Pennsylvania court grants Jehovah's Witness elders a clergy-privilege declaration — because the state never contested it

On 27 February 2026 the Commonwealth Court of Pennsylvania gave the Ivy Hill Congregation of Jehovah's Witnesses the declaration it had been seeking since 2020: that its elders may invoke the clergy privilege — the rule that lets a member of the clergy keep a confession confidential — even though Pennsylvania law also lists clergy among the adults who must report suspected child abuse to the state.

The court granted it because the state agency on the other side of the case did not dispute the facts or the law in response to the request the court was deciding. That is stated in the order itself:

Seven judges decided the case en banc — an expanded bench rather than a smaller panel — and they divided. Judge Lori A. Dumas wrote the majority opinion. Judge Matthew S. Wolf, joined by Judge Stacy Wallace, dissented, writing that treating the agency's silence on the merits as preclusive of the court's own analysis amounted to "judicial legislation by default" and handed the congregation "a blank check."^[2]

What the court did not do is answer the question the case was filed to answer — whether Jehovah's Witness elders fall inside or outside the clergy privilege under Pennsylvania law. The majority said so at the start of the opinion and again at the end:

The decision was also issued as an unreported opinion — one the court does not publish in its official reports. The ruling binds the parties to this case. It does not bind any other Pennsylvania congregation, and no other court is obliged to follow it.

What Ivy Hill asked the court to declare

Ivy Hill is "a congregation of approximately 140 individuals in Philadelphia, Pennsylvania." Every Jehovah's Witness congregation "is led by a body of elders, which consists of a group of five to seven volunteers," who "are authorized to hear and respond to a congregant's confession of sin, and, under their beliefs, are obliged to maintain the confidentiality of confessions."^[4]

In May 2020 the congregation filed a petition for review in the nature of a complaint for declaratory relief — a lawsuit that asks a court to state what the law means for you before anyone sues or charges you.^[4] It had two counts. First, a declaration that its elders are covered by the clergy privilege. Second, in the alternative, that if the privilege does not cover them, the statute creating it is unconstitutional.^[1]

The exact wording it wanted was this:

According to the congregation, its concern arose after it learned of a criminal complaint filed against a bishop in the Amish community of Lancaster County, which alleged that the bishop's failure to report a confession of child abuse was itself a crime.^[4]

The paradox written into the statute

Pennsylvania's Child Protective Services Law, 23 Pa.C.S. §§ 6301–6388, names sixteen categories of adults who are mandated reporters — people legally required to report suspected child abuse to the Department of Human Services when they have reasonable cause to suspect it.^[1] The list includes "a clergyman, priest, rabbi, minister, Christian Science practitioner, religious healer or spiritual leader of any regularly established church or other religious organization." Mandated reporters who fail to report are subject to criminal penalties.^[4]

The same law then says that communications between a mandated reporter and a patient or client which would normally be private are not privileged if they involve child abuse, and that the reporter is not excused from reporting. But it preserves one exception: 42 Pa.C.S. § 5943, under which a clergyman who "while in the course of his duties has acquired information from any person secretly and in confidence" shall not "be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit."^[1]

The majority set out where that leaves a member of the clergy, and used the word itself:

The dispute turns on an exclusion written into § 5943. The privilege does not reach clergy "who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers."^[4] A Jehovah's Witness congregation is led not by one leader but by a body of five to seven elders. Whether that structure puts its elders inside the exclusion — and so outside the privilege — is the entire case.

Nearly six years, three decisions

The litigation ran through three named rulings before reaching February 2026.

In June 2021 — Ivy Hill I — the Commonwealth Court, sitting en banc, threw out the department's preliminary objections, the standard early motion arguing a case should not proceed at all. The court found the congregation had standing to sue because its elders faced three equally unappealing options: report what they heard in confidence and break their promise of confidentiality, stay silent and risk criminal prosecution, or stop performing part of their religious role altogether.^[4] The same ruling denied the congregation's first request for summary relief — a judgment entered without a trial, on the basis that the facts are not genuinely in dispute — because there was no evidentiary record about the doctrine and organization of Jehovah's Witnesses on which to decide the privilege question.^[1]

The parties then went through discovery, the stage where each side must hand over records. On 21 September 2021 the congregation filed a second application for summary relief. That application is the one the 2026 decision finally resolved.^[3]

