An Orphan’s court judge has ruled that the family of Howard Tobin may exhume his remains from Poale Zedeck Cemetery in Richland Township, so they may be re-interred at the Star of David section of Homewood Cemetery.
The written opinion, handed down by Judge Lawrence O’Toole, was based on the proposition that the personal interests of the family outweighed the interests of Poale Zedeck, because “[t]he Congregation’s reasons for opposing disinterment are based solely on its Constitution and Jewish Law (‘Halaca’).” [sic]
The court further based its opinion on the fact that the Tobins were “Reformists and not Orthodox Jews,” were no longer members of Poale Zedeck, and “have no connection there whatsoever.”
Poale Zedeck has 30 days to appeal the decision.
When Howard Tobin died in 1965 at the age of 46, leaving no instructions for burial, his younger brother arranged for interment at Poale Zedeck Cemetery because their father was a member of that congregation. Tobin’s widow, Roberta Tobin, was too distraught at the time to make the funeral arrangements herself.
Tobin’s son, Steven, who died suddenly in 2008, was buried in the Star of David section of Homewood Cemetery, because the trek to Richland Township to visit Howard’s grave had become too much for Roberta, and it would be easier for her to visit Steven’s grave if it were in Homewood. Because Steven was not married and had no children, it was Roberta’s wish to be buried next to her son, when the time came, so that he would not be alone, and to have Howard’s remains relocated to Homewood as well, keeping the family together.
Roberta died Jan. 23, and was buried next to Steven at Homewood Cemetery.
Following Poale Zedeck’s refusal of the Tobin family’s request to exhume Howard Tobin’s remains, the Tobins sought a court order permitting them to do so.
“It is unclear whether we will appeal,” said Rabbi Ari Goldberg, of Poale Zedeck. “The decision will be made by the board of directors, in consultation with myself and our legal staff in the next couple of weeks.”
“I was surprised by the ruling,” said Joel Pfeffer, the attorney for Poale Zedeck. “I thought the law was pretty clear that there is a presumption against disinterment.”
It is unclear what future impact this decision will have on a religious institution’s discretion to manage a cemetery pursuant to its own dogmas. Although a decision by an Orphan’s Court judge can be persuasive, it does not become binding precedent unless it is affirmed at the appellate level.
“I have a concern about the continuing administration of cemeteries,” Pfeffer said. “This decision says it doesn’t really matter what your rules are. This is the troubling part of the opinion. It leaves me to think that a cemetery has little or no say in this matter.”
The issues of this case go beyond mere re-interment, and extend to constitutional questions of religious liberty, as well as contract law, said Bruce Ledewitz, a constitutional law scholar at Duquesne University School of Law.
“I think Judge O’Toole is wrong in this case,” Ledewitz said. “He ignored the constitutional rights of the synagogue altogether. It seems to me it’s a serious constitutional question. The state is about to violate the sanctity of a Jewish synagogue.”
“He also ignored the contract issue altogether,” Ledewitz said. “It’s not the synagogue’s fault that it was the brother [and not the immediate family who made the burial arrangements].”
“If this were just a re-interment case, he [O’Toole] would be right,” Ledewitz continued. “But the fact that this is a religious institution is the hook.”
John Eddy, attorney for the Tobins, disagrees.
“The question boils down to what extent are the Tobins bound by the rules of the cemetery, or Orthodox Jewish law,” Eddy said. “When I presented the case, I showed they were not bound, because they are not Orthodox Jews; so they can’t be said to have adopted any principles of Orthodoxy.
“For a cemetery to impose rules on outsiders, there has to be something binding my clients to those laws. There was no evidence as to the rules [of Poale Zedeck’s cemetery] in 1965. After 1965, they [the Tobins] had no membership in the synagogue, so they can’t be bound to those rules.”
If Poale Zedeck appeals the decision, and it is upheld by an appellate court, religious institutions could be “weakened” in terms of managing their own communities, said Rabbi Scott Aaron, community scholar for the Agency for Jewish Learning. Aaron is also an attorney.
“Our country, in the legal process on the federal level, seems to go against what we see here,” Aaron said. “I’m seeing a court system that is increasingly making the argument that goes against that. More and more, there is support for noninterference of the government.”
Aaron also sees the elapse of 45 years between the burial of Howard Tobin and the family’s request for relief as a potentially problematic issue.
“Forty-five years later? That’s an interesting question,” he said. “What’s the threshold? Would you have the ability to go back as a claimant against a religious institution for other property rights issues?”
Aaron questioned how far the impact of an affirmation of this decision could reach, wondering if it could enable a hypothetical plaintiff to seek the return of funds donated to a congregation 50 years ago because the congregation has changed denominations.
In the meantime, the surviving Tobin children are hoping to re-inter their father next to their mother soon, and have an unveiling of a double headstone this summer. Daughter Shelly Frankel said she visited her mother’s gravesite on Mother’s Day “to tell her the good news.”
“I really felt a little better going knowing we’d probably be able to get them [her mother and father] together,” Frankel said.
(Toby Tabachnick can be reached at firstname.lastname@example.org.)