*1 2d 1141 557 A. High Sсhool, v. Com- Petitioner Pennsylvania, Unemployment Com-
monwealth Respondent. pensation Review, Board of 8, 1989, before President Argued February Judge Crumlish, Craig, Doyle, Barry, Judges Col- Jr., *2 McGinley and Smith. ins, Murren,
Maura K. Ball, her, Quinlan, Philip J. Connell, Murren & Skelly, for petitioner.
No for appearance respondent. Parrish, K. Michael Kuskoski, W. interve- John nor.
Opinion by 21, McGinley, 1989: April Judge School Bishop High (Bishop Carroll) appeals from decision of the Unemployment Compensation Board of Review (Board) granting com- benefits to W. pensation Kuskoski We (Kuskoski). John reverse.
Kuskoski was a teacher at biology Carroll for 6 1/4 to his years 10, prior discharge November 1987. The contract which he entered into on June stated that terms and conditions of “[t]he are employment those in the stipulated agreement 10-27-86 signed be- tween the Diocese of and the Al- Altoona-Johnstown Catholic School Teachers’ association.” toona-Johnstown of that stated that agreement “Subject preamble Church, the laws shall maintain the Ordinary sole to dismiss teacher for serious or prerogative public scandal, or teach- of official immorality, public rejection doctrine, laws the Roman Church.” Catholic ing, had this Kuskoski been given copy preamble. In late Kuskoski advisеd the September Carroll that he was with a principal cohabiting married, divorced woman to whom he was not and whose had not been annulled. The marriage prior principal advised Kuskoski that his behavior violated the terms of contract. Kuskoski was advised that he employment be if he continued to would cohabit outside of discharged Kuskoski, in an to avoid marriage. attempt discharge, in a сivil woman proposed marry ceremony, pursue an annulment the woman’s earlier and then marriage, be married in a Catholic Church. The advised principal *3 Kuskoski that Church that the woman’s teachings require be annulled before she could be married marriage prior and that Kuskoski’s to her without an again, marriage annulment also violate Church would teachings would constitute for Kuskoski was grounds discharge. tо consider and he chose options given opportunity to cohabit outside of He was dis marriage. continue on November 1987.1 charged Kuskoski for applied unemployment The Office of de benefits. Security (OES) Employm'ent nied the and Kuskoski filed an application appeal The the referee. referee affirmed the before hearing denial of benefits to Section of the Unem 402(e) pursuant Law, 43 ES. Kuskoski §802(e).2 ployment Compensation 12,1987, Claimant married the On Dec. woman whom he living. marriage by had been was a Methodist minis- performed ter. Sess., 5, 1936, (1937)2897, Act of December Second Ex. EL. as amended. Board,
filed an with which reversed the deci appeal sion the referee benefits. The Board granted that determined Carroll failed to that Bishop prove Kuskoski’s action constituted willful Bish misconduct.3 Carroll the within Petition for op brought Review. Carroll that the Board contends erred con-
Bishop Carroll failed that cluding Kuskoski’s Bishop prove conduct constituted willful misconduct. Carroll Bishop further contends that Kuskoski did not have cause good for this conduct. also Bishop Carroll contends Board’s decision violates Carroll’s first amend- Bishop ment tax rights by burdensome imposing religion. Kuskoski claims that response, his constitutional would be violated a denial of privacy by benefits.
Our is scope review limited to determination of whether are facts substantial necessary supported evidence, committed, whether an error was of law whether constitutional have any been violated. rights Kirkwood Board Re Unemployment Compensation view, 106 Pa. Ct. 2d 841 Commonwealth A. (1987). that Kuskoski’s consti- argues conduct willful misconduct he because
tuted specifically warned if he continued to live outside of matrimony with a divorced he woman would be discharged, because he continued his knowingly prohibited conduct. Carroll further contends that Kuskoski have cause good for his actions.
