Recovering Damages for Emotional Distress in Abuse of Corpse

After just six minutes of deliberation a jury found a Pennsylvania man guilty of first-degree murder and abuse of a corpse. The man killed is stepdaughter, had sex with her corpse, and filmed it. 

The stepdaughter's husband is suing the man for infliction of severe emotional distress on the husband and children. The husband is attempting to recover the cost of his wife's funeral, compensation for her lost wages, retirement benefits and punitive damages. As well as, the family's mental health counseling.

Generally, courts in Pennsylvania and most jurisdictions apply the impact rule when deciding to award damages for emotional distress.  The “impact rule,” bars recovery for fright, nervous shock or mental or emotional distress unless it was accompanied by a physical injury on the complaining party. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 191 (1987). 

Pennsylvania Courts allow for an exception to the impact rule if the individual claiming distress was in the zone of danger. The "zone of danger rule" allows for a party to recover damages for emotional distress if the plaintiff was in personal danger and feared impact of harm created by the negligent of internal acts of the defendant. Niederman v. Brodsky, 436 Pa. 401 (1970).

However, the Kazatasky court adopted the tort of intentional infliction of emotional distress by outrageous conduct, which could allow for a family member to recover for distress if the defendant's conduct was sufficiently outrages. Kazatsky, 515 Pa. at 195. In order for the family member to recover for this tort the family member must show the defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id.

In Kazatasky the parents attempted to recover for intentional infliction of emotional distress by outrageous conduct against a cemetery for failing to care for parent's children gravesites. Id. The court did not decided the case due to insufficient medical records but made it clear that if a plaintiff can pass the "outrageous" test the plantiff can recover for the tort of intentional infliction of emotional distress by outrageous conduct. In the case of the murdered stepdaughter, the husband could recover for emotional distress if a court or jury views killing someone, having sex with their corpse, and filming it outrageous enough to go beyond all possible bounds of decency.   

Correll L. Kennedy

Unlicensed Funeral Homes Mishandle Corpses

Last year police in West Philadelphia were in for an unsettling surprise when they found decomposing and improperly stored bodies in an unlicensed funeral home. Blair Hawkins, a 53-year-old funeral director from New Jersey, faces probation after being found guilty of three counts of abuse of corps for mishandling bodies in his unlicensed funeral home, Hawkins Funeral Service at 53rd and Vine streets.


According to police documents, two of the bodies were decomposing. Another body was improperly embalmed, and kept in a coffin in an unventilated room. One of the bodies was left in a body bag so decomposed that it was impossible to determine the gender, and Hawkins said he could not identify it. To make matters worse, the police also found non-medical bags filled with human organs.

The building where Hawkins Funeral Service was located, was abandoned, and without refrigeration. Philadelphia Police Lt. John Walker said, "You have a responsibility to care for the dead as you are supposed to…You shouldn't cut corners in situations like this where you're using a building that you clearly know has been out of business for some time."

Hawkins, who had an unblemished record as a funeral director since 1989, is not the first funeral director in Pennsylvania accused of mishandling corpses. Just this August police found three decomposing bodies at Powell Mortuary Services, a funeral home that was also operating without a license. Police found one body in a coffin, and two others decomposing in cardboard body boxes.

Pennsylvania statute 18 Pa.C.S.A. § 5510, states that “[e]xcept as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor of the second degree.” Moreover, according to regulations, bodies must be embalmed within 25 hours or refrigerated. In both cases, the bodies were kept without ventilation. The police reported that the bodies were authorized to be cremated.

Debora Flores Franco

When Funeral Homes Don’t Do Their Job, Who Is Left To Pick Up The Pieces?

“We don't refrigerate bodies that are being cremated.”

This explanation as to why police found two decomposing corpses hidden under trash bags in an unlicensed West Philadelphia funeral home seems unconvincing, to say the least. Blair Hawkins, the owner of Hawkins Funeral Service, now faces probation on three counts of abusing a corpse: two counts for this infraction, and one for storing an embalmed body in a coffin in an unventilated room. Additionally, he was fined $100,000 by the Pennsylvania State Board of Funeral Directors, and (unsurprisingly) had his funeral director’s license revoked. Just how, one wonders, could Hawkins’ excuse be a valid one?

Simply put: it’s not. Under Pennsylvania state law, bodies must be refrigerated or embalmed within 24 hours of receiving them. The families of both bodies had been told cremation had already taken place—that is, until Hawkins called the brother of Harvey Vaughan, who was supposed to have been cremated two weeks earlier, and told him that more paperwork needed to be signed before the cremation could take place. After scraping together $2,300 to pay Hawkins for the alleged cremation, Vaughan’s family cannot afford to pay for a second cremation. His body was being stored at the local morgue until arrangements could be made.

