Recent Developments in Pennsylvania Regarding Church Membership

The Pennsylvania Supreme Court ruled that a state nonprofit corporation law giving members the right to inspect corporate records only applied to certain records.

Church Law and Tax1998-05-01

Church Members

Key point. Members of churches that are incorporated under state nonprofit corporation law often are given a limited right to inspect corporate records. This right is subject to a number of important requirements and limitations.

The Pennsylvania Supreme Court ruled that a state nonprofit corporation law giving members the right to inspect corporate records only applied to certain records. While the case involved a state bar association, it will be relevant to church leaders because many churches are incorporated under similar laws giving members a right to inspect corporate records. The facts of the case are simple. Two attorneys asked their state bar association to release 30 different categories of documents pertaining to evaluations of statewide judicial candidates. The bar association is a nonprofit corporation incorporated under state law. The nonprofit corporation law contains the following provision pertaining to members’ right to inspect corporate records:

Every member shall, upon written demand under oath stating the purpose thereof, have a right to examine, in person or by agent or attorney, during the usual hours for business for any proper purpose, the membership register, books and records of account, and records of the proceedings of the members, directors and such other body, and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to the interest of such person as a member. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the member. The demand under oath shall be directed to the corporation at its registered office in this Commonwealth or at its principal place of business wherever situated. 15 Pa. C.S. section 5508(b).

The bar association maintained that the nonprofit corporation law only required the production of: (1) the corporation’s membership register; (2) the corporation’s books and records of account; and (3) the records of proceedings of the corporation’s members and directors. The bar association noted that it already had published a list of bar members and offered to make available a computerized listing of its members. It also released the estimated budget and the account of expenditures relating to the judicial evaluation committee as well as minutes of its official “house of delegates and board of governors.” The two attorneys were not satisfied. They sued the bar association, claiming that it had violated the “inspection of records” law by not giving them all the records they demanded. The bar association countered by asserting that it had turned over every document “to which a member of the [bar], acting for a proper purpose, would be entitled.”

The state supreme court ruled that the bar association did not have to turn over any additional records. It noted that a member of a nonprofit corporation has a right to inspect three categories of documents: (1) the membership register; (2) books and records of account; and (3) records of the proceedings of the members and directors. The court noted that the bar association had turned over documents of the first two categories. The remaining question was the meaning of the third category-records of the proceedings of the members and directors. The court acknowledged that this term was not defined by the statute itself, and that the “plain meaning of the phrase … could permit a member’s access to duly authorized minutes of official action of the board of directors of a nonprofit corporation but could, for example, exclude access to a variety of documents, such as correspondence and draft documents.” The court continued by making the following important observation:

The scope of records to which a member has access is further limited by considerations of privacy, privilege and confidentiality. Some accessible documents, or portions thereof, may be protected from disclosure by legitimate considerations of: privacy, such as references to an individual employee’s health records; privilege, such as communications protected by the attorney—client privilege or work product doctrine; or confidentiality, where both the corporation’s purpose and the public’s interest are served by keeping information confidential.

The court concluded that the bar association had released enough records to comply with the statute. It pointed out that releasing other information, including confidential references pertaining to the qualifications of judicial candidates, would infringe upon the legitimate expectations of confidentiality of those who submitted the references. Further, releasing such references would ensure that very few persons in the future would ever respond to requests for references. The court observed that the bar association “has an interest in keeping its records confidential because it had promised confidentiality to those interviewed before they were interviewed. The public has a compelling interest in having an informed electorate which is promoted by the free flow of information about judicial candidates. That flow would slow to a halt were documents respecting interviews or [committee] deliberations made available to members.”

Application. This case provides church leaders with some useful insights into the meaning of state nonprofit corporation laws that give members a limited right to inspect corporate records. Consider the following: (1) The right of inspection is not absolute. It only exists if a church is incorporated under a state nonprofit corporation law that gives members such a right. (2) The right of inspection only extends to members. (3) The right of inspection only extends to those records specified in the statute creating the right. (4) Most such laws provide that the member may inspect documents “for a proper purpose” at a “reasonable time.” (5) The court in this case noted that the right of inspection is further limited by “considerations of privacy, privilege and confidentiality.” It pointed out that some documents may be protected from disclosure by legitimate considerations of privacy (such as an employee’s health records); privilege (such as communications protected by the attorney—client privilege); or confidentiality (where both the corporation’s purpose and the public’s interest are served by keeping information confidential). In this case, the interests of confidentiality dictated that the bar association not turn over confidential references and interview transcripts obtained in the course of determining the qualifications of judicial candidates. Obviously, most churches maintain confidential records, and church leaders who are unwilling to turn over such records in response to a member’s request may refer to this case as support for their position. While a decision by the Pennsylvania Supreme Court will not be binding in other states, it will be persuasive-especially since so few courts have addressed this issue. Of course, any decision to withhold documents from a member should be made with the advice of an attorney. Lewis v. Pennsylvania Bar Association, 701 A.2d 551 (Pa. 1997). [Church Records]

Recent Developments in Pennsylvania Regarding Sexual Misconduct by Church Volunteers

A Pennsylvania court ruled that (1) a charity cannot be sued when one of its volunteers molests a child who has no connection with the charity, even if it knew that the volunteer had a prior conviction for child molestation; and (2) the charity cannot be sued on the ground that it failed to report the volunteer’s acts of child molestation.

Church Law and Tax1998-05-01

Sexual Misconduct by Church Volunteers

Key point. A church is not liable for acts of child molestation by one of its youth workers off of church premises and unrelated to any church program or activity, even if it is aware of previous incidents of molestation involving the youth worker.

Key point. A church is not liable for acts of child molestation by a youth worker on the basis of a failure by church leaders to comply with a state child abuse reporting law following a previous incident of molestation involving the same worker.

A Pennsylvania court ruled that (1) a charity cannot be sued when one of its volunteers molests a child who has no connection with the charity, even if it knew that the volunteer had a prior conviction for child molestation; and (2) the charity cannot be sued on the ground that it failed to report the volunteer’s acts of child molestation. A minister and his wife discovered in 1993 that their minor son had been repeatedly molested over a three—year period by an adult who served as a volunteer with the Big Brothers organization. The victim was not involved with the Big Brothers organization, and his relationship with the molester had no connection with Big Brothers. The victim’s parents later learned that the molester had been accused of molesting one of his “Little Brothers” a few years earlier. Upon learning of the previous incident, Big Brothers suspended the molester as a volunteer but did not report the allegations to the state agency that investigates child abuse. Big Brothers later determined that the allegations against the molester were not proven, and it reinstated the molester as a volunteer. A year later the molester was honored as “Big Brother of the Year.” The victim’s parents sued Big Brothers, claiming that it was responsible for their son’s injuries on two separate grounds: (1) it was negligent in failing to report the prior allegation of child abuse; and (2) it violated a state law requiring the reporting of suspected incidents of child abuse. A state appeals court rejected both theories of liability:

Negligence

The parents argued that whenever a charity that works with children knows that one of its volunteers has molested a child, it owes a duty to future victims to report the molestation to the proper state agency so that the molester is apprehended and stopped from committing similar acts in the future. Let’s apply this argument in the context of a church. Assume that church leaders receive allegations that a youth worker has molested a child in the church, and they choose not to report the incident to the state. The molester later molests a child who lives in his neighborhood who has no connection with the church. Is the church responsible for this incident on the ground that it failed to report the previous allegation? In other words, did the church’s failure to report allow the molester to continue his unlawful behavior? The court said no. It noted that negligence is any act that imposes a “reasonably foreseeable” risk of harm to another. This definition was not met:

While we are deeply disturbed by the circumstances of [this case] we conclude that the [Big Brothers’] general duty of care does not encompass [the victim] or his family members. We will not extend the scope of such a duty to require [Big Brothers] to warn or protect all parents and children from persons like [the molester]. Given the tenuous connection between the parties and events in this case [Big Brothers] cannot be held responsible for the regrettable consequences of [the molester’s] actions; the law simply does not allow liability to be stretched [so far].

Failure to comply with the child abuse reporting law

The court ruled that Big Brothers was not liable for the victim’s injuries on the basis of its failure to report the previous allegation of molestation to the state. The Pennsylvania child abuse reporting statute requires “persons, who in the course of their employment … come into contact with children” to report child abuse to a designated state agency. The court observed:

We find that the [victim and his family] fall outside of the group of individuals that the statute is designed to protect. While the statute was clearly promulgated for the protection of children, it appears that the children the statute aims to protect must be in some way connected to the persons who, in the course of their employment, come into contact with the abused children. Again, [the victim] and his parents were in no way affiliated with [Big Brothers]. [The victim] was never a Little Brother with that organization.

Application. This case is important for the following reasons: (1) It illustrates that churches are not necessarily responsible for a youth worker’s acts of child molestation having no connection with a church program or activity. And, this is true even if church leaders were aware of a previous allegation of molestation involving the same worker. Church leaders simply have no duty to warn the public at large about every allegation of sexual misconduct involving church youth workers. (2) Had the victim been molested in connection with a Big Brothers activity, then Big Brothers may well have been liable on the basis of “negligent retention.” Keeping a youth volunteer despite credible evidence that he has molested a child in the past can make a charity liable on the basis of negligent retention for later incidents occurring in the course of its programs or activities. It does not matter that the previous incident was not connected with the charity’s activities or programs. In summary, a church may not be liable for a youth worker’s acts of child molestation involving children who are not associated with the church, even if church leaders are aware that the worker was involved in prior incidents of molestation. However, if the worker molests a child in a church activity or program, then the church may be liable on the basis of negligent retention, because it “retained” a person in a capacity involving contact with minors despite knowledge of one or more prior acts of child molestation. (3) Failure of church leaders to comply with a state child abuse reporting law when presented with allegations of child abuse by a youth worker will not necessarily make the church liable for future acts of molestation by the same worker. J.E.J. v. Tri—County Big Brothers/Big Sisters, Inc., 692 A.2d 582 (Pa. Super. 1997). [Failure to Report Child Abuse, Seduction of Counselees and Church Members, Negligence as a Basis for Liability]

Recent Developments in Pennsylvania Regarding Workers Compensation

A Pennsylvania court ruled that workers who were members of a church that made provision for its dependent members were eligible for exemption from workers compensation coverage.

