# Heffner v. Murphy

> District Court, M.D. Pennsylvania · May 8, 2012 · 866 F. Supp. 2d 358

URL: https://www.frixlaw.com/law-library/cases/8699037

## Case

- **Full name:** Ernest F. HEFFNER v. Donald J. MURPHY
- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 8, 2012
- **Citations:** 866 F. Supp. 2d 358; 2012 U.S. Dist. LEXIS 64131; 2012 WL 1605110
- **Precedential status:** Published
- **Opinion:** Opinion of the court by III
- **Judges:** III
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8699037

## How later opinions describe it (automated extraction)

- noting “an out-of-state individual may obtain a Pennsylvania funeral license by complying with the requirements for applicants”

## Opinion text

*365
MEMORANDUM AND ORDER
JOHN E. JONES III, District Judge.
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before this Court is Defendants’ Motion for Summary Judgment, (doc. 117), Plaintiffs’ cross motion for summary judgment, (doc. 137), and Defendants’ Motion to Strike. (Doc. 163). For the following reasons, Plaintiffs’ motion for summary judgment shall be granted in part and denied in part, Defendants’ motion for summary judgment shall be granted in part and denied in part, and Defendants’ motion to strike shall be denied.
I. Procedural History
Plaintiffs 1 initiated the instant action by lodging a massive Complaint against the Defendants 2 on May 20, 2008 alleging claims pursuant to 42 U.S.C. § 1983 3 and 28 U.S.C. § 2201 4 for deprivations of rights secured by the United States Constitution and the Pennsylvania Constitution. 5 (Doc. 1). On July 25, 2008, the *366 Defendants filed a Motion to Dismiss Plaintiffs’ Complaint. (Doc. 11). Following full briefing of the motion, and oral argument on December 15, 2008, we issued a memorandum and order granting in part and denying in part Defendants’ motion. (See Doc. 32 at 30-32). After numerous motions to extend the trial term were granted, the Pennsylvania Funeral Directors Association filed a Motion to Intervene on March 9> 2010; (doc> which we *367 subsequently denied on June 25, 2010, 2010 WL 2606520 . (Doc. 80).
On August 25, 2010, Plaintiffs filed a Motion for Leave to File an Amended Complaint. (Doc. 91). We granted the motion on November 5, 2010, (doc. 100), and Plaintiffs filed an Amended Complaint on November 9, 2010. (Doc. 101). 6 The Pennsylvania Funeral Directors Association (“PFDA”) filed a Motion for Leave to File an Amicus Brief on June 20, 2011, (doc. Ill), which we granted on June 22, 2011. (Doc. 112). On July 19, 2011, the parties filed a Stipulation of Dismissal of count x of the Amended Complaint, agreeing to dismiss the same with preju¿íce. (Doc. 113). Thereafter, on August i0j 2011, Defendants filed the instant Motion for Summary Judgment and brief in support thereof. (Docs. 117, 126). On August 15, 2011, Plaintiffs filed the instant cross Motion for Summary Judgment and supporting brief. (Docs. 137,140).
*368 In addition, on August 23, 2011, we granted the International Cemetery, Cremation and Funeral Association leave to file an amicus curiae brief in support of Plaintiffs’ motion for summary judgment. (Doc. 142). On October 12, 2011, the National Funeral Directors Association (“NFDA”) filed a motion for leave to file an amicus curiae brief regarding the cross motions for summary judgment. (Doc. 152). We granted the motion in part on October 17, 2011 to the extent we limited petitioners to twenty (20) pages and directed them not to expand the factual record given the potentially duplicative nature of petitioner’s filing with that of the PFDA. (Doc. 155).
Defendants filed a brief in opposition to Plaintiffs’ motion for summary judgment on October 21, 2011. (Doc. 158). They also filed the instant Motion to Strike, (doc. 163), and brief in support thereof, (doc. 164), on the same day. Plaintiffs filed a brief in opposition to Defendants’ motion for summary judgment on October 21, 2011. (Doc. 168). Plaintiffs filed a brief in opposition to Defendants’ motion to strike on November 4, 2011, (doc. 173), and on November 10, 2011, Defendants filed a reply brief in further support of their motion for summary judgment. (Doc. 176). Plaintiffs filed a reply brief in further support of their motion for summary judgment on November 11, 2011. (Doc. 177). Defendants also filed a reply brief in further support of their motion to strike on November 17, 2011. (Doc. 179).
Therefore, the pending motions have been fully briefed and are ripe for disposition.
II. Standard of Review
Summary judgment is appropriate if the record establishes “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325 , 106 S.Ct. 2548 . Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed.R.Civ.P. 56(e)(2). An issue is “genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is “material” only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).
In opposing summary judgment, the non-moving party “may not rely merely on allegations of denials in its own pleadings; rather, its response must ... set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). The non-moving party “cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir.2000). Arguments made in briefs “are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion.” Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103 , 1109-10 (3d Cir.1985). However, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir.2006).
*369 Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81 , 84 (3d Cir.1982). Still, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact to preclude summary judgment.” Anderson, 477 U.S. at 247-48 , 106 S.Ct. 2505 .
III. Factual Background
A. Parties
Plaintiffs Ernest F. Heffner (“Heffner”) and Nathan Ray are licensed funeral directors in York, PA. Plaintiff Betty Frey (“Frey”) is an associate of Heffner and is not a licensed funeral director. Plaintiff Harry C. Neel (“Neel”) is the President of Plaintiff Jefferson Memorial Funeral Home, Inc. and Plaintiff Jefferson Memorial Park, Inc., and has a principal place of business in Pittsburgh, PA. Plaintiff Bart H. Cavanagh, Sr. (“Cavanagh”) is a licensed funeral director in Norwood, PA. Plaintiff John Katora (“Katora”) is a licensed funeral director in Lewisberry, PA. Plaintiff Brian Leffler (“Leffler”) is a licensed funeral director in Avoca, PA. Plaintiffs Rebecca Ann Wessel (“Wessel”), Mark Patrick Dougherty (“Dougherty”), Amber M. Scott (“Scott”), and Cynthia Lee Finney (“Finney”) are licensed funeral directors in Pittsburgh, PA.
Plaintiffs Todd Eckert (“Eckert”) and Matthew Morris (“Morris”) are licensed funeral directors in Red Lion, PA. Plaintiff Ben Blascovich (“Blascovich”) is a licensed funeral director in Mill Hall, PA. 7 Plaintiff William Sucharski (“Sucharski”) is a licensed funeral director and owner of a duly approved crematory in Philadelphia, PA. Plaintiff John McGee (“McGee”) is a licensed funeral director in Philadelphia, PA. Plaintiffs Erika Haas (“Haas”) and Nicolas Wachter (“Wachter”) are licensed funeral directors in Milton, PA. Plaintiff David Halpate (“Halpate”) is a licensed funeral director in Renovo, PA. Plaintiffs Patrick Connell (“P. Connell”), Eugene Connell (“E. Connell”), Matthew Connell (“M. Connell”), and James J. Connell, Jr. (“J. Connell”) are licensed funeral directors in Bethlehem, PA.
Plaintiff Jefferson Memorial Park, Inc. (“Jefferson MP”) is a Pennsylvania corporation with a principal place of business in Pittsburgh, PA. Jefferson MP is a licensed cemetery and is the sole shareholder of Plaintiff Jefferson Memorial Funeral Home, Inc. (“Jefferson MFH”), 8 which is also a Pennsylvania corporation with a principal place of business in Pittsburgh, PA. Plaintiff Wellman Funeral Associates, Inc., d/b/a Forest Park Funeral Home (“Wellman”), is a Louisiana corporation with a principal place of business in Shreveport, LA. 9 Plaintiff East Harrisburg Cemetery Company, d/b/a East Harris *370 burg Cemetery & Crematory (“East HBG Cem.”) is a Pennsylvania corporation with a principal place of business in Harrisburg, PA. 10 Plaintiff Robert Lomison (“Lomison”) owns and operates the William Howard Day Cemetery (“WHD Cem.”), East HBG Cem., and Wellman. Plaintiff Craig Schwalm operates a crematory and cemetery and is the Vice President and General Manager of East HBG Cem. Plaintiff Gregory J. Havrilla is not a licensed funeral director, but is the General Manager of Jefferson MFH.
Defendant Donald J. Murphy (“Murphy”) is an appointed consumer member of the Pennsylvania State Board of Funeral Directors (the “Board”). Defendants Mike Gerdes (“Gerdes”), Joseph A. Fluehr III (“Fluehr”), Michael J. Yeosock (“Yeosoek”), Bennett Goldstein- (“Goldstein”), James O. Pinkerton (“Pinkerton”), and Anthony Scarantino (“Scarantino”) are members of the Board. Defendant Basil Merenda (“Merenda”) is the Commissioner of the Bureau of Professional and Occupational Affairs, and is a member of the Board. 11
Defendant Peter Marks (“Marks”) is the former Executive Deputy Chief Counsel for the Bureau of Professional and Occupational Affairs. Defendant Marks oversaw a unit that made prosecutorial decisions, and oversaw investigations and prosecutions of individuals subject to various licensing laws, including the Funeral Director Law. Defendant C.A.L. Shields (“Shields”), is the former Director of the Bureau of Enforcement and Investigation (“BEI”), and oversaw all investigations conducted by the Bureau of Professional and Occupational Affairs. Defendants Marks and Shields are sued solely in their former official capacities.
B. Factual Background
The parties and the Court are all too intimately familiar with the facts under-girding this sweeping and multi-faceted case. Therefore, for the purposes of deciding the various motions, we shall simply make a generalized statement of the facts. 12 We shall refer to or address specific facts in our discussion only as they become necessary for resolution of the pending motions.
The Funeral Director Law (the “FDL”) was enacted in 1952 to, purportedly, “provide for the better protection of life and health of the citizens of this Commonwealth by requiring and regulating the examination, licensure and registration of persons and registration of corporations engaging in the care, preparation and disposition of the bodies of deceased persons ....” 13 (Doc. 101 ¶ 45 (citing 63 Pa. Stat. Ann. § 479.1 (1952))). The Board is the administrative entity charged with enforcement of the FDL. 14 (Id. ¶ 46 (citing *371 § 479.16(a))). In particular, the Board is “empowered to formulate necessary rules and regulations not inconsistent with this act for the proper conduct of the business or profession of funeral directing and as may be deemed necessary or proper to safeguard the interests of the public and the standards of the profession.” (Id. ¶ 50). To this end, the Board has promulgated regulations (the “Funeral Regulations”) to implement the dictates of the FDL. 15 49 Pa.Code § 12.1 et seq.
Plaintiffs aver that although the FDL and Regulations have not undergone significant change since their initial implementation, the funeral directing industry has experienced massive changes since that time, a result of which has been increased competition in the industry. (Doc. 101 ¶¶ 61-69). Plaintiffs assert that the rise in competition has not been warmly received by established funeral directors. (Id. ¶ 70). Thus, Plaintiffs contend that the Board’s current interpretation of the FDL and Regulations, which in some instances completely contradicts its past interpretations, is driven by an anti-competitive attitude that is aimed towards appropriating an even larger market share, if not an absolute monopoly, for established funeral directors. 16 (See id. ¶¶ 71-73). The Plaintiffs assert that these interpretations violate both the federal and state constitutions in various ways. We will delve into the specifics of these averments in relation to the instant Motions in the following section.
IV. Discussion
Plaintiffs’ cross motion for summary judgment presents their arguments for summary judgment by count number, while Defendants’ brief first lodges threshold arguments for dismissal that would, if accepted by this Court, obviate the need to reach the merits of each count. For ease of reference, we shall first address the larger threshold issues raised by Defendants’ brief, and then proceed to analyze the parties’ respective arguments by count as presented in Plaintiffs’ brief.
A. Threshold Issues
1. Jurisdiction
At the outset, Defendants contend that this Court lacks jurisdiction over several claims. (Doc. 126 at 24). They argue that based on the Commonwealth Court of Pennsylvania’s decision in Bean v. State Board of Funeral Directors, where the court held that the Board had jurisdiction to initially adjudicate the matter, this Court should abstain from adjudicating this matter pending a decision from the Board. (Id. 26). Defendants also claim that Cavanagh recently sent the Board a letter requesting clarification concerning a cremation business he wants to pursue. (Id.). After being informed that, with his consent, the issue would be designated as a Petition for Declaratory Order, Defendants claim that James Kutz (“Kutz”), attorney for Plaintiffs, informed the Board *372 that his client did not wish to pursue the issue as a Petition for Declaratory Order and requested that the issue be withdrawn. (Id.). They assert that based on the above, Plaintiffs should be compelled to utilize the process for adjudication of such issues through the Board, and consequently, this Court should abstain.
