McCarthy, M. v. McCarthy, P. ( 2017 )

J-A01031-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
MICHAEL J. MCCARTHY, BENJAMIN : IN THE SUPERIOR COURT OF
MCCARTHY, CHRISTINE R. HEAD, : PENNSYLVANIA
LINDA MARIE BUSATTO, CLARA LOUISE :
MCCARTHY, AND WILLIAM JEROME :
MCCARTHY, :
:
Appellants :
:
v. :
:
PATTY JO MCCARTHY, :
:
Appellee : No. 1013 WDA 2016
Appeal from the Order June 10, 2016
in the Court of Common Pleas of Lawrence County
Orphans’ Court at No(s): 82 of 2015 O.C.
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 17, 2017
Michael J. McCarthy, Benjamin McCarthy, Christine R. Head, Linda
Marie Busatto, Clara Louise McCarthy, and William Jerome McCarthy
(Appellants, collectively) appeal from the June 10, 2016 order that denied
their petition to disinter the remains of William J. “Jerry” McCarthy, IV
(Decedent) and reinter them at the original burial location. We affirm.
Decedent died in an automobile accident in 2013. Appellants are blood
relatives of Decedent (his children, sister, and parents). Appellee Patty Jo
McCarthy (Widow) is Decedent’s second wife to whom Decedent was married
at the time of his death. While still married to his first wife, Decedent had
purchased burial plots near other family members’ plots in Crestview
*Retired Senior Judge assigned to the Superior Court.
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Memorial Park in Grove City (Crestview). However, Widow objected to
Decedent’s burial in one of those plots. Instead, upon the agreement of all
parties, two other plots were purchased at Crestview, with Decedent buried
in one and the other available for Widow.
Approximately two years after Decedent’s interment, his sister went to
visit his grave and found the site disturbed and the headstone missing. It
was later established that Widow had requested and obtained the
disinterment of Decedent’s remains from Crestview and their reinterment at
Castleview Memorial Park in New Castle (Castleview). Widow not only failed
to discuss the matter with any of Appellants prior to taking action, but she
did not tell Appellants’ family where his new gravesite was located. The
following month Appellants learned what had happened when Widow’s
counsel informed them of the disinterment. Counsel later informed them
that the remains had been reinterred at Castleview, but declined to disclose
the location of his plot within the cemetery.
On August 20, 2015, Appellants filed a petition for special relief asking
the orphans’ court to order that the Decedent’s remains be disinterred again
and reinterred back at Crestview. In subsequent discovery, which involved
motions to compel, for protective orders, and a granted motion for sanctions
against Widow, Appellants received a copy of a letter Widow had sent to
Crestview asking for the disinterment.
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Officials at Crestview, after receipt of the letter, sought
permission for disinterment/reinterment from the local registrar,
Betty J. Fischer, of Stoneboro, Pennsylvania. In the course of
attempting to have Decedent’s body disinterred, a
2
disinterment/reinterment permit was sought. [Widow] initially
had in [her] possession the completed reinterment portion of the
permit. Only as the court was conducting hearings in this matter
did [Widow] introduce a document purporting to be the
completed disinterment portion of the permit.
_____
2
The disinterment/reinterment permit contains three
sections[:] an information section, a disinterment portion,
and a reinterment portion. There exist two copies of the
disinterment/reinterment permit in the record. One copy
has a completed disinterment portion, the other has a
completed reinterment portion. Both copies would be
necessary to comprise a complete disinterment/
reinterment permit.
The disinterment portion of the permit contains Section B
which indicates, “Consent of next-of-kin or court order is
required when disinterring remains.” This section further
indicates that the local registrar should check one of two boxes,
whichever is appropriate, and attach a copy of the
documentation. The two options which can be checked are
labeled, consent of next-of-kin and court order. The box
reflecting consent of next-of-kin was checked on the permit in
the case sub judice. Neither [Widow] nor the representative of
Crestview [], Patricia Delo, marked the next[-]of[-]kin box on
the disinterment permit. It can be concluded that the box was
marked by the local registrar.
Following the permit’s issuance, the Decedent’s body was
disinterred from Crestview [] and reinterred at Castleview [] on
or about May 1, 2015.
Orphans’ Court Opinion, 6/10/2016, at 4-5 (unnecessary capitalization and
quotation marks omitted).
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Following hearings, the orphans’ court denied Appellants’ petition by
order of June 10, 2016. Appellants timely filed a notice of appeal. Both
Appellants and the orphans’ court complied with Pa.R.A.P. 1925.