Church Law and Tax1998-03-01

Workers Compensation

Key point. In some states, employees of certain religious faiths may be exempted from workers compensation coverage if they satisfy certain requirements.

A Pennsylvania court ruled that workers who were members of a church that made provision for its dependent members were eligible for exemption from workers compensation coverage. Pennsylvania law permits an employer to file an application with the state to be exempted from workers compensation with respect to certain employees. The application must include a written waiver by the employee of all benefits under workers compensation along with an affidavit stating that by reason of membership in a recognized religious sect the employee is conscientiously opposed to acceptance of the benefits under workers compensation or any other any public or private insurance program. By law, such an application must be accepted if the state finds that the employee’s religious sect has for a “substantial number of years” made provision for its dependent members. An employer filed an application for exemption from workers compensation for some of its employees who are devout followers of the teachings of the First Century Gospel Church (Church). As such, they are opposed to any kind of public or private insurance benefits. Members of the church anonymously contribute money and food to their dependent members. However, the members do not guarantee or assure that they can provide support for their dependent members on a consistent basis. The employer’s application for exemption was intitially denied because there was no proof that the church had made provision for its members for a substantial number of years. A state appeals court ruled that the application was valid and that the employees were exempt from coverage under workers compensation law. It pointed out that the statute specifies that an application shall be granted if the employee is a member of a sect which teaches opposition to the receipt of public or private insurance benefits, and the sect has made reasonable provision for its dependent members for a substantial number of years. Further, the statute states that receipt of an application form is “prima facie proof” of compliance with the requirements for exemption. Therefore, the state had to accept the application in the absence of evidence to rebut or contradict it.

The state argued that there was sufficient evidence to contradict the employer’s application. It noted that since (1) the church does not require member contributions, it cannot guarantee financial assistance; (2) the church expends all of its monies each month, it has no monetary reserves; (3) church members do not make their needs known to others, the church cannot provide for them; and (4) the church and its members do not own property, the church has no property for the support of its dependent members. The court concluded that this evidence did not contradict the employer’s application for exemption for the church employees. It noted simply that the state failed to demonstrate that the church had failed to provide for its members for a substantial number of years. Carroll Contractors, Inc. v. Department of Labor, 690 A.2d 821 (Pa. Common. 1997). [Workers Compensation]

Can Church Records Be Subpoenaed?

A Pennsylvania court tackles the issue.

Church Law and Tax 1997-07-01

Can Church Records Be Subpoenaed?

A Pennsylvania court tackles the issue-Commonwealth v. Stewart,
690 A.2d 195 (Pa. 1997)

[ The Clergy-Penitent Privilege, Inspection of Church Records]

Key point. The Pennsylvania Supreme Court ruled that the clergy—penitent privilege did not excuse a Roman Catholic diocese from turning over internal documents pertaining to a priest in response to a subpoena. The court’s ruling provides useful guidance to churches in deciding how to respond to a subpoena requesting the disclosure of church records. This feature article reviews the facts of the case, summarizes the court’s ruling, and evaluates the practical significance of the case to other churches.

What if your church were served with a subpoena demanding that various financial records, membership records, and a pastors counseling notes be turned over to an attorney? How would you react? Many church leaders consider such demands to be inappropriate, and resist turning over internal church records. Is this a legally appropriate response? Does the law exempt churches from having to turn over internal church records in response to a subpoena? These are important questions for which there has been little direction from the courts. A recent decision by the Pennsylvania Supreme Court addresses these questions directly, and provides churches with important guidance.

Facts

The facts of the case can be summarized quickly. An individual (the “defendant”) was charged with the murder of a Roman Catholic priest. The priest was found shot to death in the defendants home. The defendant admitted that he shot the priest, but he insisted that he did so in self—defense. In attempting to prove that he acted in self—defense, the defendant subpoenaed documents from the local Catholic Diocese. Specifically, the defendant requested the priests personnel records and the Diocese’s records concerning the priest’s alleged alcohol and drug abuse and sexual misconduct. The defendant insisted that these documents could help prove that he acted in self—defense because of the priests past violent conduct.

The Diocese turned over some documents but refused to turn over any records kept in its “secret archives.” According to the Diocese, its secret archives contain copies of all written communications between the bishop and his priests and notes of any oral communications between the bishop and priests, that are considered to be confidential. The Diocese asked the court to excuse it from turning over the following categories of documents:

  1. All reports, letters and other documents pertaining to any allegations of misconduct or other disciplinary action regarding the priest.
  2. Copies of any reports pertaining to any sexual misconduct by the priest.
  3. Copies of all personal records, correspondence, diaries or similar documents maintained by the priest, whether such documents were maintained at his former parish or other locations.
  4. Copies of any reports pertaining to any alcohol or other substance abuse or treatment by the priest from 1986 to 1989.
  5. The Diocese claimed that these records had to be exempted from the defendants subpoena on the basis of (1) the Pennsylvania clergy—penitent privilege, and (2) the first amendment guaranty of religious freedom.

    The trial court denied the Diocese’s request for a blanket exemption of these documents from the defendants subpoena. However, the court did concede that some of the documents might be protected from disclosure by the clergy—penitent privilege. Since it was not clear whether any of the documents were protected by the privilege, the trial judge ordered the documents turned over to him for a confidential review to determine if the privilege applied.

    The Diocese appealed the trial court’s ruling to the state supreme court.

    The court’s ruling

    The clergy—penitent privilege is narrowly construed

    The court first addressed the Dioceses claim that the documents in question were protected from disclosure by the clergy—penitent privilege. It began its opinion by quoting the Pennsylvania privilege:

    No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self—ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

    The court noted that privileges are narrowly interpreted and are “not favored” since “exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Therefore, privileges should be recognized “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.”

    Prior Pennsylvania court interpretations of the privilege

    The court noted that “Pennsylvania courts have interpreted our clergy—communicant privilege as applying only to confidential communications between a communicant and a member of the clergy in his or her role as confessor or spiritual counselor.” It cited the following examples:

    Case 1. A plaintiff filed a lawsuit against a priest and diocese on account of damages suffered as a result of the priests acts of child molestation. The plaintiff issued a subpoena to the diocese seeking disclosure of various church documents concerning alleged sexual misconduct with minor male children by priests assigned to the diocese; the complete personnel files of specified priests; and documents kept by the diocese in its secret archives. The diocese refused to produce any documents contained in its secret archives. The trial court ordered discovery of documents relating to incidents of actual or alleged sexual misconduct by priests with minor, male children and information concerning the assignment and transfer of priests. A state appeals court agreed, rejecting the dioceses claim that the documents were protected from disclosure on the basis of the clergy—penitent privilege. The court explained that the clergy—penitent privilege is limited to statements made in confidence to a member of the clergy for spiritual considerations or penitential purposes. It noted that the mere fact that a communication is made to a member of the clergy, or that documentation is transmitted to a member of the clergy, is not sufficient alone to invoke the privilege. The court concluded that the Diocese had failed to show that the communicant had disclosed the requested information in confidence to a member of the clergy in the context of a confession or spiritual matter. Hutchison v. Luddy, 606 A.2d 905 (Pa. Super.1992).

    Case 2. A priest was assigned to a defendant as a court—appointed counselor following the defendant’s arrest for indecent exposure. During this counseling, the defendant informed the priest that he wanted to confess to a murder. The priest informed the police of the confession, and the defendant was later convicted of first degree murder on the basis of the priests testimony. The defendant appealed his conviction, claiming that his statements to the priest were protected from disclosure on the basis of the clergy—penitent privilege. A state appeals court disagreed, finding no evidence indicating that the defendant had communicated with the priest in his capacity as a minister rather than as a court—appointed counselor. The court concluded that since the defendant’s statements to the priest were not motivated by religious considerations, the trial court properly admitted the priest’s testimony. Commonwealth v. Patterson, 572 A.2d 1258 (Pa. Super. 1990).

    Case 3. A defendant was convicted of morals crimes involving young boys. He was released from prison on parole, upon the condition that he would reside in a specified group home and refrain from any association with young boys. The director of the home was a minister. While staying in the home, the defendant admitted to the director that he had been associating with young boys. The director informed the defendants parole officer, and a parole violation hearing was conducted at which the director testified regarding the defendants admissions. On the basis of this testimony the defendant was sent back to prison. He appealed this result, claiming that his statements to the director were protected from disclosure by the clergy—penitent privilege. A state appeals court disagreed. It concluded that the privilege does not prohibit all testimony by members of the clergy. Instead, the privilege is limited to information told in confidence to clergy in their roles as confessors or counselors. The court concluded that there was no evidence of a “confessor/penitent relationship” between the defendant and the director or that the defendant offered his admissions in confidence. The court determined that the director’s role toward the defendant was that of volunteer or supervisor to help in his rehabilitation while on parole. Without a showing that the director’s role was one of confessor or confidant, the court held that the challenged admissions did not fall within the protection of the clergy—penitent privilege. Fahlfeder v. Commonwealth, 470 A.2d 1130 (Pa. Common. 1984).

