Cooper v. Church of St. Benedict , 2008 Pa. Super. 171 ( 2008 )

CONCURRING STATEMENT BY

FORD ELLIOTT, P.J.:

¶ 11 agree with the Majority that at this stage in the proceedings, the record is insufficiently developed to support the trial court’s conclusion that Cooper is a “minister” for First Amendment purposes, and therefore I join in the Opinion. There has been no discovery regarding Cooper’s specific duties and responsibilities as organist/music director. That being said, I would note that decisional law has consistently applied the ministerial exception to music and choir directors. See, e.g. Starkman v. Evans, 198 F.3d 178 (5th Cir.1999), cert. denied, 531 U.S. 814,121 S.Ct. 49,148 L.Ed.2d 18 (2000) (choir director barred from pursuing claims under the ADA and Louisiana employment law); EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795 (4th Cir.2000) (Cathedral’s Director of Music Ministry/part-time music teacher fell under the ministerial exception, stating that music “is a vital means of expressing and celebrating those beliefs which a religious community holds most sacred”). Cf. Archdiocese of Washington v. Moersen, 399 Md. 637, 925 A.2d 659 (2007), cert. denied, — U.S.-, 128 S.Ct. 1217, 170 L.Ed.2d 59 (2008) (ministerial exception did not apply where the plaintiff was “merely an organ player,” distinguishing those cases involving choirmasters and music directors). Therefore, following the discovery phase and depending on the functions of Cooper’s position, summary judgment in the Church’s favor may well be appropriate.