Appellants present two questions for this Court’s review, which we
have re-ordered for ease of disposition.
1. Whether the disinterment of a decedent’s remains
after original interment without the consent of all of a decedent’s
next of kin or without a court order is unlawful as it fails to
comply with the Pennsylvania Code requirements which provide
for disinterment upon consent of all next of kin and/or a court
order?
2. Does a trial court abuse its discretion by admitting
into evidence a disinterment/reinterment permit which was not
certified by the Commonwealth of Pennsylvania Bureau of Vital
Statistics as a record in existence?
Appellants’ Brief at 5 (suggested answers and unnecessary capitalization
omitted).
Our standard of review from a final order of the Orphans’ Court
Division requires that we accord the findings of an Orphans’
Court, sitting without a jury, the same weight and effect as the
verdict of a jury. Thus, we will not disturb those findings absent
manifest error. We shall modify an Orphans’ Court order only if
the findings upon which the order rests are not supported by
competent or adequate evidence or if the court engaged in an
error of law, an abuse of discretion, or capricious disbelief of
competent evidence.
In re Ciaffoni, 787 A.2d 971, 973 (Pa. Super. 2001) (citations omitted).
Appellants’ arguments are based upon the section of the Pennsylvania
Code that governs the disinterment of human remains. The regulation
provides in pertinent part as follows.
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No dead human body shall be removed from its place of
interment unless a disinterment permit is first secured from a
local registrar who is authorized to issue a disinterment permit,
according to the following requirements:
(1) The funeral director or cemetery official making
the application shall present to the local registrar the
correct name, date of death and cause of death of
the body to be disinterred and written consent of
next of kin, or appropriate order from a court of
competent jurisdiction.
(2) No disinterred body shall be reinterred either in
the same cemetery or another cemetery located in
this Commonwealth unless a burial or removal
permit is obtained.
28 Pa. Code § 1.25(a).
Appellants claim, with absolutely no citation to authority, that Widow,
“as the party who sought to disinter Decedent’s body, has the burden to
prove compliance with statutory and regulatory provisions.” Appellants’
Brief at 24.
From its plain language, 28 Pa. Code § 1.25(a) establishes protocols
for funeral directors, cemetery officials, and local registrars. It requires a
funeral director or cemetery official to make a permit application to a local
registrar, advises the registrar what information and documentation is
needed before a permit is issued, and proscribes disinterment and
reinterment without the permit.
However, Appellants have not brought an action against anyone
governed by 28 Pa. Code § 1.25. Widow did not dig up Decedent’s remains
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herself; all she did was provide the written request to the cemetery official.
Widow did not make an application to the local registrar for the
disinterment/ reinterment permit; per the regulation, that duty fell upon the
cemetery official who acted upon Widow’s request.
Because Appellants have not made any claims against anyone
responsible for complying with the disinterment/reinterment regulation, 1 we
find wholly irrelevant Appellants’ questions about the lawfulness of the past
disinterment of the Decedent’s remains and the propriety of the orphans’
court’s decision to admit copies of the disinterment/reinterment permit.
Even if we agreed with them on both issues, no relief would be available
under the regulation against any party to this action.
The issue for this Court to consider is whether the orphans’ court
abused its discretion in denying Appellants the relief they sought in the form
of disinterment from Castleview and reinterment at Crestview. In arguing
that they are entitled to that relief, Appellants focus on the issue of the
meaning of “next of kin” in 28 Pa. Code § 1.25(a)(1), and maintain that it
requires the consent of all next of kin. See Appellant’s Brief at 33 (“Section
1
Cf. Norton v. StoneMor Partners, L.P., No. 2010-6609, 2014 WL
4410358 (Cumberland County Ct. Com. Pl. August 18, 2014) (holding next
of kin had private right of action of negligence per se for a cemetery’s
violation of section 1.25, where it “had dug up Plaintiff’s mother’s grave,
removed the urn containing her remains, and stored them during Plaintiff’s
aunt’s funeral without Plaintiff’s permission, only to later reinter the remains
next to the [aunt’s] casket”).
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1.25(a) requires consent of next of kin, which means ‘all’ next of kin must
consent, and that where there is consent of less [sic] than all next of kin,
then the party or parties seeking disinterment must apply for a court order
seeking disinterment….”).
The orphans’ court offered the following analysis of the issue.
