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O'LEARY v. SOCIAL SEC. BD.

March 19, 1945

O'LEARY et al.
v.
SOCIAL SECURITY BOARD



The opinion of the court was delivered by: JOHNSON

This is a complaint filed for the purpose of securing a review by this court of a decision of the Appeals Council of the Social Security Board.

The facts are not disputed and are as follows:

 Denis J. O'Leary and his wife Catherine C. O'Leary are residents of the City of Altoona in Blair County within the Middle District of Pennsylvania. They are claimants for primary insurance benefits under sections 202(a) and (b) of the Social Security Act, 42 U.S.C.A. § 402(a, b).

 Calvary Cemetery Association of Altoona, Pennsylvania, was incorporated as a non-stock, non-profit cemetery organization under the provisions of the Act of Assembly of the Commonwealth of Pennsylvania of April 29, 1874, P.L. 73, Sec. 2, and the amendments thereto, by charter granted on August 8, 1893, by the Court of Common Pleas of Blair County, Pennsylvania. The purpose of the corporation is stated in its constitution to be 'the forming and maintaining of a public cemetery for the burial of deceased Roman Catholics who may be entitled to burial according to the laws, rules and regulations of the Roman Catholic Church.'

 The activities of the corporation consist of the management and operation of Calvary Cemetery and St. John's Cemetery in Blair County, Pennsylvania. Pursuant to the constitution and by-laws the management and operation are lodged in a Board of Managers which is elected annually by the corporators.

 The original incorporators were all individuals and the constitution provides that the Board of Managers shall consist of the Right Reverend Bishop of the Diocese of Altoona, the pastors of St John's, St. Mark's, Sacred Heart, Mt. Carmel, and St. Leo's parishes, and two lot holders from each parish who are to be appointed and elected at the annual meeting. The pastors of each parish appoint representatives. The remaining five are elected by the corporators. In the case of vacancies, or failure to appoint or elect representatives, the places are filled by the Bishop.

 The corporation derives its income from the sale of lots, vaults, interments, grave care, interest on loans to church organizations, and from interest on bonds and stocks. No income is credited to surplus and no income may inure to the benefit of any individual or private shareholder. The corporation has no shareholders, no capital stock and pays no dividends.

 The secretary of the corporation testified that the cemeteries owned by the corporation are not operated for the members of the various Catholic Parishes in Altoona, but for the burial of Catholics in general. A part of the cemetery grounds is set aside for the burial of decedents of mixed marriages so that non-catholics are buried therein.

 From January 1, 1937, through March 31, 1943, the plaintiff, Denis J. O'Leary and his employer, Calvary Cemetery Association, made regular returns and payments of taxes for old age benefits on wages paid and received.

 The plaintiff, Denis J. O'Leary, having attained the age of 65 years, filed with the Bureau of Old Age and Survivors Insurance of the Social Security Board, on April 1, 1943, his application for primary insurance benefits. On the same date the plaintiff, Catherine C. O'Leary, also filed her application for a wife's insurance benefits. The plaintiffs' claims were disallowed by the Bureau whereupon the plaintiffs pursued their remedy of appeal, resulting in a final decision by the Appeals Council of the Social Security Board disallowing the plaintiffs' claims. In disallowing the plaintiffs' claims the Appeals Council held 'that the Calvary Cemetery Association is a corporation organized and operated exclusively for religious purposes within the meaning of Sections 210(b)(7) and 209(b)(8) of the Social Security Act and the amendments thereto, 42 U.S.C.A. § 409(b)(7, 8), and that as a result the services performed by the claimant on behalf 'of the association are not 'in employment' and the remuneration he received in payment for such services is not 'wages' under the provisions of the Social Security Act'. The Appeals Council further found that the claimant, Catherine C. O'Leary, is not entitled to the wife's insurance benefits for which she applied.

 The claimants thereupon filed their complaint in this court for a review of the decision of the Appeals Council and now request a judgment reversing the decision of the Appeals Council and directing the Social Security Board to allow plaintiffs' claims.

 The important part of the Social Security Act to be considered here is subsection (8) of Section 209(b) which excepts from the definition of employment under the provisions of the Act one who has furnished: '(8) Service performed in the employ of a corporation, community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, * * * no part of the net earnings of which inures to the benefit of any private shareholder or individual * * * .'

 The question involved is whether the employer of the claimant, the Calvary Cemetery Association, is a corporation 'organized and operated ...


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