Battle over PA Funeral Director Law Continues – State Ordered to Pay $1.1 Million in Legal Fees

Aug 27, 2012

This past spring, U.S. District Judge John E. Jones III struck down 11 provisions of the law that governs Pennsylvania’s funeral homes. The judge, last week, finalized his ruling, ordering the state to pay more than $1.1 million in legal fees and barring the state from enforcing sections of the law he deemed unconstitutional.

This is good news for the 33 funeral directors and funeral homes who were plaintiffs in the lawsuit. President of Heffner Funeral Chapels and Crematory in Pennsylvania, Ernie Heffner, was lead plaintiff. He said those fearing changes need not worry, “for funeral directors in the state who don’t want to change anything about the way they do business, they don’t have to change anything. And for those who do want to do things differently, they’re free to do that now.”

The 1952 Funeral Director Law bars a licensed undertaker from owning or working at more than two homes, requires every funeral home to maintain a preparation room, even if it’s not needed, and mandates that in most cases funeral homes must be named after the proprietor, something the judge called an illegal infringement on commercial speech. The law also limits ownership of funeral homes to licensed funeral directors and their spouses, children and grandchildren.

“We’re concerned about it, we think they’ve worked for decades, they may be old, that doesn’t mean they’re not functional. Some of them we care about more than others, in reality, this is not going to reduce costs for consumers, in fact it will probably do just the opposite,” said John Eirkson, Executive Director of Pennsylvania Funeral Directors Association, an organization that represents some 11,000 of the state’s funeral homes.

Some of the struck-down provisions, such as being able to serve food in funeral homes, don’t concern the association. However, a change in the way pre-need sales are handled, and inspectors now needing warrants to examine a funeral home are of concern. Surprise inspections, said Eirkson, go a long to ensure public health and safety, “but also to make sure that pre-need funds are where they’re supposed to be. Funeral directors were held to a higher standard, to put 100% of the money away, now they can switch hats and now only have trust 70% of funds on merchandise, we think that’s not in consumers’ best interest.”

The state board had 90 days to respond to the initial ruling by either changing the laws to comply or appealing, but Ernie Heffner, reading from the judge’s decision, said they have not taken any action.

“He [the judge] referred to them and said, ‘they should be ashamed of themselves, they’re an embarrassment, we find the board’s conduct so disturbing, that surcharging its members could have been appropriate in lieu of allowing them to burn up tax payer dollars in their folly.’ The court referred to them as sitting on their hands for 90 days,” said Heffner.

The Pennsylvania State Board of Funeral Directors said by issuing the injunction, the judge has set the stage for the board to appeal, which they plan to do.

"We certainly respect Judge Jones's decision, but we disagree with the outcome and we do believe the funeral director law is constitutional," said Ron Ruman, a spokesman for the PA Department of State. But, he added, there is no set timeline for filing an appeal at this point.