J-A01031-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

MICHAEL J. MCCARTHY, BENJAMIN 

MCCARTHY, CHRISTINE R. HEAD, 

LINDA MARIE BUSATTO, CLARA LOUISE 

MCCARTHY, AND WILLIAM JEROME 

MCCARTHY,

 Appellants

v.

PATTY JO MCCARTHY,

 Appellee

:

:

:

:

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

No. 1013 WDA 2016

Appeal from the Order June 10, 2016

in the Court of Common Pleas of Lawrence County 

Orphans’ Court at No(s): 82 of 2015 O.C.

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 17, 2017

Michael J. McCarthy, Benjamin McCarthy, Christine R. Head, Linda 

Marie Busatto, Clara Louise McCarthy, and William Jerome McCarthy 

(Appellants, collectively) appeal from the June 10, 2016 order that denied 

their petition to disinter the remains of William J. “Jerry” McCarthy, IV 

(Decedent) and reinter them at the original burial location. We affirm.

Decedent died in an automobile accident in 2013. Appellants are blood 

relatives of Decedent (his children, sister, and parents). Appellee Patty Jo 

McCarthy (Widow) is Decedent’s second wife to whom Decedent was married 

at the time of his death. While still married to his first wife, Decedent had 

purchased burial plots near other family members’ plots in Crestview 
J-A01031-17

- 2 -

Memorial Park in Grove City (Crestview). However, Widow objected to 

Decedent’s burial in one of those plots. Instead, upon the agreement of all 

parties, two other plots were purchased at Crestview, with Decedent buried 

in one and the other available for Widow. 

Approximately two years after Decedent’s interment, his sister went to 

visit his grave and found the site disturbed and the headstone missing. It 

was later established that Widow had requested and obtained the 

disinterment of Decedent’s remains from Crestview and their reinterment at 

Castleview Memorial Park in New Castle (Castleview). Widow not only failed 

to discuss the matter with any of Appellants prior to taking action, but she 

did not tell Appellants’ family where his new gravesite was located. The 

following month Appellants learned what had happened when Widow’s 

counsel informed them of the disinterment. Counsel later informed them 

that the remains had been reinterred at Castleview, but declined to disclose 

the location of his plot within the cemetery. 

On August 20, 2015, Appellants filed a petition for special relief asking 

the orphans’ court to order that the Decedent’s remains be disinterred again 

and reinterred back at Crestview. In subsequent discovery, which involved 

motions to compel, for protective orders, and a granted motion for sanctions 

against Widow, Appellants received a copy of a letter Widow had sent to 

Crestview asking for the disinterment. 
J-A01031-17

- 3 -

Officials at Crestview, after receipt of the letter, sought 

permission for disinterment/reinterment from the local registrar, 

Betty J. Fischer, of Stoneboro, Pennsylvania. In the course of 

attempting to have Decedent’s body disinterred, a 

disinterment/reinterment permit was sought.2 [Widow] initially 

had in [her] possession the completed reinterment portion of the 

permit. Only as the court was conducting hearings in this matter 

did [Widow] introduce a document purporting to be the 

completed disinterment portion of the permit.

_____

2 The disinterment/reinterment permit contains three 

sections[:] an information section, a disinterment portion, 

and a reinterment portion. There exist two copies of the 

disinterment/reinterment permit in the record. One copy 

has a completed disinterment portion, the other has a 

completed reinterment portion. Both copies would be 

necessary to comprise a complete disinterment/ 

reinterment permit.

The disinterment portion of the permit contains Section B 

which indicates, “Consent of next-of-kin or court order is 

required when disinterring remains.” This section further 

indicates that the local registrar should check one of two boxes, 

whichever is appropriate, and attach a copy of the 

documentation. The two options which can be checked are 

labeled, consent of next-of-kin and court order. The box 

reflecting consent of next-of-kin was checked on the permit in 

the case sub judice. Neither [Widow] nor the representative of 

Crestview [], Patricia Delo, marked the next[-]of[-]kin box on 

the disinterment permit. It can be concluded that the box was 

marked by the local registrar.

Following the permit’s issuance, the Decedent’s body was 

disinterred from Crestview [] and reinterred at Castleview [] on 

or about May 1, 2015. 

Orphans’ Court Opinion, 6/10/2016, at 4-5 (unnecessary capitalization and 

quotation marks omitted). 
J-A01031-17

- 4 -

Following hearings, the orphans’ court denied Appellants’ petition by 

order of June 10, 2016. Appellants timely filed a notice of appeal. Both 

Appellants and the orphans’ court complied with Pa.R.A.P. 1925.

Appellants present two questions for this Court’s review, which we 

have re-ordered for ease of disposition.

