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Luttenberger v. Restland Memorial Park Association

Decided: July 23, 1958.


Scherer, J.s.c.


[51 NJSuper Page 508] This suit is brought by two individuals who own either outright or beneficially lots in Restland Memorial Park (hereinafter called Restland), a cemetery

located in the Township of Hanover, Morris County, New Jersey. This cemetery is operated by the Restland Memorial Park Association, a cemetery association duly authorized and operating pursuant to R.S. 8:1-1 et seq.

The suit is brought to set aside a resolution adopted by the trustees of Restland on October 10, 1956, which provides that effective November 1, 1956 all burial vaults installed in the cemetery must be installed and sealed by cemetery employees and that for the service so rendered a charge of $15 will be made to the vault supplier, the charge to be payable when the vault is delivered. The plaintiff, Ruth Luttenberger (now Ruth Borders), is the owner of one lot which she acquired by a deed dated October 29, 1956. The plaintiff, Wesley Hopping, is a funeral director, whose place of business is in Livingston, New Jersey. He claims beneficial ownership of a number of graves although the deeds for them are not registered in his name. Both plaintiffs in depositions admitted that they purchased the graves primarily for investment purposes and resale at a profit. Mrs. Luttenberger bought her lot from Mr. Hopping for the sum of $100. He admits that he made a slight profit on this sale.

The evidence shows that Mrs. Borders is the daughter of one of the owners of the Philip Creter Burial Vault Company, a manufacturer of burial vaults. Mr. Hopping secures most of his vaults from that company. Prior to the adoption of the resolution in question it was the custom of manufacturers of concrete burial vaults to install them in the cemetery and, after the interment, to seal the vaults. The digging of the grave is done by the cemetery employees, as is the filling in of the graves after the vault is sealed.

Mrs. Luttenberger's objection to the resolution, set forth in the first count of the complaint, is that the resolution was adopted without justification, for the purpose of increasing the revenues of the association, and as a result of this arbitrary and unreasonable regulation she will not be able to obtain the customary guarantees given by the vault manufacturers when they set, seal and service the vaults. It is further alleged that she has been denied the right to

rely on the training and experience of the employees of the vault manufacturers, thus depriving her of unrestricted rights of sepulture to which she was entitled under her deed. In addition, she charges that the cemetery association by installing the vaults will be engaged in an activity which is ultra vires. She therefore seeks judgment enjoining the enforcement of the resolution as illegal and unreasonable, and a declaration that it is void and in violation of R.S. 8:2-10.

In the second count of the complaint plaintiff Hopping as a funeral director alleges that it is his duty under the statute N.J.S.A. 45:7-34 properly to inter dead bodies, in the course of which he arranges for the securing of an appropriate burial vault, and that he "has found it most expedient and satisfactory for all parties concerned" to have the vault installed, serviced and sealed by the vault manufacturers' employees who have been expressly trained in this work. He further alleges that these companies guarantee their installations, but that since November 1, 1956, when Restland employees began to install and seal these vaults, the vault manufacturers have refused to issue guarantees and that he has been forced to relinquish proper control over the interment of bodies, the sealing and servicing of vaults, all of which amounts to a gross and unjust interference with his business and with the duties vested in him by N.J.S.A. 45:7-1 et seq. He, too, alleges that the regulation is ultra vires and seeks to have Restland enjoined from interfering with his duties as a funeral director and for a declaration that the resolution is void.

The plaintiff Luttenberger did not testify. The plaintiffs' other witnesses were funeral directors and representatives of vault manufacturers. Apparently, the funeral directors were inspired to take action by the vault manufacturers. The latter, after receiving notice on or about October 11, 1956 from Restland that it was going to put this regulation into effect, sent a printed letter dated October 25, 1956 to "New Jersey Funeral Directors" advising them of this fact, stating that thereafter they would not furnish any guarantees of

their vaults because the sealing and servicing was not being done by "our trained and experienced employees." They also called attention to the $15 installation charge. Following this, the Funeral Directors' Association of Essex and Union Counties, of which plaintiff Hopping was at that time a trustee, wrote a letter dated November 3, 1956 to Restland stating that the members of the association unanimously opposed the "ruling" for the reasons, among others, that they had for many years received service from the vault manufacturers "who are experts in the delivery, installing, and sealing of these vaults." In that letter they posed the question of who would guarantee the vault, its installation and construction.

The testimony reveals that the installation and sealing of a concrete burial vault does not require any expert training of the persons who do it. The process consists in lowering the concrete vault, weighing approximately 1,200 pounds, into the grave and setting the lid, which weighs about 700 pounds, upright on the vault. The installation is then covered with artificial grass, flowers, or other screening devices so that it is not visible to the persons attending the interment. After the casket is lowered into the vault, the lid is let down either by straps or ropes attached to the lid. If any dirt or foreign substance has fallen upon the edges of the vaults, it is wiped off before the lid is put into place. Some vaults have "shedding" edges which shed such dirt. Most vaults are self-sealing. The sealing compound material used for the seal is already in the lid, so that no further acts are required after the lid is lowered into place. On some types of vaults there are other sealing devices required, but the ones in question here apparently are all self-sealing. The testimony of the vault manufacturers demonstrates quite clearly that their men learn the installation and sealing ...

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