In response, Plaintiffs argue that Defendants fail to identify the “several claims” over which the Court lacks jurisdiction. (Doc. 168 at 23). Moreover, they claim that Defendants’ lone citation to Bean is an insufficient legal basis for the Court to abstain from deciding the case sub judice. They also maintain the Bean court did not hold that the Board has power to issue a declaratory judgment, but that the court therein had jurisdiction over the declaratory judgment action and it was proper to invoke the primary jurisdiction doctrine to benefit from the Board’s expertise in this area. (Id. at 28).
Furthermore, Plaintiffs claim that even if Defendants’ contention is accepted, plaintiffs suing under § 1983 are not required to exhaust state remedies. (Id. at 29 (citing Patsy v. Bd. of Regents, 457 U.S. 496, 516 , 102 S.Ct. 2557 , 73 L.Ed.2d 172 (1982))). They argue that to the extent Defendants’ assertions are construed as standing or ripeness arguments, the Court has already determined that Plaintiffs have standing. Defendants also contend that funeral directors should not be required to file a lawsuit against the Board to obtain a clear interpretation of the FDL. (Id. at 35 (citing Walker v. Flitton, 364 F.Supp.2d 503 , 517 n. 15 (M.D.Pa.2005) (“beyond merely initiating adjudications, the Law tasks the Board with enacting binding regulations that interpret the Law so that funeral directors can have a better understanding of what is permitted.”))).
We ultimately agree with Plaintiffs and find that the discussion in our prior memorandum and order ruling on Defendants’ motion to dismiss dealt with most of the arguments Defendants advance herein. Notably, in that opinion we found that unlike the regulations at issue in Chiropractic America v. Lavecchia, 180 F.3d 99, 104 (3d Cir.1999), which were complex and recently enacted, the Funeral Laws and Regulations, as noted by Plaintiffs, are extremely antediluvian and incomprehensive. (Doc. 32 at 13-14). We also highlighted the 1994-95 Legislative Audit Committee Report (“Audit Report”) which found that the “Board’s regulation of the funeral directing profession ... is complicated by a statute that is outdated and in need of comprehensive revision.” (Id., Ex. 1 at 25). We further recognized the Board’s admission that a number of its regulations were devoid of purpose or value. (See generally id.) 17 Finally, we emphasized that Plaintiffs had cast doubt *373 upon the coherence of the scheme, alleging that Defendants had, in the not so distant past, interpreted the same regulations inconsistently. (Id. ¶¶ 88-93). Therefore, we find that in the absence of more compelling case law suggesting we should abstain from deciding the instant motions until after Plaintiffs obtain a decision from the Board, or that Plaintiffs were obligated to submit the constitutional claims they raise herein first to the Board, we decline to abstain.
2. State Law Claims
Defendants next argue that Plaintiffs’ claims grounded in the Pennsylvania Constitution are duplicative and lack merit. (Doc. 126 at 26-27). They assert that because Plaintiffs’ state law constitutional claims do not qualify as one of the nine negligence claims for which the General Assembly has waived immunity, that Defendants enjoy immunity for all such claims. (Id. at 27 (citing 42 Pa. Con. Stat. § 8522(b))). Regarding Plaintiffs’ claim for monetary damages in Count XII, Defendants maintain that there is no private right of action for monetary damages under Article I of the Pennsylvania Constitution. (Id.). They contend that the Eleventh Amendment has been interpreted by the Supreme Court to preclude suits against a state or its agencies in federal court by citizens of that state, or by citizens of other states. (Id. at 28 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 , 105 S.Ct. 3142 , 87 L.Ed.2d 171 (1985); Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 98 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 662-63 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974))). Defendants also assert that the Eleventh Amendment’s jurisdictional bar is not dependent upon the nature of the relief requested, and thus is applicable to suits seeking money damages and equitable relief. (Id. (citing Pennhurst, 465 U.S. at 117 , 104 S.Ct. 900 (“[t]he reasoning of our recent decisions on sovereign immunity thus leads to the conclusion that a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when — as here — the relief sought and ordered has an impact directly on the State itself.”))).
On the other hand, Plaintiffs claim that suits seeking declaratory and injunctive relief to prohibit officials from enforcing an unconstitutional statute are not barred by state sovereign immunity. (Doc. 168 at 35-36 (citing Benkoski v. Wasilweski, 2007 WL 2670265 , at *6, 2007 U.S. Dist. LEXIS 66315 , at *18 (M.D.Pa. Sept. 7, 2007) (“Suits which seek to compel affirmative action on the part of state officials or to obtain money damages or to recover property from the Commonwealth are within the rule of immunity; suits which simply seek to restrain state officials from performing affirmative acts are not within the rule of immunity.”) (emphasis in original))). They also highlight that the Court has already dismissed Plaintiffs’ state law claims for injunctive and equitable relief against Defendants sued in their official capacities, but allowed claims against Defendants sued in their individual capacities to proceed. (Id. at *12-13, 2007 U.S. Dist. LEXIS 66315 at *36).
As noted in our December 22, 2008 memorandum and order, 590 F.Supp.2d 710 (M.D.Pa.2008) we granted Defendants’ motion to dismiss to the extent Plaintiffs’ complaint sought injunctive relief and equitable relief from Defendants sued in their official capacities for violations of state law. (Doc. 32 at 31). However, we denied the motion to the extent Plaintiffs sought injunctive and equitable relief from Defendants sued in their individual capacities for violations of state law. (Id.). *374 Moreover, we reserved the right to revisit the issue of Plaintiffs’ request for monetary relief from Defendants sued in their official and individual capacities for violations of state law. We also noted that as to the availability of injunctive or equitable relief, such relief can be obtained against Defendants sued in their individual capacities. 18 However, such relief cannot be obtained against individuals sued in their official capacities. Pennhurst v. Halderman, 465 U.S. 89 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984).
As a result, the remaining issue for the Court to determine is whether Plaintiffs may seek monetary relief from Defendants sued in their official and individual capacities for violations of state law. We note that although few federal courts have discussed this issue, and it does not appear that the Supreme Court of Pennsylvania has ruled upon whether the Pennsylvania Constitution provides a cause of action for damages for state constitutional violations, a number of Pennsylvania district courts have opined on the viability of such claims on a case by case basis. See Aquino v. County of Monroe, 2007 WL 1544980 , at *2, 2007 U.S. Dist. LEXIS 37872 , at *5 (M.D.Pa.2007) (noting that where there is no ruling currently available from the state’s highest court on a matter of state law, the district court “must predict how that court would resolve [the relevant] issues should it be called upon to do so.”). The Aquino court stated that the factors a district court should consider in predicating how a state’s highest court would rule on a particular issue, include: “(1) state Supreme Court decisions in related areas; (2) ‘decisional law’ of intermediate state courts; (3) opinions of federal courts of appeals and district courts applying state law; and (4) decisions from other jurisdictions that have discussed the issues before the court.” Id. at *2 , 2007 U.S. Dist. LEXIS 37872 at *6-7.
After reviewing the decisions of Pennsylvania intermediate state courts and Pennsylvania district courts, we find that most courts have found that a cause of action for monetary relief against defendants sued in their individual capacity for violations of state law does not exist. For example, in R.H.S. v. Allegheny County Department of Human Services, Office of Mental Health, the court held that “neither statutory authority, nor appellate case law has authorized the award of monetary damages for a violation of the Pennsylvania Constitution.” 936 A.2d 1218, 1225-26 (Pa.Commw.Ct.2007) (quoting Jones v. City of Phila., 890 A.2d 1188, 1208 (Pa. Commw.Ct.2006)). Furthermore, in Underwood v. Beaver County Children and Youth Services, the Western District of Pennsylvania noted that Pennsylvania law lacks a statutory parallel to 42 U.S.C. § 1983 and its provision of a damages cause of action for federal constitutional violations. 2007 WL 3034069 at *2 (W.D.Pa.2007). In fact, the court recognized, “[t]he great majority of our sister courts that have decided the issue have concluded that money damages are not available.” Id. at *2 . Expressing a similar sentiment, the Eastern District of Pennsylvania stated, “[t]he Supreme Court of Pennsylvania has not ruled on the issue of whether there is a private cause of action for damages under the state constitution, and the federal courts in this Circuit that have considered the issue have concluded *375 that there is no such right under the Pennsylvania Constitution.” Ryan v. Gen. Mach. Prods., 277 F.Supp.2d 585, 595 (E.D.Pa.2003). Therefore, we shall grant Defendants’ motion to the extent Plaintiffs are precluded from seeking money damages from Defendants sued in their individual or official capacity for alleged violations of state law.
B. Substantive Counts
1. Count I: Fourth Amendment
In Count I of the Amended Complaint, Plaintiffs challenge Section 16(b) of the FDL pursuant to the Fourth Amendment. Section 16(b) provides, in pertinent part:
The board shall appoint an inspector or inspectors.... Inspectors ... shall have the right of entry into any place, where the business or profession of funeral directing is carried on or advertised as being carried on, for the purpose of inspection and for the investigation of complaints coming before the board and for such other matters as the board may direct.
63 Pa. Stat. Ann. § 479.16(b). Plaintiffs argue the inspections conducted pursuant to Section 16(b) are warrantless and generally unannounced. (Doc. 140 at 29). They note the Supreme Court has held that “warrantless searches are generally unreasonable, and that this rule applies to commercial premises as well as homes.” (Id. (citing Marshall v. Barlow’s Inc., 436 U.S. 307, 312 , 98 S.Ct. 1816 , 56 L.Ed.2d 305 (1978))).
Plaintiffs acknowledge that when “the privacy interests of the owner [of a ‘pervasively’ regulated industry] are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment.” (Id. (citing New York v. Burger, 482 U.S. 691, 702 , 107 S.Ct. 2636 , 96 L.Ed.2d 601 (1987))). However, they claim that “[i]n regulated industry cases, warrantless searches are still presumptively unreasonable and the government retains the burden of justifying its disregard for the warrant requirement.” (Id. at 30 (citing Balelo v. Baldrige, 724 F.2d 753 , 771-72 (9th Cir.1984) (citing Marshall, 436 U.S. at 312-13 , 98 S.Ct. 1816 ))). They emphasize that a warrantless inspection in a pervasively regulated industry is valid under the Fourth Amendment only if three factors are satisfied: (1) “there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made,” (2) “the warrantless inspections must be necessary to further the regulatory scheme,” and (3) “the statute’s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.” (Id. (citing Burger, 482 U.S. at 702-03 , 107 S.Ct. 2636 )).
Under the first element, Plaintiffs maintain that in determining whether a particular business is pervasively regulated “the proper focus is on whether the regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” (Id. at 30-31 (citing Burger, 482 U.S. at 705 n. 16, 107 S.Ct. 2636 )). Here, they assert the purpose and scope of inspections under the FDL is undefined and that the Audit Report found that the FDL “does not address the specific purpose of funeral home inspections,” (id. at 32 (citing Plaintiffs’ Record “PI. R.” at 127)), but grants inspectors the authority to enter funeral homes “for the purpose of inspection” and “for such other matters as the *376 board may direct.” (Id. (citing 63 Pa. Stat. Ann. § 479.16(b))).
Furthermore, Plaintiffs claim that the Board’s regulations do not add any limits on inspectors’ authority or address what will be inspected or how frequently inspections will occur. (Id. (citing 49 Pa.Cobe Ch. 13)). They contend there are no published policies or procedures regarding the scope of inspections, and one Board member, Goldstein, has said that the frequency, nature, and extent of an inspection is “usually up to the inspector.” (Id. at 32 (citing PI. R. at 1316)). Additionally, Plaintiffs state that while inspectors complete an inspection checklist, the checklist is not published or made available to licensees prior to inspection, and it is often the subject of frequent change. (Id. at 33). They further claim that a review of checklists from the years 1986, 1990, 1996, 2005, 2009, and the current form, demonstrates substantial differences in the information sought from funeral directors by inspectors. (Id.). Plaintiffs cite the deposition testimony of John Katora who testified that he “hold[s] his breath every time an inspector shows up” because the scope of the inspection “depends on who shows up and ..-. what mood they’re in.” (Id. at 35 (citing Pl. R. at 6468-69)). They also complain of the unbridled discretion inspectors exercise in deciding whether a violation has occurred and in deciding how to classify such violations. Plaintiffs contend that neither the FDL nor the Board’s regulations establish a schedule or frequency for inspections. For example, Plaintiffs highlight David Halpate’s testimony that the funeral home he has supervised for the last eleven years was inspected in 2001, 2004, 2008, and 2009. (Id. at 36 (citing Pl. R. at 6623, 6627-28)).
