MONUMENT BUILDERS OF NEW JERSEY, INC. v. ROMAN CATHOLIC ARCHDIOCESE OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MONUMENT BUILDERS OF NEW

JERSEY, INC., THE LINCOLN

MONUMENT COMPANY, and JOSEPH

URAS MONUMENTS, INC.,

Plaintiffs-Appellants,

v.

ROMAN CATHOLIC ARCHDIOCESE

OF NEWARK,

Defendant-Respondent.

_________________________________

June 23, 2015

Argued June 2, 2015 Decided

Before Judges Yannotti, Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-124-13.

Martin J. Arbus argued the cause for appellants (Arbus, Maybruch & Goode, L.L.C., attorneys; Mr. Arbus and Matthew R. Goode, on the briefs).

Carl R. Woodward, III, argued the cause for respondent (Carella, Byrne, Cecchi, Olstein, Brody & Agnello, attorneys; Mr. Woodward III, Donald F. Miceli and Amanda J. Barisich, on the brief).

PER CURIAM

Plaintiffs appeal from a May 7, 2014 order granting judgment for defendant and dismissing plaintiffs' verified complaint with prejudice. We affirm.

We discern the following facts from the record. Plaintiff, Monument Builders of New Jersey (the "MBNJ"), is a non-profit organization whose members build, design, and sell cemetery monuments and private mausoleums. Plaintiffs, Lincoln Monument Company and Joseph Uras Monuments, Inc., are two such companies designing and selling cemetery monuments and mausoleums. Defendant, Roman Catholic Archdiocese of Newark, a religious organization, operates ten cemeteries including Holy Cross in North Arlington, Gate of Heaven in East Hanover, St. Gertrude's in Colonia, Holy Name in Jersey City, Christ the King in Franklin Lakes, Maycrest in Mahwah, Mt. Carmel in Tenafly, St. Mary's in East Orange, St. Peter's in Jersey City, and Holy Sepulchre in East Orange. In addition to providing grave sites, since 1979 defendant has provided community mausoleums at its cemeteries where multiple families from its parishes can entomb loved ones.

In 2006, Andrew Schafer, Executive Director of the Archdiocese Office of Catholic Cemeteries ("Catholic Cemeteries"), met with John Burns, president of the MBNJ, and informed him that defendant planned to offer private mausoleums at its cemeteries for individuals and families. Under the Private Mausoleum Program (the "Program"), defendant would own the mausoleum and be responsible for maintenance, repairs and restoration. The profits generated from the Program would go into a fund for the perpetual care and maintenance of the cemeteries.

In June 2013, defendant began selling inscription rights for monuments. Prior to the Program, defendant had never sold monuments through its cemeteries. Under the Program, a person who purchases an interment right from the cemetery can purchase an inscription for a headstone. To purchase an interment right, a person must indicate in the contract that he or she is a member of a Roman Catholic Church. Defendant purchased a headstone from a vendor. Defendant owns the headstone and is responsible for its maintenance.

Although marketed as purchases of inscription rights, the purchasers are in essence, paying for the headstones. However, purchasers of the interment right can purchase a monument from any source. Only Catholics and their family members may be buried in defendant's cemeteries. However, defendant did sell rights of entombment in one cemetery to individuals from the Coptic Church, after a decision was made that the Coptic Church is "in communion" with the Catholic Church.

On July 11, 2013, plaintiffs filed a verified complaint in the Chancery Division seeking to enjoin defendant from selling monuments, inscriptions of monuments, and private mausoleums in its cemeteries. On July 19, 2013, the court issued an order to show cause returnable September 9, 2013. Defendant answered the complaint and, after a hearing on October 9, 2013, the court denied temporary injunctive relief. With leave of the court, the parties filed amended pleadings, and the court conducted a trial over seven days between April 1 and April 16, 2014. The court issued a written opinion and order granting judgment in favor of defendant and dismissing plaintiffs' complaint with prejudice.1

On appeal, plaintiffs argue that the trial court erred in holding that defendant had the statutory authority to sell monuments and inscription rights, that defendant's cemeteries were private, and that the Program did not violate public policy. Plaintiffs also argue that the sale of interment rights to members of the Coptic Church established defendant as a "cemetery company." We disagree and affirm substantially for the reasons as articulated in the trial judge's thorough written opinion, and add the following brief remarks.

Our standard of review of a court's decision following a bench trial is well-settled. The judge's factual findings should be upheld if they are supported by substantial credible evidence in the record. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009). However, we owe no such deference to the trial court's legal conclusions and our review of such conclusions is plenary. LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.) certif. denied, 177 N.J. 224 (2003).

We first address whether defendant had the statutory authority to sell monuments and inscription rights. The New Jersey Cemetery Act, N.J.S.A. 45:27-1 to -41 (the "Cemetery Act"), regulates cemetery companies and defines such a company as

a person that owns, manages, operates or controls a cemetery, directly or indirectly, but does not include a religious organization that owns a cemetery which restricts burial to members of that religion or their families unless the organization has obtained a certificate of authority for the cemetery.

[N.J.S.A. 45:27-2.]

