IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Laura M. Magone, Barbara Falappi, :

Joseph Ravasio, Jean J. Rieppi, and :

Kimberly A. Yarvorsky, Individually and :

on Behalf of the Roman Catholic :

Congregation of Saint Anthony, :

Appellants :

:

 v. : No. 1351 C.D. 2018

: ARGUED: May 6, 2019

The Diocese of Pittsburgh, and the :

Most Reverend David A. Zubik, :

Diocesan Bishop :

BEFORE: MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: January 30, 2020

This action arises from events surrounding the suppression (i.e.,

“closure”) and merger1 of the former Roman Catholic Congregation of Saint 

Anthony Church (Saint Anthony or Saint Anthony Parish) in Monongahela, 

 

1 Suppression is a canonical process whereby a Roman Catholic parish is disbanded. In this 

case, Saint Anthony was suppressed and merged with another parish to form Saint Damien of 

Molokai Parish in Monongahela, Washington County. 

An opinion in a similar case, Pagac v. Diocese of Pittsburgh (Pa. Cmwlth., No. 1351 C.D. 

2018, filed January 30, 2020), is being issued concurrently. 
2

Washington County. Parishioners2 of Saint Anthony, brought this action on behalf 

of themselves and Saint Anthony Parish against the Diocese of Pittsburgh, which 

oversaw Saint Anthony, and the Bishop of the Diocese, David A. Zubik, who issued 

the decree suppressing and merging Saint Anthony. The action, which included four 

counts seeking monetary damages and one seeking injunctive relief,3 was dismissed 

by order of the Court of Common Pleas of Washington County (trial court) granting 

the Diocese’s and Bishop Zubik’s preliminary objections. 

Parishioners’ allegations may be summarized as follows. Saint 

Anthony Parish was established in 1904 to serve the Italian community of 

Monongahela. Beginning in 2007, the Diocese began to study options to reconfigure 

parishes in the Monongahela Valley. During this time period, the Diocese created a 

project called “Church Alive!” which was designed to raise funds from parishes, 

including Saint Anthony, that were, unbeknownst to their parishioners, slated for 

closure. The “Church Alive!” program continued to solicit and receive funds from 

Saint Anthony’s parishioners for two years, until the Diocese’s study for closures 

and realignment was completed in 2009. Among the study’s recommendations was 

the merger of Saint Anthony with another parish, which was opposed by parishioners 

of Saint Anthony. In August 2011, Bishop Zubik made the formal recommendation 

to close Saint Anthony by merger with the other parish. 

 

2 The Diocese and Bishop Zubik argue that the Parish ceased to exist upon suppression and 

that Appellants are no longer parishioners of Saint Anthony Parish. Irrespective of this, as Bishop 

Zubik and the Diocese do at several points in their brief, we refer to these individuals as 

“Parishioners” for descriptive purposes. 

3 Count I—Fraud; Count II—Breach of Fiduciary Duty; Count III—Conversion; Count IV—

Unjust Enrichment; and Count V—Injunctive Relief. 
3

The Diocese and Bishop Zubik planned over an extended period of time 

to merge Saint Anthony and Transfiguration Parishes in Monongahela, culminating 

in an August 2011 decree merging the two parishes to create Saint Damien of 

Molokai Parish housed at the former Transfiguration Parish building. Parishioners 

allege that during the process, the Diocese raised funds and solicited contributions 

from the suppressed parishes; that they were misled to believe that there was a 

possibility that the former Saint Anthony facility might be kept open as a place of 

worship; that they were excluded from discussions concerning the sale of the Saint 

Anthony facility; that the meetings were overseen and run to ensure that the plan to 

sell the Saint Anthony facility proceeded; that the Diocese and its representatives 

misled Parishioners to believe that if enough funding was raised, the facility might 

remain open; that Parishioners continued to raise funds and make weekly donations; 

and that Parishioners pursued appeals of the merger, including a canonical appeal to 

the Vatican. 

In March 2014, Bishop Zubik issued a decree closing Saint Anthony. 

