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City judge asserts authority over Arch Street bones

Orphans' Court has taken jurisdiction over the skeletal remains uncovered during construction in Old City.

Volunteer archaeologists working in March to exhume bodies buried at the former First Baptist Church burial ground on Arch Street.
Volunteer archaeologists working in March to exhume bodies buried at the former First Baptist Church burial ground on Arch Street.Read moreBRIANNA SPAUSE / Staff Photographer

Philadelphia Orphans' Court has asserted its authority over human remains uncovered during building construction on Arch Street in Old City and has issued a detailed directive to developer PMC Property Group on how to proceed with removal and reinterment of the remains.

In his order, entered Tuesday, Judge Matthew D. Carrafiello followed the general outlines of a plan offered by PMC, but placed the remains directly under court control, much as a bankruptcy court takes control of personal property in debt litigation.

At an emergency Orphans' Court hearing on the matter in July, both PMC and the city argued that no law or regulation governed removal of the remains.

In his order, Carrafiello gathered the bones under the protection of the court.

"Such human remains, funerary objects, and/or personal artifacts shall be held in custodia legis pending further decree of this court," Carrafiello ordered, using the legal phrase meaning held by lawful authority of the court. "Further, during all times as they are so held, they shall be afforded the due respect of human remains and bodies and shall be handled and moved only by such individuals/entities who have legal authority to do so."

Mark Zecca, a lawyer who informally represents the Philadelphia Archaeological Forum, said he believed the court order, issued late Monday, "sets a precedent."

"It will be very helpful for protection of remains like this," Zecca said.

At the same time, Jonathan Stavin, executive vice president with PMC, said he was "gratified" that the court essentially ratified what PMC was doing.

"The judge didn't order us to do anything that we didn't intend to do already," Stavin said.

PMC attorney Courtney L. Schultz of Saul Ewing LLP had no comment.

Leonard Reuter, an attorney with the city Law Department, said at the July hearing that "the only time the city is compelled to get involved in a matter like this is if city property is involved or a public facility."

The city did not return requests for comment Wednesday.

"The confusion is the notion that when you buy a piece of land that was an old cemetery, you own it all," Zecca said. "The judge is saying, 'No, you don't. Those bones are under the authority of the court.' "

Zecca added that he believes the court ruling casts doubt on the city's current regulatory procedures.

The ruling arises from construction of an apartment building at 218 Arch where a contractor for PMC began uncovering bones in November. The site is atop the old First Baptist Church burial ground, established in 1707, one of the first in Philadelphia.

The First Baptist burial ground was purportedly moved in 1860 to Mount Moriah Cemetery in Southwest Philadelphia, but grave diggers missed a large number of coffins.

In February, more bones, coffins, and burial artifacts began turning up, and a team of volunteer archaeologists raced weather and bulldozers to remove them all in a matter of days. They appeared to be successful, extracting remains of more than 100 people.

Then, this summer, more burials were uncovered during excavation for the parking garage.

PMC agreed to hire an archaeologist (following an informal suggestion from city officials) and took the matter to Orphans' Court.

Throughout this process, city agencies maintained that they had no authority to stop construction or compel PMC to hire professionals to handle the excavation.

The court has now taken charge and directed PMC to follow the plan it laid out for the judge in July.

That plan, as modified by the judge, includes the mapping of the burials on the site by an archaeologist employed by AECOM, a building and engineering firm. AECOM will also supervise excavation and removal of the remains to research labs operated by archaeologists at Rutgers-Camden. In addition, the firm will provide regular field reports to the court throughout the process. The bones are to be reinterred at Mount Moriah or a court-approved alternative no later than Aug. 1, 2020. Expenses will be shouldered by PMC.

Kimberlee Sue Moran, a forensic archaeologist at Rutgers-Camden who is overseeing research on the remains, said there had been "a steady stream" of coffins and bones arriving from Arch Street over the last several weeks. She declined to estimate the numbers.

She said that the 2020 deadline for reinterment will provide time for fund-raising and study.

"I'm hopeful that by the court taking jurisdiction, L&I will review its regulations and enforce them," she said, noting that the Department of Licenses and Inspections has said it has no authority to involve itself in the matter.

Zecca said the court order ought to get the city's attention. "The judge has asserted authority over these remains," he said. "City policy needs to be changed because the judge has said these bones are not to be treated like dirt. I think it's significant."

In a related matter, Moran said that three of the dozen bodies reportedly missing after removal from the Arch Street excavation had turned up at the Rutgers research facility. Their identifying tags had been torn away. She said she was confident that PMC is no longer in possession of any remains and that the other bodies reported to have vanished will surface as burial material is meticulously examined.

Another Orphans' Court hearing on the matter has been set for Oct. 30.