Geisel v. Pennsylvania State Board of Funeral Directors

FRIEDMAN, Judge,

dissenting.

I respectfully dissent. The question before us in this case is whether the Pennsylvania State Board of Funeral Directors (Board), being a creature of statute, has authority to hold licensed funeral directors vicariously liable for the misconduct of their employees.1 The majority does not address this particular issue.2 The majori*755ty concludes only that the Board has authority to hold supervisors directly liable for failing to perform their supervisory duties.3 (Majority op. at 753-54.) In other words, the majority has determined here that Thomas L. Geisel (Geisel) was negligent, or at fault, because of “his failure to supervise properly” his employee.4 (Majority op. at 754.) However, the Board, which is the fact finder in this case, did not find that Geisel improperly supervised his employee, or that Geisel was at fault in any way; the Board simply held Geisel, as the supervisor of the funeral home, vicariously liable for the misconduct of his employee.5 I do not believe that the Funeral Director Law (Law)6 confers such power and authority upon the Board.

The power and authority to be exercised by an administrative agency must be conferred by legislative language that is “clear and unmistakable.” Pennsylvania Human Relations Commission v. St. Joe Minerals Corp., Zinc Smelting Division, 476 Pa. 302, 310, 382 A.2d 731, 735 (1978). “A doubtful power does not exist. [Administrative bodies] are extrajudicial. They should act within the strict and exact limits defined. Only those powers within the legislative grant, either express or necessarily implied, can be exercised by the administrative body.” Id. at 310, 382 A.2d at 735-36 (citations omitted).

Here, the Board reprimanded Geisel,7 levied a $1,000.00 civil penalty8 and ordered Geisel to complete a course of professional ethics for funeral directors because an employee, not Geisel himself, committed two acts of misconduct.9 However, the Law does not state anywhere, or *756necessarily imply in any of its provisions, that the Board may hold a licensed funeral director vicariously liable for the misconduct of an employee. Indeed, the majority cites no provision of the Law that gives the Board such power. Here, where no provision of the Law suggests that the Board may hold a supervisor vicariously liable for the misconduct of an employee, the Board may not do so.10

Accordingly, I would reverse.11

. In Crowell v. City of Philadelphia, 531 Pa. 400, 407, 613 A.2d 1178, 1181 (1992) (quoting Prosser and Keeton on Torts § 69 (5 th ed.1984)), our supreme court stated:

Vicarious liability, sometimes referred to as imputed negligence, "means in its simplest form that, by reason of some relation existing between A and B, the negligence of A is to be charged against B although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it.”

In Department of Public Welfare ex rel. Molek v. Hickey, 136 Pa.Cmwlth. 223, 582 A.2d 734 (1990), this court stated that the principle of imputed negligence, or vicarious liability, is given the Latin name of respondeat superior.

. The majority does indicate that the Board made certain findings relating to the common law doctrine of respondeat superior. (Majority’s op. at 752.) However, the majority does not specifically address whether respondeat superior is applicable here. Inasmuch as Geisel has properly raised the issue, I will address it here. I point out that, in his brief, Thomas L. Geisel argues:

The doctrine of respondeat superior is a common law theory of liability, which has not been codified in the Act. Furthermore, *755there is no indication that the General Assembly intended to do so, or [that] the Act lends itself to such an interpretation. To the extent the Board has exercised its "discretion" to expand the definition of "misconduct” under the Act to such a degree that it includes respondeat superior liability, it has done so in an improper and abusive fashion.

(Geisel’s brief at 12.) (Emphasis in original.)

. If a supervisor is at fault for failing to perform supervisory duties properly, then the supervisor is subject to direct liability, not vicarious liability, for the misconduct of an employee. In Fruit v. Schreiner, 502 P.2d 133, 140 (Alaska 1972) (emphasis added), the Supreme Court of Alaska made the following relevant statement.

Since we are dealing with vicarious liability, justification may not be found on theories involving the employer’s personal fault such as his failure to exercise proper control over the activities of his employees.... Lack of care on the employer’s part would subject him to direct liability without the necessity of involving respondeat superior.

. I note that the elements necessary to establish negligence are: (1) a duty recognized by law requiring a certain standard of conduct; (2) a failure to conform to that standard; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damages to the interests of another. Colston v. Southeastern Pennsylvania Transportation Authority, 679 A.2d 299 (Pa.Cmwlth.1996).

. The Board stated: "As supervisor of the Funeral Home, [Geisel] is responsible for the professionalism and behavior of the employees of that funeral establishment.” (Board’s op. at 7.)

. Act of January 14, 1952, P.L. (1951) 1898, as amended, 63 P.S. §§ 479.1-479.20.

. I note that the Board penalized Geisel’s employee separately for the employee’s misconduct.

. Section 17(b) of the Law states that, in addition to any other civil remedy provided for in the Law, the Board may levy a civil penalty of up to $1,000.00 in cases where a current licensee violates a provision of the Law. 63 P.S. § 479.17(b). The Board applied this section to Geisel because one of Geisel's employees, not Geisel himself, committed two violations of the Law. (Board’s op. at 8 n. 3.)

. Section 11(a)(5) of the Law states that the Board may refuse to grant, refuse to renew, suspend or revoke a license for "misconduct in the carrying on of the profession.” 63 P.S. § 479.11(a)(5). The Board found that Geis-el’s employee, not Geisel himself, "committed two acts of misconduct in the [carrying on of the] profession.” (Board’s op. at 8.) The Board then stated that, "[a]s supervisor, *756[Geisel] is responsible for those actions....” (Board's op. at 8.)

. I note that the majority cites Kleese v. Pennsylvania State Board of Funeral Directors, 738 A.2d 523, 527 (Pa.Cmwlth.1999), appeal denied, - Pa. -, 753 A.2d 822 (2000), for the proposition that a supervisor is "ultimately responsible for complying with the [Law].” (Majority op. at 754.) However, the fact that supervisors themselves must comply with the Law does not mean that supervisors are vicariously liable for their employees’ noncompliance with the Law.

. I also note that the majority defends the Board's reliance upon section 13.157 of title 49 of the Pennsylvania Code, {see majority op. at 752), which states:

The supervisor for a widow, widower or estate licensee is responsible for complying with the act and this chapter. The widow, widower or estate licensee shall be held responsible for noncompliance only if the Board finds that the licensee had knowledge or should have known of the failure of the supervisor of the establishment to comply with the act or this chapter.

49 Pa.Code § 13.157. However, this regulation pertains only to widow, widower or estate licensees and their supervisors. Moreover, the regulation that applies to Geisel, 49 Pa.Code § 13.144(b), does not mention that supervisors are subject to vicarious liability. It simply states that supervisors shall devote full time to the business, and there is no evidence here that Geisel failed to do so.