The issue of the disposition of a decedent’s body has been
before Pennsylvania Supreme Court on multiple occasions. In
Wynkoop v. Wynkoop, 42 Pa. 293 (1862), the decedent’s
widow attempted to remove the body of the decedent, a
distinguished soldier, more than a year after it had been buried.
The Pennsylvania Supreme Court held that a widow has no
further right after burial of the body of the decedent as opposed
to the next of kin, and refused permission to a removal under
the circumstances. The Wynkoop case was discussed by the
Pennsylvania Supreme Court in the case of Pettigrew v.
Pettigrew, 56 A. 878 (Pa. 1904). In Pettigrew, the Supreme
Court set various rules and factors which must be considered in
determining whether a body should be disinterred. The Court
detailed the considerations as follows:
First. That the paramount right is in the surviving
husband or widow, and, if the parties were living in
the normal relations of marriage, it will require a
very strong case to justify a court in interfering with
the wish of the survivor. Secondly. If there is no
surviving husband or wife, the right is in the next of
kin in the order of their relation to the decedent, as
children of proper age, parents, brothers and sisters,
or more distant kin, modified, it may be, by
circumstances of special intimacy or association with
the decedent. Thirdly. How far the desires of the
decedent should prevail against those of a surviving
husband or wife is an open question, but as against
remoter connections, such wishes especially if
strongly and recently expressed, should usually
prevail. Fourthly. With regard to a reinterment in a
different place, the same rules should apply, but with
a presumption against removal growing stronger
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with the remoteness of connection with the
decedent, and reserving always the right of the court
to require reasonable cause to be shown for it.
The Pennsylvania Superior Court, in the case of Novelli v.
Carol, 420 A.2d 469, (Pa. Super. 1980) expanded the factors
that must be considered by a court in deciding a request for
reinterment. The Court established the following factors: (1) the
degree of relationship that the party seeking reinterment bears
to the decedent and the strength of that relationship; (2) the
degree of relationship that the party seeking to prevent
reinterment bears to the decedent; (3) the desire of the
decedent, including the “general presumption that the decedent
would not wish his remains to be disturbed,” or a specific
statement of desire by the decedent; (4) “the conduct of the
party seeking reinterment, especially as it may relate to the
circumstances of the original interment;” (5) the conduct of the
person seeking to prevent reinterment; (6) “the length of time
that has elapsed since the original interment;” and (7) the
strength of the reasons offered in favor of and in opposition to
reinterment.
The Pennsylvania Superior Court in Kulp v. Kulp, 920
A.2d 867 (Pa. Super. 2007), later again discussed the factors as
described in Pettigrew and Novelli. In Kulp, the divorced
parties’ son passed away and his remains were cremated. Since
there was no surviving spouse, the deceased child’s parents, the
parties, had the authority to dispose of their son’s remains [] as
his next of kin. The child’s parents disagreed as to the
appropriate disposition of the remains. The trial court entered
an order requiring that the deceased child’s remains be divided
between the parties without having first considering the factors
set forth in Pettigrew and Novelli. The Superior Court
concluded that the trial court abused its discretion in ordering
the son’s remains to be divided because the factors were not
considered. The case was remanded for further proceedings and
the trial court was instructed to consider and apply the factors of
Pettigrew and Novelli.
Orphans’ Court Opinion, 6/10/2016, at 7-9 (footnotes and some citations
omitted; some citation formats modified).
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The record shows that the orphans’ court, in deciding Appellants’
request for a court order directing disinterment of Decedent’s remains from
Castleview, in fact applied the definition of the term advocated by
Appellants.2 The orphans’ court conducted a hearing at which Appellants
had the opportunity to present their position, thoughtfully considered the
factors established by the relevant case law, applied them to the facts
presented to them by all of Decedents’ interested next of kin, and ultimately
decided not to order the disinterment of Decedent’s remains from Castleview
and their reinterment at Crestview. See Orphans’ Court Opinion,
6/10/2016, at 12-13 (discussing the connections of the parties to Decedent
and the differing impacts of the location of his remains upon the respective
parties).
Based upon the foregoing, there is no indication in the record that the
orphans’ court’s decision was the product of an error of law, an abuse of
discretion, or a capricious disbelief of competent evidence. Ciaffoni, 787
A.2d at 973. Accordingly, Appellants are entitled to no relief from this Court.
Order affirmed.
Judge Bowes joins.
Judge Olson concurs in the result.
2
Because the orphans’ court considered Appellants’ wishes about the resting
place of Decedents’ remains, which is precisely what they claim is required
under their definition of the term next of kin, we need not decide the moot
issue of whether that definition is correct.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2017
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