Parishioners filed an appeal to the March 2014 decree that was denied by the 

Episcopal Vicar for Canonical Services. The March 2014 decree cited Saint 

Anthony’s financial situation as the main reason for its closure. Parishioners assert 

that the claimed financial distress was a falsehood, with debt found in a 2010 audit 

being reduced from about $140,000 to $44,000 in one year through special 

fundraising for this effort. In addition they asserted that the pastor for Saint Damien 

of Molokai refused a private donor’s offer to extinguish the remaining debt on Saint 

Anthony’s facility, stating that such funds would be redirected toward other 

concerns. Parishioners took issue with several other aspects of Bishop Zubik’s 

decree, asserting that contrary to the Bishop’s statements, Saint Anthony’s facility 

was in much better condition and had a location superior to the former 

Transfiguration where the combined parish is housed. Parishioners believed that the 
4

decision to close Saint Anthony rather than Transfiguration was driven by the 

potentially higher value of the Saint Anthony’s facility if sold. 

Parishioners filed their action in the trial court in January 2017. The 

Diocese and Bishop Zubik filed preliminary objections to the effect that the 

controversy was not ripe; that the trial court lacked subject matter jurisdiction due 

to the constitutional “deference rule”; that Parishioners lacked standing; and that 

each count was not legally sufficient (demurrer). After argument and briefing, the 

trial court sustained the preliminary objections with respect to lack of subject matter 

jurisdiction and dismissed Parishioners’ complaint with prejudice by order dated 

October 19, 2017. (Reproduced Record “R.R.” 153-59a.) This appeal ensued.4 The 

trial court issued an opinion under Pennsylvania Rule of Appellate Procedure 

1925(a) upholding dismissal for lack of subject matter jurisdiction and additionally 

finding that Parishioners lacked standing. (R.R. 187-99a.)

On appeal, Parishioners raise the following issues:

5

(1) Whether the trial court erred in determining that 

it lacked subject matter jurisdiction under the deference 

rule; and 

(2) Whether the trial court erred in concluding that 

Parishioners lacked standing. 

For the reasons set forth below, we affirm in part and reverse in part. 

 

4 Parishioners’ appeal was filed in the Superior Court in November 2017. After the 

submission of briefs and the reproduced record, the matter was transferred to the Commonwealth 

Court pursuant to Pennsylvania Rule of Appellate Procedure 751. 

5 These issues present questions of law over which we exercise plenary review. Phillips v. A–

Best Products Co., 665 A.2d 1167, 1170 (Pa. 1995).
5

The courts of this Commonwealth have confronted several cases in the 

past similar to the one at bar and have routinely relied upon what is commonly 

referred to as the Act of 1935,6 10 P.S. § 81, in holding that members of a Roman 

Catholic parish lack standing to challenge the suppression or dismemberment of a 

parish. St. Peter’s Roman Catholic Parish v. Urban Redev. Auth. of Pittsburgh, 146 

A.2d 724, 726 (Pa. 1958) (St. Peter’s) (settlement for condemnation of church 

building); Post v. Dougherty, 191 A. 151, 153 (Pa. 1937) (suppression of a parish); 

Canovaro v. Bros. of Order of Hermits of St. Augustine, 191 A. 140, 145 (Pa. 1937) 

(dismemberment of a parish); Croatian Roman Catholic Church of the Holy Trinity 

Congregation, Ambridge, Beaver Cty., Pa. v. Wuerl, 668 A.2d 1151, 1152-53 (Pa. 

Super. 1995) (Holy Trinity Church) (suppression of parishes). The Act of 1935 

provides in salient part: 

Whensoever any property . . . has . . . been . . . conveyed 

to any . . . bishop . . . for the use of any church [or] 

congregation . . . for . . . religious worship . . . , the same 

shall be taken and held subject to the control and 

disposition of such officers and authorities of such church

. . . , having a controlling power according to the rules . . . 

of such church, . . . which control and disposition shall be 

exercised in accordance with and subject to the rules and 

regulations, usages, canons, discipline[,] and requirements 

of the religious body . . . to which such church . . . shall 

belong. 

Based on the Act of 1935 and the binding precedent applying it, we must agree with 

the trial court that Parishioners lack standing to interfere with the suppression of 

Saint Anthony or its merger into Saint Damien of Molokai. Therefore, we affirm the 

dismissal of Count V seeking an injunction to bar the merger.