1. Whether the disinterment of a decedent’s remains 

after original interment without the consent of all of a decedent’s 

next of kin or without a court order is unlawful as it fails to 

comply with the Pennsylvania Code requirements which provide 

for disinterment upon consent of all next of kin and/or a court 

order?

2. Does a trial court abuse its discretion by admitting 

into evidence a disinterment/reinterment permit which was not 

certified by the Commonwealth of Pennsylvania Bureau of Vital 

Statistics as a record in existence?

Appellants’ Brief at 5 (suggested answers and unnecessary capitalization 

omitted).

Our standard of review from a final order of the Orphans’ Court 

Division requires that we accord the findings of an Orphans’ 

Court, sitting without a jury, the same weight and effect as the 

verdict of a jury. Thus, we will not disturb those findings absent 

manifest error. We shall modify an Orphans’ Court order only if 

the findings upon which the order rests are not supported by 

competent or adequate evidence or if the court engaged in an 

error of law, an abuse of discretion, or capricious disbelief of 

competent evidence.

In re Ciaffoni, 787 A.2d 971, 973 (Pa. Super. 2001) (citations omitted).

Appellants’ arguments are based upon the section of the Pennsylvania 

Code that governs the disinterment of human remains. The regulation 

provides in pertinent part as follows.
J-A01031-17

- 5 -

No dead human body shall be removed from its place of 

interment unless a disinterment permit is first secured from a 

local registrar who is authorized to issue a disinterment permit, 

according to the following requirements:

(1) The funeral director or cemetery official making 

the application shall present to the local registrar the 

correct name, date of death and cause of death of 

the body to be disinterred and written consent of 

next of kin, or appropriate order from a court of 

competent jurisdiction.

(2) No disinterred body shall be reinterred either in 

the same cemetery or another cemetery located in 

this Commonwealth unless a burial or removal 

permit is obtained.

28 Pa. Code § 1.25(a). 

Appellants claim, with absolutely no citation to authority, that Widow, 

“as the party who sought to disinter Decedent’s body, has the burden to 

prove compliance with statutory and regulatory provisions.” Appellants’ 

Brief at 24. 

From its plain language, 28 Pa. Code § 1.25(a) establishes protocols 

for funeral directors, cemetery officials, and local registrars. It requires a 

funeral director or cemetery official to make a permit application to a local 

registrar, advises the registrar what information and documentation is 

needed before a permit is issued, and proscribes disinterment and 

reinterment without the permit. 

However, Appellants have not brought an action against anyone 

governed by 28 Pa. Code § 1.25. Widow did not dig up Decedent’s remains 
J-A01031-17

- 6 -

herself; all she did was provide the written request to the cemetery official. 

Widow did not make an application to the local registrar for the 

disinterment/ reinterment permit; per the regulation, that duty fell upon the 

cemetery official who acted upon Widow’s request. 

Because Appellants have not made any claims against anyone 

responsible for complying with the disinterment/reinterment regulation,1 we 

find wholly irrelevant Appellants’ questions about the lawfulness of the past 

disinterment of the Decedent’s remains and the propriety of the orphans’ 

court’s decision to admit copies of the disinterment/reinterment permit. 

Even if we agreed with them on both issues, no relief would be available 

under the regulation against any party to this action.

The issue for this Court to consider is whether the orphans’ court 

abused its discretion in denying Appellants the relief they sought in the form 

of disinterment from Castleview and reinterment at Crestview. In arguing 

that they are entitled to that relief, Appellants focus on the issue of the 

meaning of “next of kin” in 28 Pa. Code § 1.25(a)(1), and maintain that it 

requires the consent of all next of kin. See Appellant’s Brief at 33 (“Section 

 

1 Cf. Norton v. StoneMor Partners, L.P., No. 2010-6609, 2014 WL 

4410358 (Cumberland County Ct. Com. Pl. August 18, 2014) (holding next 

of kin had private right of action of negligence per se for a cemetery’s 

violation of section 1.25, where it “had dug up Plaintiff’s mother’s grave, 

removed the urn containing her remains, and stored them during Plaintiff’s 

aunt’s funeral without Plaintiff’s permission, only to later reinter the remains 

next to the [aunt’s] casket”).
J-A01031-17

- 7 -

1.25(a) requires consent of next of kin, which means ‘all’ next of kin must 

consent, and that where there is consent of less [sic] than all next of kin, 

then the party or parties seeking disinterment must apply for a court order 

seeking disinterment....”). 

The orphans’ court offered the following analysis of the issue. 

The issue of the disposition of a decedent’s body has been 

before Pennsylvania Supreme Court on multiple occasions. In 

Wynkoop v. Wynkoop, 42 Pa. 293 (1862), the decedent’s 

widow attempted to remove the body of the decedent, a 

distinguished soldier, more than a year after it had been buried. 

