         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Our Lady of Victory Catholic Church            :
and Our Lady of Victory Preschool,             :
                                               :
                      Petitioners              :
                                               :
              v.                               :   No. 294 C.D. 2016
                                               :   Argued: September 15, 2016
                                               :
Department of Human Services,                  :
                                               :
                      Respondent               :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JULIA K. HEARTHWAY, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                         FILED: October 31, 2016

               This matter is a petition for review filed by Our Lady of Victory
Catholic Church (Petitioner)1 appealing a final order of the Department of Human
Services (Department) upholding the dismissal of Petitioner’s appeal from an order
directing it to cease and desist operating an uncertified child care facility. For the
reasons set forth below, we affirm the order insofar as it ruled that the Department
had authority to issue the cease and desist order, but vacate the dismissal of
Petitioner’s religious liberty defense to the cease and desist order and remand this
matter for a hearing limited to that defense.

1
 Although this Court’s caption lists both Our Lady of Victory Catholic Church and Our Lady of
Victory Preschool as petitioners, the cease and desist order out of which this appeal arises was
directed to Our Lady of Victory Catholic Church and the caption in the underlying proceedings
and the final order at issue name only Our Lady of Victory Catholic Church as a party.
Accordingly, it appears that Our Lady of Victory Catholic Church is the sole petitioner here.
             Petitioner, a nonprofit religious organization, owns and operates a
preschool, Our Lady of Victory Preschool (Preschool), in State College,
Pennsylvania. Department regulations require that any person or entity operating a
child day care center that provides care for seven or more children unrelated to the
operator must obtain a certificate of compliance before commencing operations.
55 Pa. Code §§ 3270.3(c), 3270.11(a); see also 55 Pa. Code § 3270.4. On July 17,
2015, the Department sent Petitioner a letter notifying it that the Department had
determined that Petitioner was operating a child day care center providing care to
26 children without a certificate of compliance, in violation of Department
regulations, and ordering Petitioner to cease and desist operating Preschool without
a certificate of compliance.     (Administrative Law Judge (ALJ) Adjudication
Findings of Fact (F.F.) ¶2, Reproduced Record (R.R.) at 19a; Cease and Desist
Order, R.R. at 13a.)
             Petitioner timely appealed the cease and desist order. Petitioner did
not dispute that it had not obtained or applied for a certificate of compliance to
operate Preschool and did not dispute that Preschool constitutes a child day care
center providing care for seven or more children. (ALJ Adjudication at 4, R.R. at
21a; Petitioner’s Appeal of Cease and Desist Order, R.R. at 8a-10a.)         Rather,
Petitioner challenged the cease and desist order on the grounds 1) that the
Department lacks authority to issue cease and desist orders to enforce its
regulations governing nonprofit child day care centers and 2) that requiring a
certificate of compliance for Preschool, which Petitioner contends is part of its
religious ministry, violates Petitioner’s religious freedom in violation of the First
Amendment to the United States Constitution, Article 1, Section 3 of the