Such “immorality,” as the State Board described Hawkins’ actions, illustrates how the funeral industry owes a moral duty not just to the bodies themselves, but to those who loved the body when it was alive. The status of a dead body as “human remains” provides more legal protection than that of property (you can’t be charged with “abuse of an armchair,” for example), yet less protection than that of a living being (despite being left to decompose and covered with garbage, there can be no charge of physical abuse here). The families of the bodies entrusted to Hawkins’ care are the real victims in this situation. They could seek relief through the civil judicial system for intentional infliction of emotional distress, a tort which Pennsylvania courts have recognized as a valid claim when a loved one’s body is intentionally or recklessly mistreated (see, for example, Moffatt v. Baird Funeral Home Inc.). However, this tort often falls short from providing families with the relief many believe is suitable for the pain and suffering caused by going through the grieving process twice.

This case, along with other gruesome tales of unlicensed funeral homes, demonstrates the ambivalent legal position that the funeral industry is in. As businesses, running a smooth operation is beneficial for the well-being of the company. As a service, however, running a smooth operation is vital for the community. The industry is intensely regulated in almost every state; however, the limited remedies available to those who have been victims of Hawkins, and the arguably light sentence that he received, illustrates the uncertain approach that the law has towards the industry when that regulation fails.

Charley Connor

When Property Owners Want to Block Access to Graves—The Story of a Penn. Churchyard

There are times when we are proud of state from which we hail, there are times we are not, and there are times when it’s a mixed bag. This past August a suit was filed in my home state, Pennsylvania, concerning the visiting of a churchyard cemetery. According to the Reading Eagle, Paul and Jean Dovin acquired a small parcel of land along Twin Valley Road that contained an 18th century stone church, and now are refusing to let loved one’s visit their dead. In fact, the suit only allows for family members to enter the property in order to exhume the bodies to another site.  

AR-308119951The Dovin’s have been calling “trespass” on visitors like Barbra Miller, a mother whose 3-year-old son is buried in the cemetery. Is it trespass to visit the graves of the lost? It seems the legal issues here are built on a multitude of misunderstandings. The Dovin’s property is privately owned, but they purchased the land without the knowledge that the cemetery was still functioning. Additionally, the previous owners of the cemetery were selling plots without a license. So begs the question: is lack of notice combined with illegal plot exchange grounds for excluding family members from visiting graves?

Answering the question is much more difficult than asking it. It boils down to 3 parts the licensing, the private property, and the human remains. The licensing is the clear cut, under the  Pennsylvania Burial Ground Act individuals operating as cemeteries i.e. selling grave sites must be licensed through the state's Real Estate Commission as they are involved in buying and selling deeds. It is no surprise the Dovins were unaware of the operation of the cemetery because the state of Pennsylvania was unaware. Is that enough though? Can past transgressions allow for the discounting of the current victims, family and friends, that just want to honor the dead? Should they have the right to visit their dead regardless?

It certainly isn’t that simple. While it is understandable that the Dovins were surprised to learn the cemetery was still functioning, they were aware the property included a cemetery— and shouldn’t that put them on per se notice of visitors?  Private property should always be respected, but regardless of its stated ownership status, don’t cemeteries function as quasi-private property more so than traditional private property? The term quasi is malleable and difficult to define, but that is exactly what allows it to fit here so well. The land is privately owned, but bears with it an expectation and acceptance that loved ones will want to visit the graves of the deceased, regardless of past licensure issues or current licensure standing.

The term quasi-private property is also consistent with how the common law views human remains—not as property. The problem is that the remains eventually decompose into the real property. The question then remains (no pun intended), when if at all do human remains cease to be human remains and therefore once again can be considered real property for purposes of exclusion? One answer to this question is in the suit itself—the exhuming exception. Families are able to enter the cemetery to exhume loved one’s bodies implying that some type of human remains, at least in the law’s eyes, are still present. Making it then unclear if the Dovins have the right to force the remains off their property, not because they own the remains, but because they own the land on which the remains reside or does the per se notice of owning land with a cemetery trump the inclination to “clean house” regardless of if the private property right of exclusion exists?

The only thing that is clear is the need for clarity. While everyone, accept litigators maybe, prefer to handle things outside the courtroom the one good we can hope for from this suit is clarification on these conflicting questions. And may be some peace for the loved ones and land owners alike would be nice in the process as well.

