*3 PRICE, WATKINS, Before SPAETH and JJ.
SPAETH, Judge: This is an from appeal enjoining an order appellant from removing husband, the of her body Carroll, deceased Bruce present from its burial site in Montgomery a new County to site County. in Lancaster Bruce
Appellant and Carroll were married in June 1976. They before, had both been married and had children from prior the marriages. Mr. Carroll was in born Massachusetts Norristown, parents family and to moved with his but was Appellant when he was a child. County, Montgomery their Lancaster, in After County. and Lancaster born raised County a lived for few months Lancaster marriage they Dallas, February Texas. On later moved to but Carroll, Dallas, age at the of committed while in Mr. death, brother, appel- of his one of day the his suicide. On her lees, help to comfort and to appellant came to Dallas arrangements. regarding The evidence the funeral with later; the be discussed in detail meeting will their to that wanted to have say appellant is sufficient moment it Lancaster, persuaded but the brother buried her husband County at the Montgomery buried in to have him her 22, 1977, Mr. On Carroll Cemetery. February Whitemarsh paid expenses. the Appellant at Whitemarsh. was buried her 1977, appellant appellees informed of May Later husband’s removed to Riverview body to have her intent body she did not want the Cemetery in Lancaster County; was a three because Whitemarsh remain at Whitemarsh to Appellees her house in Lancaster. trip round from hour enjoin to the removal.1 thereupon brought present the action -1- removal, stated that enjoining the the lower court exceptional not present any of this case do facts “[t]he is body. He the disinterment of decedent’s causes for clearly birthplace,2 near his pleasant setting to buried a she frequently widow for visits however within reach of his It neces- p. at 4. is of Lower Court Opinion desires.” note statement discloses at that this sary the outset error. the court committed to inter leading Pennsylvania
The case in on 313, 56 A. Pettigrew 207 Pa. Pettigrew, is body reinter hearing Cemetery represented at but did The Whitemarsh was any only is Its concern not contest the issue reinterment. any payment as to it a direction court order include complying expenses incurs in with order. it mistaken, Massa- born in since decedent was 2. This statement infra. And see footnote 5 chusetts. *5 (1904). There the facts were as follows. The decedent leaving child, died a widow and one a daughter. Approxi- mately year buried, one after the decedent was daughter the died and was buried in a different cemetery, where the purchased widow a had lot after her husband’s A death. short time the daughter buried, after was the widow had a grave dug daughter’s beside the grave for the reinterment of her husband. She did this because there was not enough daughter room for the burial of the and the widow in the lot where the husband was buried unless all were placed grave. same Relatives of the husband sought enjoin reinterment. In affirming the lower court’s order dismiss- ing the injunction, bill for an the Supreme Court examined the pertinent authority explained: and
The result of a full subject examination of the is that there is no cases, universal rule applicable alike to all but each must be considered in equity on its own merits having regard due to the interests public, of the wishes of the decedent and rights feelings and of those entitled be heard reason of or relationship associa- tion.
Subject general to this first, result it be laid down paramount that the right is in the surviving husband or widow, and if the parties living were in the normal marriage relations of it will require a very strong case to justify interfering a court with the wish surviv- or.
Secondly, if there is no surviving wife, husband or right is in the next of kin in the order of their relation to decedent, as proper age, parents, children of brothers sisters, kin, or more distant modified it may be by special circumstances of intimacy association with the decedent.
Thirdly, how far the desires of the decedent should prevail against surviving those husband or iswife an open question, against but as connections, remoter such wishes especially if strongly and recently expressed, should usually prevail. to a reinterment in a different
Fourthly, regard with *6 awith apply, presumption the rules should but place, same the of with remoteness growing stronger removal against the always reserving the decedent and connection with cause to be shown require the to reasonable right of court it. for 319, at 56 A. at
207 Pa.
its
discloses,
its
lower
based
opinion
As
the
court
premise
reinterment on the
that reinterment
enjoining
order
are
“exceptional
not be
unless
causes”
permitted
should
4,
That
Opinion
quoted supra.
of Lower Court at
shown.
jurisdictions,
Hickey,
be the
some
see
Hickey
law in
it
law
(1973), but
is not the
Ind.App.
