeral home directors are wondering exactly how this decision will impact their operations," he said.
Perhaps the biggest impact will be on ownership. Until the ruling only licensed funeral directors, their widows (who could be unlicensed) and heirs were allowed to own funeral homes. Jones' ruling threw out that rule.
However, what's done is done, and now it's up to funeral directors to map their futures.
"Changes are certainly forthcoming," Taylor said. "How funeral homes respond to those changes is something that will be worked out over time."
He has faith, though, that core values will remain solid.
"Funeral directors who put service to families ahead of any other aspect of their business would find a way to continue to effectively and compassionately serve families regardless of changes to the regulatory structure," Taylor said.
"Change has historically come much slower to the funeral industry than others, but it does come," he said.
Jones' ruling worries Todd Kriner of Ovsak Funeral Home, Lehighton.
"In the best interest of the general public and those families we serve, the ruling opens the door for devastating trouble to families at a very difficult time. Licensed funeral directors in the state of Pennsylvania go through a very tough, rigorous, but very educating and rewarding level, of steps to get to where we are. Unlicensed practice (without any formal education) is going to cause trouble down the road," he said.
"These people have no idea of the bereavement/ grief process. It is more than just picking up human remains and burying or cremating the remains.
"I do believe that some of the funeral law should have been 'enhanced' years ago, but I do not believe in the decision that was made. This is why we have continuing education and have local/state associations to maintain our knowledge," he said. "Just look at the nonsense that went on in Georgia years ago. The state of Pennsylvania conducts inspections on an annual basis to keep all facilities operating in the best interest of the public. God Bless us all if this ruling is not appealed."
In his ruling, Jones had harsh words for the Board of Funeral Directors, which he described as "moribund" and "ossified."
"Taken as a whole, the statutory scheme of the (Funeral Director Law) and the Board's interpretation of this clearly outdated law, evince the urgent need for the Board to finally clarify and modernize the FDL, a request Plaintiffs, funeral directors, and cremation service providers have been requesting for some time," he wrote.
In his ruling, Jones gave the board three months to respond.
"As this matter continues in litigation, I am unable to comment on the lawsuit or the judge's ruling at this time," said Ronald G. Ruman, press secretary for the Pennsylvania Department of State.
The Department of State includes the Bureau of Professional and Occupational Affairs, which licenses 29 different groups of professionals in Pennsylvania, including funeral directors and funeral homes.
On May 14, the Pennsylvania Funeral Directors Association issued a statement calling the ruling "unprecedented" and a "surprise to the Pennsylvania Funeral Directors Association. This sweeping ruling certainly has the potential to change the landscape of funeral directing in Pennsylvania."
The organization said it "strongly hopes that the State Board of Funeral Directors will give every consideration to an appeal to the Third Circuit Court in order to obtain real clarity on the issues at hand."
The Funeral Directors Association filed its own brief in opposition to the Heffner suit on Oct. 19, 2011.
"Funeral directors under this model tend to have long-standing relationships in the community. They're involved in their community. They know the families in their community. They have an investment and they're not one to just get up and leave and not serve the people that they live among and interact with on a day-to-day basis. Those are all good things," wrote the associations' attorney, Kathleen K. Ryan.