Brandy Nickoloff

Consumers Stand to Lose in Battle Between Pennsylvania Funeral Directors and Cemeteries

A “turf battle” between funeral directors and StoneMor Partners, a public company that has a 60-year deal with the Archdiocese of Philadelphia to manage 13 Catholic cemeteries in the Philadelphia area, threatens to impose restrictions on cemeteries throughout Pennsylvania that will reduce consumer choice and raise prices. The Pennsylvania Funeral Directors Association supports Senate Bill 874, co-sponsored by Senator Robert Tomlinson (R), owner of Tomlinson Funeral Home in Bensalem, Pennsylvania.

The bill proposes several changes to the Pennsylvania Cemetery and Funeral Merchandise Trust Fund Law.  If a person purchases funeral or cemetery goods and services on a preneed basis in Pennsylvania, current law requires that the funeral home or cemetery deposit 70% of the retail sales price of the goods or services in a merchandise trust fund established with a Pennsylvania bank. Customers can pay for a preneed contract in one lump sum, or in payments over time. The law currently states that the funeral home or cemetery must make the deposit to the merchandise trust fund within 30 days after the final payment is made. So, if a customer is paying over, say, 60 months, the seller isn’t required to make the 70% deposit into the merchandise trust fund for five years. SB 874 proposes that the 70% deposit must be made each month that the seller receives payments on the preneed contract.

SB 874 also provides that “there shall be no delivery of merchandise or product, except for mausoleums, cremation gardens, markers and lawn crypts, prior to the death of the person for whose benefit the contract was made.” This change eliminates “constructive delivery” of caskets and vaults in Pennsylvania. Under the current law, a customer could enter into a preneed contract and the seller could immediately take their funds and purchase the casket or vault and then “warehouse” them until the time of need. Cemeteries “warehouse” vaults by installing them into the ground, sometimes years before they are actually used.

The changes regarding the timing of deposits to the merchandise trust fund and the end of constructive delivery are pro-consumer changes. But consumer protection isn’t the goal of SB 874. That is clear in the bill’s failure to change one of the most anti-consumer aspects of the Cemetery and Funeral Merchandise Trust Fund Law—the liquidated damages provision.

Under current Pennsylvania law, if a customer defaults on a single payment under a preneed contract (even the final payment), the funeral home or cemetery is permitted to retain 30% of the contract price (not the payments to date, but the total contract price) as liquidated damages. So, let’s say I enter into a preneed contract with a funeral home today for $10,000 worth of funeral goods and services, with a plan to make $1,000 payment each year for the next ten years. The funeral home will collect my payments and deposit 70% in the merchandise trust fund with the remaining 30% in their own special account. If I default at any time during that ten-year period, the funeral home is permitted to keep $3,000 of my payments as liquidated damages and terminate our preneed contract. Keep in mind that the funeral home hasn’t actually spent any money on goods and services to benefit me—they have just been collecting payments and waiting for me to die.

These liquidated damages are justified by the industry based on the seller’s need to be compensated for their time and effort in securing the preneed contract. But that logic is undermined by the very different treatment of customers who make their payment without default and then move out of state after the final payment. In that situation, the customer can cancel the contract and receive a refund of the entire prepayment. The seller, however, gets to keep the interest earned.

The real purpose of the bill is made clear with the seemingly innocuous provision that “a [preneed] seller must … adhere to the Federal Trade Commission’s Funeral Industry Practices Revised Rules regarding the sale of the merchandise.” This reference is to the FTC’s so-called “Funeral Rule,” which requires “funeral providers” (which are sellers of both funeral goods and services, i.e. funeral homes) to give customers detailed price lists and to make certain disclosures. The FTC Funeral Rule does not apply to cemeteries because they do not sell “funeral services.” Many of the disclosures required by the Funeral Rule make little sense if they are imposed on cemeteries. For example, the Funeral Rule requires funeral providers to include the following disclosure on their outer burial container (vault) price list: “In most areas of the country, state or local law does not require that you buy a container to surround the casket in the grave. However, many cemeteries require that you have such a container so that the grave will not sink in. Either a grave liner or a burial vault will satisfy these requirements.” If a cemetery is required to publish an outer burial container price list with this disclosure, consumers would be understandably confused.

Cemetery customers in Pennsylvania, prepare to be confused. SB 874 proposes to extend the FTC Funeral Rule to cemeteries in Pennsylvania. In a comment letter dated October 20, 2015, the FTC’s Office of Policy Planning and Bureau of Economics, Competition, and Consumer Protection urged the Pennsylvania legislature not to extend the Funeral Rule to cemeteries. The FTC noted that in its 2008 review of the Funeral Rule, it chose not to extend it to cemeteries because “there is insufficient evidence that commercial cemeteries, crematories, and third-party sellers of funeral goods are engaged in widespread unfair or deceptive acts or practices.” The FTC also noted that extending the Funeral Rule to cemeteries would lead to consumer confusion because the FTC Act is not applicable to most non-profit entities. Approximately 70% of the active cemeteries in the United States are owned by non-profit entities such as municipalities and religious organizations.