Cemetery companies are specifically prohibited from manufacturing or selling memorials or private mausoleums. N.J.S.A. 45:27-16c(1) to (2). The trial court considered that the plain language of the Cemetery Act excludes religious organizations from the definition of cemetery company, and hence, from the prohibition against such entities selling memorials and private mausoleums. Moreover, the trial court considered the powers granted to defendant by virtue of N.J.S.A. 16:15-11, which provides that an incorporated archdiocese may

[a]cquire, purchase, receive, erect, have, hold and use leases, legacies, devises, donations, moneys, goods and chattels of all kinds, church edifices, schoolhouses, college buildings, seminaries, parsonages, sisters' houses, hospitals, orphan asylums, reformatories and all other kinds of religious, ecclesiastical, educational and charitable institutions, and the lands whereon the same are, or may be erected, and cemeteries or burying places and any lands, tenements and hereditaments suitable for any or all of said purposes, in any place or places in any such diocese; and the same or any part thereof, to lease, sell, grant, assign, demise, alien and dispose of[.]

[N.J.S.A. 16:15-11 (emphasis added).]

We agree with the trial court that the plain language of the Cemetery Act excludes defendant from the definition of cemetery company and the attendant prohibition on the sale of monuments and private mausoleums.2 We reject plaintiffs' contention that defendant is a cemetery company under the Cemetery Act because it allegedly has not restricted burials in its cemeteries to members of defendant's "religion." N.J.S.A. 45:27-2. We also conclude that defendant derives its authority to operate its cemeteries from N.J.S.A. 16:15-11, which allows defendant to manufacture, sell or inscribe memorials and private mausoleums.

Plaintiffs assert, however, that public policy preventing cemetery associations and corporate entities managing public cemeteries from selling markers and memorials also precludes defendant. Relying on Frank v. Clover Leaf Park Cemetery Ass'n, 29 N.J. 193, 203 (1959) (holding cemetery's sale of memorials is "ultra vires as well as contrary to the public interest"), and Terwilliger v. Graceland Memorial Park Ass'n, 35 N.J. 259, 267-68 (1961) (holding cemeteries operated by companies incorporated under the General Corporation Act were public cemeteries "subject to all the restrictions which public policy has imposed[,]" including restrictions on selling markers), plaintiffs argue that, at the time of trial, public policy operated to limit defendant's ability to sell monuments.

However, as the trial court correctly noted, those cases involved non-religious public cemeteries and predate the Cemetery Act exemption for religious cemeteries. As the trial court found, because defendant's cemeteries are restricted to members of the Catholic faith and their immediate families, those cemeteries are not public cemeteries. Moreover, under N.J.S.A. 16:15-11, defendant is not restricted to holding lands for use as a cemetery, but is permitted to "[a]quire, purchase, receive, erect, have, hold and use . . . hereditaments suitable for any or all" of the purposes of a cemetery. The term "hereditaments" is generally defined to mean real or personal property, including land and everything upon the land. Black's Law Dictionary, 4th ed., 1968. This broad grant of authority allowed defendant to construct and maintain mausoleums, purchase memorials for placement on graves, and sell inscription rights for memorials. We discern no error in the court's determination.

Plaintiffs also argue that because defendant permitted members of the Coptic Church to buy interment rights in one of its cemeteries, it did not restrict burials to members of the Catholic Church as required under the Cemetery Act in order to be subject to exemption. See N.J.S.A. 45:27-16c(1) to (2) (cemetery company may not sell memorials or private mausoleums); N.J.S.A. 45:27-2 (religious organization owning cemetery and restricting burial to members of "that religion" is not a cemetery company).

The trial court made no conclusions about the relationship between Coptics and Roman Catholics but held that the burial of Coptics in one cemetery did not invalidate the Program. We agree.

N.J.S.A. 45:27-2 specifically exempts religious organizations that restrict burial to members of that religion. Plaintiffs urge an interpretation of the statute which would allow no exceptions to a general policy of restricting burials to members of the Roman Catholic Church. Defendant acknowledges that it sold burial rights in one of its cemeteries to members of the Coptic Church and did so as an exception to its otherwise restricted burial policy. Defendant agreed to do so after defendant's Office of Divine Worship determined that members of the Coptic faith are in "communion with" the Roman Catholic Church. According to defendant, this determination was made after consideration of church doctrine, canon law and the rules governing Catholic cemeteries.

We do not consider this exception to be the equivalent of a pattern of unrestricted burials at defendant's cemeteries. A review of the record reveals no indication that defendant was otherwise failing to adhere to the religious restriction in the operation of its cemeteries, and testimony was presented that it was defendant's policy to restrict burial to Roman Catholics and their family members.

Affirmed.

1 Subsequent to the trial in this matter, on March 23, 2015, L. 2015, c.30 was enacted prohibiting religious corporations, associations or organizations that operate cemeteries from manufacturing, selling, or inscribing memorials or private mausoleums. The law does not take effect until one year following its enactment, in response to the Governor's concern expressed in his conditional veto message that grieving families be given sufficient notice of the change in the law and that religious cemeteries be provided the opportunity to adjust their services. Governor's Conditional Veto Message to A.3840.

2 Moreover, the passage of L. 2015, c. 30 provides additional support for the trial court's determination, as the Governor's conditional veto specifically recognizes defendant's current exemption from the prohibition applicable to cemetery companies. The Legislature agreed to a one-year delay, indicating its agreement with the Governor's interpretation. The "governor's action in approving or vetoing a bill . . . may be considered in determining legislative intent." Perez v. Rent-A-Center, Inc., 186 N.J. 188, 215 (2006) (citation and internal quotation marks omitted), cert. denied, 549 U.S. 1115, 127 S. Ct. 984, 166 L. Ed. 2d 710 (2007).