-2- question It follows the that the we must foregoing from been decide whether reasonable cause for reinterment has decision, in the this it will making shown case. present we helpful be to in two First shall examine proceed steps. cases, existence, non-existence, or of see how reasonable has been determined other situations. cause Then we shall derived from those cases apply principles case. the facts the record in present disclosed
-a-
An examination of the cases will show
determining
that in
shown,
whether reasonable cause for
has
reinterment
been
court should first consider whether certain factors are
present. This consideration will identify the distinctive fea-
court,
tures
the particular
case before the
and will enable
it to
case
decide the
“in
its
equity on
own merits.” Petti-
grew
v. Pettigrew, supra,
ofOne
the factors to be considered is
degree
relationship
seeking
the party
reinterment bears to the
decedent.
surviving spouse
Thus
interest of a
or other
close
stronger
relative
reinterment is
in most cases than is
closely
interest of someone less
related
a total stran
*7
ger.
374
Leschey
Leschey,
350,
See
v.
Pa.
Another to be degree factor considered of relation- ship party seeking that the to prevent reinterment bears to the decedent. A contest between a surviving spouse and a child differs from a contest between same spouse related, someone less closely or a stranger. Pettigrew See v. Ganz, Pettigrew, supra; Stevens v. 49 Pa.D. C.2d& 286 1970) (Lehigh (daughter against cases, widow). In some
149
however, a stranger may
strong
prevent-
have a
interest in
reinterment. This is
ing
especially true
a case where
reinterment would violate a rule of the religious organiza-
granted
right to inter the body
tion that
in the first
Theodore,
v.
place. See Theodore
N.M.
Another factor to be considered is the desire of the Besides the general decedent. that the dece presumption disturbed, dent would not wish his remains to specific be a statement of desire may important decedent also be deciding permit whether to reinterment. Thus a dece express testamentary dent’s wish to be buried in place original interment will be a strong against factor reinter ment, will as evidence of the decedent’s religious belief that he should be particular place buried or manner. See Theodore, v. supra; Hickey Theodore v. Hickey, supra; 54 however, A.L.R.3d 1037. Conversely, the decedent’s desire to be buried with his be a factor family may favoring reinterment, if that desire place cannot be fulfilled in the original Leschey interment. See v. Hood Leschey, supra; Miss., Spratt, (1978). The So.2d decedent’s desire to be buried in a location specific favoring also be a factor *8 Ass’n, reinterment. See Miller v. New Holland 14 Cemetery 735, (York 1957) (husband Pa.D. & C.2d 738 had indicated desire, veteran, as a to be buried at reinter Gettysburg; allowed). ment
Another factor to be considered is the conduct reinterment, person seeking as it relate to the especially may If, circumstances of original example, interment. site, surviving spouse original chooses the his burial or her later claim to a of reinterment be found to may McCormick, have been Antonitis waived. See v. 2 Pa.D. & (Luzerne 1977). surviving spouse C.3d 600 But if the interment, did not agree original the site of the or did 150
agree
duress,
but under
or only intended the interment to be
temporary, there will be no
Jordan,
waiver.
Hetrich v.
See
(1971)
21 Cumberland 26
Miller v.
(temporary);
New Hol
Ass’n,
land Cemetery
supra (widow very upset when con
original
site).
sented to
burial
But see Datz v. Dougherty,
(1941) (normal
Pa.D. & C. 505
grief of widow will not
consent).
vitiate her
if the
Similarly,
consent to the original
was
upon
site
based
the understanding that the site would
be maintained so
the surviving
spouse could also be
there,
buried
and later events make it impractical to carry
site,
out that understanding, the consent to the original
may
be vitiated.
v.
Leschey Leschey, supra;
See
Moore v. Sheaf
er,
282 Pa.
(1925);
R.I. (1970). A.2d 39 Another factor to be considered is the conduct of the person seeking prevent Suppose, reinterment. for exam ple, seeking a widow reinterment opposed dece dent’s other relatives. If those other relatives coerced or tricked the widow into agreeing to the place of original interment, argument their against reinterment may be very Sanson, weak. See Sanson v. (1920). Pa.Dist. 655 The same will be if true the other relatives have done something to frustrate the widow’s desire to visit gravesite or be Sheafer, buried there. See Moore v. supra; Previty v. Cappuccio,supra.
Another factor to be
length
considered is the
of time
elapsed
has
since the original interment. Generally, the
person seeking
sooner the
reinterment acts after
original
interment, the better the chance
obtaining
reinterment.
Hickey Hickey, supra;
Gordan,
See
v.
Fox v.
Finally, another factor to be considered is the strength of the reasons offered both in favor of and in opposition to person reinterment. If the seeking opposing another, reinterment does so to harass his case will be very weak. Hickey supra. However, See if Hickey, the reason
151
offered for reinterment
is that
grave-
the area around the
changed,
original plan
side has
that
the
the
to have
family
together
longer
buried
is no
the
possible,
may
reason
;
be quite compelling.
Leschey
See
v. Leschey, supra Moore
Sheafer,
v.