As a result, Plaintiffs argue that the inspections they are subjected to under the FDL are too irregular and lacking in scope or definition to be considered part of a “pervasive” regulatory plan. (Id. at 37). They cite the Supreme Court’s decision in Burger for the proposition that “the sheer quantity of pages of statutory material is not dispositive” of whether an industry is pervasively regulated, rather, “the proper focus is on whether the regulatory presence is sufficiently comprehensive and detailed.” (Id. at 38 (citing 482 U.S. at 705 , 107 S.Ct. 2636 )).
As to the second element, Plaintiffs argue that no substantial governmental interest justifies warrantless inspections of funeral homes. (Id.). They claim that while laws such as the FDL were concerned with public health when they were enacted, the Audit Report that “advances in mortuary science and health regulation have virtually eliminated the public health risks associated with preparation and disposition of the deceased,” and that “[e]urrent medical opinion is that dead bodies pose little or no risk to the general public.” (Id. (citing Pl. R. at 20)). Furthermore, Plaintiffs highlight the Audit Report’s statement that there is “no epidemiological evidence showing funeral homes and funeral service workers as a source of disease transmission.” (Id. at 39 (citing Pl. R. at 23)). The Audit Report also found that the Board “does not appear to perform functions that are essential to protecting public health and safety.” (Id.). Finally, Plaintiffs maintain that as many funeral homes are both businesses and residences, and because the provision of funeral services involves deeply personal choices for customers, that permitting inspectors to enter the premises at any time constitutes an unreasonable intrusion into the expectation of privacy to which funeral homes, and their customers, are entitled. (Id. at 39-40). They also contend that Defendants have not presented any evidence of consumer harm from -pre-need sales. (Doc. 168 at 44).
*377 Regarding the third element, Plaintiffs argue that warrantless inspections in the funeral industry are unnecessary because the nature of the business is not akin to other industries where the Supreme Court has found warrantless inspections necessary. They note that unlike chop shops, where “stolen cars and parts often pass quickly through an automobile junkyard,” (doc. 140 at 40 (citing Burger, 482 U.S. at 710 , 107 S.Ct. 2636 )), funeral homes are unable to cure deficiencies as quickly or as easily as those in other industries. Plaintiffs argue that hanging licenses and preparation room tables are not as transient as items such as stolen car parts, thus, warrantless inspections are even less justified in this context. (Doc. 168 at 46). They cite United States v. Biswell where the Court found warrantless inspections unnecessary for fire marshals because:
the mission of the inspection system was to discover and correct violations of the building code, conditions that were relatively difficult to conceal or to correct in a short time. Periodic inspection sufficed, and inspection warrants could be required and privacy given a measure of protection with little if any threat to the effectiveness of the inspection system there at issue.
(Doc. 140. at 40-41 (citing 406 U.S. 311, 316 , 92 S.Ct. 1593 , 32 L.Ed.2d 87 (1972))). Additionally, Plaintiffs claim that even if funeral home directors, upon learning of an impending inspection, attempt to bring their facility into compliance, the overall goal of the FDL will be furthered. In fact, Plaintiffs contend, unannounced and warrantless inspections can prove to be counterproductive, as in the case of Plaintiff Halpate and the Connell Funeral Home, who were prosecuted, publicly reprimanded, and fined $1,000 after requesting that an inspector wait for the responsible person to arrive to conduct the inspection. (Id. at 43).
Finally, Plaintiffs assert that the warrantless inspection scheme must fail because it does not provide an adequate substitute for a warrant. (Id. at 45). They compare section 16(b) of the FDL to a Pennsylvania Game Commission regulation that the court in Showers v. Spangler found violated the constitution. In that case, the regulation provided that the records and premises of taxidermists' “shall be open to inspection upon demand of an officer of the Commission” and further required that taxidermists “answer, without evasion, questions that may be asked by a representative or officer of the Commission.” (Id. at 45-46 (citing 957 F.Supp. 584 (M.D.Pa.1997))). Notably, the court found that the regulation’s “failure to limit the inspecting officer’s discretion through careful limitations of place and scope render it unconstitutional.” (Id. at 46 (citing Showers, 957 F.Supp. at 591-92 )).
Plaintiffs emphasize that section 16(b), similar to the Game Commission regulation found to be unconstitutional in Showers, fails to define the frequency, purpose, or scope of inspections. (Id.). They claim that inspections are not subject to any purpose but are left to the inspector’s discretion, causing great disparity between some funeral homes, which are inspected with some regularity, while others are seldtim inspected, with many years lapsing in between. Plaintiffs argue that the discretion of inspectors under the FDL is far greater than the discretion permitted through the regulation at issue in Showers, which the court found violated the Fourth Amendment. (Id. at 46-47).
In response, Defendants claim that the Pennsylvania funeral profession is, in fact, pervasively regulated. (Doc. 158 at 16). They cite Marshall v. Barlow’s, Incorporated for the proposition that “[tjhe businessman in a regulated industry in effect *378 consents to the restrictions placed upon him.” (Id. (citing 436 U.S. 307, 313 , 98 S.Ct. 1816 , 56 L.Ed.2d 305 (1978))). Defendants also cite New York v. Burger where the Court stated, “in light of the regulatory framework governing his business and the history of regulation of related industries, an operator of a junkyard engaging in vehicle dismantling has a reduced expectation of privacy in this ‘closely regulated’ business.” (Doc. 158 at 18-19 (citing 482 U.S. 691, 707 , 107 S.Ct. 2636 , 96 L.Ed.2d 601 (1987))). They further emphasize the Court’s holding in Donovan v-Dewey where the Court explained:
[t]he greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that an owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.
(Doc. 126 at 113) (citing 452 U.S. 594, 598-99 , 101 S.Ct. 2534 , 69 L.Ed.2d 262 (1981); see also New York v. Burger, 482 U.S. at 710 , 107 S.Ct. 2636 (noting that to be “effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential” and that “the prerequisite of a warrant could easily frustrate inspection”)). Moreover, they claim that the funeral industry has been highly regulated since the mid 1890s and the current FDL, including section 16(b), has regulated applications, qualifications, and examinations for licensure, operational restrictions, defined services that constitute the profession of funeral directing, outlined a process for enforcement against licensees, established a Board to administer the FDL through fines, penalties, and revocation, governed the renewal of licenses, and provided for the generation of fees since 1952., (Id. at 114) (citing Heffner Funeral Chapel and Crematory, Inc. v. Dept. of State, BPOA, 824 A.2d 397 (Pa. Commw.Ct.2003); 63 Pa. Stat. Ann. §§ 479.2-479.20).
As to the first element, Defendants claim that Plaintiffs misconstrue the Burger Court’s explanation of this factor, and the element as described by the Court is that “there must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made.” (Doc. 158 at 19 (citing 482 U.S. at 702 , 107 S.Ct. 2636 )). As a result, “Defendants claim the question is not whether there is a substantial justification for the inspection, but whether there is a substantial government interest in regulating the profession.” (Id. at 20). They argue that because funeral directing involves preneed trusting and the purchase of life insurance products, in addition to the care, preparation, sanitization, and disposition of possibly infectious human dead bodies with chemicals, that Pennsylvania has a substantial interest in regulating this industry. (Doc. 126 at 115).
Regarding the second element, Defendants maintain that inspections are necessary to further Pennsylvania’s interests. (Doc. 158 at 21). They claim unannounced inspections not only ensure that appropriate equipment is installed, but that it is functioning properly. (Id. at 22 (citing Counter-Statement of Material Facts “CSMF” ¶ 191)). Additionally, Defendants highlight that because the FDL requires 100% trusting of pre-need money, and since consumers are provided with a general price list, that an inspection of such documents is appropriate to ensure consumers are not being overcharged. (Id. at 23 (citing 49 Pa.Code § 13.224)). For example, they claim that inspectors examine the following during visits to funeral homes: whether the license is displayed in *379 an appropriate public place, whether the preparation room is in good order, and whether documents, such as pre-need contracts, at-need contracts, and statements of goods are services, are accurate. (Doc. 126 at 117 (citing SMF ¶ 621)).
Although Defendants contend Plaintiffs admitted that unannounced inspections are proper and reasonable in time, place, and scope, the exhibit they cite for this point merely states Dr. Cyril Wecht’s expert opinion that “I believe such facilities should be approved and inspected periodically by appropriate governmental agencies.” (PI. R. at 411). Notably absent from Dr. Wecht’s opinion is the matter of whether these inspections should be unannounced and warrantless. Thus, it is clear from a plain reading of Dr. Wecht’s expert report that Defendants have provided a strained interpretation of his opinion and Plaintiffs’ opposition to warrantless inspections.
Finally, Defendants claim that based on the FDL and the admissions of Plaintiffs, the unannounced inspections are limited and reasonable. (Id. at 24). They highlight section 16(b) which provides that inspectors “shall have the right of entry into any place, where the business or profession of funeral directing is carried on or advertised as being carried on, for the purpose of inspection and for the investigation of complaints coming before the board and for such other matters as the board may direct.” (Id. at 24 (citing 63 Pa. Stat. Ann. § 479.16(b))). Defendants also cite the deposition testimony of Sucharski who said, “I’m a proponent of unannounced inspections and I think it’s important ... [I]t’s a good thing to come unannounced and observe things and just see normal cleanliness and operational procedures.” (Doc. 118 ¶ 630).
The Fourth Amendment states, in relevant part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. Const, amend. IV. Count I asserts that 63 Pa. Stat. Ann. § 479.16(b) violates the Fourth Amendment. 16
As at the dismissal stage, Defendants rely upon the Supreme Court’s decision in Donovan v. Dewey, wherein the Court stated,
[Legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment.... The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that an owner of commercial property enjoys ... differs significantly from the sanctity accorded an individual’s home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.
[A] warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined so that the owner of commercial property cannot help but be aware that his property will be subject *380 to periodic inspections undertaken for specific purposes.
452 U.S. 594 , 101 S.Ct. 2534 , 69 L.Ed.2d 262 (1981). See also U.S. v. Biswell, 406 U.S. 311 , 92 S.Ct. 1593 , 32 L.Ed.2d 87 (1972) (upholding validity of warrantless inspections authorized by the Gun Control Act); Colonnade Catering Corp. v. U.S., 397 U.S. 72 , 90 S.Ct. 774 , 25 L.Ed.2d 60 (1970) (upholding the validity of warrant-less inspections of businesses in the alcoholic beverage industry).
However, we again find that Plaintiffs appropriately highlight the Bis-well/Colonnade Doctrine, which only permits warrantless searches within the context of a regulatory scheme if certain safeguards are set forth to, inter alia, limit the discretion of the inspecting officers and limit the time, place, and scope of the inspections. See Burger, 482 U.S. at 702-03 , 107 S.Ct. 2636 . In particular, according to the test set forth in New York v. Burger, warrantless inspections in pervasively regulated industries are only valid under the Fourth Amendment if three factors are satisfied. 482 U.S. at 702-703 , 107 S.Ct. 2636 . While we recognize the Burger Court held, “where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment,” the Court proceeded to instruct that three criteria must be met: (1) “there must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made;” (2) “the warrantless inspections must be ‘necessary to further [the] regulatory scheme;’ ” and (3) “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provide a constitutionally adequate substitute for a warrant.” Burger, 482 U.S. at 702-03 , 107 S.Ct. 2636 .
Here, we find that Defendants have failed to raise a genuine issue of material fact in proving that unannounced and warrantless inspections of funeral homes satisfy the standard established by the Burger Court. Concerning the first element, we find Defendants’ contention that the Commonwealth has a substantial interest in regulating the profession simply because the industry has been highly regulated since the mid 1890s, and because the current version of the FDL has been in place since 1952, to be insufficient to justify warrantless and unannounced inspections. While the interest to regulate that informs the regulatory scheme may be substantial standing alone, we find such interests to inadequately justify warrant-less and unannounced inspections. To reiterate and expand upon what the Burger Court emphasized:
the sheer quantity of pages of statutory material is not dispositive of [whether a particular business is ‘closely regulated’], ... the proper focus is on whether the regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.