The Pennsylvania Supreme Court held that a widow has no 

further right after burial of the body of the decedent as opposed 

to the next of kin, and refused permission to a removal under 

the circumstances. The Wynkoop case was discussed by the 

Pennsylvania Supreme Court in the case of Pettigrew v. 

Pettigrew, 56 A. 878 (Pa. 1904). In Pettigrew, the Supreme 

Court set various rules and factors which must be considered in 

determining whether a body should be disinterred. The Court 

detailed the considerations as follows:

First. That the paramount right is in the surviving 

husband or widow, and, if the parties were living in 

the normal relations of marriage, it will require a 

very strong case to justify a court in interfering with 

the wish of the survivor. Secondly. If there is no 

surviving husband or wife, the right is in the next of 

kin in the order of their relation to the decedent, as 

children of proper age, parents, brothers and sisters, 

or more distant kin, modified, it may be, by 

circumstances of special intimacy or association with 

the decedent. Thirdly. How far the desires of the 

decedent should prevail against those of a surviving 

husband or wife is an open question, but as against 

remoter connections, such wishes especially if 

strongly and recently expressed, should usually 

prevail. Fourthly. With regard to a reinterment in a 

different place, the same rules should apply, but with 

a presumption against removal growing stronger 
J-A01031-17

- 8 -

with the remoteness of connection with the 

decedent, and reserving always the right of the court 

to require reasonable cause to be shown for it.

The Pennsylvania Superior Court, in the case of Novelli v. 

Carol, 420 A.2d 469, (Pa. Super. 1980) expanded the factors 

that must be considered by a court in deciding a request for 

reinterment. The Court established the following factors: (1) the 

degree of relationship that the party seeking reinterment bears 

to the decedent and the strength of that relationship; (2) the 

degree of relationship that the party seeking to prevent 

reinterment bears to the decedent; (3) the desire of the 

decedent, including the “general presumption that the decedent 

would not wish his remains to be disturbed,” or a specific 

statement of desire by the decedent; (4) “the conduct of the 

party seeking reinterment, especially as it may relate to the 

circumstances of the original interment;” (5) the conduct of the 

person seeking to prevent reinterment; (6) “the length of time 

that has elapsed since the original interment;” and (7) the 

strength of the reasons offered in favor of and in opposition to 

reinterment. 

The Pennsylvania Superior Court in Kulp v. Kulp, 920 

A.2d 867 (Pa. Super. 2007), later again discussed the factors as 

described in Pettigrew and Novelli. In Kulp, the divorced 

parties’ son passed away and his remains were cremated. Since 

there was no surviving spouse, the deceased child’s parents, the 

parties, had the authority to dispose of their son’s remains [] as 

his next of kin. The child’s parents disagreed as to the 

appropriate disposition of the remains. The trial court entered 

an order requiring that the deceased child’s remains be divided 

between the parties without having first considering the factors 

set forth in Pettigrew and Novelli. The Superior Court 

concluded that the trial court abused its discretion in ordering 

the son’s remains to be divided because the factors were not 

considered. The case was remanded for further proceedings and 

the trial court was instructed to consider and apply the factors of 

Pettigrew and Novelli.

Orphans’ Court Opinion, 6/10/2016, at 7-9 (footnotes and some citations 

omitted; some citation formats modified).
J-A01031-17

- 9 -

The record shows that the orphans’ court, in deciding Appellants’ 

request for a court order directing disinterment of Decedent’s remains from 

Castleview, in fact applied the definition of the term advocated by 

Appellants.2 The orphans’ court conducted a hearing at which Appellants 

had the opportunity to present their position, thoughtfully considered the 

factors established by the relevant case law, applied them to the facts 

presented to them by all of Decedents’ interested next of kin, and ultimately 

decided not to order the disinterment of Decedent’s remains from Castleview 

and their reinterment at Crestview. See Orphans’ Court Opinion, 

6/10/2016, at 12-13 (discussing the connections of the parties to Decedent 

and the differing impacts of the location of his remains upon the respective 

parties). 

Based upon the foregoing, there is no indication in the record that the 

orphans’ court’s decision was the product of an error of law, an abuse of 

discretion, or a capricious disbelief of competent evidence. Ciaffoni, 787 

A.2d at 973. Accordingly, Appellants are entitled to no relief from this Court.

Order affirmed. 

Judge Bowes joins.

Judge Olson concurs in the result.

 

2 Because the orphans’ court considered Appellants’ wishes about the resting 

place of Decedents’ remains, which is precisely what they claim is required 

under their definition of the term next of kin, we need not decide the moot 

issue of whether that definition is correct. 
J-A01031-17

- 10 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2017