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Ferguson v. Pennsylvania State Board Of Funeral Directors2/5/2001
ARGUED: December 6, 2000
Andrew D. Ferguson, III (Ferguson) petitions for review from the April 6, 2000 order of the Pennsylvania State Board of Funeral Directors (Board) that suspended his funeral director's license for a period of two years and levied a civil penalty against him in the amount of $4,000.00 for four violations of Section 11(a)(5) of the Funeral Director Law (Law). , Section 11(a)(5) provides that the Board may suspend any licensee for "gross incompetency, negligence or misconduct in the carrying on of the profession." 63 P.S. §479.11(a)(5). Ferguson's suspension, the origin of which is that he aided and assisted insurance agents in the unlicensed practice of funeral directing, was dependent upon the Board's decision that Faye Morey (Morey) violated the Law.
Morey petitions for review from the October 4, 2000 order of the Board that ordered her to cease and desist from all sales activity involving pre- arranged funeral merchandise and services and levied a civil penalty against her in the amount of $4,000.00 for four violations each of Sections 13(a) and 13(c) of the Law. Section 13(a) provides that " o person shall practice as a funeral director as defined herein, . . . unless he holds a valid license to do so as provided in this act." 63 P.S. §479.13(a). Section 13(c) provides, in pertinent part, that "no person other than a licensed funeral director shall, directly or indirectly, or through an agent, offer to or enter into a contract with a living person to render funeral services to such person when needed." 63 P.S. §479.13(c). For the reasons that follow, we affirm both Board orders.
Ferguson is a licensed funeral director. In early 1996, Baltimore Life Insurance Company (Baltimore Life) contacted Ferguson for the purpose of sponsoring a funeral planning survey. Baltimore Life conducted the survey, mailed it out to prospective clients and reviewed all responses to it. Ferguson did not participate in the survey directly; rather, he allowed Baltimore Life to use his funeral home name on the survey's letterhead.
Baltimore Life employed Clara Kendall as a life insurance agent and directed her to sell pre-arranged funerals. Baltimore Life hired Morey to train its agents to sell pre-arranged funerals in Uniontown, Pennsylvania. Morey worked with Kendall.
In March of 1996, Kendall and Morey met with Ferguson, whereupon Ferguson agreed to accept assignments of Baltimore Life insurance policies that Kendall and Morey sold for pre-arranged funerals. At this meeting, Ferguson supplied Morey with his price lists and some pictures of his merchandise.
Thereafter, Kendall and Morey met with potential insureds that had responded to the funeral planning survey. Ultimately, Kendall and Morey sold four policies for pre-arranged funerals. In determining the amount of insurance required to fund a pre-arranged funeral, Kendall and Morey completed "Estimated Worksheets" for each insured. The Estimated Worksheets listed charges for funeral services, caskets, vaults, memorials, obituaries, death certificates, the opening and closing of cemetery plots, clothing, hairdresser, minister/mass, crucifixes, stone/memorial installation and other miscellaneous charges (for example, flowers or luncheons). Kendall or Morey signed the Estimated Worksheets as "counselor" rather than as "insurance agent."
Based upon the figure projected in the Estimated Worksheets, Kendall and Morey sold insurance policies to the insureds in an amount sufficient to cover the costs of the funerals. Kendall and Morey then had the insureds assign their policies to Ferguson. Thereafter, Kendall and Morey presented the insurance policy assignments to Ferguson,
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