                                         2
Pennsylvania Constitution and Pennsylvania’s Religious Freedom Protection Act.2
(Petitioner’s Appeal of Cease and Desist Order, R.R. at 8a-10a.) On August 19,
2015, the Department’s Bureau of Hearings and Appeals (BHA) issued a rule to
show cause why Petitioner’s appeal should not be dismissed as legally insufficient
and a telephonic, non-evidentiary hearing was held by an ALJ. (ALJ Adjudication
F.F. ¶5, R.R. at 19a; Hearing Transcript (H.T.), R.R. at 35a-60a.) At this hearing,
Petitioner and the Department fully argued the question of whether the Department
has authority to issue a cease and desist order to a nonprofit child day care provider
for failure to obtain a certificate of compliance. (H.T. at 9-19, R.R. at 43a-53a.)
Counsel for Petitioner, however, asserted that he was unaware from BHA’s rule to
show cause that Petitioner’s religious liberty defense was to be addressed at the
telephonic hearing and stated that he was therefore not in a position to argue that
issue. (Id. at 15, 19-24, R.R. at 49a, 53a-58a.) Counsel for Petitioner requested
that a further hearing on the merits be held for argument and introduction of
evidence on Petitioner’s religious liberty defense. (Id. at 22-24, R.R. at 56a-58a.)
                Following the telephonic hearing, the ALJ issued a proposed
adjudication recommending dismissal of Petitioner’s appeal. The ALJ rejected
Petitioner’s claims that the Department lacked authority to issue a cease and desist
order on the ground that the Department’s statutory supervisory authority over
nonprofit child care facilities and its regulations give the Department implicit
power to issue a cease and desist order. (ALJ Adjudication at 5, R.R. at 22a.) The
ALJ also stated that if the Department lacked authority to issue cease and desist
orders, BHA would lack jurisdiction to hear an appeal of a cease and desist order
because the Department’s regulations “do not explicitly allow for an appeal of a


2
    Act of December 9, 2002, P.L. 1701, 71 P.S. §§ 2401-2407.
                                                3
cease and desist order.”            (Id. at 4-5, R.R. at 21a-22a.)           The ALJ rejected
Petitioner’s religious freedom claims as premature because Petitioner had not
applied for a certificate of compliance and also on the ground that Petitioner had
not shown that the Department’s regulations on their face infringed its religious
freedom. (Id. at 5-6, R.R. at 22a-23a.) On December 30, 2015, BHA issued an
order adopting the ALJ’s proposed adjudication.                  (BHA Order, R.R. at 16a.)
Petitioner filed a request for reconsideration by the Secretary of the Department on
the questions of whether the Department has authority to issue cease and desist
orders and whether BHA has jurisdiction to hear appeals of cease and desist orders.
The Secretary granted reconsideration, but upheld the BHA order dismissing
Petitioner’s appeal “for the reasons stated by the Bureau of Hearings and Appeals.”
(R.R. at 33a.)
                 In this appeal,3 Petitioner argues that the Department lacked authority
to issue the cease and desist order and that the dismissal of its appeal without an
evidentiary hearing was error. We address each of these issues in turn.

The Department’s Authority to Issue the Cease and Desist Order

                 Article IX of the Human Services Code (formerly the Public Welfare
Code),4 governs the Department’s authority to regulate nonprofit child day care
centers, including those run by religious organizations. Section 902 provides that

3
 This Court’s review is limited to determining whether an error of law was committed, whether
constitutional rights were violated, or whether the Department’s findings of fact are supported by
substantial evidence. KC Equities v. Department of Public Welfare, 95 A.3d 918, 925 n.5 (Pa.
Cmwlth. 2014). The issue of the Department’s authority to issue the cease and desist order is a
question of law subject to this Court’s plenary, de novo review. St. Elizabeth’s Child Care
Center v. Department of Public Welfare, 963 A.2d 1274, 1276 (Pa. 2009); Department of
Transportation v. Beam, 788 A.2d 357, 358-59 & n.3 (Pa. 2002).
4
    Act of June 13, 1967, P.L. 31, art. 9, as amended, 62 P.S. §§ 901–922.
                                                  4
the Department “shall have supervision over … [a]ll children’s institutions within
this Commonwealth,” and “children’s institutions” are defined as including “any
incorporated or unincorporated organization, society, corporation or agency, public
or private, which may receive or care for children,” other than family child care
homes and for-profit child care facilities governed by Article X of the Human
Services Code. 62 P.S. §§ 901-902. Section 911 of the Human Services Code
provides:
            (a) The department shall have the power, and its duty shall be:

            (1) To make and enforce rules and regulations for a visitation,
            examination and inspection of all supervised institutions and
            said visitation, examination or inspection may occur both
            before and after the beginning of operation of the supervised
            facility.