If
supra.
the reason offered for reinterment
is
greater
ease with which the surviving spouse may then
reason,
visit and care for the
grave,
while not compel-
ling, in nevertheless valid. See Brake v. Mother of God’s
667,
Cemetery,
Ky.
(1933);
S.W.2d 739
Neighbors v.
Neighbors, 112 Ky.
(1901).
After the court has identified the factors present case, the particular it should appraise these factors as they bear each upon Judge stated, other. As CARDOZO after discussing the kinds of factors to be considered: “We have sought, rule, not to declare a but exemplify process. to a The considerations we have instanced and others of like order move a equity keep court to the grave inviolate against the will of the survivors. are none of them so They absolute, however, they may not be neutralized by Gorman, 395, 403-05, others.” Yome v. 242 N.Y. 152 N.E. (1926).
_b_
When the principles derived from the foregoing
cases are
to the
applied
facts disclosed
record
case,
present
it is at once
as
apparent
surviving
spouse, appellant’s claim to a
reinter her husband’s
body
powerful
claim.
In Pettigrew
Pettigrew,
supra,
the Supreme Court stated that “if
parties
living
are
marriage
normal relations of
will require
it
a very
case
strong
justify
a court in interfering with the wish of
the survivor.”
hour
as
as did the lower court. Given our
trip
round
weather,
a trip may
present
winter
such
often
considerable
Also,
woman,
appellant
difficulties.
when
is an older
she
Furthermore,
it.
appellant
hesitate to undertake
was
and
in Lancaster.
It
well be that she
may very
born
raised
there,
will
to
and reinterment would
choose
be buried
enable
with her husband.
Finally,
her to be buried
there is no
contradicting appellant’s
evidence
reason for
rein-
seeking
Thus,
not,
cases,
terment.
there is
as there is in some of the
see
747,
7
any testamentary
expression
Annot. A.L.R.3d
by
Whitemarsh;
her husband of a desire to be buried in
he
Whitemarsh;
in
was not born
and he lived with
appellant
Leschey
Leschey, supra,
In
Supreme
Lancaster.
expression
Court stated that where there is no
of the dece-
desire,
dent’s
“the wishes of the widow
have the
body
[to
reinterred],
her husband
under
the rule laid down in the
Pettigrew
case,
over
paramount
prevail
and
those of
[are]
the children.”
Thus, appellant the issue in this case is whether did waive paramount her to control place of burial of her The evidence on this body. husband’s issue was as follows. to her in*the Appellant spoke early morning husband gunshot before she heard the and shortly returned to find hospital him He was taken to the died dying. and later that brother, appellees, 3. One of the decedent’s testified that he while and playing golf the decedent were at a course across street from Cemetery expressed Whitemarsh there because it was near his favorite the decedent a desire to be buried this, golf against course. As appellant testified that the decedent told her that he liked Riverview Cemetery County. they they living when visited it while were Lancaster testimony Even if to treat the brother’s as we were uncon- tradicted, it is not the sort of evidence that has been held of sufficient strength paramount right to to overcome the widow’s control the disposition body. of her husband’s moth- she called her husband’s afternoon. the meantime brother, er, appellees, her one of and husband’s response, Dallas, met with the brother Appellant flew Dallas. died, and told him that she day her husband after Riverview Cemetery her husband buried at planned to have the cemetery’s she could not remember in Lancaster but recommending ap- that responded address. The brother be at the Whitemarsh Cemetery. husband buried pellant’s that testified nothing cemetery. knew about She Appellant told was located the brother her that Whitemarsh Norristown, and that she midway between Lancaster in his agreed that site on basis. The brother testimo- *11 location. At making concerning denied such a statement ny services, appellant say any- did not the time of the burial site of thing against the Whitemarsh as the burial Cemetery relatives, for did to some of her and complain but moved months. reinterment within three evidence, the lower court did not decide the Despite this Instead, misstating significant of after issue waiver.4 concerning the burial site fact as to where conversation that place,5 simply appellant took the lower court concluded reinterment. “exceptional no causes” for the had shown reaching does our a final deci- disposition preclude This not considered, sion, however, for when issue of it waiver support finding cannot of is clear that the evidence a waiver. contest at time Appellant’s failure to the location burial, of the when she first became aware of the distance Whitemarsh, waiver; does a it prove from Lancaster to not peril would be unreasonable indeed hold that at of waiver, evidently recognized 4. The the issue of for it lower court Leschey, Leschey supra, proposition for the that cited v. better “[t]he be, however, if the rule seems to right, that widow has not waived her kin, may, against objections of the next of her she remove interment, Id., sepulture.” body place another after of husband’s Nevertheless, citation, despite 374 Pa. A.2d this at at 786. issue of court did not decide the waiver. lower concerning 5. The court stated that the conversation the burial lower fact, County; place place Montgomery site in it took in took Dallas. waiver, a widow must her husband’s disrupt burial services. is there any lapse proves Nor evidence of such of time as a waiver; appellant moved for reinterment within three months. possible