    The interpretation of the clergy—penitent privilege in other states

    The court, in reviewing the application of the clergy—penitent privilege in other states, made the following observations:

    Nearly every jurisdiction in the United States has recognized a clergy—communicant privilege and, like Pennsylvania, requires the communication to have been motivated by penitential or spiritual considerations. Although the statutes establishing the privilege vary in language from state to state, the most prevalent feature prescribed by the typical statute is that the communication be made to a member of the clergy in the course of “discipline enjoined” by his or her denomination. Judicial interpretation of the meaning of “discipline enjoined” by the denomination has ranged from a narrow construction limiting the privilege to doctrinally required confessions, to a broader application to the practice of providing religious guidance, admonishment or advice. In either case, the privilege applies only to confidential communications to a member of the clergy acting in a spiritual capacity ….

    Our review of the relevant case law reveals no jurisdiction extending the privilege to communications that are not penitential or spiritual in nature. Pursuant to Pennsylvania law embodied in [the three cases summarized above], application of the clergy—communicant privilege is not based solely on the clergy’s status, but whether the communication was made in confidence in the context of a penitential or spiritual matter. By seeking to eliminate the requirement of a confessional or spiritual relationship between the communicant and the clergy person, the Diocese would so broadly construe the meaning of information acquired “in the course of [a clergyman’s] duties” as to effectively extend the privilege to communications involving entirely secular concerns. Contrary to the Diocese’s contention, limiting the privilege to communications penitential or spiritual in nature does not “insert” non—existent language into the statute. Instead, this requirement provides a rational and well—established interpretation of confidential information acquired “in the course of [a clergyman’s] duties.”

    The clergy—penitent privilege-the critical question

    The court concluded that in deciding whether or not a communication made to a minister is protected by the clergy—penitent privilege, there is a single question that must be answered:

    We, therefore, hold that application of the privilege distills to a single inquiry: whether the communicant disclosed information in confidence to a member of the clergy in his or her capacity as confessor or spiritual advisor. Accordingly, confidential communications to a member of the clergy, even for counseling or solace, do not fall within the protections of the privilege unless motivated by spiritual or penitential considerations. Likewise, the privilege does not protect information regarding the manner in which a religious institution conducts its affairs; nor does the privilege protect information acquired by a religious institution through independent investigations not involving communications with a member of the clergy for penitential or spiritual purposes.

    Application of the clergy—penitent privilege to internal church records

    The court then addressed the question of whether internal church documents can be protected by the privilege. More specifically, could the Diocese refuse to turn over the documents in question on the ground that they are protected from disclosure by the privilege? The Diocese asserted that all of the documents in question would have been obtained in confidence by the Bishop or other clergy in the course of their duties and were maintained in the confidential diocesan archives. The Diocese filed an affidavit that states in part:

    The bishop fulfills [his] duties in conjunction with his priests, over whom he exercises hierarchical authority. Thus, a bishop maintains a special relationship with his priests. He provides primary support and guidance for them concerning their spiritual lives and the faithful performance of their mission within the Church. Free, frank and confidential communication between the bishop and his priests must be protected so that the bishop can fulfill his obligations to his priests and the faithful under the prescriptions of Canon Law. A bishop must be able to candidly discuss with a priest his character, talents, spiritual life, health, and pastoral or familial problems and concerns in order to be able to assign the priest to compatible duties and to provide him with appropriate guidance in the conduct of his affairs and ministry to the faithful.

    The court did not agree that this affidavit demonstrated that the documents were privileged:

    The affidavit refers only to the hierarchical structure of the Roman Catholic Church and in general terms to the Bishop’s duties. The affidavit fails to indicate whether the precise information subject to the discovery request was, in fact, acquired by the Bishop or Diocesan representatives secretly and in confidence while acting in their capacity as confessors or spiritual advisors. We cannot assume that all communications with or between members of the clergy occur in confidence and for confessional or spiritual purposes.

    In particular, the court noted that the affidavit failed to explain why the priests personnel records, correspondence, diaries and other similar documents are protected by the privilege. In addition, “the Diocese has not demonstrated how any letters, reports or records relating to allegations of misconduct or substance abuse of [the priest], particularly documents reflecting investigations of misconduct or disciplinary actions, fall within the protection of the privilege.”

    Because the Diocese failed to demonstrate that the documents were protected by the clergy—penitent privilege, the trial court “properly directed the Diocese to produce the documents to the trial court” for a confidential review.

    The court concluded that “to the extent the requested documents reflect relevant disciplinary action, investigations of misconduct, substance abuse treatment or non—confessional admissions of misconduct by [the priest], they are discoverable.”

    First amendment guaranty of religious freedom

    The court rejected the Diocese’s argument that disclosure of its archival documents violates its right to the free exercise of religion as protected by the federal and state constitutions and the Religious Freedom Restoration Act. In general, the government may only “substantially burden” the exercise of religion if it furthers a “compelling governmental interest” and the burden is the “least restrictive means” of advancing that interest.

    The Diocese insisted that the release of archival documents, which are deemed confidential pursuant to canon law, violates its right to religious freedom. Specifically, it asserted that canon law requires the maintenance of a separate archive for the safeguarding of confidential information and prohibits anyone, including the bishop, from removing documents from that archive and disclosing their contents.

    The court did not question the fact that the Diocese’s refusal to produce documents in violation of canon law “is rooted in a sincerely held religious belief.” However, it concluded that this burden on the Diocese’s religious freedom “furthers a compelling governmental interest by the least restrictive means available.” It noted that “a defendant in a criminal case has a right to discover material evidence, and the state has a compelling interest in pursuing the truth in a criminal matter.” And, although a confidential review of the documents by the trial judge to determine whether any are privileged “may cause a limited exposure of privileged information to the trial court, a court order limiting discovery to relevant, non—privileged documents advances this compelling governmental interest in the least restrictive way.” As a result, “the compelled production of documents for [confidential] review and the discovery of documents deemed relevant and non—privileged does not impermissibly intrude upon the Diocese’s exercise of its religious beliefs and practices.”

    Relevance to other churches and ministers

    What is the significance of this case to other ministers and churches? Obviously, the decision by the Pennsylvania Supreme Court has limited effect. It will not be binding on any court outside of the State of Pennsylvania. Nevertheless, the decision represents an extended discussion of the clergy—penitent privilege, and it is one of the few cases to address the application of the privilege to documents. As a result, it may be given special consideration by other courts. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

    1. Evaluating whether communications are privileged-the courts one—sentence test. The court concluded that a single question can determine whether or not a communication to a minister is covered by the clergy—penitent privilege: “[W]hether the communicant disclosed information in confidence to a member of the clergy in his or her capacity as confessor or spiritual advisor.” As a result, “confidential communications to a member of the clergy, even for counseling or solace, do not fall within the protections of the privilege unless motivated by spiritual or penitential considerations,” and “the privilege does not protect information regarding the manner in which a religious institution conducts its affairs; nor does the privilege protect information acquired by a religious institution through independent investigations not involving communications with a member of the clergy for penitential or spiritual purposes.”

    Example. Jack meets with his minister to discuss a church project that he is coordinating. Statements made by Jack during this meeting are not protected by the clergy—penitent privilege, since they were not made to the minister while acting in a professional capacity as a spiritual advisor.

    Example. Same facts as the previous example, except that at the end of the meeting Jack informs the minister that he has “something else” to tell him. He recounts how he embezzled funds from the church while counting offerings over the past several months. There is no reason why Jacks statement cannot be privileged. It is true that the purpose of the meeting had nothing to do with seeking spiritual advice. However, this does not mean that the purpose or nature of the conversation between Jack and his pastor was static and unchangeable. When Jack decided to change the topic and address his acts of embezzlement, the nature of the meeting changed. The pastor now was being consulted in his capacity as a spiritual advisor.

    Key Point. Often, it is not clear what motive a person has in contacting a minister. If there is any possibility that a minister may be subpoenaed at a later time to disclose what was said during a conversation, then the minister can help to establish whether or not the conversation was privileged by simply asking the individual (before, during, or at the end of the conversation) the following question: “Are you communicating with me in my professional capacity as a spiritual advisor?”

    2. Documents and records. What about church documents and records? When can they be protected from disclosure by the clergy—penitent privilege? The Pennsylvania Supreme Court reached the following conclusions:

    • “[T]he privilege does not protect information regarding the manner in which a religious institution conducts its affairs.”

    • The privilege does not protect “information acquired by a religious institution through independent investigations not involving communications with a member of the clergy for penitential or spiritual purposes.”

    • “[A]pplication of the clergy—communicant privilege is not based solely on the clergy’s status, but whether the communication was made in confidence in the context of a penitential or spiritual matter. By seeking to eliminate the requirement of a confessional or spiritual relationship between the communicant and the clergy person, the Diocese would so broadly construe the meaning of information acquired `in the course of [a clergyman’s] duties as to effectively extend the privilege to communications involving entirely secular concerns.”

    • Confidential, internal church documents are not automatically protected from disclosure on the basis of the clergy—penitent privilege. The test to apply in determining whether or not internal church documents are privileged was stated by the court as follows: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    • “We cannot assume that all communications with or between members of the clergy occur in confidence and for confessional or spiritual purposes.”

