Thursday, January 3, 2013

Registration Requirements - Pennsylvania Burial Grounds Act

Mount Vernon Cemetery Company v. Pennsylvania Department of State, Bureau of Professional and Occupational Affairs, State Real Estate Commission, 2012 Pa. Commw. LEXIS 313 (2012)
Frank Kosir, Jr., Esquire
This matter addressed the issue of whether a cemetery company that had ceased selling cemetery lots was nonetheless subject to the registration requirements of the Pennsylvania Burial Grounds Act. 
Mount Vernon Cemetery Company (“Company”) was established in 1856, and has continuously operated as a cemetery company since its creation.  The Company ceased selling burial plots in 1968 and, since then, has remained in existence solely for the purpose of interring those who previously purchased burial plots in the cemetery, and for maintaining the existing cemetery.  In 1982, the Pennsylvania Legislature enacted the Pennsylvania Burial Grounds Act (9 P.S. §§ 101-312) (“Act”), and Section 304(a) of the Act (9 P.S. § 304(a)) requires that all “cemetery companies” obtain a yearly registration certificate from the State Real Estate Commission (“Commission.”)  As it no longer sells cemetery lots, the Company took the position that it was no required to comply with the registration requirements of the Act, and failed to obtain a registration certificate for any year of operation.
 In 2010, the Pennsylvania Department of Revenue, Bureau of Professional and Occupational Affairs (“Bureau”) investigated the Company’s failure to obtain yearly registration certificates, and commenced disciplinary proceedings against the Company before the Commission.  In support of its position, the Bureau asserted that the Company fell within the definition of “cemetery company” as set forth in the Act and that its failure to satisfy the yearly registration requirement subjected it to sanctions in the amount of Ten Thousand Dollars ($10,000.00) for each year that it had failed to register.  The Commission held a hearing, concluded that the Company was in fact required to comply with the registration requirements set forth in the Act, but recommended that no monetary sanctions be imposed.
On appeal, our Commonwealth Court reversed.  In issuing its ruling, the court treated the matter as one of statutory construction, and noted that the Act defined “cemetery company” as “any person who offers or sells to the public the ownership, or the right to use, any cemetery lot.”  Therefore, as the record plainly established that the Company had not sold any cemetery lots since 1968, and does not presently “offer or sell” any cemetery lots to the public, the Company did not fall within the Act’s definition of “cemetery company,” and was not subject to the yearly registration requirement.

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