The evidence of waiver is the evidence only consent in Dallas. If we appellant’s accept appellant’s Dallas, testimony regarding the conversation there was no waiver, for if the brother did misstate the location of the then, alone,6 cemetery, upon proof based appellant her consent prevail, upon should was based a misappre fact; hension of Whitemarsh is not midway located between Lancaster and Norristown. Incident to its failure to con waiver, sider the issue of the lower court made ho finding of fact as to what was said. In the any finding absence of such fact, we appellant’s cannot decide whether or the broth er’s version of the conversation is accurate. Even if we accept conversation, however, the brother’s version of the it is still clear that appellees proved have not waiver this testimony case. In his the brother admitted that appellant her wanted husband buried at the Riverview Cemetery widow, It was right, Lancaster. her as the to choose that site. Leschey Leschey, supra; v. Pettigrew Pettigrew, supra. The brother also admitted appellant was not familiar with the Whitemarsh Cemetery, only chose it upon his urging. Finally, the evidence shows that appel- *12 lant’s husband committed by gunshot suicide at the age of 33, and one may reasonably infer from this evidence that brother, when appellant spoke to the only day one after the suicide, she was in a state of shock. When all of this considered, evidence is it is clear that it cannot support a free, of the finding kind of informed consent or exercise of required choice before a court may rule that a widow has right waived her to choose the site of her husband’s burial. Appellant apparently offered evidence in the form of an affidavit of party appellee a third told her in Dallas that Whitemarsh was midway located between Lancaster and Norristown. There was an evidence, objection however, although to this the lower court did objection, appear case, any not rule on the it would well taken. the affidavit has not been included in the record certified to this court. appellant reversed and lower court is The order of the Appellant if she wishes. with the reinterment proceed in the reinterment. the costs incurred shall bear all WATKINS, J., dissenting opinion. files a WATKINS, Judge: if with the surviving spouse, living
It is clear that a death, has the at the time of his spouse deceased first instance. of his burial in the determine the details However, great is interred there is reluctance body once a moved, compelling absent clear and same to be permitting Ganz, Lehigh reasons for such a move. Stevens (1970). Thus there is a clear distinction Pa.D. & C.2d 283 to burial and those after rights existing prior between the it is in the body, burial because after the interment of Associa- of the law. Intorre v. Catholic Cemeteries custody (1964). Pittsburgh, tion of the Diocese of Pitts.LJ. 510 in reinterment surviving spouse While the interests of the of someone stronger closely than the interest less generally only those interests are not the related the decedent whether a reinter- determining factors to be considered in ment will be ordered.
In the was eveidence that the decen- instant case there dent, expressed an avid had a desire to be being golfer, Whitemarsh Memorial Park which was near a buried at golf community favorite and in the same where he course Appellant and been raised. lives in had moved as a child (1) one hour and eleven approximately Lancaster which is (11) from Whitemarsh and had cemetery minutes drive there. Her sole agreed spouse’s to her burial originally is that it is located a few miles east objection to Whitemarsh Thus, where told her it was. the issue appellee she claims of the widow concerns the conflict between the convenience (one-half thought more than she it would hour in travel time established. I feel be) sanctity grave, and the of the once are by appellant reinterment advanced that the reasons for the decedent to rebut *13 presumption not sufficient would not desire his remains to be disturbed. 54 A.L. See R.3rd 1037.
I would affirm the decision court below.
R. H. MACY & Corporation, Co., Inc., Berger Powertherm Belfi Bros. & Acous Inc., Company, Ceilings, Inc., Co., tical Consho Construction Diebold, Inc., Co., Gerngross Corporation, J. B. Eurell Grinnell Systems Co., Inc., Kelly, Inc., Fire Protection John B. Moriari ty-Hoffner, Inc., Corporation, Co., Powertherm L. N. Scott Enterprises-Terrazzo Co., Inc., Suburban & Tile Harold E. Sweeney Corp., Drywall Corp., United United Pacific Insurance Company, Co., Manufacturing Williard, Whelan Inc.
Appeal of POWERTHERM CORPORATION. Appeal of CONSHO CONSTRUCTION CO.
Superior Pennsylvania. Court of
Argued June 1979. April Filed 1980. Reargument Sept. Denied