    • The court noted that the Diocese failed to demonstrate how any letters, reports or records relating to allegations of misconduct or substance abuse by the deceased priest, and “particularly documents reflecting investigations of misconduct or disciplinary actions, fall within the protection of the privilege.”

    • “We hold that to the extent the requested documents reflect relevant disciplinary action, investigations of misconduct, substance abuse treatment and/or non—confessional admissions of misconduct by [the priest], they are discoverable.”

    3. Examples. The court’s discussion of the application of the clergy—penitent privilege to documents and records is illustrated by the following examples:

    Example. A church member is audited by the IRS, and her charitable contributions to her church are questioned. The IRS issues a subpoena to the church, requesting disclosure of the womans contribution records for the past three years. These documents are not protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court’s decision, since they fail the Courts test: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    Example. A church dismisses an employee. The former employee later sues the church, alleging that her dismissal was discriminatory and wrongful. She serves a subpoena on the church, demanding disclosure of her personnel file and any other internal church record pertaining to her dismissal. These documents are not protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court’s decision, since they fail the Court’s test: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    Example. A pastor, along with his church and a denominational agency, are sued by a woman who claims that the pastor took advantage of her emotional vulnerability during a counseling relationship by engaging in sexual relations. The woman serves a subpoena on the denominational agency, demanding disclosure of any former disciplinary actions or allegations of misconduct involving the pastor. It is doubtful that any of these requested documents would be protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court’s decision, since they likely will fail the Court’s test: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    Example. A minor is sexually molested by a volunteer church worker. The minors parents sue the church. They serve a subpoena on the church demanding disclosure of any screening form or application used by the church when it began using the volunteer worker, in addition to any policies the church has adopted pertaining to the screening and supervision of youth activities and workers. These documents are not protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court’s decision, since they fail the Court’s test: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    Example. A woman seeks out her pastor for marriage counseling. The woman discontinues the counseling after several sessions, and later sues her husband for a divorce. The husband serves a subpoena on the church, demanding that the pastor turn over all of the counseling notes that he compiled while counseling the woman. These documents probably are protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court’s decision, since they likely satisfy the Court’s test: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

Lawsuit Over Priest’s Molestation of Boys

Court finds church and diocese not liable.

Church Law and Tax 1997-05-01

Sexual Misconduct by Clergy and Church Workers

Key point. A church may not be legally responsible for a worker’s acts of child molestation not occurring on church premises or in the course of a scheduled church activity.

A Pennsylvania court ruled that a church and diocese could not be legally responsible for a priest’s repeated acts of child molestation occurring off of church premises. A Catholic priest repeatedly molested a number of boys. His pattern was to befriend young boys, lure them into a sense of trust, and then molest them. He often would take boys out to meals, do special favors for them, and take them shopping or on trips. One victim, who had been molested more than fifty times by the priest, sued the church and diocese on the basis of negligent supervision of the priest. A state court ruled that the church and diocese could not be guilty of negligent supervision since all of the priest’s acts of molestation occurred off of church premises. The court noted that the Restatement of Torts (an authoritative legal text) imposes liability for negligent supervision upon employers only for misconduct occurring on their premises. It pointed out that all of the priest’s acts of molestation occurred in motel rooms while on trips, and not on church premises.

Application. Unfortunately, a number of incidents of child abuse have occurred off of church premises after a pedophile youth worker has established a relationship of trust with a child and the child’s family. As incredible as it may seem, parents willingly allow their young children to spend the night at the worker’s home, or go on trips with him. They are shocked to later discover the truth. This case illustrates the need for churches to suggest limitations on the kinds of “off-premises” behavior that will be tolerated. Allowing a child to accompany an adult in an unsupervised off-premises activity creates risks-not only to the child, but also to the adult who is exposed to the risk of an unfounded accusation. Clearly, this kind of behavior should be discouraged. This case suggests that churches will not necessarily be liable for acts of molestation occurring off of their property. However, not all courts would agree with this conclusion. And, a higher principle is involved-the protection of children who are entrusted to the church’s care. Hutchinson v. Luddy, 683 A.2d 1254 (Pa. Super. 1996). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denomina tional Liability]

Church Membership Lawsuit

Court rules that man cannot sue a church for refusing his membership.

Key point. Most courts regard a church's membership determinations to be a purely ecclesiastical matter beyond the review of the civil courts.

Key point. The civil courts will not resolve lawsuits brought by dismissed church members challenging the validity of their dismissal.

A Pennsylvania court ruled that it was barred by the first amendment from resolving a lawsuit by an individual who wanted to be admitted as a member of a church.

Besides seeking a court order compelling him to be admitted as a church member, the plaintiff also asked the court to remove the pastor and board as a result of their failure to use appropriate texts for worship in the Episcopal Church. A state appeals court upheld a trial court's dismissal of the case on the ground that it involved issues of ecclesiastical law and doctrine which the civil courts are powerless to resolve. It relied upon what it called the "deference rule":

This prohibition on civil courts from deciding issues of ecclesiastical law and religious doctrine, custom, policy and practice is referred to as the "deference rule." The deference rule provides that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom or law.

The court also ordered the plaintiff to pay the church's attorney fees since the case was so lacking in merit. The court pointed out that the civil courts have consistently followed the deference rule, and that there was no legal precedent in support of the plaintiff's claims.

What this means for churches

This case illustrates the nearly universal view that the civil courts are barred by the first amendment from resolving internal church disputes involving discipline, faith, internal organization, or ecclesiastical rule, custom or law. Further, the case suggests that churches should consider demanding payment of their attorney's fees in the event they are forced to defend a lawsuit that is dismissed as a result of the deference rule. In re St. Clement's Church, 687 A.2d 11 (Pa. Common. 1996).

Age Discrimination Law and Religious Organizations

Does federal age discrimination law apply to churches and religious schools?

Church Law and Tax 1994-09-01 Recent Developments

Employment Practices

Key point: Federal age discrimination law prohibits discrimination in employment decisions on the basis of the age of an applicant or employee who is 40 years of age or older. This law applies to some religious organizations.

A federal court in Pennsylvania issued an important ruling on the application of federal age discrimination law to religious organizations. A chef formed a food service company and later entered into a contract to provide meals for a Catholic monastery. The chef served for ten years, and was then dismissed. A monastery spokesman explained the dismissal by stating that the quality and variety of food had deteriorated. The chef sued the monastery claiming that it violated the federal Age Discrimination in Employment Act, which prevents employers with at least 20 employees and engaged in interstate commerce from discriminating in any employment decision on the basis of the age of an employee who is at least 40 years of age. The monastery asked the court to dismiss the case on the ground that the chef was not protected by the Act since he was not an employee of the monastery. It also claimed that the lawsuit was barred by the constitutional guaranty of religious freedom. The court refused to dismiss the case and ordered that it proceed to trial. It acknowledged that there was some evidence to support the conclusion that the chef was not an employee, including: (1) he insisted on being treated as an independent contractor for tax purposes, and received a 1099 rather than a W-2; (2) the monastery contracted with the chef’s corporation for his services; (3) the monastery did not withhold taxes from the chef’s pay; and (4) the monastery did not pay social security taxes for the chef, or extend to him any employee fringe benefit. However, the court concluded that there was evidence that the chef was an employee, and accordingly it could not dismiss the case. The court noted that in deciding whether or not a worker is an employee for purposes of federal civil rights laws, the courts must apply the “common law employee test”. It quoted from a recent Supreme Court ruling that described this test (note the similarity to the test the IRS uses in defining employees for federal tax purposes):

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

The court cited the following factors the indicated employee status: (1) the monastery provided the chef’s equipment; (2) the monastery hired and paid the chef’s assistants; (3) the chef had worked for ten years at the monastery, and was required to work five or six days each week; (4) the chef had to comply with various reporting requirements imposed by the monastery; and (5) the chef’s work was done at the monastery. The court concluded that from this evidence “there is a genuine issue whether [the chef] was an employee of the [monastery].”

After concluding that there was sufficient evidence of employee status to send the case to trial, the court addressed the question of whether or not the basis for the chef’s dismissal was unlawful age discrimination. The monastery claimed that it dismissed the chef because of dissatisfaction with the quality and variety of food he prepared. However, the chef claimed that this was a mere “pretext” to disguise the fact that he had been dismissed on account of age. In support of his case, the chef produced a letter from a representative of the monastery, dated just a few months before the chef’s dismissal, that stated in part:

I am writing to commend the talents and services of [the chef]. I have known [the chef] for about eleven years, since he first came to [the monastery]. His performance quickly earned him appointment as head chef, a position he has held for about ten years …. [H]is indomitable spirit and friendly manner made each and all feel that their needs were important and were addressed and served. Special celebrations for feasts, holidays and a weekly cocktail party all served to bring [the chef’s] culinary creativity to special performance level. Each special occasion was concluded with a round of applause for [the chef] and his staff. To have served the food needs for such a demanding and varied public with style and sensitivity is a true achievement. To have done so with distinction for a decade is achievement of the very highest order. [The chef] will not disappoint the client that entrusts with him their fondest culinary expectations.

The court concluded that this letter, praising the chef’s performance, and written just a few months before his dismissal, “creates a genuine issue of fact as to whether the proffered reason for his termination was the true reason.” It left to the jury the task of deciding whether the monastery’s dismissal was in fact based on unacceptable quality, or upon the chef’s age.