Willful has misconduct been defined as a disregard by interests, an of the a employee employer’s deliberate rules, of the a disregard оr of the employer’s disregard of standards that an behavior has a right to employer Furmento v. expect Unemployment employee. 3 (It a 2-1 decision.)
306 Review, Board Pa. A. 2d 631 466 351
Compensation sub charges case judice, (1976). a rule. The burden Kuskoski with violated work having is cases well-established. violation rule proof that an The bears the burden of proving employer for willful misconduct was discharged employee benе- so as render the for employee ineligible . is based fits. . . Where the willful misconduct rule or a of an employer policy, violation upon of the rule must establish existence employer it. was aware of the employee or policy Review, Board Compensation Sauer Unemployment 107-08, A.2d 1176 Pa. Ct. Commonwealth show- Willful misconduct be established may (1987). and reasonable violation of known deliberate ing rule. Williams v. Unemployment Compensation company Review, Pa. Ct. Board of Commonwealth A.2d 88 (1987). Kus- Carroll informed found Board discharge grounds his conduct constituted
koski contract, aas rejec- the terms of his under employment and laws of the doctrine teaching, tion of official whether Before we can decide Catholic Church. Roman consti- changes lifestyle failure to effect Kuskоski’s misconduct, however, tuted willful the reasonableness we must evaluate not only circumstances, under the the employer’s request for noncompli- reason but also employee’s behavior was justifiable ance. If the employee’s circumstances, be cannot reasonable under the words, if In other willful misconduct. considered action, cause’ for the employee’s there was good of willful misconduct. he cannot be deemed guilty in- case In an misconduct, the em- willful charge volving *5 bears the burden of ployer proving charge. But, if the claimant seeks to justify behavior issue, reasonable, or to show that it was he must bear the burden in that proof respect. (Cita- tions omitted.) Simpson Unemployment Compensation Board Re
view,
120, 126,
69 Pa. Commonwealth Ct.
305,
450 A. 2d
denied,
cert.
In both Thomas the unemployment claimant’s conditions of employment had been after changed by employer already claimant hаd commenced Each working. claimant believed that of his her or practice him permit
4 Kuskoski asks this view Court to him as having been forced to choose between employment and marriage, instead of between em- cohabitation, ployment and because Bishop rejected his proposal marry the woman with cohabiting. whom he was We violated, decline any rights to do so. If were right was’not his chose, marry whomever he but rather alleged privacy live with someone outside of matrimony. duties,5 claimant was the new each
her to perform terminated, from, his or or voluntarily either discharged based on unwillingness her perform employment U. S. held in both duties. The Court the new job Supreme not the state the state was although employer, cases *6 involved, that and the went on to state was Court аction each claimant’s constitu the denial of benefits violated that of religion, reasoning freedom guaranteed tionally his between was forced to choose being each claimant the and his with the “price choosing job, Simpson. the loss of state benefits.” former being that coercion the state by U. Court held such S. Supreme indirect, the albeit an infringement, upon constituted Thomas. free exercise of religion. with that he had a right privacy maintains
Kuskoski outside of marriage to his relationship respect Carroll, could as employer, although Bishop private this constitutional right, without him discharge violating it when violated Pennsylvania the Commonwealth benefits. denied him unemployment compensation sim- that his situation is factually Kuskoski contends Thomas, the claimants in Sherbert ilar to was violated that his right opposed of privacy except We disagree. his to free exercise religion. right in those cases were faced claimants Whereas them which compelled conditions employment changed and their religion, between employment choose contract when he signed employment Kuskoski knew teachings would be follow required he as a Conse- employment. Church сondition of Catholic has a whether or not Kuskoski deciding without quently, mar- cohabit outside of right constitutionally-protected Sherbert, claimant, Adventist, was Day Seventh In Thomas, claimant, on her Sabbath. required to work Witness, production of participate in the required Jehovah’s arms. we find that he waived such when riage,6 he any right his contract of signed employment.