Burger, 482 U.S. at 705 n. 16, 107 S.Ct. 2636 . Therefore, we find that Defendants have failed to raise a genuine issue of material fact in proving that “the warrant-less inspections [are] ‘necessary to further the regulatory scheme’ ” at issue under the second element. See Burger, 482 U.S. at 702-03 , 107 S.Ct. 2636 .
Despite Defendants’ assertion that unannounced inspections are necessary to ensure that equipment is not only installed, but is functioning properly, we find it probable that the motivation to become compliant with regulations in anticipation of a scheduled inspection, only to drift *381 back into noncompliance following an inspector’s departure from the premises, is a less likely occurrence in the funeral directing industry than in industries where the Supreme Court has found warrantless and unannounced inspections necessary. See Burger, 482 U.S. at 710 , 107 S.Ct. 2636 (“[bjecause stolen ears and parts often pass quickly through an automobile junkyard, ‘frequent’ and ‘unannounced’ inspections are necessary in order to detect them.”). For example, Defendants admit that inspectors generally monitor compliance with requirements such as whether the license is displayed in an appropriate public place, whether the preparation room, is in good order, and whether documents, such as pre-need and at-need contracts, and statements of goods are services, are accurate. We find it difficult to conceive of an exigency that would justify a warrantless inspection for such items. Moreover, we are unable to discern a potential motive on behalf of funeral directors that would induce them to place a funeral license in a public place, properly maintain a preparation room, or accurately record pre-need or at-need contracts, but subsequently remove a license, revert to disorder in a preparation room, or to dishevel administrative records simply because an inspection has passed.
Furthermore, we do not find that regulation of the funeral industry is akin to the unannounced inspections of automobile junkyards in Burger , because the transient nature of items in the automobile industry are not analogous to the fixed location of a funeral home and the items to be inspected therein. Simply put, funeral homes are not on wheels. Moreover, even if the governmental interest in regulating funeral directing was found to be similar to the exigencies posed by the facts in Burger , the Court therein found that such inspections were justified because the inspection was limited in “time, place, and scope” to impose “appropriate restraints upon the discretion of the inspecting officers.” 17 482 U.S. at 711 , 107 S.Ct. 2636 (citing United States v. Biswell, 406 U.S. 311, 315 , 92 S.Ct. 1593 , 32 L.Ed.2d 87 (1972)). Here, we find that a plain reading of section 16(b) provides few if any limitations on the time, place, and scope of inspections that would limit the discretion of inspecting officers. See 63 Pa. Stat. Ann. § 479.16(b); (see also PI. R. at 1316) (Board member Goldstein testifying that frequency, nature, and extent of an inspection is “usually up to the inspector”). Plaintiffs also cite the deposition testimony of John Katora who noted that the scope of an inspection depends on who shows up and that what they look for has' changed over the years. (PI. R. at 6468-69).
In addition, the Supreme Court stated in Donovan v. Dewey:
[wjhere Congress has authorized inspection but made no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply .... a warrant may be necessary to protect the owner from .the unbridled discretion of executive and administrative officers, by assuring him that reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular establishment.
452 U.S. 594, 599 , 101 S.Ct. 2534 , 69 L.Ed.2d 262 . (1981). Therefore, despite *382 Defendants’ citation to the deposition testimony of a few funeral directors indicating that they do not oppose unannounced inspections, the mere existence of a handful of funeral directors who consider such inspections unobjectionable, and possibly even beneficial, is insufficient to overcome the clear lack of statutory or regulatory guidelines imposing restrictions on the time, place, and scope of inspections that would provide certainty and regularity throughout the inspection process. The lack of such parameters perpetuates unbridled discretion of administrative officers and fails to provide a “constitutionally adequate substitute for a warrant.” See Burger, 482 U.S. at 702-03 , 107 S.Ct. 2636 ; see also Showers, 957 F.Supp. at 591-92 (finding that the failure of a Pennsylvania Game Commission regulation governing taxidermists “to limit the inspecting officer’s discretion through careful limitations of place and scope renderfed] it unconstitutional.”). As a result, the instant provision fails to constitute a “sufficiently comprehensive and defined [statute such] that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Burger, 482 U.S. at 703 , 107 S.Ct. 2636 (quoting Donovan, 452 U.S. at 600 , 101 S.Ct. 2534 ).
Accordingly, we find that Defendants have failed to raise a genuine issue of material fact as to the second and third elements of the Burger criteria set forth above. Therefore, we shall grant Plaintiffs’ motion to this extent and deny Defendants’ motion as to the same.
2. Count II: Undue Restriction on Ownership & Count III: Undue Restriction on Ownership to Licensed Funeral Directors
a. Counts II & III — Commerce Clause
Plaintiffs next challenge the FDL’s provision restricting a funeral director to possessing an ownership interest in one entity operating a funeral home, such as a sole proprietorship, partnership, or a professional corporation, plus one “branch” location associated with that entity. (Doc. 140 at 48 (citing 63 Pa. Stat. Ann. § 479.8(a), (d), (e))). They claim that the FDL’s restriction of ownership to two locations violates the Commerce Clause. {Id. at 59). Plaintiffs note that the Third Circuit in Tri-M Group, LLC v. Sharp stated, “[t]he dormant Commerce Clause prohibits the states from imposing restrictions that benefit in-state economic interests at out-of-state interests’ expense” and “[s]tates cannot impede free market forces to shield instate businesses from out-of-state competition, and, notably, state laws that discriminate against out-of-state businesses by forcing them to surrender whatever competitive advantages they may possess are especially suspect.” (Id. at 60 (citing 638 F.3d 406, 426-27 (3d Cir.2011))). They contend that in analyzing a dormant Commerce Clause issue, a court first considers whether heightened scrutiny applies, and if not, whether the law is invalid under the balancing test of Pike v. Bruce Church, Incorporated. (Id. (citing 397 U.S. 137 , 90 S.Ct. 844 , 25 L.Ed.2d 174 (1970))).
Additionally, Plaintiffs argue, “[heightened scrutiny applies when a law discriminates against interstate commerce in its purpose or effect.” (Id. (citing Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 462 F.3d 249 , 261 (3d Cir.2006) (“Cloverland II ”))). They assert there are two types of discrimination that can trigger heightened scrutiny. Under the first, plaintiffs may demonstrate that the challenged state statute forces producers in other states “to surrender whatever competitive advantages they may possess.” (Id. at 61 (citing Cloverland II, 462 F.3d at 261)). As to the second, a plaintiff “may *383 show that the object of the law is local economic protectionism, in that it disadvantages out-of-state businesses to benefit in-state ones.” (Id. (citing Cloverland II, 462 F.3d at 262)). Moreover, they emphasize, “there is no requirement that discrimination must be the primary purpose or effect of the challenged state law.” (Id. (citing Cloverland II, 462 F.3d at 261 n. 14)). Finally, if the purpose or effect of the state, law is not discrimination against interstate commerce, and it is found, that the statute “regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental,” the court will then analyze the statute under the Pike balancing test and ask “whether the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” (Id. at 61-62 (citing Cloverland II, 462 F.3d at 263 (quoting Pike, 397 U.S. at 142 , 90 S.Ct. 844 ))).
In the case sub judice, Plaintiffs argue that the discriminatory purpose of the FDL’s ownership restrictions is clear from the exemptions crafted to favor Pennsylvania family-owned funeral homes. (Id. at 62). For example, they maintain that the only way for an out-of-state entity to enter the funeral directing industry in Pennsylvania is to pay a de facto tariff through the purchase of an exorbitantly priced pre1935 license. 18 On the other hand, an unlicensed spouse, child, grandchild, widow, or estate of a Pennsylvania funeral director may own a funeral home in Pennsylvania. (Id. at 62). They contend the Third Circuit has held that laws burdening out-of-state business interests, but which are inapplicable to in-state interests, constitute “blatant” and “overt” evidence of discrimination. (Id. (citing Cloverland II, 462 F.3d at 265)). In addition, they claim the Supreme Court has held, that the Commerce Clause is violated not only when a state prohibits out-of-state interests from entering the market, but when it grants instaté interests access to the market on preferential terms. (Doc. 168 at 55). Moreover, Plaintiffs argue that even restrictions seemingly applicable to Pennsylvania funeral directors are easily circumvented by transferring interests in funeral businesses to family members through an RBC license. (Doc. 140 at 63). 19 They compare the instant case to Jones v. Gale where plaintiffs, owners of interests in Nebraska farms, filed a Commerce Clause challenge against a Nebraska ballot-initiative prohibiting corporations from owning farms in the state while exempting from the restriction corporations owned by Nebraska farmers or their families. (Id. at 63-64 (citing 470 F.3d 1261 (8th Cir. 2006))). In that case, the court found that *384 the initiative was facially discriminatory because it prohibited ownership of farms by corporations, but not by Nebraska family farm 'corporations. (Id.). Plaintiffs emphasize that like the ballot initiative in Jones, the FDL prohibits ownership of funeral homes by non-licensees, but this prohibition does not apply to in-state funeral -directors and their families. (Id. at 64).
In addition, Plaintiffs challenge the assertion that the FDL is not discriminatory since its restrictions apply to in-state interests, because, as just noted, the restrictions do not apply to Pennsylvania funeral directors and their families. They further claim that in deciding whether to apply heightened scrutiny, “it is immaterial whether the statute or ordinance also burdens some in-state businesses.” (Id. at 65 (citing Cloverland II, 462 F.3d at 262)). Consequently, Plaintiffs argue that the FDL’s incidental burdens on in-state funeral directors cannot save it from its discriminatory effect because if the restrictions “protect incumbent in-state dealers not only from out-of-state competitors, but also from instate ones ..., that simply, exacerbates their protectionist effect.” (Id. at 65 (citing Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 298 F.3d 201 , 214 (3d Cir.2002) (“Cloverland /”))).
Furthermore, Plaintiffs argue that even if the Court finds the statute to be facially neutral, the FDL is still subject to heightened scrutiny because of its discriminatory effect. (Id. at 66 (citing W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 194 , 114 S.Ct. 2205 , 129 L.Edüd 157 (1994) (noting that a state regulation “had the same effect as a tariff or customs duty — neutralizing the advantage possessed by lower cost out-of-state producers” and was thus unconstitutional))). They claim the FDL produces a discriminatory effect because its prohibition on the ownership of more than two funeral homes precludes clustering of the same, thereby preventing a reduction in costs that would result from eliminating needless duplication of preparation rooms, equipment, and employees at each location. (Id. at 67). Additionally, Plaintiffs highlight that the discriminatory effect of the FDL is exemplified by the large number of small, family-owned funeral homes in Pennsylvania, compared to states of similar or greater size which have far fewer funeral homes. (Id. at 70). For example, they highlight the conclusion of their expert Dr. Harrington that “the fraction of very small funeral homes in states like Pennsylvania is due to anticompetitive funeral regulations, not the preferences of consumers for this type of funeral home.” (Id. at 72 (citing PL R. at 337)). Therefore, Plaintiffs maintain that Defendants’ contention, that a corporation wishing to expand into Pennsylvania need only acquire a corporation holding a pre-1935 license, is evidence of the discriminatory effect of the FDL.
Finally, Plaintiffs argue that even if the Court decides that the FDL regulates out-of-state and in-state interests even-handedly, the ownership restrictions of the FDL should be invalidated under the Pike balancing test because the burden is clearly excessive in relation to any putative local benefit. (Id. at 74). Following a recitation of the statutory prerequisites to becoming a licensed funeral director, Plaintiffs contend the burdens are particularly oppressive given the fact that instate family members of funeral directors are exempt from such educational requirements. (Id. at 75-76). Again, they claim that the restrictions on out-of-state corporate ownership of Pennsylvania funerals homes, limiting them to the purchase of pre-1935 RBCs, also prevents the few out-of-state corporations that enter the market through the effective payment of a tariff *385 from lowering prices for consumers by clustering and achieving economies of scale in the provision of funeral services. (Id. at 77-79). On the other hand, they assert that the only local benefit identified by Defendants is “having a local business owned by local people.” (Id. at 82). To this, Plaintiffs maintain that “preservation of local industry by protecting it from the rigors of interstate competition is the hallmark of the economic protectionism that the Commerce Clause prohibits.” (Id. at 82-83 (citing Healy, 512 U.S. at 205 , 114 S.Ct. 2205 )). As a result, they claim that the only benefit conferred by the FDL is one strictly prohibited by the Commerce Clause.