This case is important for two reasons: (1) It illustrates the liberal definition of “employee” under the federal age discrimination law. A worker may be deemed to be an employee for purposes of federal age discrimination law despite the fact that the employer treats the worker as an independent contractor for tax purposes. (2) Churches must recognize the potential effect of issuing complimentary letters or evaluations to employees that are later dismissed. The court in this case viewed such an apparent contradiction as proof that the employer may have dismissed the employee on account of unlawful age discrimination and not on the basis of unacceptable performance (as the employer insisted). One final point—few local churches are covered by the federal age discrimination law since they have fewer than 20 employees. Even churches with 20 or more employees will not be covered by the law unless they are engaged in interstate commerce. Very few local churches have been found by the courts to be engaged in commerce for purposes of federal civil rights laws. Stouch v. Brothers of the Order of Hermits of St. Augustine, 836 F. Supp. 1134 (E.D. Pa. 1993).

See Also: Age Discrimination in Employment Act

Review of Church Membership Decisions

Courts generally consider membership decisions to be an ecclesiastical matter.

Church Law and Tax 1994-03-01 Recent Developments

Church Membership

Key point: Most courts regard a church’s membership determinations to be a purely ecclesiastical matter beyond the review of the civil courts.

A Pennsylvania court refused to order church officials to explain why they refused to admit a person as a member. A member of an Episcopal church asked his church to transfer his membership to another Episcopal church pursuant to an established church procedure. The rector of the second church rejected the transfer of membership without explanation. The member filed a lawsuit asking a court to order church officials to “show cause” why he should not be admitted as a member. A trial court dismissed the lawsuit on the ground that the dispute was doctrinal in nature. The member appealed. A state appeals court ruled that the civil courts are bound by the first amendment guaranty of religious freedom to accept the decisions of religious organizations on matters of “discipline, faith, internal organization, and ecclesiastical rule, custom, and law.” On the other hand, the civil courts can intervene in church disputes that do not implicate such concerns. The court concluded that this case, which involved an individual’s right to membership in a church, was the kind of ecclesiastical matter that was beyond the authority of the civil courts to resolve. It observed: “[M]embership in a congregation is purely an ecclesiastical matter subject to the church rules and controlled by the decisions of the appropriate church tribunals in so far as they do not contravene the civil law. The heart of [the member’s] case is that he desires to become a member in [another church]. Accordingly, it is clear that this case involves a purely ecclesiastical matter.” The court quoted with approval from an earlier decision of the Pennsylvania Supreme Court in Presbytery of Beaver-Butler v. Middlesex, 489 A.2d 1317 (Pa. 1985):

[T]he right to practice one’s belief and worship as one chooses is so deep a root of our constitutional culture that a court, even one with the best intentions, ca be no more than a clumsy intruder into the most delicate and sensitive areas of human life. When Caesar enters the Temple to decide what the Temple believes, he can leave behind only his own views. The view of a court as to who are heretics among warring sects is worth nothing, and must count as nothing if our cherished diversity of religious views is to prevail. Gundlach v. Laister, 625 A.2d 706 (Pa. Cmwlth. 1993).

See Also: Selection and Qualifications

Abuse Case Will Not Go Forward

Discovery argument rejected in attempt to extend statute of limitations

E.J.M. v. Archdiocese of Philadelphia, A.2d (Pa. Super. 1993), 1993 WL 100641

Key point: Minors who are sexually molested by church workers may not sue their church after the statute of limitations has expired. Generally, the statute of limitations begins to run on a minor's 18th birthday. In some states the statute of limitations does not begin to run until an adult survivor of child sexual molestation "discovers" that he or she has experienced physical or emotional suffering as a result of the molestation. Other states do not recognize this so-called "discovery rule."

A Pennsylvania appeals court ruled that a 27-year-old adult was barred by the statute of limitations from suing a priest and his church on account of the priest's alleged acts of molestation.

The victim, a member of a devoutly Catholic family, began to attend weekly prayer groups at a Catholic church in late 1976. At that time, the victim was fourteen years old. The defendant priest was the leader of the prayer group. The priest also was a teacher at a parochial high school that the victim attended. The victim claimed that shortly after he began attending the prayer group he decided to become a Catholic priest. Not long after this decision the defendant priest undertook the role of spiritual adviser and became intimately acquainted with the victim and his family.

The victim alleged that the priest abused this trust by sexually molesting him on countless occasions from 1976 through 1981. Although the victim reached the age of majority in 1980 and concedes that the alleged abuse ended in 1981, he did not file a lawsuit against the priest or his church until late 1989. His reason for this delay was that he did not "become aware" of or discover the psychological and emotional injuries he suffered as a result of the alleged abuse until late 1988.

The victim alleged that the priest informed him that the acts of molestation were "therapy" and were "necessary for my spiritual growth and preparation for ordination, and that it would rid me of pride unpleasing to God." He further alleged that because of "the exalted position in which priests were regarded within my family, I did not believe or consider that [the priest's] actions with me were wrong. My mindset was that because he was a priest he had to be right about this therapy and training being necessary for me to become a good priest. I dealt with my confusion about this therapy by rationalizing that there was something wrong with me. I thought I had a problem …. I felt I was at fault. I felt guilty and sinful."

A little over a year after his alleged discovery concerning the damage he had suffered as a result of the priest's actions, he filed a lawsuit. He alleged sexual assault and battery, clergy malpractice, and intentional infliction of emotional distress. He also sued his church on the basis of negligent hiring.

A trial court dismissed the lawsuit, concluding that it was barred by a Pennsylvania statute of limitations which requires that lawsuits be filed within two years of the date of injury. The victim appealed, arguing that the statute of limitations should not begin to run until the date that he "discovered" that he had been injured by the priest's molestation. Since this "discovery" allegedly occurred in 1988, the lawsuit was not barred by the statute of limitations.

A state appeals court disagreed, and refused to apply the "discovery" rule in this case. It observed:

Here, [the victim] does not argue that he suffered from a physical disability or that his minority at the time of the abuse prevented him from discovering his injury or its cause. Instead, his precise argument is that although he always knew what [the priest] had allegedly done to him, i.e. the actual physical acts performed, and never repressed his memories of those acts, he nevertheless did not know until approximately one year before filing suit that those acts were "abuse" and had caused him psychological and emotional harm. [The victim] contends that his failure to realize that he had been "abused" and harmed thereby resulted both from his own respect for and trust in [his priest and the priest's] assurances to him that the sexual acts being performed were necessary for his spiritual development …. Pennsylvania courts apply the discovery rule in only the most limited of circumstances, where the plaintiff could not, despite the exercise of reasonable diligence, discover his or her injury or its cause.

In many Pennsylvania discovery rule cases, the inability of the plaintiff to discover his or her injury arose from the nature of the injury itself. For example, the rule has been applied in medical malpractice cases where the plaintiff has no reason to suspect anything is amiss and the physician's malpractice is not discovered by the plaintiff until it begins to manifest itself in perceptible symptoms. In contrast, in a case such as this where the underlying cause of action is fundamentally one for battery, which basically is defined as an intentional unconsensual harmful contact, a plaintiff will ordinarily know all he or she needs to know concerning the injury and its cause at the moment the battery occurs. It is the rare battery case where such knowledge is not readily discernable. Second … under Pennsylvania law, "[t]he standard of reasonable diligence is an objective or external one that is the same for all individuals. It is not a subjective one." In other words, Pennsylvania law does not permit the tolling of a statute of limitations on account of an incapacity of the particular plaintiff which allegedly impaired his or her ability to discover the injury or its cause …. Lastly … under Pennsylvania law, the fact that a plaintiff is not aware that the defendant's conduct is wrongful, or legally actionable, is irrelevant. The plaintiff need only know that he or she has been injured and the cause of the injury; once this is known the plaintiff must investigate to determine if the defendant's actions give rise to a legal remedy ….

In our view … it is perfectly clear that this case does not fall within the extremely limited applicability of the Pennsylvania discovery rule. This is simply not a case where the plaintiff, despite the exercise of objectively measured reasonable diligence, could not know of his injury and its cause within the limitations period. [The victim] admits that he knew the abuse was occurring and who was inflicting it, both when it happened and throughout the eight years after the abuse ended and before appellant sued. What he did not know, i.e., that the physical acts allegedly performed on him by [the priest] were "abuse" and were causing psychological harm, is not relevant to a discovery rule analysis …. [The victim] need not have known that what was happening to him was "abuse," i.e., was wrongful, or precisely what type of psychological or emotional harm he would suffer as a result. Once he knew what was happening and who was doing it, he had the duty to investigate these questions and to institute suit within the limitations period. Moreover, the affidavit submitted by [the victim] in opposition to summary judgment … clearly reveals that he was aware, if not that he had been "abused," nevertheless that something very troubling and extraordinary was happening to him. He states that he felt "confused" about what [his priest] was doing to him, thought "something was wrong with me," and "felt guilty and sinful." Clearly, he not only knew all the relevant facts regarding the abuse and the abuser, but he also knew that something was very wrong with the situation in which he found himself ….

The alleged abuse in this case continued for years and only ended when [the victim] was twenty years old. It is beyond comprehension that [the victim] would not or should not have questioned whether his relationship with [the priest] was truly aimed solely at his preparation for the priesthood. In fact, his own affidavit belies such a conclusion, for therein he indicates that he in fact was not completely lulled into a sense of security by [the priest's] assurances. [The victim] did recognize that something was amiss, and although he allegedly blamed himself for these feelings, that alone does not relieve him of the duty to investigate and bring suit within the limitations period.