This Court and
sister
our
Court have found that
be waived
constitutional
the execution of
rights may
contracts. In
Social Services Union v. Penn
Pennsylvania
Parole,
Board
Probation
96 Pa. Com
sylvania
monwealth Ct.
However sincerе must we his legal rights, in his perception that was not that mistake in his respect conclude him that can allowed exonerate the kind be bene- his eligibility preserve volitional, and disre- fits. His conduct was purely is noth- interest. There of his gardful employers the claimants indicate in this case to ing than were his other legal rights about beliefs If the accu- gamble he wished self-induced. the Unem- his jurisprudence, personаl racy re- Fund be should not Compensation ployment his to subsidize misconception. quired A. 2d at 69 Pa. Ct. at Commonwealth Simpson, 312. actions amounted determined that Kuskoski’s
Having have cause misconduct and that he not good to willful action, determined to take course of having violated, we will be reverse constitutional rights reinstate the referees denial of decision and Boards benefits.
Order Now, this decision April, And 21st day Review in Board of of the Unemployment Compensation matter is reversed. above-captioned Smith dissents. Judge Opinion by
Dissenting Colins: Judge BARRY’S which raises the dissent Judge I agree *8 issue, the the Boards not addressed of con- majority, failed to that claimants show clusion willful behavior amounted to misconduct connected his employment.
However, the I believe that decision re- majority’s the Boаrd and versing thereby denying unemployment compensation benefits to claimant violates Establish- ment Clause the First and Amendments Fourteenth of Constitution, I, the United States as well as Article Pennsylvania 3 the Section of Constitution. Clause the First Establishment Amendment of provides “Congress
the United States Constitution respecting law shall make no establishment of Const, (emphasis added). ... amend. U.S. I The use of “respecting” indicates a the word broad intent. A law might actually religion, establish but nevertheless leading that end and be one therefore offend the First Amendment. City York, v. TaxCommission Walz New
397 U.S. Court articulated the foremost against evils which the Establishment Clause was in protect “sponsorship, support, tended to financial sovereign religious activity.” active involvement of the in assessing Id. at 668. In whether a law violates the Estab Clause, the must makе a lishment Court determination question whether the in is which turns on action intended directly interfere with or in effect interferes with religious practices. establishes beliefs and Id. at 699. perfect However, “[n]o the Court stated that or absolute really very separation possible; is existence of the Religion Clauses is an involvement of sorts—one that entangle seeks mark to avoid excessive boundaries question ment.” Id. at 670. The here is whether entanglement. is denial of benefits to claimant excessive unfortunately degree. course, The test is one of Either granting denying necessarily them, benefits or involves entanglement. just entanglement some It is such that this anticipated reaching its Court decision Christian Harrisburg Department School Ass’n Greater Industry, 55 Pa. Ct. Labor Commonwealth (1980) exempt religious A. 2d 1340 schools from mandatory requirements Unemployment Com- *9 Act that the This Court (Act).1 recognized Law
pensation to sought inflict an indirect burden might church a conflict between even of possibility avoid and state. I, Constitution
Article Section of Pennsylvania provides: a natural and indefeasible to right
All men have dictates to the according God Almighty worship consciences; no man can of be their own attend, erect or any to support place comрelled his any or to maintain ministry against worship, can, consent; case human authority any no whatever, interfere with the rights control or conscience, shall and no ever be given preference establishments or modes law to by any religious added.) worship. (Emphasis cannot effectuate doctrines. religious A state system in the of its own volition participated It was never re- system. terminate its and rеmains free to to participate quired at time. Once it chooses to voluntarily participation any within this itself assume relationship, thereby places the Act in the same manner as any jurisdiction must and religious holdings give way other employer Carroll must the fact that secular laws. accept the First Amendment the state has under mandate of as neutral as face to remain obligation pоssible School District differences. religious Abington 374 U.S. 215. Schempp, the fact in its has over glossed majority, opinion, that claimant married in a civil ceremony agreed get However, his this was not acceptable prior discharge. administration, the school since only marriage recog- amended, 5,1936, (1937)2897, 43 ES. Act of December EL. §§751-914. time,
