Opinion
April 24, 1970.
October 9, 1970.
Funeral Directors — Embalming by person other than licensed funeral director or resident trainee — Evidence — Findings of fact — Penalty — Consideration by board of matters outside the record — Commonwealth Court — Funeral Director Law — Administrative Agency Law.
1. In this case, in which it appeared that the Pennsylvania State Board of Funeral Directors found that defendant had violated § 13(b) of the Funeral Director Law of January 14, 1952, P. L. (1951) 1898, as amended (which states that no person other than a licensed funeral director or a resident trainee shall prepare or embalm the body of any deceased person), and ordered that his funeral director's license be revoked; and that on appeal the Commonwealth Court affirmed, as did the Superior Court; it was Held that there was substantial evidence to support the findings that defendant violated § 13(b).
2. Where it appeared that at oral argument counsel for the board admitted that in making its decision to revoke defendant's license the board improperly considered matters outside the record, it was Held that the order of the Superior Court should be vacated and the record remanded to the Commonwealth Court (which under the Administrative Agency Law of June 4, 1945, P. L. 1388, § 44) has the power to affirm, modify, or set aside the revocation order.
Mr. Justice ROBERTS dissents and would affirm the order of the court below.
Mr. Justice JONES took no part in the consideration or decision of this case.
Before BELL, C. J., COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 37, May T., 1970, from order of Superior Court, March T., 1969, No. 36, affirming order of Court of Common Pleas of Dauphin County, No. 243 Commonwealth Docket, 1966, in case of Pennsylvania Board of Funeral Directors v. Victor Errichetti. Order vacated and record remanded.
Same case in Superior Court: 215 Pa. Super. 461.
Appeal by licensee from decision of the Pennsylvania State Board of Funeral Directors revoking license to practice funeral directing.
Order entered sustaining decision of the Board, opinion by KREIDER, P. J. Licensee appealed to the Superior Court, which affirmed the order of the court below, dissenting opinion by HOFFMAN, J., in which SPAULDING and CERCONE, JJ., joined. Appeal by licensee to Supreme Court allowed.
Michael A. Marolla, for appellant.
Victor L. Schwartz, Assistant Attorney General, with him John W. Flannery, Assistant Attorney General, Thomas H. Lane, Deputy Attorney General, and William C. Sennett, Attorney General, for appellee.
Upon information obtained from the Maine Board of Medical Examiners, the Pennsylvania State Board of Funeral Directors issued a citation charging that Victor Errichetti, appellant, had violated § 13(b) of the Funeral Director Law, Act of January 14, 1952, P. L. (1951) 1898, as amended, 63 P. S. § 479.13 (b) which states that, "No person other than a licensed funeral director or a resident trainee shall prepare or embalm the body of any deceased person." After a hearing, the Board found that appellant had violated that section, and it ordered that his funeral director's license be revoked. On appeal the Commonwealth Court affirmed, 89 Dauph. 378 (1968), as did the Superior Court, 215 Pa. Super. 461, 258 A.2d 534 (1969). We granted allocatur.
After a careful reading of the record, we conclude that there is substantial evidence to support the finding that appellant violated § 13(b). As to the penalty, however, at oral argument, counsel for the Board admitted that in making its decision to revoke appellant's license the Board considered matters outside the record in this action. As this was clearly improper, we must vacate the order of the Superior Court and remand the record to the Commonwealth Court which under the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, § 44, 71 P. S. § 1710.44, has the power to affirm, modify or set aside the revocation order.
The order is vacated, and the record is remanded for proceedings consistent with this opinion.
Mr. Justice ROBERTS dissents and would affirm the order of the lower court.
Mr. Justice JONES took no part in the consideration or decision of this case.