E. B. Wescott v. BPOA (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA El-Veta B. Wescott, Petitioner v. Bureau of Professional and Occupational Affairs, Respondent BEFORE: : : : : : : : : No. 1508 C.D. 2007 Submitted: December 7, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: February 13, 2008 El-Veta B. Wescott (Wescott), petitions for review from a final order and adjudication of the Bureau of Professional and Occupational Affairs, State Board of Funeral Directors (Board) which determined that in violation of 49 Pa. Code § 13.202(1), Wescott aided or assisted Robert J. Wescott, Jr. (Husband), in the practice of funeral directing during a time when she was aware that his funeral director s license had been revoked.1 The Board suspended the funeral director 1 The pertinent provision of 49 Pa. Code § 13.202 provides: § 13.202. Unprofessional conduct. Unprofessional conduct includes the following: (1) Aiding or assisting a funeral director whose license has been suspended or revoked or an unlicensed person to engage in an act or practice for which a license is required. license of Wescott for one year and imposed a civil penalty in the amount of $1,000.00. We affirm. The Board made the following findings. Wescott holds a license to practice as a funeral director in the Commonwealth of Pennsylvania and is the owner-operator of Wescott Funeral Home. Husband was also a licensed funeral director in the Commonwealth of Pennsylvania. However, such license was revoked on September 8, 1995. On October 17, 2005, inspector Roger Clark went to the Wescott Funeral Home for a routine inspection. Mr. Clark was greeted at the door by Husband, who escorted Mr. Clark around the facility for purposes of conducting the inspection. Such was done with the knowledge and consent of Wescott. During the investigation, Mr. Clark observed a certificate from New York indicating that Husband was a funeral director in New York. Mr. Clark then asked Husband if he had a license in Pennsylvania. Husband indicated that he did. When Mr. Clark asked to see it, Husband explained that his license was placed on inactive status with the Board. During the investigation, Mr. Clark requested and received various documents from Wescott Funeral Home. A price list was produced and inside the binder, Husband s name was listed as funeral director, but the price list did not contain the name of Wescott. Additionally, on the general price list, the business cards and the statement of funeral goods and services, Husband s name and/or photograph appeared on each document. Wescott admitted that she prepared the general price list and allowed Husband s name to remain on it despite the revocation of his funeral director s 2 license. Wescott allowed Husband s name to appear on all printed materials at issue from 1995 through 2005. Based on the above findings, the Board determined that Wescott violated the provisions of 49 Pa. Code § 13.202(1), in that she aided or assisted Husband in the practice of funeral directing after his license had been revoked by the Board. The Board imposed a $1,000.00 fine and suspended Wescott s license for one year. This appeal followed.2 Wescott initially argues that there was no evidence that she aided Husband in the practice of funeral direction. The term funeral director is defined in Section 2(1) of the Funeral Director Law (Law), Act of January 14, 1952, P.L. 1898, as amended, 63 P.S. § 479.2(1) as follows: (1) The term funeral director shall include any person engaged in the profession of a funeral director or in the case and disposition of the human dead, or in the practice of disinfecting and preparing by embalming the human dead for the funeral services, burial or cremation, or the supervision of the burial, transportation or disposal of deceased human bodies, or in the practice of funeral directing or embalming as presently known, whether under these titles or designation or otherwise. The term funeral director shall also mean a person who makes arrangements for funeral service and who sells funeral merchandise to the public incidental to such service or who makes funeral arrangements for the rendering of such services and the sale of such merchandise. 2 Our review is limited to determining whether constitutional rights were violated, whether errors of law were committed, or whether necessary findings of fact are supported by substantial evidence. Kleese v. Pennsylvania State Board of Funeral Directors, 738 A.2d 523 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 562 Pa. 676, 753 A.2d 822 (2000). 3 Here, Wescott maintains that no evidence was presented showing that Husband performed any funeral services, directed any interns or performed any embalming at Wescott Funeral Home since he lost his license. In fact, Wescott points out that Mr. Clark stated that during his inspection, he did not witness Husband performing any duties that would be considered limited to a licensed funeral director. We agree with the Board, however, that substantial evidence exists to show that Husband engaged in the practice of a funeral director, inasmuch as he was held out to the public as a funeral director. In doing so, we observe that the provision at Section 15 of the Law, 63 P.S. § 479.15 further describes the practice of funeral directing as follows: What constitutes practice A person, either individually or as a member of a partnership or of a corporation, shall be deemed to be practicing as a funeral director within the meaning and intent of this act who: (1) holds himself out to the public in any manner as one who is skilled in the knowledge, science and practice of funeral directing, embalming or undertaking, or who advertises himself as an undertaker, mortician or funeral director. The evidence presented in this case shows that for over a period of ten years, Wescott circulated and distributed to the public Wescott Funeral Home business cards, price lists and statements of good and services which contained the name and/or photograph of Husband as a funeral director. Wescott held Husband out to the public as a funeral director during a time that he was not so licensed. Thus, the evidence supports the Board s determination that Wescott aided Husband in the practice of funeral directing, in that she prepared advertising materials listing Husband as a funeral director at a time when his license was revoked. 4 Wescott also argues that the penalty imposed by the Board, including suspension and a monetary fine, should be set aside due to its harshness. In support of setting aside the penalty, Wescott maintains that she is estranged from Husband, that Wescott Funeral Home has been suffering a financial loss and that the violations at issue constitute a first time offense. In accordance with Section 11(a)(6) of the Act, 63 P.S. § 479.11(a)(6), the Board may suspend or revoke the license of a funeral director for failure to comply with the regulations of the Board. In addition, Section 17(b) of the Act, 63 P.S. § 479.17(b) authorizes the Board to impose a civil penalty of up to $1,000.000 on a licensee who violated any provision of the Act. As the entity charged with overseeing the examination, licensure, and registration of those individuals and corporations engaged in funeral directing, the Board has the discretion to determine the appropriate sanction to impose for a licensee s acts of misconduct. Vogelman v. State Board of Funeral Directors, 550 A.2d 1367, 1371 (Pa. Cmwlth. 1988). Here, Wescott was aware that Husband s funeral director license had been revoked. Wescott, as the owner-operator of Wescott Funeral Home, nonetheless included the name of Husband on business cards, price lists and statements of good and services for a period of ten years after Husband s license revocation. Contrary to Wescott s argument, the use of Husband s name with respect to advertising was indeed an ongoing problem such that the sanctions imposed by the Board were within its discretion. In accordance with the above, the decision of the Board is affirmed. JIM FLAHERTY, Senior Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA El-Veta B. Wescott, Petitioner v. Bureau of Professional and Occupational Affairs, Respondent : : : : : : : : No. 1508 C.D. 2007 ORDER Now, February 13, 2008, the Order of the Bureau of Professional and Occupational Affairs, State Board of Funeral Directors, in the above-captioned case, is affirmed. JIM FLAHERTY, Senior Judge
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