This case will be a useful precedent in the minority of states that recognize the "discovery" rule exception to the statute of limitations in cases of child sexual molestation. This court found it "beyond comprehension" that a teenager who is sexually molested by a church leader over a period of years would not comprehend "his or her injury and its cause." Accordingly, the statute of limitations begins to run on the minor's 18th birthday, and not at some later date when the victim claims to have "discovered" that he or she was damaged by the prior abuse. (emphasis added)

School Facilities as Open Forums

Court favors religious group previously denied use of a public school building.

Church Law and Tax 1993-01-01 Recent Developments

Freedom of Religion

A federal court in Pennsylvania concluded that a public school board of education had created an “open forum” by allowing community groups to use school facilities, and accordingly it could not deny the same privilege to a group that wanted to use school facilities for religious purposes. A religious group conducted a summer program for economically disadvantaged youth. The program consisted primarily of supervised recreational activities and tutoring in various academic subjects. Children also were provided breakfast and lunch. The religious component of the program consisted of prayer, the singing of hymns, and Bible reading. The registration fee for the entire 6-week program is only $2 per child. For many years, the group received permission to conduct its program in public high school facilities in the Pittsburgh area. In 1991, the board of education for the Pittsburgh school district denied the organization a permit to use public school facilities for its summer religious program. This decision was based entirely on the religious nature of the program. The group asked a court to order the board of education to issue a permit, and the court agreed. The court concluded that the board had created a public forum by making school facilities available to a wide variety of community groups (including many religious organizations). In fact, there was no evidence that the board had ever denied a permit to any organization in the past. The board issues thousands of permits each year to a variety of Christian, Jewish, and Islamic organizations, as well as to many non-religious charitable and community organizations (including the Boy Scouts, Girl Scouts, YMCA, United Way, Camp Fire Girls, and PTA). The court concluded that the school had created an open forum by opening its facilities to community organizations, and that this forum could not be denied to any group solely on the basis of the religious nature of its activities. Further, such a result did not violate the nonestablishment of religion clause of the first amendment since “in establishing its permit regulations, an din granting permits to a wide variety of outside organizations for a multitude of purposes, the board has no religious objective or nonsecular purpose.” Youth Opportunities Unlimited, Inc. v. Board of Public Education, 769 F. Supp. 1346 (W.D. Penn. 1991).

See Also: Use of Public Property for Religious Purposes

Injuries in Church Parking Lots

A woman sued a church after slipping and falling on their icy parking lot.

Church Law and Tax1992-11-01Recent Developments

Taxation – Church Property

A Pennsylvania appeals court ruled that a Catholic church and diocese were not responsible for the injuries sustained by a woman who slipped and fell on an icy church parking lot. The woman, who was attending the church to participate in a bingo game, alleged that the parking lot was covered with a sheet of ice and also 5 inches of new snow. She alleged that the church had been negligent in failing to “implement some remedial measure (placing salt or ashes, warning visitors of the presence of ice, or barricading the icy area),” and accordingly the church was responsible for her injuries. A trial court ruled in favor of the church, and the woman appealed. A state appeals court agreed that the church was not responsible for the woman’s injuries. It observed:

[A]n owner or occupier of land is not liable for general slippery conditions, for to require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere. Snow and ice upon a pavement create merely a transient danger, and the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove it when it is in a dangerous condition …. [I]n order to recover for a fall on an ice or snow covered sidewalk, a plaintiff must prove (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.

The court concluded that the injured woman had failed to satisfy this test, and accordingly the church was not responsible for her injuries. The woman raised another interesting argument on appeal. She claimed that the trial court had improperly refused to exclude from the jury 3 individuals who were members of other churches within the diocese. The woman alleged that these 3 jurors (1) were biased in favor of the church, (2) had a “financial interest” in the outcome of the case, and (3) were subject to “moral intimidation” by the diocese that “nullified their oaths as jurors.” The appeals court concluded that the 3 jurors were not biased. It observed: “Courts in this Commonwealth have long held that a juror is not incompetent merely because he and one of the parties are members of the same religious denomination …. [M]embership in congregations associated with a general religious denomination do not give the jurors a sufficient interest in the outcome of the litigation to render [them biased].” Harmotta v. Bender, 601 A.2d 837 (Pa. Super. 1992).

See Also: Premises Liability | Cases Finding Denominations Not Liable

Related Topics:

Inspection of Church Records

Can a church avoid the inspection of its records by placing them in a “secret archive”?

Can a church avoid inspection of its records in a civil lawsuit by placing them in a location that it designates as a "secret archive"?

No, concluded a Pennsylvania appeals court. A Catholic priest, and his bishop, church, and diocese, were sued on account of the alleged sexual molestation of a minor child by the priest. The victim claimed that the bishop, church, and diocese were legally responsible since they "negligently hired or retained" the priest and assigned him to a church "when they knew or should have known of his pedophilic tendencies."

In preparation for trial, the victim's attorney sought to inspect documents in the possession of the diocese pertaining to the sexual misconduct of priests with male children for the years 1972 through 1987. The victim's attorney also sought to inspect any records pertaining to the priest who allegedly molested him. The diocese refused to disclose any of these documents. It asserted that they were all contained in a secret archive file that was not subject to inspection.

This position was based on Canon 489 of the law of the Roman Catholic Church which states: "There is to be a secret archive … or at least a safe or file in the ordinary archive, completely closed and locked and which cannot be removed from the place" for those documents that are to be "kept and protected most securely." Canon 490 states further that "only the bishop" of the diocese may possess the key to the secret archive and that "documents are not to be removed from the secret archive or safe."

A trial court ordered the diocese to produce for inspection the documents requested by the victim's attorney. The diocese immediately appealed this order, claiming that it violated the first amendment's guaranty of religious freedom. A state appeals court agreed with the trial court, and ordered the diocese to turn over the requested information.

The court began its opinion by observing that a party to a lawsuit has the legal right to "discover" or inspect any document in the possession of another party, so long as the document is relevant to the lawsuit and not privileged. The court concluded that the requested information in this case was clearly relevant to the lawsuit, and not privileged. It acknowledged that Pennsylvania law contains a "priest-penitent privilege," which protects clergy from disclosing in court any confidential communications made to them while acting in their role as a confessor or counselor.

However, the court insisted that "this privilege protects priest-penitent communications; it does not protect information regarding the manner in which a religious institution conducts its affairs or information acquired by a church as a result of independent investigations not involving confidential communications between priest and penitent."

Accordingly, the priest-penitent privilege ordinarily would not apply to a priest's personnel file or records maintained by a diocese regarding incidents of sexual molestation by priests, since this kind of information normally is not obtained in the course of confidential communications with clergy.

The court observed: "Insofar as the canons of the Church are in conflict with the law of the land, the canons must yield. Here, it is the Pennsylvania rules of discovery which are controlling. Merely because canon 489 is controlling in the internal operations of the affairs of the Church does not mean that it permits evidence pertaining to sexual molestation of children by priests to be secreted and shielded from discovery which is otherwise proper."

The court quoted with approval from an earlier decision of the United States Supreme Court: "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."

The court concluded: "We hold … that where the only action required of a religious institution is the disclosure of relevant, non-privileged documents to an adversary in civil litigation, such action, without more, poses no threat of governmental interference with the free exercise of religion. In [this] case there is not one iota of evidence that court ordered discovery will 'chill' the rights of [the church and diocese] in the conduct of their religious affairs or inhibit their parishioners from engaging freely in the practice of their religious beliefs and activities …. [T]he relevant inquiry is not whether the church gives a file a particular name, but whether disclosure of the information requested from that file interferes with the exercise of religious freedom." Hutchison v. Luddy, 606 A.2d 905 (Pa. Super. 1992).

See Also: Inspection

Denominations’ Liability for Injuries Occurring on Church Property

Who is liable when someone is injured on church property?

Church Law and Tax 1992-03-01 Recent Developments

Denominations – Legal Liability

A Pennsylvania court addressed the issue of a denomination’s liability for an injury occurring on an affiliated church’s property. A young child was injured in 1984 when a tombstone fell on her in a cemetery owned by a Lutheran church. The child’s parents sued the Lutheran Church in America (LCA) along with the Central Pennsylvania Synod of the Lutheran Church in America. The parents claimed that the LCA and Synod were legally responsible for the injury since the church that owned the cemetery had closed in 1971 and title to its assets had reverted to the LCA and Synod. As owners of the property, the LCA and Synod were responsible for the child’s injuries on the basis of their “negligent maintenance” of the cemetery. The parents relied on the following paragraph in the LCA Constitution (and a similar paragraph in the Synod Constitution):

A synod may declare a congregation within its jurisdiction defunct if such congregation has disbanded, or it has ceased to maintain religious services according to the tenets and usages of the Lutheran Church, or if its membership has so diminished in numbers of financial strength as to render it impractical for such congregation to fulfill the purposes for which it was organized, or to protect its property from waste and deterioration. In such case, or if a congregation departs from membership in this church without the consent of a convention of the synod, all property of the congregation, real, personal and mixed, shall vest in the synod, its successors or assigns.

The local church that established the cemetery voted in 1971 to merge with another Lutheran church. All of the church’s assets were transferred to the new church. A trial court concluded that the LCA and Synod were not responsible for the child’s injuries, since ownership of the cemetery had passed to the new church rather than to the LCA or Synod. The case was appealed to a state appeals court, which also ruled in favor of the LCA and Synod. The appeals court observed:

In order to predicate liability against the Synod and the LCA, evidence was necessary to show that these two hierarchical church entities had the right to control the manner in which cemetery property was maintained. This required evidence of either (1) an actual transfer of property from the congregation to the hierarchical church body, or (2) clear and unambiguous documentary evidence or conduct on the part of the congregation evincing an intent to create a trust in favor of the hierarchical church body. The claim against the LCA and the Synod is based upon the contention that [the local church] closed its doors and that its assets thereupon passed to the Synod and the LCA. It is based upon the general rule of law that a congregation belonging to a hierarchical membership cannot sever itself from the parent body without forfeiting its assets. However, this rule of law is not without exceptions. Thus, the local congregation and the parent church body may agree that the local church property is to remain subject to ownership and control by the local congregation. The general rule has no application, moreover, where two congregations of the same hierarchical body join by merger. In cases of merger, title to congregational assets passes to the surviving corporation. In the instant case, it is clear that [the local church] did not forfeit title to its assets to the parent bodies. [The two local churches] were joined by merger into one congregation … and title to the assets [of the one local congregation] passed to the surviving congregation.

The court emphasized that the LCA and Synod could not become owners of local church property unless they specifically declared a local church to be defunct. The LCA and Synod never took this step since there was no need to do so in light of the merger of the local churches. The court concluded: “Because [the local church] did not sever its relationship with the Synod or LCA, but merged with another Lutheran church of the same synod, its assets were not forfeited to a parent body but passed to the surviving congregation by merger. It is the surviving body which controlled those assets on the date of the [child’s] unfortunate accident and to which [the parents] must look for damages in the event negligent maintenance of the cemetery is found to be related causally to such injuries.” This case is important for a couple of reasons. First, it indicates the legal effect of a merger. The liabilities of a church that merges with another church can become the liabilities of the new church. This is an important consideration that must be kept in mind when contemplating any merger. Second, it illustrates the potential liability of a religious denomination for the obligations of a local church that has closed. Many denominations have provisions in their constitutions or bylaws specifying that title to a defunct local church reverts to the parent denomination. This case indicates that such provisions may result in liability on the part of the parent denomination for the obligations of the defunct church. While this may not be the case in the event of a merger, church leaders must recognize that mergers are relatively uncommon. It is far more common for a local church to simply close its doors than to merge with another congregation. Denominational leaders need to be aware of the legal liabilities they may be assuming in such cases. A review of denominational constitutions and bylaws would be appropriate. This case suggests that this liability can be avoided if the reversion of a defunct church’s property to a denomination is conditioned on some act by the denomination (such as a formal declaration or ruling that the local church is defunct, as was required by the LCA Constitution). Kelly v. Lutheran Church in America, 589 A.2d 1155 (Pa. Super. 1991).

See Clergy—removal, McElroy v. Guilfoyle, 589 A.2d 1082 (N.J. Super. 1990).

See Also: Denominational Liability

Child Custody and Religious Beliefs

Can a court remove children from a parent on the basis of the parent’s religious beliefs?

Did a trial court abuse its discretion in removing 2 children from the custody of their father because of his conservative religious beliefs? Yes, concluded a Pennsylvania state appeals court. A couple was divorced, and primary custody of their minor children was awarded to the father. Following the divorce, the mother began living with a new boyfriend (the two were not married), while the husband continued to live in the traditional family home and enrolled the children in a fundamentalist Christian school. Three years later, the mother asked the court to award primary custody of the two children to her. She based her request largely on the father's fundamentalist religious beliefs and his insistence that the children attend a church-operated school. The trial court agreed with the mother's request, and ordered the children removed from their father's home and transferred to their mother. The trial court found no "fault" with the father's raising of the children except for his religious beliefs. It observed:

On the surface this seems like an ideal adaptation under the circumstances but it is the degree to which the father has pursued "life in the Lord" that has deprived the children of social and educational opportunities and has presented them with a singleminded approach to life that is very restricted in view and allows for no spontaneity, artistic expression or individual development of rationale or logic or even just pursuit of ordinary curiosity. These children are being raised in a sterile world with very rigid precepts, with no allowance for difference of opinion, and no greater breadth than the doctrinaire limits of the religious beliefs.

The father appealed the court's decision, and a state appeals court ruled in favor of the father. The court found "no evidence" to support the trial court's decision. To the contrary, "the testimony indicates that [the father] has not pursued religion at the expense of neglecting his children …. He has played an active role in the children's educational, recreational and spiritual lives. [Further], the children are well mannered, affectionate toward each other, happy, responsible and well adjusted. This is not the case of a parent engulfing his life in religious pursuits and abandoning his children." The court also rejected the trial court's conclusion that the children's education at a fundamentalist Christian school was deficient. It noted that the school curriculum "covers the core educational subjects as well as a full course in Christian non-denominational religious education" and that "teachers are graduates of religious affiliated colleges." It concluded that "there is no evidence that would support the trial court's belief that the children have been deprived of social and educational opportunities and have been restricted in artistic expression or individual development of logic because of their attending a religious school." Further, there was "no basis for the trial court's belief that the childrens' horizons would be broadened by removing them from the 'sterile' environment of a religiously oriented school." Accordingly, the appeals court reversed the trial court's decision, and ordered the children to remain with their father. Stolarick v. Novak, 584 A.2d 1034 (Pa. Super. 1991).

Churches’ Liabilities for Minors’ Drowning Deaths

A court found a seminary legally responsible for a boy’s death.

Church Law and Tax 1991-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

A Pennsylvania state appeals court ruled that a seminary was responsible for the drowning death of a 12-year-old boy. The victim was swimming with a group of altar boys from a Catholic church at a seminary-owned pool. The victim’s mother sued the seminary, alleging that it had been negligent in allowing the boys to use the pool without a qualified lifeguard on duty. At the time of the drowning, the pool was under the supervision of a priest. The jury concluded that both the seminary and church were negligent, and it awarded more than $1 million in damages. The seminary appealed, and a state appeals court upheld the jury’s award. The court observed that “it is clear that [the evidence] was sufficient to support the jury’s finding that the seminary had breached a duty owed to the minor decedent. The seminary, as owner of the pool, had a duty to exercise those precautions which a reasonably prudent owner would have taken to prevent injury to those persons whom it knew or should have known were using the pool …. A jury could have found, in view of the evidence, that the seminary knew or should have known that its pool was being used by children and that it failed to exercise reasonable care to prevent injury to them.” The court further observed that “it was for the jury to determine whether the seminary had been negligent in failing to take reasonable precautions to prevent access to its pool when a competent lifeguard was not present and whether the seminary could reasonably rely upon [the priest] to supervise the activities of the boys while they were using the pool.” This case illustrates the important principle that churches and religious organizations may be liable for negligent supervision if they do not have an adequate number of trained adults supervising a youth activity. The mere presence of adult supervision will not be enough in some cases. Those adults must in fact be qualified to supervise the activity in question and to respond to emergencies that may occur. Rivera v. Philadelphia Theological Seminary, 580 A.2d 1341 (Pa. Super. 1990).

Negligent Supervision

Counseling and the Clergy-Penitent Privilege

When are communications protected?

Church Law and Tax 1991-05-01 Recent Developments

Confidential and Privileged Communications

A Pennsylvania state appeals court ruled that statements made by a murder suspect to a minister were not “privileged” since they were not made to the minister while acting in his professional role as a spiritual adviser. The facts of the case are tragic. In 1966, a 10-year-old girl and her 6-year-old friend were playing by a creek near their homes. A man approached the children, and asked them to help him “catch minnows” around a bend in the stream. He offered them chewing gum if they would accompany him. The 6-year-old declined the invitation, but the 10-year-old girl went with the man. A search for the girl was launched when she failed to return home for lunch. Her body was discovered, with her throat slashed, behind some bushes a few hundred yards from where the children had been playing. A small, plastic “sheriff’s badge” was found under her body. An intensive search was conducted, and several suspects were questioned, but no arrests were made. Twenty-two years later, a man was arrested in the same community for indecent exposure. The court appointed a local minister to counsel with the individual. While he was not an active member of the minister’s church, he and his wife occasionally attended services at the church. During a counseling session, the individual informed the minister that he was guilty of the murder of the girl 22 years before, and he asked the minister to accompany him to the police station where he stated he would confess to the crime. The minister also noticed that the individual had a plastic sheriff’s badge in his pocket. Largely on the basis of this new evidence, a murder prosecution was commenced and the individual was convicted of first degree murder. The murderer appealed his conviction on the ground that the statements he had made to the minister were protected by the clergy-penitent privilege, and accordingly should not have been introduced in evidence during the trial. A state appeals court rejected this claim, and upheld the murder conviction. The court began its opinion by noting that Pennsylvania law provides that “no clergyman … who while in the course of his duties has acquired information from any person, secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any governmental unit.” The court concluded that this statute did not apply in this case, since “the circumstances in which the statements were made were not religious, in that nothing spiritual or in the nature of forgiveness ever was discussed.” The court emphasized that “our legislature did not intend a per se privilege for any communication to a clergyman based on his status. We therefor look to the circumstances to determine whether [the murderer’s] statements were made in secrecy and confidence to a clergyman in the course of his duties.” The court noted that the minister had been appointed by the court to counsel with the murderer concerning his indecent exposure conviction, and that it was the minister who sought out the murderer. The court observed: “[The murderer] never sought [the minister] in a confessional role; further, there was no evidence that [the minister] was acting in any capacity other than that of counselor. Thus, the statements were not motivated by religious considerations or in order to seek the forgiveness of God. Accordingly, they were not made to [the minister] in the course of his duties as a minister. Instead, they were made because he was a court-appointed counselor. Further, [the murderer] never was a member of the church. Under these circumstances, we conclude that the fact that [the minister] is ordained was not relevant to [the murderer’s] statements to him and there is no basis to conclude that his statements were made confidentially or for religious, penitent purposes.” Accordingly, the clergy-penitent privilege did not apply, and the minister could testify regarding the murderer’s confession. Further, the court stressed that “we categorically reject the allegation that this privilege extends to openly-displayed objects, as was the toy sheriff’s badge.” This case illustrates two important principles. First, the clergy-penitent privilege generally extends only to those confidential statements that are communicated to a minister while acting in his or her professional capacity as a spiritual adviser. Second, the privilege ordinarily does not extend to observations made by a minister during the course of counseling. Commonwealth v. Patterson, 572 A.2d 1258 (Pa. Super. 1990).