In its comment letter, the FTC also argued against ending constructive delivery, at least with respect to vaults, noting that it may be much more cost effective for a cemetery to install vaults in bulk rather than one by one. The FTC noted that consumer demand for pre-need funeral goods and services was growing, but the cumulative effect of the changes proposed by SB 874 would make it less attractive for cemeteries to engage in pre-need sales. SB 874 would “lessen competition, resulting in potentially higher prices and fewer options for consumers, without countervailing benefits to consumers.” Now, let’s see, if consumers continue to demand pre-need funeral goods and services yet the rules make it less attractive for cemeteries to offer those goods and services, where will consumers go? Oh right, the funeral homes.

In fact, the Pennsylvania Cemetery, Cremation and Funeral Association (PCCFA) argues that SB 874 is a thinly veiled attempt by the state to protect funeral homes from competition from StoneMor Partners. Before StoneMor Partners took over management of the Philadelphia-area Catholic cemeteries in 2013, funeral directors in and around Philadelphia had a monopoly on selling caskets and vaults in the Catholic cemeteries. PCCFA, which represents cemeteries across the state, is understandably upset that a “classic turf war over who can sell caskets and vaults” in the Philadelphia Catholic cemeteries threatens cemeteries and consumers across the state.

Former Pennsylvania Cemetery, Cremation and Funeral Association President Guy Saxton summed up the response of the Pennsylvania cemetery industry in testimony on the legislation. Directing his comments to Senator Tomlinson, the funeral director who co-sponsored SB 874, Saxton said: “I know you don’t like StoneMor, but I’m not StoneMor. And this bill puts me out of business. And everything I’ve heard today tells me that this bill is not in good faith. It’s not trying to help the consumer, it’s attempting to put StoneMor out of business, and we’re collateral damage.”

Tanya D. Marsh

Filing for a Permit for a Crematory in Pennsylvania

In October 2015, a funeral home in Middletown, Pennsylvania applied for a permit with the Department Environmental Protection (“DEP”) in order to establish a crematory in its garage.  In compliance with state law, the funeral home correctly notified Middletown borough’s code and zoning officer of its intent to establish a crematory.  The application is then reviewed within 30 days of receipt to make sure it is complete.  If it is complete, then the DEP commences a technical review, and if the inspection reveals no technical issues, then the DEP drafts a proposal, which is submitted to the PA Bulletin for public comment. 

The funeral home is acting in accordance with Pennsylvania law, which requires that

Every undertaker or proprietor or person in charge of any crematory or furnace or place where any human corpse shall or may be cremated or incinerated, shall, before removing any such corpse to, or receiving any such corpse at, such crematory, furnace or place for cremating or incinerating the same, obtain a permit to cremate or incinerate such corpse from the board or department of health or local health authorities of the city or locality within which such crematory furnace or place is situate.  35 Pa. Stat. Ann. § 1121 (West).

Some local citizens are concerned that the crematory will cause odors, toxins, and noise.  However, DEP’s crematorium regulations establish requirements that a crematory must comply with, such as limiting the amount of pollutants it can emit (p.2) and prohibiting a crematory from emitting odors  “in such a manner that the malodors are detectable outside the property of the permittee as specified in 25 Pa. Code § 123.31 (relating to odor emissions).” (p.6)  Additionally, a crematory must maintain records of “visible emission observations and any corrective actions” as well as the number of cremations performed. (p.5).

Brittany Colton

Danger Zoning: Denial of Crematory Plans by Local Planning and Zoning Commissions

A town zoning commission in Wilkes-Barre, Pennsylvania recently denied a local funeral home owner’s proposal to establish a crematory inside the town.  The story in the Citizen’s Voice, a local newspaper, reported on the denial.  This is not the only instance in which a town has denied a plan to establish a crematory inside a city.  For example, in Peters Township in Pennsylvania, the city planning commission sent a recommendation to deny a request for a special exemption for a crematory (the planning commission also denied a proposed amendment to the zoning ordinance that would have allowed the crematory).  See Andrea Zrimsek, Planning Commision Votes to Deny Crematory, Zoning Ordinance Amendment, Peters Patch (Mar. 16, 2011) 

Often, these proposals are opposed, not just by zoning commissions, but by local residents.  In fact, in both of the cases mentioned above, it appears that one of the driving factors in the commissions’ decisions was public opposition from local residents. While residents express a variety of concerns, the largest concern generally seems to be air quality and emission issues.  In addition to emissions concerns, residents are often worried about the possibility of mercury being released into the air, which can occur when a corpse with mercury amalgam dental fillings is cremation.

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