Beverly Hall Corp. v. Unemployment Compensation Board of Review
Beverly Hall Corp. v. Unemployment Compensation Board of Review
Opinion of the Court
OPINION BY
Beverly Hall Corporation (Employer or BHC) petitions for review of an order of the Unemployment Compensation Board of Review (Board) overturning the Referee’s denial of unemployment compensation benefits due to the Board’s finding that BHC is not operated primarily for religious purposes and, therefore, that Denise L. Amos (Claimant) was not ineligible for benefits under Section 404(Z )(4)(8)(a)(ii) of the Unemployment Compensation Law (Law).
I.
Claimant was employed as the manager of the Beatrice Franklin Biodynamic Farm (Farm) until May 2013. Following her separation, she filed a claim for benefits which the Unemployment Compensation Service Center (Service Center) denied, finding that Claimant failed to establish her financial eligibility for benefits under Section 404 of the Law, 43 P.S. § 753.
II.
At the hearing before the Referee,
In support of her appeal, Claimant testified that she was employed by BHC as the Farm manager, through which she oversaw Farm operations and employees. She stated that although BHC was associated with the Church of Illumination (Church) at which members of the Rosicrucian Fraternity (Fraternity) worship, none of her job responsibilities were related to the Fraternity and she never believed that she was working for the Church. She explained that although she became a member of the Fraternity in 2009 or 2010, not all BHC employees are members. She described the Farm as a one-acre property on which she maintained organic vegetable gardens for a community-supported agriculture (CSA) program and raised chickens. Specifically, she explained, “We grew vegetables, and people would purchase a share, and we would supply them with their vegetables every Friday, when possible.” (Reproduced Record [R.R.] at 16a.) She stated that members of the CSA, comprised of both non-members and members of the Fraternity, prepaid for and received weekly shares of the Farm’s produce, with the remaining produce as well as the eggs being sold to the public and the proceeds going to BHC.
On cross-examination, Claimant conceded that pursuant to the request of William Kracht, D.O. (Dr. Kracht), the Fraternity’s Supreme Grandmaster and the Church’s Director, the Farm employed the biodynamic farming method, meaning that its produce was grown organically and without pesticides. She acknowledged that as a member of the Fraternity, she read lessons and met with Dr. Kracht, personally, but she denied the existence of any religious tenant requiring a Rosicrucian to eat only organically produced food. She also agreed that the proceeds generated by the Farm were provided to BHC and stated that her records showed that the Farm operated at a profit. Nonetheless, she admitted that she would not be surprised to learn that BHC lost tens of thousands of dollars from the Farm.
Claimant also presented the testimony of Dr. Kracht, as if on cross-examination. Dr. Kracht described the BHC as “the organization that does the — all of the -non-theological work of the [C]hurch” and as “the entity that runs the logistics of the [C]hurch” by “maintaining the grounds, the buildings, [and] hiring the personnel needed to perform the [CJhurch functions.” {Id. at 4a.) He stated that members of the Church may attend any other church and need not be members of the Fraternity, but that members of Fraternity are, by necessity, members of the Church. He described the religious tenants of the Church and Fraternity as requiring “full attention to all parts of our being: the health and purity of our body, the reason and advancement of our mind, and the spirituality of our soul.” (R.R. at 35a.)
Dr. Kracht conceded that Claimant’s paychecks were issued by BHC without reference to the Church and that BHC has had numerous employees who were not Fraternity members. Still, he insisted that the Farm and the CSA existed for a religious purpose. Regarding the excess vegetables, he explained that they were sold at a farm stand in exchange for a donation to the BHC which “owned the farm and ran the farm and took the expenses and the risks of the farm.” (Id. at 40a.).
On direct examination, Dr. Kracht stated that BHC’s Board of Directors is composed of nine voting members and two or three non-voting members, all of whom are elected annually by the Church’s public members. He described the religious mission of the Farm:
The Fraternity and the Church of Illumination ha[ve], since [their] beginning^], emphasized the importance of the purity of the body as it relates to the growth and advancement of the soul. As that was alluded to earlier in the— one of the meanings of the size of the pyramid. We are taught in Corinthians, in the New Testament, that we are the temples of the living God, and we are not to defile that temple, and the [C]hurch takes that quite seriously and to heart.... With the essence that the body is the temple of the soul and the God within us, the tenants of the [C]hurch [are] to (inaudible), to the best of one’s ability, toxins, chemicals, and poisons that could affect the health and the health of the body, which is our spiritual temple. It has advocated organic foods since Dr. Clymer’s books in the early 1900s and 1920s.
Due to the increasing complexity of the ability to find what we consider to be organic, non-chemical, pesticide-free, spiritual food, for our temple, in 2009, Beverly Hall Corporation [B]oard agreed to start a biodynamic — Beatrice Franklin Biodynamic Farm.
(Id. at 44a-45a.)
