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Who owns graves? Congregation may get bill for vandalized cemetery

Sunday, February 10, 2002

By Lillian Thomas, Post-Gazette Staff Writer

When a small Uptown synagogue learned that more than 100 gravestones in its McKees Rocks cemetery had been vandalized, members were devastated by the sight of smashed gravestones, century-old headstones pushed face-down on the ground, Stars of David knocked off the top of stones and the remains of burned flags piled on the top of the steeply sloped graveyard.

Four months after the damage was done, caretaker Robert McKivitz stands among the toppled gravestones at Beth Hamedrash Hagodol-Beth Jacob cemetery in McKees Rocks. (Steve Mellon, Post-Gazette)

This week, the four juveniles charged with the crime go on trial. Members of Beth Hamedrash Hagodol-Beth Jacob are coping with the emotional fallout of the damage done over the night of Oct. 22-23, and are facing the harsh practical result as well: Repair and restoration of the 104 affected graves is estimated at $250,000, and the tiny, aging congregation may be forced to pay it. Its insurance carrier says the responsibility for repair lies with the owners -- that is, the families or descendants of the occupants of the graves damaged. Their insurance carriers, not the synagogue's carrier, will have to pay for repair.

Beth Hamedrash Hagodol-Beth Jacob, a 129-year-old Orthodox synagogue with about 75 members, has been burying its dead in the McKees Rocks graveyard for more than a century. There are about 5,000 graves there.

The damaged graves and burned flags shocked people in and outside the Jewish community. When the four youths -- a 12-year-old boy, a 17-year-old boy, a 16-year-old girl and a 13-year-old-girl -- were arrested a few days later, it looked less like an ominous act by a hate group, but every bit as disturbing. The four are scheduled for trial in Allegheny County juvenile court Tuesday on charges of vandalism.

More than three months later, the fallen and damaged stones remain where they are, untouched first because of the police investigation, then to wait for the synagogue's insurer, Travelers Property Casualty, to complete its investigation.

It turns out the ownership of tombstones and plots within cemeteries is a complicated matter.

Stephen Neustein is a lawyer and member of the synagogue, and he has taken the case on a volunteer basis. He is still waiting for final word from Travelers, but is very aware of what's at the heart of it -- the damaged property doesn't belong to the congregation.

Since people buy burial plots and gravestones, they are the owners. But if the buyer is dead and his body occupying his plot of land, who is its owner?

"In several generations, you could have a number of people who have an interest in the property," Neustein said. "Who would then own property? It's not clear. If I own, say, a lot in the city of Pittsburgh, and had no heirs, it would go back to the state. In the case of a cemetery plot, I don't think that would be the case. When you buy a cemetery plot, you buy it for a limited purpose" -- burial.

Travelers has not given the synagogue a decision in writing, but Neustein said its representatives had told him the synagogue policy doesn't cover the damage.

"We're looking into it, that's all I can tell you," Travelers spokeswoman Marlene Ibsen said. She said she could give no further details while the investigation was going on. "I will have to get back to you when we know more."

Perpetual care contracts that most cemeteries carry also don't typically cover vandalism. Legally, then, the synagogue isn't liable and wouldn't have to do anything at all. But for the synagogue, that's a technicality.

Jack Sussman was killed in World War II and buried more than 50 years ago. His was one of the gravestones damaged. (Steve Mellon, Post-Gazette)

"I think we have a moral and ethical responsibility" to find a way to take care of the damage, Neustein said. "I think, clearly, we have an obligation to try as best we can to notify as many of the families as we can."

Many in the synagogue, including Rabbi Stanley J. Savage, think the congregation must find a way to restore all the stones, whatever its legal responsibility. They can't imagine leaving a stone shattered on the ground because no one can be found to take responsibility for it.

When Mt. Lebanon Cemetery was heavily damaged by vandals March 30, 1996, it faced some of the same issues.

Joseph Spochaz, superintendent of the cemetery, discovered the vandalism the next morning. Nearly 200 graves were affected, and damage was estimated at about $130,000.

"The two kids that got caught, they're still paying restitution. They only paid about $3,000 on it so far," Spochaz said. "Before they ever pay it off, these kids will be gone. No one will ever pay it."

The cemetery reset undamaged stones and monuments, he said. Then the staff began the laborious process of trying to contact families of people buried in the damaged graves.

"It's a real nightmare," Spochaz said. "Most people came in and checked the cemetery and then went to do whatever they had to do to make arrangements." Many found they could claim the repairs on their homeowner policies, he said.

The cemetery had stones repaired only if a family authorized it and found a way to pay for it, he said. "Each individual had a different arrangement. It was pretty bad there, going through all the paperwork."

For cases in which no family could be found, "we just set them back up, and didn't do anything to it."

Because many of the graves in the McKees Rocks cemetery are old and many families no longer live in the area, the task of tracking down descendants will be difficult.

"It's such a staggering thing," Neustein said. "It's a situation where you have an old cemetery, a small number of people who remain caretakers of the history of that community. Most of the things done here [at the synagogue] are by people who are volunteers."

He is hoping that Travelers will pay for the repairs, then itself go after other sources to pay back the cost. The practice, called subrogation, is common -- as when, for example, an insurance company pays to repair the car of a policyholder, then seeks to recoup the cost from another insurance company or individual.

Once the synagogue resolves the issue, the repair process will begin.

Urbach Rock of Ages Memorials will do the repairs, which are expected to take about nine months. Steven Urbach said his company would start by taking photographs of the damaged or fallen stones. The restorers will then take measurements, make sketches and do rubbings to get inscriptions and carvings on the stones.

"More will come out in rubbing than you can see with eye," he said, allowing the restorers to capture the exact wording and details on worn stones.

"On old sandstone and marble stones, if the letters are completely worn away, we'll go by cemetery records," he said. "I didn't see too many that we can't recover inscription."

Then they will cut new monuments and carve the inscriptions on them. The stones that are fallen but intact will be reset on their bases.

The steepness of the site will present other challenges, he said.

"To reset the larger ones, since we can't get a crane in, we'll have to use a tripod and attach a hoist to put it back up."

The other major project, Urbach said, will be disposal of the damaged monuments. Jewish custom calls for burying them.

"It's like a torn soul," Savage said. "One of the reasons we do not believe in cremation is that something that contains a holy item -- i.e., a soul -- has to be buried."

When the restoration is done, there will be a burial service for the damaged stones.

Relatives of those whose graves were damaged have been waiting for resolution since they heard about the vandalism.

"I heard at the synagogue" the day after it happened, said Harry Sussman, 85, of Squirrel Hill. "I go every morning."

He's been a member of Beth Hamedrash Hagodol-Beth Jacob all his life. "I went out to the cemetery right after. All my family and relatives are buried there. My brother's stone was broken. It was pushed over and broken."

Jack Sussman was buried more than 50 years ago, Sussman said. He was his younger brother, killed during World War II.

Neustein doesn't want the graveyard to remain torn and broken.

"It was devastating when I read about it. When we went out there -- I just can't describe how terrible it is. It's painful to look at," Neustein said.

"There's one [grave] that's badly damaged up high on the headstone. It was not just pushing the stones over, they were actually striking them with things. To me, that elevates it to another level. For some reason that one really bothered me."



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