On 7 October 2021 the court ordered the department to file both a response and a supporting brief. On 29 October 2021 the department filed a brief in opposition only.^[1]

In May 2022 — Ivy Hill II — the Commonwealth Court dismissed the petition and the application for lack of jurisdiction.^[3] The congregation appealed, and on 13 February 2024 the Pennsylvania Supreme Court vacated that dismissal. Chief Justice Todd's opinion held that Ivy Hill II had broken the coordinate jurisdiction rule — the principle that judges of equal rank sitting in the same case should not overrule each other's earlier decisions. The Supreme Court also declined the congregation's request to decide the privilege question itself, remanding it to the Commonwealth Court instead.^[4]

Back on remand, an order of 27 March 2024 allowed the 2021 application to be decided on the briefs already filed, at the congregation's unopposed request.^[1] On 1 July 2025 the court's filing office, the prothonotary, was directed to list the case for submission to the court sitting en banc, and it was submitted on 10 September 2025.^[3]

What the department filed, and what it did not

The Department of Human Services administers the reporting law and receives abuse reports, but it does not prosecute failures to report — that responsibility sits with the Attorney General and district attorneys.^[1] Much of its argument flowed from that.

Its brief made four points, none of which reached the merits: that it was not an antagonistic party because it had not sued or threatened to sue; that it was the wrong defendant because it does not investigate violations; that the congregation was seeking an advisory opinion about a hypothetical future lawsuit; and that the claim was filed too late.^[1]

The first three had already been rejected in the earlier rulings.^[2] The fourth — the statute of limitations, the legal deadline for bringing a claim — the court disposed of in two different ways, because the department had put it two different ways.

The version raised for the first time in its brief, resting on a 2014 amendment to the reporting law, the court held waived: the department lost the right to rely on it by failing to plead it with enough specific detail in its formal answer. The version it had pleaded rested on a 1998 letter to Watchtower, attached as an exhibit to the congregation's own petition. On the department's account, Watchtower had asked the Pennsylvania Attorney General for legal advice on this same question in 1998, so the clock had started long before 2020. The court rejected it on a different ground: the department identified no fact showing the congregation knew or should have known of that letter.^[1]

On everything else, the majority recorded a blank:

That mattered because of the rule the court applied. An application for summary relief is treated like a motion for summary judgment, and under Pa.R.Civ.P. 1035.3 the opposing party must file a response within 30 days identifying at least one disputed material fact. "Summary judgment may be entered against a party who does not respond." No response was filed, and the court held that this "operates as a procedural concession that no material issues of fact exist."^[1] The majority added that neither side had raised a further rule under which a moving party's own uncontradicted witness statements are not enough to win summary relief — an argument the department could have made and did not.^[1]

The dissent

Judge Wolf's dissent did not argue that the congregation's reading of the statute was wrong. It argued that the court was obliged to rule on it either way.

He wrote that the majority granted the relief "in full, without any meaningful legal discussion," failing to "recount any of the undisputed facts, apply any of those facts to the statutory provisions, or engage in any meaningful legal analysis." The governing appellate rule, he noted, "does not even expressly require a response to an application for summary relief" at all — yet the majority treated the absence of one as preclusive of any analysis, "yielding judicial legislation by default." He also questioned the March 2024 order that sent the case to decision on briefs written before the Supreme Court's ruling: "At the very least, DHS should have provided the Court with a new brief."^[2]

What the decision settles, and what it does not

The declaration was entered in this case, against the one state department that was sued. It does not settle Pennsylvania law.

The opinion's first page reads "OPINION NOT REPORTED," and that designation carries consequences. Under the Commonwealth Court's own citation rule, binding precedent comes from reported decisions: "A reported opinion of the Court en banc or panel may be cited as binding precedent."^[5] This one was not reported. Another Pennsylvania congregation cannot point to it as settled law, and another court is not obliged to follow it. Combined with the majority's own statement that it did not analyze or endorse the substantive claim, the question of whether Jehovah's Witness elders qualify as clergy under § 5943 remains open.

Judge Wolf argued that this was precisely why the court should have answered it. "[O]ur responsibility to interpret the law is perhaps paramount here," he wrote, "where it is unlikely that DHS will appeal from this Court's decision."^[2]

As of the Commonwealth Court docket reviewed on 11 August 2026, no appeal or application for reargument has been docketed, and the case is closed.^[3]