            (2) To visit and inspect, at least once in each year, all state
            and supervised institutions; to inquire and examine into their
            methods of instruction, discipline, detention, care or
            treatment, … the official conduct of their inspectors, trustees,
            managers, directors or other officer or officers charged with
            their management by law or otherwise, or having the
            management, care, custody or control thereof, the buildings,
            grounds, premises, and equipment thereof, or connected
            therewith, and all and every matter and thing relating to their
            usefulness, administration, and management, and to the
            welfare of the inmates thereof ….

                         *              *             *

            c) Whenever upon the visitation, examination, and inspection
            of any State or supervised institution, any condition is found
            to exist therein which, in the opinion of the department, is
            unlawful, unhygienic, or detrimental to the proper
            maintenance and discipline of such State or supervised
            institution, or to the proper maintenance, custody, safety, and
            welfare of the inmates thereof, … to direct the officer or

                                        5
             officers charged by law with or in any way having or
             exercising the control, government, or management of such
             State or supervised institution, to correct the said
             objectionable condition in the manner and within the time
             specified by the department, whereupon it shall be the duty of
             such officer or officers to comply with the direction of the
             department. If such officer or officers shall fail to comply
             with such direction, the department may request the
             Department of Justice [now the Office of Attorney General] to
             institute appropriate legal proceeding to enforce compliance
             therewith, or the department may withhold any State money
             available for such institution until such officer or officers
             comply with such direction.
62 P.S. § 911(a), (c).
             The Department has authority under these provisions to require
certificates of compliance for child day care centers run by churches and other
nonprofits and the regulations at issue here, 55 Pa. Code § 3270.3(c) and 55 Pa.
Code § 3270.11(a), are valid. St. Elizabeth’s Child Care Center v. Department of
Public Welfare, 963 A.2d 1274, 1276-78 (Pa. 2009). Indeed, in St. Elizabeth’s
Child Care Center, our Supreme Court upheld a cease and desist order enforcing
the requirement that such day care centers obtain a certificate of compliance.
             In St. Elizabeth’s Child Care Center, the Department, as here, issued a
cease and desist order directing a day care center affiliated with a church to cease
operations because it did not have a certificate of compliance. 963 A.2d at 1274-
75. The day care center appealed the cease and desist order to BHA and appealed
BHA’s denial of its appeal to this Court, challenging the Department’s authority to
require a certificate of compliance for nonprofit child day care centers and arguing
that the certificate of compliance requirement violated its religious freedom. Id. at
1275. This Court, sitting en banc, held that the Department lacked authority to
require certification of nonprofit child day care centers and did not address the

                                         6
religious freedom issue. St. Elizabeth’s Child Care Center v. Department of Public
Welfare, 895 A.2d 1280, 1281-83 & n.8 (Pa. Cmwlth. 2006), rev’d, 963 A.2d 1274
(Pa. 2009). A concurring opinion expressed the view that the Department lacks
authority to issue cease and desist orders and that its enforcement powers are
limited by Section 911(c) of the Human Services Code to requesting the institution
of legal proceedings and withholding state funds. 895 A.2d at 1283-84 & n.2
(Pellegrini, J., concurring).
             The Supreme Court granted allowance of appeal on the question of
the Department’s authority to require certification of nonprofit child day care
centers and reversed this Court, holding that Article IX of the Human Services
Code grants the Department the power to require nonprofit child day care centers
to obtain a certificate of compliance. 963 A.2d at 1276-79. The Supreme Court
noted the concurring opinion, but did not suggest that the Department cannot
proceed by cease and desist order, and remanded the case to this Court to address
only the day care center’s religious freedom claim. Id. at 1275, 1278-79. On
remand, this Court held the day care center’s assertions of possible conflict
between Department requirements and its religious beliefs were vague and
speculative and did not show that requiring a certificate of compliance infringed its
religious freedom. St. Elizabeth’s Child Care Center v. Department of Public
Welfare, 989 A.2d 52, 55-57 (Pa. Cmwlth. 2010).            This Court, accordingly,
affirmed the denial of the day care center’s appeal of the cease and desist order. Id.
at 53, 57.
             Petitioner, notwithstanding the decisions in St. Elizabeth’s Child Care
Center, argues that Article IX of the Human Services Code does not grant the
Department the power to issue cease and desist orders and that Section 911(c)