 

6 Section 7 of the Act of April 26, 1855, P.L. 328, as amended, 10 P.S. § 81. The 

aforementioned section was substantially amended by the Act of June 20, 1935, P.L. 353, which 

has become synonymous with the provision despite its original enactment date. 
6

Nor, we believe, can Parishioners recoup their contributions under 

theories of breach of fiduciary duty, unjust enrichment, or conversion. Parishioners’ 

allegations implicitly acknowledge that the moneys given were, as it is put in the Act 

of 1935, “[personal] property . . . conveyed to . . . [a] bishop . . . for the use of [a]

church . . . for religious worship.” 10 P.S. § 81. Thus, under the Act of 1935 Bishop 

Zubik owned the property given to Saint Anthony in trust for the Parish and alone 

may dispose of it in accordance with the Canons of the Roman Catholic Church. 

Therefore, “[t]he dispositive rule is that [a] plaintiff, as a parish or congregation, has 

no standing to sue.” St. Peter’s, 146 A. at 726. We must emphasize here that 

Parishioners do not suggest that the money they raised and donated was held or used 

for anything other than activities of the Diocese and its various churches. That being 

the case, while Parishioners find the use of their donations contrary to their intent as 

well as unwise and unfair, our statutory and case law does not allow them to 

challenge the Bishop’s discretion in this regard. 

Moreover, Parishioners’ standing is further diminished as a result of the 

suppression. Our Supreme Court has held that any rights in a church’s property that 

its parishioners may have arise only out of their membership, and are extinguished 

in the suppression or dismemberment. “The effect of the suppression of [a] parish 

[is] to cause the lay members to lose their membership therein . . . . Having lost their 

membership in the parish, they have no standing to maintain a bill in equity to 

enforce any property rights which they may have had in their former capacity . . . .” 

Post, 191 A.2d at 153. While these authorities are admittedly old and, in some 

circumstances may seem inequitable, they have not been overturned and we are 

bound by them. As the Superior Court has stated, Parishioners’ devotion to their 

parish “can neither confer upon the civil courts jurisdiction over an ecclesiastical 

matter nor cloak appellants in these cases with standing where none exists.” Holy 

Trinity Church, 668 A.2d at 1152. Accordingly, we must affirm the trial court’s 
7

dismissal of Counts II (breach of fiduciary duty), III (Conversion) and IV (unjust 

enrichment). 

However, we conclude that Count I (fraud) may go forward. 

Parishioners have alleged that Bishop Zubik made knowingly fraudulent 

misrepresentations which caused them to part with their money. At this point we 

must assume these allegations to be true. Such conduct, if proven, certainly can be 

said to “contravene the law of the land,” Saint Peter’s, 146 A.2d at 726.7 The fraud 

claim stated here is not subject to the “deference rule,” by which the trial court found 

that it lacked subject matter jurisdiction. According to the deference rule, “civil 

courts decline to exercise jurisdiction over cases that would require them to decide 

ecclesiastical questions.” See Connor v. Archdiocese of Philadelphia, 975 A.2d 

1084, 1088 (Pa. 2009) (explaining in depth the origins and application of the 

deference rule under Pennsylvania and federal jurisprudence). Parishioners argue 

that the trial court has jurisdiction over the allegedly non-ecclesiastical, tortious acts 

which led up to the suppression. Parishioners suggest application of the “neutral 

principles of law approach,” which applies civil law principles to suits that are “not 

 

7 This stands in sharp contrast to St. Peter's, a case in which the then-Bishop of the Diocese 

of Pittsburgh agreed to a settlement in the condemnation and demolition of a parish. Our Supreme 

Court concluded its discussion of the standing of the plaintiffs as follows: 

The members of the plaintiff parish are bound by the Act of 1935 

and by [Post and Canovaro]. They have not alleged that the action 

of the defendant Bishop contravenes the canons of the Church or the 

law of the land. The power to dispose of this Church property is 

therefore exclusively in him. Nor has plaintiff in any way impugned 

the action of the Bishop as being against the prescribed process of 

the Church or as being in bad faith, but rather in its answer to the 

preliminary objections has expressly excepted him from any 

imputation of fraud. 