Was the Minister Acting in a Professional Capacity?

Religious Organizations Must Pay Taxes

Court rules that organizations must pay, even if doing so violates their religious tenets.

Church Law and Tax 1991-05-01 Recent Developments

Freedom of Religion

A federal district court in Pennsylvania ruled that the IRS has the authority to compel a religious organization to collect and pay over to the government the unpaid federal taxes of an employee even if doing so violates the religious tenets of the organization and its employees. The “Yearly Meeting of the Society of Friends” was established in 1681 by William Penn. It presently includes some 13,000 members and 100 congregations in Pennsylvania, New Jersey, Delaware, and Maryland. The Yearly Meeting has about 45 full-time employees. In 1985 and 1986, the IRS served the Yearly Meeting with “notices of levy” against the salary of two employees who had not paid all of their federal taxes. A “levy” is an order directed at an employer that requires it to satisfy an employee’s unpaid taxes by withholding funds from his or her salary. The Yearly Meeting refused to honor the two levies, informing the IRS that the two employees were “deeply religious and conscientiously motivated individuals who feel they cannot pay the military portion of their taxes without violating the central tenets of their religious faith.” The Yearly Meeting further informed the IRS that it was its policy “not to coerce or violate the consciences of such persons, or to act as agents for those who do. We therefore advise you that we cannot honor the levy you have served.” The IRS sought a court order compelling the Yearly Meeting to collect the unpaid taxes out of the employees’ wages. It also asked the court to assess a penalty (in the amount of 50% of the uncollected taxes) against the Yearly Meeting on the basis of section 6332(c)(2) of the Internal Revenue Code. The Yearly Meeting defended its actions on the basis of the first amendment’s guaranty of religious freedom. It asserted that enforcement of the levy would deny the Yearly Meeting’s free exercise of religion because it is a fundamental tenet of the Yearly Meeting to respect the conscientious actions of its members. The Yearly Meeting further asserted that the government is constitutionally required to accommodate the religious principles of the Society of Friends by finding another way to collect delinquent taxes from Yearly Meeting employees who are “religious pacifists.” The court rejected the Yearly Meeting’s arguments, claiming that a 1990 decision of the United States Supreme Court (Employment Division v. Smith—discussed in the September-October 1990 issue of this newsletter) left it no choice. The court pointed out that prior to the Smith case, persons whose religious beliefs were burdened by a government practice were entitled to an exemption from that practice unless the exemption frustrated a “compelling state interest.” The Supreme Court in the Smith case repudiated this approach to resolving first amendment claims. It observed that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” The Supreme Court concluded that claims for religious exemption from criminal prohibitions should not be evaluated under any “balancing test” requiring an inquiry into the existence of a compelling state interest, since “the government’s ability to enforce generally applicable prohibitions of socially harmful conduct … cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” On the basis of this language, the federal district court concluded that it had no option but to reject the Yearly Meeting’s claim of first amendment protection. However, the court refused to assess the 50% penalty against the Yearly Meeting, as the IRS had insisted. The court pointed out that the Yearly Meeting’s refusal to honor the initial IRS demand occurred prior to the Smith case. At that time, the refusal to honor the IRS demand was based upon a reasonable interpretation of the first amendment, and so no penalty could be assessed. The court cautioned that the penalty would apply to any future (post-Smith) refusals to comply with IRS demands. The court clearly was frustrated by its inability to assist the Yearly Meeting. It concluded: “It is ironic that here in Pennsylvania, the woods to which Penn led the Religious Freedom Society of Friends to enjoy the blessings of religious liberty, neither the Constitution nor its Bill of Rights protects the policy of that Society not to coerce or violate the consciences of its employees and members with respect to their religious principles, or to act as an agent for our government in doing so.” But, “unless we wish anarchy to prevail within the federal judicial system, a precedent of the Supreme Court must be followed by lower federal courts no matter how misguided the judges of those courts think it to be.” There is no doubt that the Smith case was a serious blow to religious freedom. It has generated considerable opposition, and attempts are underway in Congress and in some state legislatures, to limit its effect. Hopefully, these activities will persuade the Supreme Court to re-evaluate and repudiate its Smith decision. United States v. Philadelphia Yearly Meeting of the Religious Society of Friends, 91-1 U.S.T.C. ¶ 50,042 (E.D. Pa. 1990).

The Free Exercise Clause

Injuries Sustained on Church Property

A court ruled that a member of an unincorporated church could not sue.

Church Law and Tax 1991-03-01 Recent Developments

Unincorporated Churches

A Pennsylvania court ruled that a member of an unincorporated church cannot sue the church for injuries sustained on church property. A church member was injured when she slipped and fell while leaving Christmas services. She sued her church, alleging that the church board had been negligent in failing to provide adequate lighting, handrails, and stripes on the stairs where the accident occurred. In dismissing the lawsuit, the court observed: “The law in Pennsylvania is clear: the members of an unincorporated association are engaged in a joint enterprise, and the negligence of each member in the prosecution of that enterprise is imputable to each and every other member, so that the member who has suffered damages through the tortious conduct of another member of the association may not recover from the association for such damages.” The court concluded that the victim “was a member of the association and thus any negligence of her fellow members is imputed to her and she cannot recover in tort …. [The victim] was a member of the church, an unincorporated association, at all times material to this case. As a member of the association … the decision not to place a handrail, lights, and stripes on the stairway is attributed to her. She cannot recover in tort because any negligence of the board is attributable to her.” What is the significance of this case? It illustrates that members of unincorporated churches may not be able to sue their church for injuries they sustain on church property or during church activities. Zehner v. Wilkinson Memorial United Methodist Church, 581 A.2d 1388 (Pa. Super. 1990).

Employee Evaluations and Dismissal

Positive evaluations can be used to support claims of wrongful dismissal.

Church Law and Tax 1991-03-01 Recent Developments

Employee Relations

A Pennsylvania court ruling illustrates how employee evaluations can be used by fired employees to support their claims of unlawful dismissal. A Jewish employee was fired from his management job after he began objecting to a company newsletter that contained religious materials, and to Bible verses printed on payroll checks. The employer claimed that the dismissal was based on the employee’s inconsistent job performance and poor attitude. The dismissed employee sued his former employer, claiming that his dismissal violated state law prohibiting religious discrimination in employment. The employer insisted that the dismissal was caused by non-religious considerations including poor job performance and attitude. In ruling in favor of the former employee, the court observed that prior to the time when the employee first complained about the Bible verses printed on his paychecks, he “was consistently given the highest possible ratings for job performance on company performance evaluations. [He] maintained these high ratings until the last two months of his employment.” To illustrate, in a job evaluation completed just two months prior to the employee’s dismissal, the employer indicated that the employee “does an excellent job, is always here when needed. Good work on phone, knows his responsibilities and performs them well.” This evaluation persuaded the court that the employee had been terminated because of his objections to his employer’s religious practices, and was not based on inadequate work or poor attitude. This case illustrates a very important principle—employee evaluations are a very important personnel practice, but they must be done objectively. It is all too common for employers to “take the path of least resistance” and award “inflated” marks to employees with significant job-related problems. As this case indicates, such a practice can lead to undesirable legal consequences in the long run. Brown Transport Corp. v. Commonwealth of Pennsylvania, 578 A.2d 555 (Pa. Common. 1990).

Religion and Child Custody

What control do courts have over a child’s religious upbringing?

Does a court have the authority to prohibit a father from taking his children to religious services contrary to their mother's faith?

No, concluded a Pennsylvania state court. The mother was a devout Jew, and the father a nonpracticing Catholic. Throughout ten years of marriage, the couple regularly attended Jewish religious services, and raised their three children in the Jewish faith.

The divorce decree prohibited the father from taking the children to any religious services that were not Jewish. The father challenged this order, since he wanted to reserve the right to take his children to Catholic services on occasion. The mother defended the order on the ground that allowing the father to take the children to non-Jewish religious services would confuse and damage the children.

She also pointed out that she was a devout adherent of the Jewish faith, while the father was a nonpracticing Catholic. A state appeals court ruled in favor of the father. It concluded that it was inappropriate for the trial court to prohibit the father from taking the children to Catholic services while he had custody of them.

The court observed that

"the vast majority of courts … have concluded that each parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all periods of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in the absence of the proposed restrictions."

The court adopted this view as the law of Pennsylvania. The court stressed that a "substantial threat of harm" did not include "the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to contradictory religions." It also concluded that a court could not take into account the "devoutness" of the respective parents in making a decision regarding religious upbringing.

The court lamented that modern child custody cases "are far more difficult than the one which taxed King Solomon's great wisdom. King Solomon was faced with the difficult task of determining the child's true mother from the false claimant. Modern courts, on the other hand, are faced with a more agonizing choice between two claimants whose assertions of parentage are both unquestionably true." Zummo v. Zummo, 574 A.2d 1130 (Pa. Super. 1990).

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