5 Pa. Commw. 42 | Pa. Commw. Ct. | 1972
Lead Opinion
Opinion by
The appellant asks this Court to set aside a ruling of the State Board of Funeral Directors, which was contained in a letter
The appellant contends that Regulation 16.17 is invalid because it is not authorized by the Funeral Director Law,
The appellee Board has filed a motion to quash the appeal on the ground that its letter to the appellant was not an appealable adjudication. It contends that any appeal is premature because the letter contained no specific findings as required by law and because the appellant is not a person aggrieved by an adjudication. It also argues that its Regulation 16.17 is authorized by the Funeral Director Law and is constitutional within the terms of the federal and state constitutions.
We are of the opinion that the Board’s letter was not an adjudication appealable under the terms of the
The Board’s letter was not a “. . . final order, decree, decision, determination or ruling . . .” as Section 2(a) of the Administrative Agency Law, 71 P.S. §1710.2(a), requires. The advice given is at best an advisory opinion. It is a response to a theoretical question as to what would be the Board’s position if the licensee should act in a way in which he may or may not ultimately choose to act. It in no way harms him in the conduct of his funeral director businesses, if they are otherwise being properly conducted, and it constitutes no present threat to his licenses or to those of his employees. At most, it warns him not to buy a cemetery.
Nor does the letter contain findings in support of the alleged adjudication as required by Section 84 of
Finally, the appellant is not “a person aggrieved” by an adjudication, and thus entitled to an appeal under the terms of Section 41 of the Administrative Agency Law, 71 P.S. §1710.41, nor does the letter of which he complains affect any personal or property rights.
We believe, therefore, that allowing an appeal from the Board’s letter under these circumstances would encourage a wasteful multiplicity of appeals for judicial review of routine administrative agency correspondence. The facts in this case are very similar to those in Standard Lime, supra, the Board’s letter here merely stating an advisory opinion which does not foreclose the appellant from seeking further recourse under the Funeral Director Law, the Administrative Agency Law, or any other applicable statutes or regulations. Indeed, we might suggest the possibility of the Board’s willingness to have the validity of its Regulation 16.17 settled judicially by temporarily suspending any penalty to be imposed for the violation of that regulation pending final adjudication of any appeal therefrom. Thus, the appellant could have his rights fully determined and the Board could be fully satisfied as to the validity of its regulation.
We believe that the present appeal must be quashed, and the appellee Board’s motion to quash is, therefore, granted.
“Our Board has reviewed your letter of June 3, 1971 and discussed its contents at our meeting of September 7, 1971 with Commissioner Henry H. Kaplan and a representative of the Department of Justice.
“On the basis of the facts set forth in your letter, we cannot issue the ruling you request, because the proposed acquisition would clearly give rise to a violation of our Regulation 16.17. We have further been advised by the Department of Justice that Regulation 16.17 is valid.
“Accordingly, should the acquisition be consummated, we will take such appropriate action as may be indicated under the Funeral Directors Act (sic) and the rules and regulations promulgated thereunder.”
“No licensed funeral director shall have any interest directly or indirectly in a cemetery or memorial park or no licensed funeral director shall act as a supervisor or in any way be engaged on behalf of or in any way be engaged with a licensed corporation directly or indirectly owned by a cemetery or by any person or persons having any interest direct or indirect in a cemetery or memorial park. Interest for the purpose of this regulation shall be defined as including employment or any other interest held directly or indirectly by any person or persons and/or members of their immediate family.”
Act of January 14, 1952, P. L. (1951) 1898, 63 P.S. §479.1 et seq.
Act of Tune 4, 1945, P. L. 1388, 71 P.S. §1710.1 et seq. (The following are sections applicable to this ease.)
Section 2(a), 71 P.S. §1710.2(a) : “‘Adjudication’ means any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, or obligations of any or all of the parties to the proceeding. ...”
Section 34, 71 P.S. §1710.34: “All adjudications shall be in writing, shall contain findings and the reasons for the adjudication. ...”
Section 41, 71 P.S. §1710.41: “Within thirty days after the service of an adjudication . . . any person aggrieved thereby who has a direct interest in such adjudication shall have the right to appeal therefrom. . . .”
Standard Lime and Refractories Company v. Department of Environmental Resources, 2 Pa. Commonwealth Ct. 434, 279 A. 2d 383 (1971). Also, see: State Board of Chiropractic Examiners v. Life Fellowship of Penna., 90 Dauph. 44 (1968), rev’d on other grounds, 441 Pa. 293, 272 A. 2d 478 (1971).
Concurrence Opinion
Concurring Opinion by
While I concur in the result reached by the Court today, I disagree with the reasoning leading to it. As I said in my dissenting opinion in Manheim Township
“The distinction between adjudicatory or judicial decisions by agencies and their administrative decisions was clearly set forth in Newport [Township School District v. State Tax Equalization Board, 366 Pa. 603, 79 A. 2d 641 (1950)] which framed the portrait of all later decisions in this legal museum. Mr. Justice Ladner, in answering the question of whether purely administrative decisions are reviewable stated: ‘No statute since 1874 has enlarged our certiorari powers so far as administrative or nonjudicial tribunals are concerned....’ (Emphasis original.) 366 Pa. at 608. Article V, Section 9 has finally enlarged the powers of the courts of Pennsylvania in this regard. As stated by Justice Pomeroy in Smethport [Area School District v. Bowers, 440 Pa. 310, 269 A. 2d 712 (1970)]: ‘This introduced a new concept to Pennsylvania jurisprudence, one which recognized the important position of administrative agencies in modern government, the quasi-judicial functions that many of them perform and the fact that both property rights and personal rights can be seriously affected by their decisions.’ (Emphasis added). 440 Pa. at 314. Our experience dictates and I firmly believe that administrative decisions by agen
The effect of Article V, Section 9, however, is not to abrogate the necessity for “case or controversy.” Administrative action should only give rise to appeal if one’s constitutional or statutory rights are violated. Here the action by the State Board of Funeral Directors did not reach that height. Appellant had four alternative actions he could have pursued prior to the Board’s letter: (1) comply with the regulation; (2) violate the Regulation and then test its validity in court; (3) seek to have the regulation changed; and (4) change professions. All these options are still available after the Board’s action. Its only effect was to indicate that the third option would not succeed on an administrative level. The Board’s letter has not affected appellant’s legal position should he decide to challenge the regulation. It has not affected appellant’s personal or property rights, either statutory or constitutional. Absent a “case or controversy” this Court cannot entertain this appeal
Allocatur was denied per curiam by the Supreme Court of Pennsylvania on June 28, 1971.
Act of June 4, 1945, P. L. 1388, §2(a), 71 P.S. §1710.2(a).
See Havertown Savings and Loan Association v. Commonwealth, 3 Pa. Commonwealth Ct. 266 (1971).