Dr. Kracht further explained that the Farm endeavors to provide Church members pure foods to assist them in adhering to the Church’s tenants and to aid those in the community regardless of their religion. He stated that the Farm is not profitable and that since its start, BHC has provided approximately $200,000.00 in subsidies. Additionally, he testified that the Internal Revenue Service (IRS) made a determination in 1971 that BHC constituted a “church,” and that since that time, the Commonwealth of Pennsylvania re-approved and recertified its non-profit status.
During the hearing, both Claimant and Employer objected to the Referee’s rulings which precluded them from introducing documents that were not submitted five days in advance of the hearing when the Department did not consent to their use. (Id. at 14a-15a.)
Based on the testimony presented at the hearing, the Referee affirmed the Service Center’s determination that Claimant was ineligible for benefits under Section 404(Z )(4)(8)(a)(ii) of the Law, 43 P.S. § 753(i )(4)(8)(a)(ii), finding that she was employed by BHC, which is operated primarily for religious purposes because: (1)
Claimant appealed to the Board, arguing that BHC is not operated primarily for religious purposes and that the Referee erred in excluding Claimant’s and Employer’s documents from evidence at the hearing. Emphasizing that “BHC is the business arm of the [Fraternity] for purposes of paying and managing employees to maintain religious properties used to practice that religion” and that “[t]he purpose of the BHC is to manage the financial and personnel aspects of the [CJhurch’s operations,” the Board reversed, finding that Claimant was not ineligible for benefits pursuant to Section 404(i )(4)(8)(a)(ii) of the Law, 48 P.S. § 758(1 )(4)(8)(a)(ii).
III.
A.
Employer initially contends that the Board erred in affirming the Referee’s
A review of the record belies this argument. Indeed, every hearing notice that was sent to the parties indicated in bold print that the Department’s agent would be participating by telephone. This notation appears on the last page of the notice below the heading “ADDITIONAL INTERESTED PARTIES AND REPRESENTATIVES,” under which each party is listed as is the means by which each party will participate. Further, it is not surprising that the 'notices of continuation did not advise the parties that the Department would participate telephonically, since those notices did not establish a date or time for the rescheduled hearings but merely cancelled the prior hearings. Because each and every notice of hearing clearly indicated that the Department’s agent intended to participate by telephone, Employer had more than sufficient notice of the same, regardless of whether it or. other counsel read the notices carefully or had experienced such a hearing during their practice. Although 34 Pa.Code § 101.131(h) enabled the Referee to admit the documents even though they were not provided in compliance with 34 Pa.Code § 101.130(e) if consent was given by all parties, the Department objected to the introduction of this evidence and, therefore, the Referee was required to exclude the- documents from consideration. As such, the Board did not err in affirming the Referee’s exclusion of the evidence.
b:
Next, Employer argues that Claimant failed to satisfy her burden of establishing that BHC is not operated primarily for religious purposes.
Conversely, Claimant relies upon Imani Christian Academy v. Unemployment Compensation Board of Review, 42 A.3d 1171 (Pa.Cmwlth. 2012) and Grau v. Unemployment Compensation Board of Review, 2012 WL 8668282 (Pa.Cmwlth., No. 298 C.D.2012, filed August 13, 2012), to bolster her argument that the Board’s finding is supported by substantial evidence. In Im-ani Christian Academy, we affirmed the Board’s determination that an employer did not operate primarily for religious purposes. 42 A.3d at 1175-76. Unlike in Livny, in Imani, we noted that the record before the Referee included “little evidence of the extent to which the religious underpinnings pervade the curriculum.” Id.
Further, in Grau, an unreported and non-binding opinion, we held that the Board’s conclusion that a non-profit corporation operated primarily for religious purposes was unsupported by substantial evidence when the corporation’s primary function was “providing financial support to the Church through the investment and management of its endowment” because “[a] nonprofit corporation responsible solely for managing the administration and finances of a religious organization is not ‘operated primarily for religious purposes.’” Grau, 2012 WL 8668282, at *2 (Pa.Cmwlth., No. 298 C.D.2012, filed August 13,. 2012) (internal citation omitted).
In this case, the pertinent inquiry is whether BHC, Claimant’s purported Employer, operated primarily for religious purposes. To this extent, Dr. Kracht testified that BHC is “the entity that runs the logistics of the [C]hurch” by “maintaining the grounds, the buildings, [and] hiring the personnel needed to perform the [C]hurch functions.” (R.R. at 4a.) In other words, as he described, BHC does the Church’s non-theological work. Membership in the Church is not a prerequisite for employment with BHC, even though the Church’s members select BHC’s Board of Directors and even though the IRS determined that BHC was a “church.”
Unlike in Livny,
Accordingly, because substantial evidence supports the finding that BHC is not operated primarily for religious purposes, the Board’s decision that Claimant is not ineligible for benefits pursuant to Section 404(i )(4)(8)(a)(ii) of the Law is affirmed.
ORDER
AND NOW, this 15th day of December, 2014, the order of the Unemployment Compensation Board of Review dated March 7, 2014, at No. B-561448, is affirmed.
. Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-914. Section 404(Z )(4)(8)(a)(ii) of the Law excludes from the definition of "employment” "[s]er-vice performed in the employ of ... (ii) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or convention or association of churches.” 43 P.S. § 753(Z )(4)(8)(a)(ii), declared unconstitutional in part by Christian School Association of Greater Harrisburg v. Department of Labor & Industry, 55 Pa.Cmwlth. 555, 423 A.2d 1340, 1347 (1980) (en banc).
. The notice of hearing advised all parties, “If you have documents to be entered or testified from at this hearing, you must submit them to the Referee Office listed above at least five (5) days BEFORE THE HEARING.” (Certified Record [C.R.] Notice of Hearing (Sept. 11, 2013), at 1.) It further stated, "If you wish to testify from a document at a telephone hear
. Specifically, when asked if he would consent to the introduction of the documents, Mr. Ostrowski stated, "I never had to be called before. I would rather the documents be on record. I would rather have copies of them in front of me, just to cover myself.” (R.R. at 16a.).
. Subsequently, the Office of Unemployment Compensation Tax Services requested that the Board reconsider its decision and affirm the Referee, contending that BHC does, in fact, operate primarily for religious purposes. The Board denied this request.
. The Department's regulations provide:
§ 101.130. Notice of testimony by telephone and use of documents.
(a) When testimony is to be taken, the tribunal will mail the notice of hearing to the parties.... The hearing notice will indicate:
(2) The names of counsel, authorized agent, parties and witnesses, if known, who are scheduled to appear or testify by telephone.
(3) The deadline by which the tribunal is to receive documents, if any, from all parties.
* * *
(e) When any testimony will be given from or with the aid of a document not previously distributed to the parties by the tribunal, the party expecting to introduce the document shall deliver it to the tribunal, and the tribunal shall distribute it to each other party and, if known, counsel or authorized agent before or at the beginning of the testimony. The tribunal may require that the documents be delivered up to 5 days in advance of the hearing.
34 Pa.Code § 101.130(a)(2),(3), (e); see also 34 Pa.Code § 101.131(h) ("A document not provided as required by § 101.130(e) ... may not be admitted nor testimony given or taken from it unless consent has been requested from and given by all parties. Testimony taken or given in violation of this subsection will be excluded from consideration, as will the document.”).
.Our review is limited to determining whether the Board’s findings of fact are supported by substantial evidence, whether errors of law were committed, or whether agency procedure or constitutional rights were violated. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 633 A.2d 1150, 1153 (1993). We have defined "substantial evidence” as such "relevant evidence that a reasonable mind might consider adequate to support a conclusion.” Palladino v. Unemployment Compensation Board of Review, 81 A.3d 1096, 1100 n. 3 (Pa.Cmwlth. 2013), appeal denied, - Pa. -, 95 A.3d 278 (2014).
. The hearing was initially scheduled for August 29, 2013, with all parties attending in person except for the Department, whose agent would attend by telephone. The hearing notice also indicated that Employer's attorney would attend in person. A subsequent notice of continuance was sent, advising the parties that the hearing would be rescheduled to a later date. After that, a second notice of hearing advised the parties that the matter was rescheduled to September 17, 2013, and again indicated that all parties would attend in person, except for the Department’s agent. In that notice, the “in person” designation below Employer's attorney’s name was removed. Following another notice of continuance, the hearing was again rescheduled to September 25, 2013, and the third notice of hearing indicated that Claimant, Employer and Employer’s attorney would attend in person, with the Department’s agent attending telephonically.
. At the outset, we note that courts do not apply the second prong of Section 404(Z )(4)(8)(a)(ii)’s test requiring an organization to be "operated, supervised, controlled or principally supported by a church or convention or association of churches,” as that prong has been declared unconstitutional. Christian School Association of Greater Harrisburg v. Department of Labor & Industry, 55 Pa.Cmwlth. 555, 423 A.2d 1340, 1347 (1980) (en banc). Therefore, our inquiry is limited to the first prong. See Imani Christian Academy v. Unemployment Compensation Board of Review, 42 A.3d 1171, 1174-75 (Pa.Cmwlth. 2012).
. Notably, in Livny, we addressed whether substantial evidence supported the Board’s finding that a school was operated primarily for religious purposes. That inquiry differs from the present one, in which we must determine if substantial evidence supports the opposite conclusion.
. Employer also contends that the doctrine of res judicata bars a determination that BHC does not operate primarily for religious purposes because this Court previously ruled that BHC is an organization operated primarily for religious purposes in Poesnecker v. Ricchio, 158 Pa.Cmwlth. 459, 631 A.2d 1097 (1993), appeal denied, 538 Pa. 651, 647 A.2d 905 (1994), cert. denied, 513 U.S. 1079, 115 S.Ct. 727, 130 L.Ed.2d 632 (1995). Res judi-cata does not apply, however, because Employer has failed to demonstrate that Claimant was in privity with any party to the prior action. See J.S. v. Bethlehem Area School District, 794 A.2d 936, 939 (Pa.Cmwlth. 2002), appeal denied, 572 Pa. 760, 818 A.2d 506 (2003). Even if the doctrine did apply, it would not bar the present litigation because it did not rule upon BHC’s primary function.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.