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STOUCH v. BROTHERS OF THE ORDER OF HERMITS OF ST.

September 27, 1993

WARREN WILLIAM STOUCH
v.
BROTHERS OF THE ORDER OF HERMITS OF ST. AUGUSTINE, t/a SAINT THOMAS MONASTERY, and REVEREND WILLIAM A. McGUIRE, and VILLANOVA UNIVERSITY



The opinion of the court was delivered by: BY THE COURT; JAMES T. GILES

 GILES, J.

 September 27, 1993

 Warren William Stouch ("Stouch") brings this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and pendent state law claims. Defendants have moved for summary judgment. For the reasons stated below, the motion of defendant Villanova University ("Villanova") is granted, and the motion of defendants Brothers of the Order of Hermits of St. Augustine ("the Brothers") and Reverend William A. McGuire ("McGuire) is granted in part and denied in part.

 I. STANDARD FOR SUMMARY JUDGMENT

 Summary judgment is to be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Where, as here, the non-moving party has the burden of proof at trial, the movant need not produce evidence negating the non-movant's case. Instead, the moving party need only demonstrate that there is a lack of evidence to support the non-movant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the movant satisfies this initial burden, the non-movant cannot rest solely upon the allegations in the pleadings. Fed.R.Civ.P. 56(e). Instead, the it must demonstrate that there is sufficient evidence for a jury to return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id., 477 U.S. at 251-52.

 II. THE PARTIES AND FACTUAL BACKGROUND

 Stouch served from 1982 until October 5, 1991 as the chef at St. Thomas Monastery ("the Monastery"). Deposition of Warren William Stouch ("Stouch Dep.") at 16-17.

 The complaint names as a defendant the "Brothers of the Order of Hermits of St. Augustine, t/a Saint Thomas Monastery." In its motion for summary judgment, the Brothers of the Order of Hermits of St. Augustine ("the Brothers") alleges that "'Brothers of the Order of Hermits of St. Augustine' is a Civil Law Corporation which does not do business as Saint Thomas Monastery." In support of this claim, the Brothers submit an affidavit from the Very Reverend John Hagen, OSA, Prior Provincial of the Province of St. Thomas of Villanova ("Hagen"). Hagen states:

 
The Order of St. Augustine is a Religious Institute of the Roman Catholic Church and operates internationally. The Prior General of the Order of St. Augustine resides in Rome, Italy. Governance of the Order is established in a document known as the Constitutions of the Order of St. Augustine. . . .
 
In the Commonwealth of Pennsylvania there exists a Civil Corporation known as the Brothers of the Order of Hermits of St. Augustine. The Civil Law Corporation owns real property in various parts of the United States among which is included the property known as St. Thomas Monastery . . . .
 
St. Thomas Monastery is a local chapter in which reside some (approximately 65 at the time in question) of the members of the Eastern Province of the Order of St. Augustine in the United States. In my capacity as Prior Provincial of the Province of St. Thomas of Villanova I do not control or regulate the operation of St. Thomas of Villanova Monastery. The operation of St. Thomas of Villanova Monastery is conducted under the auspices of the Prior of St. Thomas of Villanova Monastery, Reverend George Burnell in accordance with Chapter 15 of the Constitution of the Order of St. Augustine.
 
St. Thomas of Villanova Monastery is the home or residence of these men living together pursuant to the religious vows of poverty, chastity and obedience taken by all members of our Order.

 Affidavit of Reverend John Hagen ("Hagen Aff.").

 By this affidavit, defendants appear to make a distinction between a "Religious Institute of the Roman Catholic Church" known as "the Order of St. Augustine" ("the Order"), a corporation known as "Brothers of the Order of Hermits of St. Augustine" ("the Brothers"), and "St. Thomas of Villanova Monastery" ("the Monastery"). *fn1" However, it is undisputed that the Brothers own the Monastery and the land upon which it sits, see Affidavit of Reverend William McGuire ("McGuire Aff."), and the 1099 tax forms filed in regard to the payment for Stouch's services at the Monastery show the payor as "Brothers of the Order of Hermits of St. Augustine, Saint Thomas Monastery, Villanova, PA 19085." Plaintiff's Exhibit "J." From this record, the court cannot determine as a matter of law what was the relationship between the Brothers and the Monastery. Therefore, to the extent that this relationship is material, we must assume that the relationship between the Brothers and the Monastery is as alleged by Stouch, and we will refer to this defendant interchangeably as "the Monastery" or "the Brothers."