St. Peter's, 146 A.2d at 726. 
8

predicated on any religious doctrine.” See id. at 1096-97 [quoting Presbytery of 

Beaver-Butler of United Presbyterian Church U.S.A. v. Middlesex Presbyterian 

Church, 489 A.2d 1317, 1322 (Pa. 1985) (Beaver-Butler)]. 

Connor surveyed at length the history and competing rationales of the 

deference rule and the neutral principles of law approach, but summarized the 

current state of the law as follows: “the most thorough and persuasive analyses are 

yielded by a claim-by-claim, element-by-element approach to the question of 

whether to apply the deference rule.” 975 A.2d at 1102. The Court concluded as 

follows: 

[I]n determining whether to apply the deference rule, the 

fact-finding court must: (1) examine the elements of each 

of the plaintiff’s claims; (2) identify any defenses 

forwarded by the defendant; and (3) determine whether it 

is reasonably likely that, at trial, the fact-finder would 

ultimately be able to consider whether the parties carried 

their respective burdens as to every element of each of the 

plaintiff’s claims without “intruding into the sacred 

precincts.”

Id. at 1103 (quoting Beaver-Butler, 489 A.2d at 1321). The elements of fraud are as 

follows:

(1) a representation; (2) which is material to the 

transaction at hand; (3) made falsely, with knowledge of 

its falsity or recklessness as to whether it is true or false; 

(4) with the intent of misleading another into relying on it; 

(5) justifiable reliance on the misrepresentation; and (6) 

the resulting injury was proximately caused by the 

reliance. 

Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994). 

Obviously, at this early stage of the litigation Bishop Zubik and the 

Diocese have not filed an answer wherein affirmative defenses would be raised, but 

to the extent a defense has been stated, it is that the relief requested by Parishioners 
9

would require the Court to examine and analyze Canon Law with respect to the 

underlying decision to suppress Saint Anthony. 

We are cognizant that examining the underlying decision to suppress 

Saint Anthony would require the sort of inquiry that the Diocese and Bishop Zubik 

caution against, and on that ground have affirmed the dismissal of four of the five 

counts of Parishioners’ complaint. However, while the Bishop and the Diocese may 

have had the right under the law to do as they saw fit with regard to merging the 

parishes and dealing with church property, they did not have the right to take the 

Parishioners’ money under false pretenses, and the latter claim can be litigated 

without intruding into the former actions to which deference is owed. In other words, 

accepting the allegations of the complaint, as we must, we do not see the deference 

rule as an impediment to the inquiry as to whether Parishioners were defrauded. 

Therefore, at this preliminary stage we must allow this litigation to go forward.8

Accordingly, we will reverse the dismissal of Count I and remand for 

further proceedings on the claim of fraud.9 

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

Judge McCullough did not participate in the decision for this case.

 

8 What remedy Parishioners may be able to obtain is not at issue here. As noted above, they 

cannot recoup their contributions given to the Church, but if they can prove their claim that the 

Diocese and Bishop Zubik knowingly perpetrated a fraud, they may be able to obtain punitive or 

other damages.

9 The Diocese and Bishop Zubik argue that the case is not ripe because of ongoing proceedings 

under Canon Law administered by authorities of the Roman Catholic Church. The Diocese and 

Bishop Zubik do not cite, and our own research does not disclose, any authority preventing the 

civil claim for fraud in this case from proceeding. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Laura M. Magone, Barbara Falappi, :

Joseph Ravasio, Jean J. Rieppi, and :

Kimberly A. Yarvorsky, Individually and :

on Behalf of the Roman Catholic :

Congregation of Saint Anthony, :

Appellants :

:

 v. : No. 1351 C.D. 2018

:

The Diocese of Pittsburgh, and the :

Most Reverend David A. Zubik, :

Diocesan Bishop :

O R D E R

AND NOW, this 30th day of January, 2020, the order of the Court of 

Common Pleas of Washington County is AFFIRMED in part and REVERSED in 

part and this matter is REMANDED in accordance with the foregoing opinion. 

Jurisdiction is relinquished. 

The Diocese of Pittsburgh’s and Bishop David A. Zubik’s Application

for Leave to File Post-Argument Memoranda is DISMISSED AS MOOT. 

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge