Full opinion text
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 initiated the instant action by lodging a massive Complaint against the Defendants on May 20, 2008 alleging claims pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201 for deprivations of rights secured by the United States Constitution and the Pennsylvania Constitution. (Doc. 1). On July 25, 2008, the 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 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). 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). 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). 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. 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”), 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. Plaintiff East Harrisburg Cemetery Company, d/b/a East Harrisburg Cemetery & Crematory (“East HBG Cem.”) is a Pennsylvania corporation with a principal place of business in Harrisburg, PA. 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. 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. 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 ....” (Doc. 101 ¶ 45 (citing 63 Pa. Stat. Ann. § 479.1 (1952))). The Board is the administrative entity charged with enforcement of the FDL. (Id. ¶ 46 (citing § 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. 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. (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 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.) Finally, we emphasized that Plaintiffs had cast doubt 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.). 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. 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 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 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). 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 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 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. 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 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 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.” 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 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 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. 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). 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 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 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,