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Frank v. Clover Leaf Park Cemetery Association

Decided: December 19, 1957.

CHARLES FRANK, TRADING AS WOODBRIDGE MONUMENT WORKS, PLAINTIFF,
v.
CLOVER LEAF PARK CEMETERY ASSOCIATION, A CORPORATION, DEFENDANT. CLOVER LEAF PARK CEMETERY ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, V. CHARLES FRANK, TRADING AS WOODBRIDGE MONUMENT WORKS, DEFENDANT. LAKE NELSON MEMORIAL PARK ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, V. CHARLES FRANK, TRADING AS WOODBRIDGE MONUMENT WORKS, DEFENDANT



Schettino, J.s.c.

Schettino

Plaintiff Frank has filed actions against the memorial park associations to determine the effect and the reasonableness of the rules and regulations of the associations. In the consolidated suits the associations seek to enjoin Frank from using or advertising names similar to theirs and to enjoin him from holding himself out as in any way connected with the associations. The parties agreed that the decision in the Clover Leaf Park Cemetery Association cases would apply to the Lake Nelson Memorial Park Association case. I shall therefore only refer to Clover Leaf Park Cemetery Association in my opinion.

Frank alleges that since 1929 he has been in the business of selling and installing all kinds of bronze and granite markers and plaques; that his place of business is located near the cemetery of the defendant association; that he has sold markers to lot owners of the cemetery association; that he has been unable to install the markers by virtue of defendant's conduct; that defendant has been guilty of acts which are ultra vires and as a result plaintiff has suffered continual, extensive and irreparable loss and damage; that the defendant is unlawfully engaged in the business of selling bronze memorials at a profit; that the rules of the cemetery are being enforced in an unreasonable manner; that plaintiff's customers have been persuaded by defendant to withdraw from contracts made with plaintiff; that plaintiff has been deprived of a substantial amount of business and that defendant, who is exempt from the payment of certain taxes, has a preferred position; that plaintiff has been unable to deal with potential customers by reason of defendant's actions; that the defendant's conduct has been unlawful and illegal in that it has committed a business tort; that such conduct is against public policy insofar as it constitutes a restraint of trade and a monopoly by reason of the fact that defendant has illegally and improperly reserved unto itself the exclusive right to sell and erect such markers, thus depriving plaintiff of his right to secure legitimate business from potential and actual customers, and the unlawful

conduct of the defendant constitutes a menace to free enterprise thus enabling defendant to compete unfairly with plaintiff; and that plaintiff is thus denied the right to pursue his business free from undue interference or molestation.

Clover Leaf Park Cemetery was organized on August 12, 1927 as a memorial park cemetery, under "An act to authorize the incorporation of rural cemetery associations and regulate cemeteries," approved April 9, 1875 (now codified in Title 8, N.J.S.A.) and is a corporation not for pecuniary profit. It enjoys a tax-free status on lands where interments are made and pays taxes on the remainder of its lands. It is governed by its lot owners who elect trustees pursuant to the statute. Early in the history of the cemetery, rules and regulations were adopted by the trustees and approved by the lot holders. Each deed to a lot holder is specifically made subject to the rules and regulations of the association. Defendant's operation differs from the conventional cemetery where the graves are marked by headstones of various heights, sizes, and dimensions. This cemetery is laid out as a park, with markers installed flush with the ground; all the markers are made of bronze with the exception of veterans' markers which are supplied by the Government. The alleged purpose of the establishment of the cemetery as stated in its rules and regulations was the creation of a memorial park.

Defendant's testimony shows that it has on display, and for sale and installation, certain brands of bronze markers. A lot owner may, if he desires, choose one of them and pay to defendant one charge including sales cost, and a charge for installation and maintenance. The memorials are cleaned on occasion; the markers are raised or lowered as the situation demands, because their positions are affected by weather and age; dead flowers are removed from flower containers periodically; and the grounds around the marker are specially trimmed. The record shows that defendant memorial park has spent thousands of dollars on its beautification program, and although there is some conflict in

testimony, I find that it is beautifully laid out and maintained.

These services are performed by the cemetery by virtue of the maintenance charge included in the lot owner's original purchase of the bronze marker. Defendant maintains a "Perpetual Care Fund" made up of some of the proceeds from the sale of grave plots covering maintenance and care of the grounds. This fund is supervised and examined by the New Jersey Department of Banking and Insurance.

The testimony shows that defendant permits any lot owner to furnish a marker for the lot owner's plot even if it is not purchased from defendant, provided it conforms to the specifications prescribed by the rules and regulations of defendant. However, defendant requires the installation of the marker and the maintenance thereafter to be performed by it. The charge for the installation and subsequent maintenance is a fixed one, and no matter from whom the marker is purchased, the listed charges are the same.

Plaintiff's charges, reduced to their essence, are to the effect that defendant cemetery is unlawfully selling bronze memorials for profit; that defendant's rules and regulations have been so enforced as to prevent potential customers from purchasing memorials from the plaintiff; and that defendant unlawfully refuses to permit the plaintiff to install bronze memorials.

The testimony shows that defendant association sold bronze markers since its inception and that, exclusive of veterans' markers, in 1952, 92 markers were sold and installed by defendant; in 1953, 126 markers were installed, and that of these defendant sold 126; in 1954, defendant sold and installed 167 markers; and in 1955, defendant sold and installed 198. The bronze markers are bought from two sources, Matthews and Gorham, and the formula contained in defendant's rules and regulations relating to markers to be installed was furnished by these two suppliers.

Defendant has a salesman in charge of the bronze marker division. He stated that he solicits business from lot owners

as soon as he is handed a card showing defendant's record of a deceased person. He then sees to it that a letter is mailed to the deceased person's family by defendant's office staff. At times a letter is mailed even before the funeral and defendant's brochure is thereafter sent out four to five days after the burial and in about a week or ten days, or two weeks, he personally calls upon the family.

Defendant's office manager testified that the 1955 cost of a bronze marker, including installation and maintenance, of ...


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