While Defendants argue that more funeral homes reduce the cost for consumers, Plaintiffs counter that an excessive number of small funeral homes performing fewer funerals actually increases the price because such establishments are forced to raise prices for the few funerals they perform. (Id. at 84). Moreover, Plaintiffs claim that each of the non-licensed individuals permitted to own a funeral home pursuant to an FDL exception are required to employ a licensed funeral director. Therefore, they argue that this requirement, and not the ownership restrictions that effectively discriminate against out-of-state individuals and corporations, provides accountability in the industry. (Id. at 85). Also, restricting ownership to licensees does not eliminate absentee owners because unlicensed individuals are still permitted to make temporary funeral arrangements. (Id. at 86 (citing 63 Pa. Stat. Ann. § 479.13(d))).
At the outset, regarding the ownership restriction issue, Defendants contend that all of the individually named Plaintiffs in Counts II and III lack standing to challenge the FDL under the Commerce Clause because they are all Pennsylvania residents. Therefore, because they contend Plaintiff Wellman, a Louisiana corporation, is the only Plaintiff with standing as to these claims, Wellman’s position is the only one Defendants contest herein. We disagree with Defendants that the appropriate comparison is between Wellman, the only out-of-state party named in Counts II and III, and a Pennsylvania corporation. Defendants rely on United Haulers Association, Incorporated v. Oneida-Herkimer Solid Waste Authority where the Supreme Court stated, “of course, any notion of discrimination assumes a comparison of substantially similar entities” and that under a dormant Commerce Clause analysis, a publicly owned solid waste facility is different from a privately owned solid waste facility. 550 U.S. 330, 342 , 127 S.Ct. 1786 , 167 L.Ed.2d 655 (2007). However, here we are not confronted with a public and private entity, rather, we have private corporations and individuals aligned as Plaintiffs, and both have the right to own funeral licenses through sole proprietorships, partnerships, or professional corporations. Contrary to Defendants’ position, we find that for purposes of our Commerce Clause analysis, both the individually-named Plaintiffs in Counts II and III, and the corporate Plaintiffs named therein, are treated the same under the Commerce Clause. Thus, we find Defendants’ attempt to again challenge the standing of individual Plaintiffs in Counts II through III to be unavailing. Furthermore, to the extent Defendants premise their opposition to Plaintiffs’ motion on the theory that the appropriate comparison is between Plaintiff Wellman and a Pennsylvania corporation, and not between Wellman and the alleged advantages enjoyed by private individuals in Pennsylvania, we find such approach unduly constricting.
As to Count II, Defendants claim that the named Plaintiffs lack standing to as *386 sert a dormant Commerce Clause challenge against provisions of the FDL. (Doc. 158 at 82). For example, they argue that Plaintiff Wellman is a Louisiana corporation, and thus the appropriate inquiry is whether the FDL treats Wellman differently than any Pennsylvania corporations. Defendants assert that just as a Pennsylvania corporation can own stock in a pre-1935 RBC, Wellman can also enter the Pennsylvania market in this way. (Id. at 83). They claim Plaintiffs’ argument regarding its alleged restriction from clustering in Pennsylvania fails to demonstrate, through specific figures, a comparison of the costs from Louisiana, where clustering has occurred, with the costs of operating in Pennsylvania, where they allege clustering cannot occur. (Id. at 86-87). Defendants contend that based on Cloverland II, Plaintiffs were obligated to prove that clustering would provide them with a competitive advantage that is effectively stifled by the one-and-a-branch provision. Additionally, Defendants challenge Dr. Harrington’s conclusion that there is a close relationship between the challenged provisions of the FDL and the large number of small, family-owned funeral homes. (Id. at 87).
Defendants also counter Plaintiffs’ argument under the Pike balancing test. They argue that contrary to Plaintiffs’ assertions, there are no additional burdens on Plaintiff Wellman compared with the requirements applicable to a Pennsylvania corporation seeking a funeral license. (Id. at 90). Defendants further claim that many of the Plaintiffs herein cluster funeral establishments, and that such establishments charge consumers more for funeral services. (Id. at 91 (citing SMF ¶¶ 405-07)). According to Defendants, limiting Pennsylvania funeral directors to one-and-a-branch promotes competition by reducing the ability of any one business to dominate the market. (Id.).
Regarding Count III, Defendants claim that Plaintiff Wellman provides no evidence he is being treated differently from a Pennsylvania corporation concerning his ability to own a Pennsylvania funeral establishment. (Id. at 95). They further claim that nothing in the FDL requires immediate family members of funeral directors who are given stock in a RBC, to be from Pennsylvania. As a result, they claim there is no violation of the dormant Commerce Clause. Moreover, Defendants reiterate Plaintiffs’ failure to provide actual evidence of the competitive advantage obtained from clustering. (Id. at 97).
The Commerce Clause in Article I, § 8 of the United States Constitution provides, “Congress shall have the Power ... to regulate Commerce ... among the several States.” While this clause speaks in terms of Congress’ affirmative grant of power to regulate commerce, it has also been interpreted as an implied limitation on the power of states to impose additional burdens on interstate commerce. Dept. of Revenue of Ky. v. Davis, 553 U.S. 328 , 128 S.Ct. 1801, 1808 , 170 L.Ed.2d 685 (2008) (“The modern law of what has come to be called the dormant Commerce Clause is driven by concern about ‘economic protectionism’ — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.”).
When analyzing a dormant Commerce Clause issue, courts first determine “whether heightened scrutiny applies, and, if not, then we determine whether the law is invalid under the Pike v. Bruce Church, Inc., 397 U.S. 137 , 90 S.Ct. 844 , 25 L.Ed.2d 174 (1970), balancing test.” Am. Express Travel Related Servs. v. Sidamon-Eristoff, 669 F.3d 359, 372 (3d Cir.2011). A court will apply heightened scrutiny when a law “discriminates against *387 interstate commerce in its purpose or effect.” Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 462 F.8d 249, 261 (3d Cir.2006). If heightened scrutiny applies, the party challenging the statute bears the burden of demonstrating the existence of discrimination, at which point the burden shifts to the state to prove that “the statute serves a legitimate local purpose, and that this purpose could not be served as well by available nondiseriminatory means.” Id. at 261 (citing BrownForman Distillers Corp. v. New York State Liquor Auth, 476 U.S. 573, 576 , 106 S.Ct. 2080 , 90 L.Ed.2d 552 (1986)) (“When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, we have generally struck down the statute without further inquiry”). In Cloverland the Third Circuit stated, “[i]n determining whether heightened scrutiny should be applied instead of the Pike test, ‘the critical consideration is the overall effect of the statute on both local and interstate activity,’ with special attention paid to whether a ‘facially neutral’ state law ‘has the effect of eliminating a competitive advantage possessed by out-of-state firms.’ ” 462 F.3d at 263. If heightened scrutiny is applied, the State must prove: (1) “that the statute serves a legitimate local interest,” and (2) “that this purpose could not be served as well by available non-discriminatory means.” Am. Trucking Ass’ns v. Whitman, 437 F.3d 313, 319 (3d Cir.2006). In Pike v. Bruce Church, the Supreme Court established the test to use in analyzing a Commerce Clause challenge not subject to heightened scrutiny and noted that “[wjhere the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” 397 U.S. 137, 142 , 90 S.Ct. 844 , 25 L.Ed.2d 174 (1970).
Thus, our first task is to determine whether heightened scrutiny applies. Here, we find that Plaintiffs have presented sufficient factual evidence to demonstrate that the purpose or effect of the ownership restrictions in the FDL is to discriminate against out-of-state competitors. The burdensome nature of the FDL’s ownership restrictions is demonstrated by the exemptions crafted to favor Pennsylvania family-owned funeral homes by .providing for ownership by untrained and unlicensed individuals who are required to employ a full-time licensed funeral director to supervise the facility. See 63 Pa. Stat. Ann. § 479.8(a). As previously noted, the FDL allows in-state interests, through unlicensed spouses, children, grandchildren, widows, or the estate of a Pennsylvania funeral director, to own a funeral home in Pennsylvania and operate the same through a licensed funeral director employed on a full-time basis. (Id. at 62); see 63 Pa. Stat. Ann. § 479.8(a) (“Upon the death of a licensee, the board shall issue a license and renewal thereof to his estate, only for a period not exceeding three (3) years, or widows or widowers of deceased licensees without time limitations, as long as they remain unmarried, providing the widow or widower, the executor or administrator of the estate of the deceased licensee’s heirs, informs the board, of the intent to continue practice, within ten (10) days and applies within thirty (30) days for a certificate of licensure .... The practice carried on by a licensee’s estate, widow or widower shall be under the supervision of a licensed funeral director employed on a full time basis.”). The exception from licensed funeral home ownership provided in section 479.8(a) for widows, widowers, children, grandchildren, and heirs of a licensed fu *388 neral home director demonstrates the discriminatory effect of the FDL’s ownership restrictions by exempting this class of individuals from the extensive educational prerequisites demanded of those seeking to become licensed funeral home directors. See Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 426-27 (3d Cir.2011) (“The dormant Commerce Clause ‘prohibits the states from imposing restrictions that benefit instate economic interests at out-of-state interests’ expense, thus reinforcing ‘the principle of the unitary national market.’ ”). Through the creation of numerous exceptions to licensed funeral home ownership for the surviving family members and heirs of licensed funeral directors, the FDL has shielded in-state businesses from out-of-state competition by effectively limiting the avenues by which an out-of-state firm may enter the Pennsylvania funeral market.
Moreover, while an out-of-state individual may obtain a Pennsylvania funeral license by complying with the requirements for applicants, the only way for an out-of-state corporation to enter the funeral directing industry in Pennsylvania is to find and pay for a rare, pre-1935 license. Id. (“States ‘cannot impede free market forces to shield in-state businesses from out-of-state-competition,’ and, notably, ‘state laws that discriminate against out-of-state businesses’ by forcing them to ‘surrender whatever competitive advantages they may possess’ are especially suspect.”). Out-of-state entities that simply desire the opportunity to operate funeral homes in the same manner permitted by widows, widowers, children, grandchildren, or heirs of licensed funeral directors who are permitted to operate the same through the supervision of a licensed funeral director are prohibited from doing so by the instant section of the FDL. For example, under the current provisions of the FDL an out-of-state corporation cannot acquire a funeral home license, unless it purchases shares in a pre-1935 funeral corporation, and subsequently hires a licensed funeral director to manage the establishment. However, an unlicensed in-state widow, widower, child, grandchild, heir, or estate of a Pennsylvania licensed funeral director is permitted to own a funeral home license and operate such an establishment, through entities other than a RBC, by simply hiring a licensed funeral director to supervise and management the establishment.
Even if heightened scrutiny did not apply, the asserted interest in allowing such individuals to continue operation of the funeral home and ensure that pre-need funerals and at-need funerals are performed, while admittedly a legitimate local interest, is outweighed by the burdensome nature of the ownership restrictions requiring that other individuals seeking to enter the funeral market become licensed, or that corporations wishing to do the same acquire the assets of a pre-1935 corporation. Furthermore, and to reiterate, the currently permitted practice of Pennsylvania funeral directors transferring shares of RBCs to family members also demonstrates the extent to which this statutory scheme discriminates against out-of-state individuals and entities and instead promotes local interests. Section 479.8(b) states, in relevant part, “[s]uch license shall be valid only if the following conditions exist at the time of issuance of the license and continue in effect for the license period: ... (4) All of its shareholders are licensed funeral directors or the members of the immediate family of a licensed funeral director or a deceased licensed funeral director who was a shareholder in the corporation at death.” Again, the exception for a licensed funeral director’s immediate family has the effect of discriminating against firms, both inside *389 and outside of Pennsylvania, that desire to own shares of an RBC but are precluded from doing so unless such entities acquire the stock of a pre-1935 corporation. See Cloverland, 462 F.3d at 262 (“In deciding whether a state law discriminates against out-of-state businesses, it is immaterial whether the statute or ordinance also burdens some in-state businesses.”).
Thus, even if heightened scrutiny were inapplicable, we nevertheless find that under the Pike balancing test, Plaintiffs have established that the burdens imposed on out-of-state firms seeking .to enter the Pennsylvania funeral industry are excessive when compared to the purported local interests that Defendants contend are advanced by the instant provisions of the FDL.
Accordingly, we shall grant Plaintiffs’ motion to the extent of their Commerce Clause argument pertaining to Counts II and III, and deny Defendants’ motion as to the same. While we recognize that this ruling is dispositive, for the sake of completeness, we will proceed to analyze Plaintiffs’ due process arguments as well,
b. Count II: Substantive Due Process — “One- and-a-Branch”
Plaintiffs also argue in Count II that the FDL’s ownership and bequest restrictions violate the Due Process Clause. (Id. at 87 (citing Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir.2000) (“[A] legislative act will withstand substantive due process challenge if the government identifies a legitimate state interest that-the legislature could rationally conclude was served by the statute.”))). They claim “a court applying rational-basis review ... must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications.” (Id. at 89 (citing Kelo v. City of New London, 545 U.S. 469, 491 , 125 S.Ct. 2655 , 162 L.Ed.2d 439 (2005); see also W. Va. Univ. Hosp., Inc. v. Rendell, 2007 WL 3274409 , at *7, 2007 U.S. Dist. LEXIS 81901 , at *23 (M.D.Pa. Nov. 5, 2007) (“[ejven under the deferential rational basis standard, state laws discriminating against out-of-state residents and businesses have been viewed with particular skepticism by the courts.”))). They highlight the Board’s recognition that one of the changes needed regarding the FDL is that “there be no limit on the number of funeral ' establishments that a person owns.” (Id. at 91 (citing PI. R. 200)). Plaintiffs also allege that contrary to Defendants’ assertions, the FDL does not promote competition and fails to provide the accountability and competency that Defendants purport it does. (Id. at 93).
Moreover, Plaintiffs claim that Defendants’ only explanation for the rational relationship between the FDL and the prevention of market domination is that such “decentralized market structure” is “further[ed] by the FDL.” (Doc. 168 at 96 (citing Romer v. Evans, 517 U.S. 620, 632 , 116 S.Ct. 1620 , 134 L.Ed.2d 855 (1996) (“even in the ordinary ... case calling for the most deferential standards, we insist on knowing the relation between the classification adopted and the object to be obtained”))). They also contend Defendants’ assertion that restricting funeral directors to one-and-a-branch limits the number of funerals a director may perform, is incorrect. For example, Board member Gold-stein owns the maximum of two funerals homes and performs approximately 1,800 funerals annually, while Plaintiff Heffner and his wife own twelve (12) funeral homes and only handle 900 funerals per annum. (Id. at 97-98 (citing Pl. R. at 1267-68, 1271-72; 5510-11)). Plaintiffs argue that the absence of a rational relationship between the FDL’s ownership restriction and *390 its purported goal of preventing market domination is also belied by the fact that funeral directors may effectively own an unlimited number of funeral homes by transferring RBC licenses to family members. (Id. at 99). Therefore, they maintain that limiting a funeral director to two locations does not necessarily prevent him from obtaining a dominant market share.
In response, Defendants argue that none of the Plaintiffs in Count II have standing to challenge the one-and-a-branch provision because none of them currently own or operate a branch funeral home. (Doc. 158 at 37). We find this argument to be disingenuous. Simply because some Plaintiffs have not yet availed themselves of the opportunity to own or operate a branch location does not negate the fact that we previously found Plaintiffs to in fact have standing to challenge these portions of the FDL since “the threat of prosecution to [Plaintiffs] is not imaginary or speculative.” (Doc. 32 at 16). Therefore, we reject outright and decline to revisit this argument further.
Moreover, despite Defendants’ contention that the FDL does not permit family members of a licensed funeral director to own stock in an unlimited number of Pennsylvania funeral homes, Plaintiffs nevertheless allege that Mrs. Heffner owns stock in numerous RBCs. 20 (Doc. 168 at 97 (citing PI. R. at 5510-11 (Ernest Heffner deposition stating as follows: “Q: Second thing is, my wife, who is not a licensed funeral director, and I own and operate 12 funeral homes, 11 in Pennsylvania and one in the State of New York; is that correct? A: Correct”))). Defendants also contend that the highly localized market for funeral establishments provides a rational basis for the one-and-a-branch provision. (Doc. 158 at 40 (citing SMF ¶¶ 408-11, 414-26)). They also claim that allowing ownership of more than two locations in a market could result in market domination, thereby reducing competition and consumer choice. (Id.). Defendants further argue that allowing funeral directors to own more than one-and-a-branch could spread funeral di *391 rectors too thin, and that the funeral industry in Pennsylvania is comprised of smaller business with a personal connection to the community. (Id. at 40-41). All of these reasons, they assert, constitute legitimate state interests rationally related to the provisions at issue.
The Fourteenth Amendment states, in relevant part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law....” U.S. Const, amend. XIV. Both parties agree that the right to practice one’s profession, the right involved in all of Plaintiffs’ substantive due process counts, is not a “fundamental right.” Meier v. Anderson, 692 F.Supp. 546, 550 (E.D.Pa. 1988). When a fundamental right is not implicated, the “rational basis standard” is employed for resolving substantive due process challenges. Lawrence v. Texas, 539 U.S. 558, 588 , 123 S.Ct. 2472 , 156 L.Ed.2d 508 (2003). According to this standard, substantive due process rights have not been violated if the laws or regulations at issue are rationally related to a legitimate government interest. Id. at 578 , 123 S.Ct. 2472 .
The legitimate state interests highlighted by Defendants are not rationally related to the FDL’s restriction on ownership for funeral directors to one-and-a-branch. We pause here to repeat the Board’s own remarkable admission that one of the changes needed to the FDL is “[t]hat there be no limit on funeral establishments that a person owns____” (PI. flat 200). Additionally, we find Defendants’ contention that restricting a funeral director to one-and-a-branch necessarily limits the number of funerals that can be conducted, and prevents funeral directors from being stretched too thin, to lack support in the record. As previously referenced, Plaintiffs assert that Board member Goldstein owns the maximum of two funerals homes and performs approximately 1,800 funerals annually, while Plaintiff Heffner and his wife own twelve (12) funeral homes and only handle 900 funerals. (Doc. 168 at 97-98 (citing PI. R. at 1267-68, 1271-72 (Bennett Goldstein deposition testimony); 5510-11 (Ernest Heffner deposition testimony))). This example obliterates Defendants’ thread-bare argument. We also agree with Plaintiffs that the rationality of this provision is further called into question by a funeral director’s ability' to transfer shares of a RBC to family members, while continuing to provide services through the very same facility.
Therefore, we shall grant Plaintiffs’ motion regarding their substantive due process claim in Count II and deny Defendants’ motion as to the same.
c. Count III: Substantive Due Process — Ownership by Licensees
Similarly, Plaintiffs contend that Defendants’ alleged rational basis for restricting ownership of funeral homes to licensed funeral directors is not related to a legitimate state interest. (Doc. 168 at 103). They maintain that restricting ownership of funeral homes to licensed funeral directors does not promote the goals of consumer protection, accountability, competency, trust, and accessibility because the state’s requirements for operation of a funeral home are applicable regardless of who owns the establishment. (Id. at 104). For example, they nóte that funeral homes owned by licensed funeral directors, unlicensed widows, unlicensed executors, unlicensed family members, or an unlicensed pre-1935 corporation are all held to the same standard of conduct. (Id.). Moreover, they claim that in the case of an unlicensed widow possessing a funeral *392 honie license, Pinkerton testified that no consumer protection concerns are raised because the Board can revoke the widow’s license or the license of the funeral director supervising the home. (Id.) (citing PI. R. at 979-82) (“It is a widow’s license that can be revoked. A widow’s license can be revoked, so it goes to the individual licensed funeral director, the supervisor of that facility to the widow’s license.”). Thus, they claim Defendants’ assertion that permitting unlicensed individuals to own funeral homes “would make it more difficult for the Commonwealth to ensure that -those who had been disciplined as funeral directors did not return to own such business because, by not having a license, there would be no way for the Commonwealth to regulate participation in the profession,” is disingenuous and not rationally related to a legitimate government interest. (Id. at 105) (citing Doc. 126 at 40). They also highlight that no provisions of the'FDL prohibit a funeral director from “hiding” behind the corporate form of the RBC and only making sporadic visits to their funeral homes. (Id. at 106).
In addition, Plaintiffs claim that Defendants’ reliance on Brown is misplaced because in that case fifty-eight (58) Maryland corporations issued licenses prior to 1945 were grandfathered under the current law in order to “protect reliance interests of family members.” (Id. at 107 (citing Brown v. Hovatter, 561 F.3d 357, 369 (4th Cir.2009))). They emphasize that Maryland’s requirement that a corporate license be continuously renewed since 1945 lends support to the asserted legislative intent to protect the reliance interests of family members. (Id. (citing Md.Code Ann. Health Occ. § 7 — 309(b)(2))). Plaintiffs also note that Maryland law requires a surviving spouse who acquires a deceased spouse’s funeral home license to pass an examine on state funeral law. (Id. at 108 (citing Md.Code. Ann. Health Occ. § 7-308(b))). However, in Pennsylvania, a surviving spouse is not required to possess knowledge about funeral directing. (Id. (citing PI. R. at 167)). Finally, Plaintiffs claim that the “wind-down” 21 period in Maryland is only six months, compared to three years in Pennsylvania. (Id. at 109 (citing Md.Code Ann. Health Occupations, § 7-308.1(g); 63 Pa Stat. , Ann. § 479.8(a))). They argue that the FDL’s restriction of ownership to licensed funeral directors is illogical in light of the multitude of exceptions, including pre-1935 corporations, estates, widows, children, and grandchildren, that practically swallow the rule. (Id. at 110). As a result, Plaintiffs maintain that the FDL’s restriction is not rationally related to the alleged legitimate government interest.
In an attempt to counter these arguments, Defendants assert that the FDL requires licensed funeral establishments to be owned through a sole proprietorship, partnership, widow/executor license, RBC, or a pre-1935 corporation. (Doc. 126 at 36) (citing 63 Pa Stat. Ann. § 479.8(a), (b), and (d)). They also reiterate that there are exceptions, including the ability to *393 transfer stock of an RBC to immediate family members, and ownership of a pre1935 corporation. (Id.). Defendants claim that Plaintiffs fail to analyze whether the requirements of licensed ownership are rational, and instead focus on comparing various groups and the existence of exceptions to licensed funeral home ownership in attempting to allege a substantive due process claim. (Doc. 158 at 42-43 (citing North Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156, 166-67 , 94 S.Ct. 407 , 38 L.Ed.2d 379 (1973))). They argue that nothing in the FDL prohibits a person or corporation from acquiring the assets of a funeral establishment, and that Plaintiffs could enter the funeral industry in this way. (Id. at 43). Defendants also claim that in order to operate, an RBC must be licensed and its stock must be held by a licensed funeral director. (Id. at 44 (citing 49 Pa.Code § 13.185 (requiring approval of the board after ownership is changed and before operations can begin))).
Likewise, Defendants maintain that requiring licensure as a condition of ownership allows the Commonwealth to establish requirements and prerequisites for participation in the profession and to control the industries’ operational practices, including, among others, trusting of pre-need monies and caring for the dead at a time when survivors are grief-stricken. (Doc. 126 at 40). Defendants assert that allowing unlicensed individuals or corporations to own funeral homes would make it difficult for the Commonwealth to regulate the industry. (Id.). For example, they argue that in the case of a widow operating a funeral home, discipline can be taken against such individuals because that person is a licensee. (Id. at 40-41). Defendants further claim that the winding-down of- a.funeral home operated by way of a sole proprietorship, partnership, or an RBC by a widow or executor, is a legitimate state interest rationally promoted by the FDL. (Id. at 42-43).
As in Count II, we find that the subject statute is not rationally related to the asserted state interest identified by Defendants. The limitation of ownership to licensees appears particularly arbitrary given the exception allowing untrained and unlicensed widows, widowers, and heirs of licensed funeral directors to continue operating a funeral home for up to three years, or in the case of widows and widowers, for an unlimited duration provided they remain unmarried, while at the same time otherwise limiting ownership to licensed funeral directors. The reality that the FDL permits such individuals to operate a funeral establishment by employing a full-time licensed funeral director to act as a supervisor, but prohibits other individuals or entities from doing the same, demonstrates that the restriction on ownership to licensees is not rationally related to the legitimate state interest of ensuring competency and accountability in the funeral industry.
In addition, Defendants’ own contentions in their supporting and opposition briefs appear contradictory. In their supporting brief, Defendants claim that one of the exceptions to licensed funeral home ownership is the transfer of stock in an RBC to immediate family members. (Doc. 126 at 36). However, in their opposition brief, Defendants claim that “in order to continue operations, the RBC must remain licensed and the stock of the RBC must be owned by a licensed funeral director.” (Doc. 158 at 44). Defendants’ equivocation on this issue reflects the contradictory position assumed by them herein and again demonstrates the lack of a rational relationship between the FDL’s restriction of ownership to licensees and the stated goals of regulating, disciplining,, and overseeing *394 the funeral industry. Moreover, Defendants’ purported interest in providing a wind-down period for family-owned funeral homes fails to justify the restriction upon ownership to licensees, because unlicensed entities and individuals owning funeral homes could be required to employ a supervising funeral director to oversee operations during a wind-down period in the same way that widows or widowers are required to do so. Therefore, we find that the instant ownership restriction is not rationally related to the asserted governmental interest.
Accordingly, we shall grant Plaintiffs’ motion regarding their substantive due process claim in Count III and deny Defendants’ motion as to the same.
3. Count IV: Ownership Restrictions — Substantive Due Process 22
Plaintiffs also argue that the FDL’s ownership restrictions, and its restriction on the bequest of a funeral home, should be invalidated as a violation of the Due Process Clause. (Doc. 140 at 87). They contend that here, the Commonwealth has acknowledged that the FDL is designed to protect a discrete group of family-owned funeral homes. (Id. at 89). Furthermore, Plaintiffs highlight Defendants’ admission that the purpose of the instant provision is to ensure that “local business is owned by local people.” (Id. at 90 (citing Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 882 , 105 S.Ct. 1676 , 84 L.Ed.2d 751 (1985) (finding state’s “aim to promote domestic industry is purely and completely discriminatory” and “constitutes the very sort of parochial discrimination that the Equal Protection Clause was intended to prevent.”))). Moreover, Plaintiffs once again highlight the Board’s own conclusion that one of the changes heeded to the FDL is that “there by no limit on [the number of] funeral establishments that a person owns.” (Id. at 91 (citing PI. R. at 200)). Plaintiffs reiterate their claim that the legitimate state interests identified by Defendants, including protecting local funeral homes, competition, accountability, competency, and public health, are not rationally related to the FDL’s instant restriction arid that Defendants fail to provide an explanation demonstrating such rational relationship. (Id. at 91-92).
Additionally, Plaintiffs contend that Defendants’ suggestion that the FDL promotes competition is at .odds with its stated goal of protecting Pennsylvania funeral directors from competition. (Id. at 93). They also attack Defendants’ assertion that the FDL promotes accountability and competency when the statutory scheme allows the family, widows, estates of funeral directors, and pre-1935 corporations to own funeral homes without requiring that they first obtain any knowledge, skill, or training in the industry. (Id. at 93). Plaintiffs assert that the Board’s ability to hold a funeral home accountable is unrelated to the identity of the owners of the funeral home since the Board directs enforcement against an establishment’s li *395 cense, the supervisor of the funeral home, or the funeral directors that are employed by the funeral home. (Id. at 94). Furthermore, they claim that the ownership restrictions bear no rational relation to public health concerns since untrained relatives of a funeral director, or those owning shares of a pre-1935 corporation, can also own a funeral home. (Id. at 96).
Finally, Plaintiffs claim that the ownership restrictions of the FDL prohibit funeral directors without spouses or children from passing ownership of the funeral home to siblings, cousins, life partners, business partners, or other non-licensees. (Doc. 168 at 111). They note Defendants’ only reply is that unmarried, childless funeral directors can avail themselves of alternative dispositional options other than those options available to married, child-rearing funeral directors. In addition, Plaintiffs dismiss Defendants’ suggestion that childless funeral directors who wish to bequeath a funeral home simply obtain a pre-1935 corporation, because such an option, they claim, would cost a funeral director tens of thousands of dollars just to confer the same benefit that funeral directors who are married or have children can confer for free. (Id. at 112). They claim that the issuance of an estate license upon the death of an unmarried, childless funeral director is not the same as bequeathing a license to a surviving spouse or child because an estate license is only valid for three years and cannot be transferred to an unlicensed heir. (Id.).
In countering these assertions, Defendants claim that invalidating this provision of the FDL would not provide the named Plaintiffs to this count with any relief because neither Haas nor Wachter has attempted to own a licensed funeral home, whether it be in the form of a sole proprietorship, partnership, professional corporation, RBC, or a pre-1935 corporation. (Doc. 158 at 47-48). Furthermore, they claim that their challenge to the FDL’s restriction on bequeathing assets of a funeral home is premature because none of these individuals yet have a will. (Id. at 48 (citing SMF ¶¶ 226, 233)). Defendants contend that because the Court dismissed all equal protection claims at the dismissal stage that Count IY should consequently be dismissed. Finally, they assert that as with Plaintiffs’ substantive due process claim in Count III, Plaintiffs’ attempt to prove an equal protection claim by comparing themselves to licensed funeral directors who created RBC’s is inapt. (Id.).
Applying the rational basis standard, we find that Plaintiffs have demonstrated that the purported justification for the provisions of the FDL limiting the bequest of a funeral home to surviving spouses and children is not rationally related to the legitimate state interests that Defendants highlight. We also find that the FDL’s restriction upon the bequest of a funeral home by an unmarried and childless funeral home director to another individual, while married funeral directors with children are afforded the opportunity to bequeath such assets to a surviving spouse or children, is not rationally related to a legitimate state interest. Therefore, we shall grant Plaintiffs’ motion to this extent and deny Defendants’ motion as to the same.
4. Count V: Undue Restriction on Place of Practice & Count VI: Undue Requirement of “Full Time” Supervisor
a. Commerce Clause
Plaintiffs further argue that the FDL’s place of practice restriction and full-time supervisor requirement violate the Commerce Clause. (Doc. 140 at 97-99 (citing 63 Pa. Stat. Ann. § 479.7, § 479.8(e))). They claim that the restric *396 tions discriminate against out-of-state interests in both purpose and effect because, for example, a funeral director who practices at one location in another state cannot practice in Pennsylvania because this would constitute practicing at a second location, which is not a Pennsylvania branch. (Id.). Likewise, a funeral director who supervises a funeral home in another state cannot be a full-time supervisor of a Pennsylvania funeral home. (Id. at 99-100 (citing PI. R. at 10552-53 (noting that Leonard Terranova was denied an application seeking a license as a funeral supervisor because he was already managing a funeral home in New Jersey, a position equivalent to a funeral supervisor in Pennsylvania))).
In addition, Plaintiffs claim that the place of practice restriction and full-time supervisor provision discriminate against out-of-state interests by eliminating the competitive advantage that could be achieved through clustering. (Id. at 100). They argue that the FDL prohibits clustering because it precludes sharing of personnel between multiple locations. The result, Plaintiffs contend, is that a firm attempting to cluster in Pennsylvania is required to hire more personnel at greater expense. (Id. at 101). They cite Dr. Harrington’s expert report where he opined that “these provisions limit the extent to which the services of a funeral director can be shared across a cluster of funeral homes, dramatically reducing the potential savings from clustering funeral homes.” (Id. (citing Pl. R. at 343 (David Harrington expert report))). Notably, Plaintiffs highlight a legislative initiative submitted to the Governor on behalf of the Board, which stated:
Because many funeral homes have a very low call volume and it is not economically feasible to have a funeral director employed on a full-time basis, the Board would like to amend the [FDL] to authorize the Board to permit a funeral director to supervise more than one funeral establishment where the combined call volume is sufficiently small so that the supervising funeral director would be available at all supervised locations as needed.
(Id. at 101-02 (citing Pl. R. at 3237 (State Board of Funeral Directors Legislative Initiative))). However, they maintain that the draft legislation was crafted to allow only a licensed funeral director to supervise a principal funeral home and that establishment’s branch, thus limiting firms outside of Pennsylvania that are attempting to cluster in Pennsylvania from achieving desirable economies of scale. (Id. at 102-03).
Plaintiffs claim that even if the place of practice restriction and full-time supervisor requirement are determined to be nondiscriminatory, these provisions must nevertheless be invalidated under the Pike balancing test. They assert that the burdens imposed on funeral directors and consumers as a result of these requirements are substantial. For example, Plaintiffs highlight Dr. Harrington’s report where he concluded that the place of practice restriction and full-time supervisor requirement cost Pennsylvania consumers $550 per funeral. (Id. at 104 (citing PL R. at 351(Dr. Harrington’s expert report))). Moreover, funeral homes are compelled to increase the price of each funeral they perform because the limitations on funeral directors traveling to different funeral homes reduces the number of funerals each establishment is able to conduct. They also emphasize the Board’s acknowledgment that a funeral home is required to employ a full-time supervisor “even if there is no business available to justify the employment.” (Id. (citing Pl. R. at 3238 (State Board of Funeral Directors Legislative Initiative))).
*397 In comparison to the substantial burdens on funeral directors, Plaintiffs claim, the benefits conferred are weak or nonexistent. (Id.). They argue that Defendants’ reliance on competency, public health, accountability, and competition, as justifications for the law, are insufficient to support the burdens placed on funeral directors. (Id.). Specifically, Plaintiffs contend that the restrictions fail to ensure that there are a sufficient number of funeral directors at funeral homes to complete the work, and in fact, the provisions actually hinder such goals by limiting the locations where a funeral director can practice. Pointing to the disparate impact of such regulations, they claim that for Plaintiff Heffner’s funeral home in Renovo, Clinton County, this requires staffing a full-time supervisor for a home that performs 25-35 funerals per year, while for Board member Goldstein’s funeral home in Philadelphia, it fails to ensure that adequate personnel are staffing his home which performs approximately 1,000 funerals per year. (Id. at 105-106 (citing PI. R. at, 6597 (David Halpate deposition); 1268-69, 1274. 5392 (Heffner deposition))). As a result, Plaintiffs maintain that the restrictions fail to ensure competency in the profession.
Plaintiffs further claim that a funeral director’s attention to health concerns is unrelated to the number of funeral homes where he can practice, but is related to an individual’s skill and workload at a particular location. (Id. at 107). Concerning accountability, they highlight that funeral directors are subject to the same professional standards regardless of where, or at how many locations, the funeral director practices. (Id. at 107). Finally, they argue that prohibiting a funeral director from practicing at more than a principal location and a branch site inhibits competition. (Id.). Plaintiffs contend that simply because the place of practice restrictions apply to all funeral homes in Pennsylvania does not alleviate the burden on interstate commerce because, as the Carbone court stated, an ordinance is “no less discriminatory because in-state or in-town processors are also covered.” (Doc. 168 at 115 (citing C & A Carbone v. Town of Clarkstown, 511 U.S. 383, 391 , 114 S.Ct. 1677 , 128 L.Ed.2d 399 (1994))). Furthermore, they highlight that in BPOA v. Hunsicker, the Board recognized the tension between the ostensibly contradictory provisions of the FDL, which prohibit a funeral director from practicing at a location other than the one listed on his license, and the provision permitting funeral directors to assist other funeral directors. (Id. at 117). Despite the Board’s finding that Hunsicker did not violate the FDL, they contend that Plaintiffs herein legitimately fear prosecution for practicing extensively at a third location when the FDL fails to define what constitutes acceptable levels of “assistance.”
Defendants respond that Plaintiffs’ facial argument, that a funeral director who practices at more than one location in another state cannot practice in Pennsylvania, is without merit. (Doc. 158 at 98-99). Specifically, they claim Plaintiffs admit that they have practiced funeral directing in a number of locations without prosecution by the Board. (Id. (citing SMF ¶¶ 450-58)). Additionally, Defendants argue that the FDL expressly authorizes reciprocal licensure of funeral directors with other states, which permits funeral directors to practice at locations in Pennsylvania and in other states. (Id. at 99 (citing 63 Pa. Stat. Ann. § 479.13(a))). They highlight that 63 Pa. Stat. Ann. § 479.13(a) states “no person shall practice as a funeral director as defined herein, in this Commonwealth unless he holds a valid license so to do as provided in this act.” (Id.). Defendants further emphasize that *398 the FDL does not regulate the practice of funeral directing in other states, and thus does not prevent Plaintiffs from practicing in other states so long as they satisfy the requirements of those states.