                                          7
limits the Department’s power to enforce compliance with its regulations to
proceedings brought by the Attorney General and the withholding of funds. We do
not agree.
             Petitioner is correct that there is no express statutory grant of authority
to the Department to issue cease and desist orders in Article IX of the Human
Services Code. This, however, does not require the conclusion that the cease and
desist order is invalid.   While an agency’s powers must be conferred by the
legislature, they may be conferred not only by express statutory authorization, but
also by necessary implication. Department of Transportation v. Beam, 788 A.2d
357, 359-62 (Pa. 2002); Department of Environmental Resources v. Butler County
Mushroom Farm, 454 A.2d 1, 4-8 (Pa. 1982).

             [L]egislative enactments are generally to be construed in such
             a manner as to effect their objects and promote justice, see 1
             Pa. C.S. § 1928(c), and, in assessing a statute, courts are
             directed to consider the consequences of a particular
             interpretation, as well as other factors enumerated in the
             Statutory Construction Act. … Based upon such
             considerations, the rule requiring express legislative
             delegation is tempered by the recognition that an
             administrative agency is invested with the implied authority
             necessary to the effectuation of its express mandates.
Beam, 788 A.2d at 359-60.
             An agency thus has authority to issue administrative orders and utilize
other enforcement methods, even though such orders or methods are not expressly
authorized by statute, where the powers granted to the agency by statute implicitly
confer that enforcement power. Beam, 788 A.2d at 360-62 (agency had power to
seek injunction against unlicensed airport where statute provided that agency “shall
promulgate and enforce regulations as necessary to execute the powers vested in it
… relating to aviation, airports and air safety within this Commonwealth” and
                                           8
granted agency the power to license airports); Butler County Mushroom Farm, 454
A.2d at 4-8 (agency had authority to issue order requiring specific safety procedure
where employment safety statute provided that agency “shall have the power … to
issue the necessary instructions … to correct violations of this act or regulations
based on this act”); Appeal of Culp, 522 A.2d 1176, 1178-79 (Pa. Cmwlth. 1987)
(agency had authority to issue cease and desist order concerning health hazard
where statute provided that agency “shall prevent or remove conditions which
constitute a menace to public health” and “shall make and enforce such rules and
regulations ... as may be necessary for the promotion and preservation of the public
health”); American Wine Foundation v. Department of Education, (Pa. Cmwlth.,
No. 1066 C.D. 2008, filed April 7, 2009), slip op. at 9-11, 2009 WL 9096517 at
*5-*6 (board had authority to issue cease and desist order concerning school
licensure, although statute was “silent as to [its] authority to issue a cease and
desist order,” where statute provided that board had “the power to take appropriate
necessary action for the enforcement of its policies, rules and regulations”).5 But
see Aetna Casualty & Surety Co. v. Insurance Department, 638 A.2d 194, 200-01
(Pa. 1994) (statutory provision for examination of and reporting on insurer
practices was not sufficient to authorize agency to issue cease and desist order
against practices of insurers that are not prohibited by law).
              Here, Section 911(c) of the Human Services Code expressly grants the
Department authority, “[w]henever upon the visitation, examination, and
inspection of any … supervised institution, any condition is found to exist therein
which, in the opinion of the department, is unlawful, unhygienic, or detrimental to
the proper maintenance and discipline of such … supervised institution, or to the