 Administration of the Monastery is conducted by the Prior, Reverend George Burnell, his Sub-Prior, his Counsel and defendant McGuire as Treasurer, pursuant to the provisions of the Constitutions of the Order of St. Augustine. McGuire Aff.; Hagen Aff. In his position as the Monastery's treasurer, McGuire was at all relevant times responsible for the preparation and administration of the budget as approved by the Prior and the local Community. McGuire Aff.

 Villanova is a private non-profit educational institution which provides undergraduate and graduate classes to the public. Affidavit of G. Thomas Bull ("Bull Aff.") P 2. Villanova has no ownership interest in the Monastery. Bull Aff. P 3. Although the Monastery is physically located on Villanova's campus, Villanova does not own the Monastery building or the land upon which its sits. Exhibit "B" to Villanova's Motion for Summary Judgment at P 14.

 During the summer of 1991, Stouch was informed by McGuire that the Monastery had decided to terminate its relationship with him. After several extensions of the termination date, Stouch finally left the monastery in October 1991.

 The Complaint contains three Counts against all defendants. Count I alleges that Stouch's employment was terminated because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Count II alleges that the age discrimination alleged in Count I also violated the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq. Count III alleges that the defendants' actions constitute the tort of intentional infliction of emotional distress under Pennsylvania law. Defendants have moved for summary judgment as to all three counts.

 III. DEFENDANTS McGUIRE AND THE BROTHERS

 Defendants McGuire and the Brothers have moved for summary judgment on several grounds. For the reasons stated below, the court denies their motions as to Counts I and II (the ADEA and PHRA counts), but grants the motions as to Count III (intentional infliction of emotional distress).

 A. ADEA and PHRA Claims

 McGuire and the Brothers present several arguments as to why summary judgment should be granted in their favor on Count I (ADEA), and Count II (PHRA). *fn2" First, they argue that Stouch was not an employee of the Brothers, and therefore not entitled to sue under either statute. Next, they argue that even if Stouch was an employee, he cannot sustain his burden of proving that his termination was because of his age. Finally, they argue that to apply ADEA or PHRA to this case would violate the free exercise and anti-establishment clauses of the first amendment. The court rejects all of these arguments.

 1. There exists a genuine issue of material fact as to whether the Brothers and McGuire were Stouch's employers

 ADEA forbids "age discrimination by employers against employees and applicants for employment." E.E.O.C. v. Zippo Mfg. Co., 713 F.2d 32, 35 (3d Cir. 1983) (quoting Levine v. Fairleigh Dickinson University, 646 F.2d 825, 828 (3d Cir. 1981)). Therefore, if the Brothers or McGuire were not "employers" under ADEA, or if Stouch was not an "employee", his ADEA claim must be dismissed. Zippo.

 Under ADEA, an employer is defined as "a person engaged in an industry affecting commerce who has twenty of more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 29 U.S.C. § 630(b). *fn3" "Person" is defined as "one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized group of persons." 29 U.S.C. § 630(a). The Brothers is a Pennsylvania corporation, and therefore is a "person" under ADEA. There is no claim by the Brothers that it has fewer than twenty employees. Therefore, there exists a genuine issue of material fact as to whether the Brothers is an "employer" under ADEA. ADEA also defines "employer" to include any agent of an employer. 29 U.S.C. § 630(b). Because a jury could find from the evidence presented that McGuire served as the Brothers' agent in regard to the relationship with Stouch, there also exists a genuine issue of material fact as to whether McGuire was an "employer" under the act.

 Of course, it is not enough that defendants are "employers" under ADEA. For a jury to find them liable, it must also conclude that Stouch was their "employee." Defendants argue that they were not employers of Stouch, but rather that he was an independent contractor and an employee of a corporation known as "Expressions by J.R." The court, however, finds a genuine issue of material fact as to whether Stouch was an "employee" of the Brothers and of McGuire.

 It is undisputed that the formal relationship between Stouch and the Brothers was that the Brothers contracted with a corporation formed by Stouch and known as "Expressions by J.R." See, e.g., Affidavit of Reverend William McGuire. *fn4" However, the fact that Stouch was formally an independent contractor does not dispose of the question of whether he was an "employee" for the purposes of the ADEA. See, e.g., Golden v. A.P. Orleans, Inc., 681 F. Supp. 1100 (E.D. Pa. 1988) ...


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