nized the Church would suffice. At that claimant by in a could future wife marry ceremоny recognized Church, since she had been married previously divorced. doctrine Church bars civilly marriage by unless annulment is first obtained. priest religious Hence, are facts that claimant non-disputed agreed *10 of the to the laws marry according Commonwealth and in the Bakerton United Method- subsequently marry Church, Elmora, ist Pennsylvania, December 1987. under By denying unemployment circumstances, these we are two decla- making religious a rations: we will be the allowing religion to use Act (1) to on a de basis; further its tenets and we will be (2) facto the Act to hierarchical using recognize of mar- system Commonwealth. within the riage When Carroll told claimant Bishop that a civil mar- was riage acceptable, not tenets imposing religious as a of claimant condition upon continued employment. Carroll Bishop requirе this its may employees Clearly, of and its may to employees abide the fire failure rules and the Church. What teachings Carroll the do is state may require unemployment compen- sation to define such actions as work-related system will- ful and misconduct. Claimant’s refusal inability comply directive, nature, with a in religious essentially cannot be used him The deny compensation. is denial on that basis of benefits сertainly excessive state. and entanglement Kurtzman, 403 U.S. Lemon the Court considered criteria from gleaned many years case law and articulated test three-pronged for whether state action is with Clause: compatible Establishment does the state action have a secular (1) would (2) purpose; its effect neither advance nor inhibit and religion; (3) would such action avoid excessive of gov entanglement Id. If all three inquir at 612-13.2
ernment religion? the state action then affirmatively, ies can be answered Bender, Clause. the Establishment does not violate F.2d at 550. case sub judice, the criteria
Applying Act, as are follows: does (1) to be answered questions case sub judice, in the have the facts as it was applied Act, neither does (2) applied, a secular purpose; Act, as doеs religion; (3) advance nor inhibit government entanglement avoid excessive applied, then all we can answer three questions, If religion? yes Clause has occurred. Establishment violation no secular, Act itself is While the of the purely purpose to the facts this case it was the manner which applied chooses that secular majority has destroyed purpose. “willful misconduct” of claimant com- that the to ignore here violation of simply is purely plained the Church. This is so particularly doctrines religious made showing the fact no light *11 “willful misconduct” job-related, claimant’s that the Act, here, The the Board. by applied as concluded he chose benefits to claimant because denying effectively the reli- a method Catholic unacceptable by marry that religion. Additionally, serves advance gion, does not avoid excessive certainly gov- action taken here with all For of the fore- religion. ernment entanglement reasons, award of uphold I benefits. would going in this Dissenting Opinion. SMITH joins Judge 2 that held in cases that It be noted the Court has later should criteria determin- embody the Lemon test does not exclusive How- state the Establishment Clause. ing whether action violates District, ever, Williamsport School as noted Bender v. Area n.20 continues to utilize the Lemon F.2d Court test.
Dissenting Opinion Barry: Judge I dissent would affirm the Board respectfully which reversed the decision of the referee and granted benefits claimant.
The Board concluded made employer had no claimants admitted cohabitation showing was willful misconduct connected with divorced woman the claimants The employment. dоes majority opinion not address this issue but the record this amply supports of the The conclusion Board. petitioner was perfectly found, the claimant as justified discharging Board but I do not believe benefits should have been denied. in this dissent.
Judge joins Smith A. 2d 828 Appeal In Re: Bethlen Home of The Hungarian Federation of From Reformed America County The Westmoreland Board of Assessment Map Revision of Taxes: Assessment of Tax Parcel Numbers 51-16-07-0-005-60-001, etc. The County Board Ap- Westmoreland of Assessment
peals, Appellant.