5
  Because it is an unreported decision, American Wine Foundation is not binding precedent, but
is considered by the Court for its persuasive value. 210 Pa. Code § 69.414(a).
                                              9
proper maintenance, custody, safety, and welfare of the inmates thereof, … to
direct the officer or officers … of such … supervised institution, to correct the said
objectionable condition in the manner and within the time specified by the
department, whereupon it shall be the duty of such officer or officers to comply
with the direction of the department.” 62 P.S. § 911(c) (emphasis added). This
statutory authorization to “direct” the persons in charge of a child care center “to
correct” conditions that are “unlawful, unhygienic, or detrimental to the proper
maintenance” of such facility “in the manner and within the time specified by the
department” and imposition on the child care provider of a “duty … to comply
with the direction of the department” implicitly includes authority to issue cease
and desist orders to enforce compliance with the Department’s regulations, as such
cease and desist orders are directions to correct an unlawful condition. Compare
Butler County Mushroom Farm, 454 A.2d at 4-6 (statutory grant of power to “issue
… instructions …to correct violations” conferred authority on agency to issue
administrative orders requiring safety procedures).        Contrary to Petitioner’s
assertions, the cease and desist order here did identify the objectionable condition,
operation of a child day care center without a certificate of compliance, and
directed correction of that condition, as it directed Petitioner to cease operating
Preschool without a certificate of compliance.
             Section 911(c) also provides that if the child care provider “shall fail
to comply with such direction, the department may request [the Office of Attorney
General] to institute appropriate legal proceeding to enforce compliance therewith,
or the department may withhold any State money available for such institution.”
62 P.S. § 911(c). Petitioner argues that this language requires that the Department
proceed only by requesting enforcement by the Attorney General or withholding


                                         10
funds and prohibits cease and desist orders. Even if this language provides an
exclusive procedure, however, it applies to enforcement of a direction issued by
the Department after the child care provider has failed to comply, not to the
Department’s authority to issue the direction. Because a cease and desist order is a
direction by the Department under the first sentence of Section 911(c), the
enforcement provision in the second sentence would apply only in determining
what the Department may do to compel compliance with the cease and desist order
if Petitioner disobeys it, not to its power to issue the cease and desist order.
             None of the cases cited by Petitioner support its contention that the
Department lacks authority to enforce its certificate of compliance regulations by
cease and desist orders. Only three of the cases relied on by Petitioner held that the
agency action was invalid or that the agency lacked authority, and those decisions
did not involve enforcement powers. In Peake v. Commonwealth, 132 A.3d 506
(Pa. Cmwlth. 2015), the invalid agency action was a modification of a substantive
prohibition imposed by statute and was invalid because it conflicted with the
statute’s prohibition. Id. at 511-14, 522-23 (agency policy permitted exceptions
and case-by-case employment decisions where statute imposed a blanket
employment prohibition). In Northwestern Youth Services, Inc. v. Department of
Public Welfare, 66 A.3d 301 (Pa. 2013), the agency action was invalid because it
was a regulation not promulgated in accordance with the statutory requirements for
regulations. In V.S. v. Department of Public Welfare, 131 A.3d 523 (Pa. Cmwlth.
2015), the issue was whether there is a requirement to appoint counsel or a
guardian ad litem for a parent in a child abuse expungement hearing and no agency
action was invalidated. Rather, the statement that the agency lacked authority was