Defendants argue that Wellman, for example, has not provided any support for its position that it enjoys a competitive advantage over a Pennsylvania corporation because it can cluster resources in Louisiana. (Id. at 101). They also challenge Dr. Harrington’s conclusion that restrictions on the locations where a funeral director may practice are statistically relevant in reaching his conclusion that Pennsylvania consumers pay more for funeral services. Under the Pike balancing test, Defendants contend that there are no burdens because the FDL does not restrict the number of locations at which a Pennsylvania licensed funeral director may practice. Furthermore, Defendants claim that the definition of full-time supervisor illustrates that funeral directors may perform other tasks, provided any additional activities do not substantially interfere with or prevent the supervision of the funeral establishment that he or she supervises. (Doc. 126 at 48 (citing 63 Pa. Stat. Ann. § 479.2(11))).
We find Defendants’ unsubstantiated attempts to claim that Plaintiffs are permitted to practice funeral directing at more than one principal location and a branch location, or at any location other than those listed on the funeral director’s license, to once again be rather uncandid. The FDL provides specifically, in section 479.7, that “[a] license shall authorize the conduct of the profession at the particular place of practice designated therein and no other,.... ” 63 Pa. Stat. Ann. § 479.7. While we do not find that the instant provision discriminates against out-of-state interests in its purpose or effect to the same extent as the provisions dealing with restrictions upon ownership to licensees, we nevertheless find under the Pike balancing test that the alleged legitimate state interests are outweighed by the burdens on out-of-state interests. For example, the Board itself recognized that there is clearly an inherent contradiction between the FDL’s prohibition of a funeral director practicing at a location other than that listed on his or her license, and the provision permitting one funeral director to assist another funeral director. (Doc. 136-1 at 139-46 (citing BPOA v. Hunsieker (finding on the facts of this case that a licensed funeral director’s assistance at another funeral establishment not identified on his license did not cause his conduct to become “the conduct of a separate funeral establishment.”))). Thus, the Board’s own recognition that the FDL requires clarification in this area so that in-state and out-of-state interests are not burdened by the threat of prosecution for engaging in the practice of funeral directing at a separate funeral establishment, illustrates the burdens placed upon out-of-state interests seeking to engage in funeral directing in Pennsylvania. (See Pl. R. at 10552-53 (noting that Leonard Terranova was denied an application seeking a license as a funeral supervisor because he was already managing a funeral home in New Jersey, a position equivalent to a funeral supervisor in Pennsylvania)).
We agree with the Board admission as just noted, and in fact find this area to be strikingly obscure. Therefore, we conclude that the burden imposed by the current statutory scheme, to the extent it renders unclear what activities can and cannot be prosecuted under the statute, outweighs the purported state interests. Given the Board’s own recognition that requiring a full-time licensed funeral director to act as a supervisor at each funeral home makes little sense, we decline to find that the Board’s interest in furthering the goals of competency, public health, ac *399 countability, and competition are sufficiently strong to outweigh the attendant burden on out-of-state interests imposed by this requirement.
Accordingly, we shall grant Plaintiffs’ motion as to their commerce clause arguments in Counts V and VI, and deny Defendants’ motion concerning the same. While we recognize that this ruling is dis-positive, for the sake of completeness, we will proceed to analyze Plaintiffs’ due process arguments as well.
b. Due Process
Similarly, Plaintiffs contend that the place of practice restriction and the full-time supervisor requirement are not rationally related to a legitimate government interest. (Doc. 140 at 108). As above, they claim that Defendants fail to explain how the subject regulations concerning where a funeral director may practice are rationally related to, or further the stated goals of, competency, health, accountability, and competition in the industry. Plaintiffs also highlight that the exception in the FDL from the full-time supervisor requirement for sole proprietorships and partnerships demonstrates that the restrictions are not rationally related to the goals Defendants present. (Id. at 110). Despite Defendants’ contention that sole proprietors and partners themselves supervise the funeral home, Plaintiffs again note the case of Terranova, who surrendered his RBC license and obtained a sole proprietor license in the same name. The significance is that under the RBC, a funeral home is required to have a full-time supervisor, while under a sole proprietorship, there is no such requirement. Thus, Terranova was able to continue managing a funeral home in New Jersey while at the same time owning and operating a funeral home in Pennsylvania as a sole proprietor. Although he was initially denied a supervisor’s license for his RBC in Pennsylvania, because he was already managing a New Jersey funeral home, he was nevertheless able to circumvent the supervisor requirement by surrendering his RBC license and instead registering his Pennsylvania funeral home as a sole proprietor, which does not include the supervisor requirement. (Id. at 111).
Furthermore, Plaintiffs highlight that Defendants merely provide a rational basis for requiring supervision of facilities, not for restricting supervisors to one funeral home or requiring a full-time supervisor even when the volume of business fails to justify the same. They also argue that if a funeral director can simply “assist” at additional locations, the benefits Defendants claim are furthered by the FDL in limiting funeral directors to two locations, are illusory. (Doc. 168 at 125).
In response, Defendants argue that the FDL permits a licensed funeral director to provide services in multiple places and for multiple funeral establishments. (Doc. 126 at 45). They cite section 479.7 which states:
[t]his provision shall not prevent a person licensed for the practice of funeral directing from assisting another duly licensed person, partnership or corporation in the conduct of the profession in an approved funeral establishment nor shall it prevent a person licensed for the practice of the profession from conducting a funeral at a church, a private residence of the deceased, or an approved funeral establishment.
(Id. at 45 (citing 63 Pa. Stat. Ann. § 479.7)). As a result, they claim that § 479.8(e) does not prevent licensed funeral directors from working at other funeral homes, but only limits the licensee to two physical establishments, namely, the principal and branch places of business. (Id. at 45). Defendants note that Plaintiffs such as *400 Heffner and Cavanagh, licensed funeral directors employed by funeral homes with multiple locations, have not been prosecuted for providing services at multiple locations. They point to the Board’s previous decision in BPOA v. Hunsicker as evidence that the Board has already decided the issue of practicing at multiple locations.
Similar to our commerce clause analysis above, we find that Defendants’ asserted goals of competency, public health, accountability, and competition. are not rationally related to the restrictions contained in the FDL pertaining to place of practice and full-time supervisors. -Accordingly, we shall grant Plaintiffs’ motion to this extent and deny Defendants’ motion as to the same.
5. Count VII: Undue Requirement that Every Establishment Include a Prep Room
a. Commerce Claiise
Plaintiffs also claim that the FDL’s requirement that every funeral home have a separate embalming preparation room, violates the Commerce Clause. (Doc. 140 at 112). They note that section 479.7 states:
[EJvery establishment in which the profession of funeral directing is carried on shall include a preparation room, containing instruments and supplies necessary for the preparation and embalming of dead human bodies and be constructed in accordance with sanitary standards prescribed by the board, for the protection of the public health.
(Id. (citing 63 Pa. Stat. Ann. § 479.7)).
Consistent with their earlier arguments, Plaintiffs maintain that the FDL’s requirements concerning preparation rooms burden competitors seeking to enter the Pennsylvania funeral industry and perpetuate the protection of small, family-owned funeral homes. (Id.). They highlight the Board’s recognition that “[t]here is a significant trend in the industry to consolidate embalming operations, resulting in many funeral establishments never actually using the preparation room.” (Id. at 113 (citing Pl. R. at 536)). Thus, Plaintiffs assert that the FDL discriminates against out-of-state competition by constricting their ability to employ a centralized embalming facility and instead mandating that every location have a separate preparation room, regardless of whether it will be used. (Id. at 113-14 (citing Tri-M Group, LLC v. Sharp, 638 F.3d 406, 428 (3d Cir.2011)(“[S]tatutes that increase out-of-state competitors’ costs are subject to heightened scrutiny.”))). Plaintiffs also cite the Audit Report which noted “[a]e-cording to the PFDA, the cost to construct and equip a preparation room to meet Board standards is $40,000 to $50,000.... ” (Id. at 114 (citing Pl. R. at 171)). Plaintiffs argue that to build and equip a new preparation room today would cost between $193,000 to $223,000. (Id. (citing PL R. at 5620, 9416-20, 5809)). In addition, they claim the Board noted that allowing the use of a centralized preparation room was one of the modifications needed to the FDL, and that “[n]ot every funeral home needs a preparation room as required by existing law. A centralized embalming facility makes a lot more sense, according to the way this business is conducted today.” (Id. at 115 (citing PL R. at 201, 242)). They also note the Board’s recognition that eliminating this requirement would “reduce costs of doing business without substantially impairing protection of the public.” (Id. at 116 (citing PL R. at 536)).
Notwithstanding the Board’s recognition that the requirement should be altered, Plaintiffs highlight that the Board’s proposed legislation would only permit a principal funeral establishment and its branch location to share a centralized embalming *401 facility. (Id. at 117). Thus, they assert that the proposed amendment would-only perpetuate the protectionist scheme already advanced by the FDL. (Id. at 118). In addition, Plaintiffs maintain that the same list of legitimate state interests that Defendants previously asserted are furthered by this provision, are inadequate in light of the excessive burden on out-of-state interests. (Id. at 119). In particular, they contend that the requirement of a preparation room does not ensure competency or accountability. Plaintiffs highlight the inequity of allowing funerals to be conducted at churches and private residences, where there are no preparation rooms, but requiring that every funeral home be equipped with one even if it is never used. (Id. at 121 (citing 63 Pa. Stat. Ann. § 479.7)).
Defendants counter these assertions by claiming that because funeral directors take precautions to protect themselves from diseases possibly carried by the deceased body, and since they employ toxic and hazardous chemicals to disinfect, sanitize, and prepare the dead, that it is rational, reasonable, legitimate, and necessary to require that every funeral home have access, on site, to a preparation room. (Doc. 126 at 51-53). They claim such requirement guarantees that a licensed funeral director will have access to the facilities needed to prepare the dead and that such person will bear responsibility for the quality and condition of the preparation room. (Id. at 53). In addition, Defendants argue that many states have a similar requirement. (Id.).
As above, the Board’s own positions contradict the arguments asserted herein by Defendants. 23 In light of the Board’s recognition that requiring every funeral home to maintain and equip a preparation room is unnecessary, and that allowing the use of centralized facilities has already become commonplace and would reduce costs in the industry without adversely affecting the public interest, we again find that Defendants’ purported interest in requiring every funeral home to maintain and equip a preparation room is outweighed by the burden this places upon out-of-state interests. In particular, and as noted, Plaintiffs indicate that the cost of constructing and equipping a preparation room could be as much as $190,000 to $220,000. As Defendants have failed to demonstrate that the public interest in requiring each funeral home to equip and maintain a preparation room outweighs the burdens placed upon out-of-state interests by the same, we find that this requirement also runs afoul of the Commerce Clause.
Thus, we shall grant Plaintiffs’ motion as to their commerce clause argument in Count VII, and deny Defendants’ motion concerning the same. While we recognize that this ruling is dispositive, for the sake of completeness, we will proceed to analyze Plaintiffs’ substantive due process arguments as well.
b. Substantive Due Process
Plaintiffs also contend, under the Due Process Clause, that mandating a prepara *402 tion room is meaningless if it is never used, and that such a requirement does not ensure that a funeral director personally embalms the body at that facility. (Doc. 168 at 132). They argue that Defendants fail to provide a justification for not extending the repeal of this restriction beyond the principal and branch locations in order to allow three or more funeral homes to share a centralized facility. (Id. at 133). Plaintiffs focus on the Board’s acknowledgment of the “significant trend” in the funeral industry toward centralized embalming facilities. (Id.). They claim that requiring funeral homes to expend substantial sums of money for construction and maintenance of a separate preparation room, while acknowledging the industry trend toward centralized embalming facilities, represents irrationality in its most extreme. (Doc. 140 at 124-25). Plaintiffs maintain that despite their admission that having access to a preparation room is rational, reasonable, and legitimate, such recognition does not necessarily mean that a preparation room is required at every funeral home in the Commonwealth. (Id. at 125). They contend there is no rational relationship between providing access to preparation rooms and requiring that funeral homes expend unnecessary funds on the same when the Board recognizes that many existing preparation rooms remain largely unused, and when such costs are merely passed on to consumers.
Defendants raise the same response in opposition as in the previous section. Here again, it does not move us. As a result, we find that given the Board’s admission that requiring each funeral home to equip and maintain a preparation room is unnecessary, and that the use of centralized embalming facilities can be employed without harm to the public or the services provided, that any interest Defendants have in maintaining a preparation room

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8699037. Public record. Not legal advice.