                                           11
a ground for holding that the agency’s failure to appoint counsel or a guardian ad
litem did not violate the parent’s rights. Id. at 529-30.
                 Petitioner also asserts that the Department’s cease and desist order is
invalid because it does not comply with the requirements of the act commonly
referred to as the Commonwealth Documents Law,6 the Regulatory Review Act,7
and the Commonwealth Attorneys Act.8                    This argument is without merit.
Compliance with the Commonwealth Documents Law, Regulatory Review Act,
and Commonwealth Attorneys Act is required only where an agency promulgates a
regulation. Naylor v. Department of Public Welfare, 54 A.3d 429, 433-34, 436
(Pa. Cmwlth. 2012), aff’d without op., 76 A.3d 536 (Pa. 2013); Borough of
Bedford v. Department of Environmental Protection, 972 A.2d 53, 61-63 (Pa.
Cmwlth. 2009) (en banc). Agency action constitutes a regulation where it is
denominated by the agency as a regulation or, even if not so labeled, where it
purports to establish a “binding norm.”              Northwestern Youth Services, Inc. v.
Department of Public Welfare, 1 A.3d 988, 993 (Pa. Cmwlth. 2010), aff’d, 66 A.3d
301 (Pa. 2013); Cash America Net of Nevada, LLC v. Commonwealth, 978 A.2d
1028, 1033-34 (Pa. Cmwlth. 2009) (en banc), aff’d, 8 A.3d 282, 297 (Pa. 2010);
Borough of Bedford, 972 A.2d at 63. The Department did not issue the cease and
desist order as a regulation and the cease and desist order here was a direction to
Petitioner to comply with an existing regulation, not a binding norm establishing
new standards for child day care providers.                 The binding norm here is the
requirement of a certificate of compliance, which the Department validly

6
    Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602; 45 Pa. C.S. §§ 501-907.
7
    Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-745.14.
8
    Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§ 732-101 - 732-506.
                                                12
promulgated in regulations, 55 Pa. Code § 3270.3(c) and 55 Pa. Code § 3270.11(a),
not the Department’s choice of a procedure for enforcing that binding norm against
an entity that violated those regulations.        See Department of Environmental
Protection v. Cumberland Coal Resources, LP, 102 A.3d 962, 977-78 (Pa. 2014)
(administrative order enforcing existing requirement does not constitute regulation
and need not comply with requirements for promulgation of regulations).
                Petitioner’s remaining claim, that the cease and desist order violates a
Department regulation governing correction of noncompliance with child day care
center regulations, likewise fails. That regulation, 55 Pa. Code § 20.52, provides
that “[i]f, during an inspection, authorized agents of the Department observe items
of noncompliance with licensure or approval regulations, the legal entity shall
submit an acceptable written plan to correct each noncompliance item and shall
establish an acceptable period of time to correct these items.” Id. (emphasis
added). Petitioner contends that the cease and desist order violates this regulation
because it did not give Petitioner a period of time to correct the violation. The
regulation, however, does not govern Department orders and directions; rather, it
governs an obligation of the child care provider, and imposes a requirement that
the child care provider (“the legal entity”) propose a written plan of compliance.
The regulation is therefore inapplicable to the cease and desist order. In any event,
the absence of a period of time for compliance would be harmless here, as there
was no contention by Petitioner in the BHA proceedings that it sought to cure the
violation by applying for a certificate of compliance after it received the cease and
desist order.
                In light of the Supreme Court’s ruling in St. Elizabeth’s Child Care
Center and language in Section 911(c) of the Human Services Code, we hold that


                                            13
DHS has the authority to issue a cease and desist order to a child day care center
that meets the threshold requirements for regulation by DHS, but is operating
without a certificate of compliance.

The Dismissal Without an Evidentiary Hearing

              Petitioner argues that BHA erred in holding that it lacked authority
to hear Petitioner’s appeal and that the dismissal of the appeal without an
evidentiary hearing violated its right to due process.
             We agree that BHA had jurisdiction to hear the appeal from the cease
and desist order. The Department’s child day care regulations expressly provide
that “[a]n operator may appeal a Departmental decision relating to the status of a
certificate of compliance of a facility owned or operated by the legal entity” and
list as appealable actions decisions “limiting or precluding admission of persons
into the facility.” 55 Pa. Code § 3270.12(c), (d)(8). The cease and desist order
was a Department “decision relating to the status of a certificate of compliance”
and a decision “precluding admission of persons into [Petitioner’s] facility” and
was therefore appealable.
             Petitioner’s appeal, however, was not dismissed for lack of
jurisdiction. Rather, the ALJ’s decision, adopted by BHA and the Secretary,
addressed the merits of Petitioner’s claims of lack of Department authority to issue
cease and desist orders and infringement of its religious rights and held that those
grounds for appeal were legally insufficient. (ALJ Adjudication at 5-6, R.R. at
22a-23a.) The ALJ’s erroneous statements that the Department’s regulations do
not “allow for an appeal of a cease and desist order” and that “if the Department
lacks authority to issue a cease and desist order, then the BHA also lacks authority


                                          14
to hear Appellant’s appeal on that issue” (id. at 5, R.R. at 22a) are thus harmless
dicta and do not invalidate the decision.
             The issue of whether an evidentiary hearing was required is more
complicated. A party does not have a right to an evidentiary hearing where the
only disputes are legal issues and the facts on which the agency decision is based
are undisputed. Sal’s Restaurant, Inc. v. Department of Health, Bureau of Health
Promotion and Risk Reduction, 67 A.3d 57, 61 (Pa. Cmwlth. 2013); Gruff v.
Department of State, 913 A.2d 1008, 1014 (Pa. Cmwlth. 2006); Independence Blue
Cross v. Pennsylvania Insurance Department, 802 A.2d 715, 720 (Pa. Cmwlth.
2002). The only factual questions on which the cease and desist order depended
were whether Petitioner had a certificate of compliance and whether Preschool was
providing care for seven or more children, and those facts were not contested by
Petitioner. Whether the Department had authority to proceed by cease and desist
order is a question of law, not a factual issue. Beam, 788 A.2d at 358-59 & n.3.
Petitioner was therefore not entitled to an evidentiary hearing on its defense that
the Department lacks power to enforce its certificate of compliance regulation by
cease and desist order.
             In contrast, it does not appear that the facts concerning Petitioner’s
religious liberty defense were undisputed. The record is not clear that all of
Petitioner’s religious liberty arguments were identical to those held legally
insufficient in St. Elizabeth’s Child Care Center.         Petitioner requested an
evidentiary hearing on the merits of its religious liberty defense and contended that
it wished to introduce evidence as to how the certificate of compliance requirement
has affected other religious day care providers. (H.T. at 22-23, R.R. at 56a-57a.)
Because the facts were not shown to be undisputed, Petitioner was entitled to an


                                            15
opportunity to introduce evidence to show a burden on its exercise of its religious
freedoms in support of its religious liberty defense and the dismissal of that
defense without an evidentiary hearing was error.9
              For the reasons set forth above, we affirm the order of the Department
insofar as it held that the Department had authority to issue the cease and desist
order, but vacate its dismissal of Petitioner’s religious liberty defense, and remand
this matter for a hearing limited to that defense.




                                         __________ ___________________________
                                         JAMES GARDNER COLINS, Senior Judge




9
  Petitioner has also argued that it intended to seek discovery if its appeal proceeded to the
merits. We note that Petitioner does not have an automatic due process right to discovery in an
administrative proceeding such as this. KC Equities, 95 A.3d at 932-33.
                                              16
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Our Lady of Victory Catholic Church        :
and Our Lady of Victory Preschool,         :
                                           :
                    Petitioners            :
                                           :
             v.                            :   No. 294 C.D. 2016
                                           :
Department of Human Services,              :
                                           :
                    Respondent             :

                                     ORDER


             AND NOW, this 31st day of October, 2016, the order of the
Department of Human Services (Department) in the above-captioned matter is
AFFIRMED insofar as it upheld the Department’s authority to issue the cease and
desist order, but is VACATED insofar as it ruled on Petitioner’s religious liberty
defense to the cease and desist order. This case is remanded to the Bureau of
Hearings and Appeals of the Department of Human Services for an evidentiary
hearing limited to Petitioner’s religious liberty defense.
             Jurisdiction relinquished.




                                      __________ ___________________________
                                      JAMES GARDNER COLINS, Senior Judge
