IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andy Pagac, Carol Osethsky, :

Donna Ewedosh, Bernard ;

Kurjanowicz, Steven M. Kime, and :

Marge Sawicky, Individually and on :

Behalf of The Roman Catholic :

Congregation of St. Agnes, :

Appellants :

:

 v. : No. 1350 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 and merger1

of the Roman Catholic Congregation of Saint Agnes Church (Saint Agnes or Saint 

Agnes Parish) in Richeyville, Washington County.2 The Appellants, Parishioners3

 

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

case, Saint Agnes and four other local parishes in Washington County were suppressed and merged 

to form the Congregation of Saint Katherine Drexel, located in Bentleyville, Washington County.

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

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

3 The Diocese and Bishop Zubik argue that the parish ceased to exist upon suppression and 

that the Appellants are no longer parishioners of Saint Agnes Parish. Irrespective of this, we refer 
2

of Saint Agnes, brought this action on behalf of themselves and Saint Agnes Parish 

against the Diocese of Pittsburgh, which oversaw Saint Agnes, and the Bishop of the 

Diocese, David A. Zubik, who issued the decree suppressing and merging Saint 

Agnes. The action, which included four counts seeking monetary damages and one 

seeking injunctive relief,

4 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. The Diocese 

and Bishop Zubik are averred to have engaged in a plan to merge Saint Agnes and 

other parishes to form “mega parishes” and falsely communicated that Saint Agnes 

would remain open. Specifically, in February 2015, the Diocese notified 

Parishioners that Saint Agnes Parish would close but in March 2015 announced a 

rescission of this decision. The complaint alleges that the latter announcement was 

a knowingly false and material misrepresentation made with the wrongful intent to 

induce Parishioners to continue to make donations to and raise funds for the Church.

Based on their belief that Saint Agnes would remain open, Parishioners continued 

to attend Mass and provided tithes, donations, and offerings and, for a period of 21

months, engaged in fundraising efforts for the benefit of the congregation which 

raised in excess of $100,000. 

In December 2016, the Diocese announced that Saint Agnes Parish 

would be merged with four other parishes to form the Congregation of Saint 

Katherine Drexel. Parishioners allege that among the five merged churches, the 

 

to these individuals as “Parishioners” for descriptive purposes, as the Diocese and Bishop David 

A. Zubik do at several junctures in their brief. 

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

Unjust Enrichment; and Count V—Injunctive Relief. 
3

former Saint Agnes was the most financially feasible, the most recently built, and 

the only parish compliant with the Americans with Disabilities Act of 1990.

5

 Saint 

Agnes was also successful in meeting operating costs and paying down debt which 

made the Church “an ideal candidate to market at great profit.” Parishioners hired 

an outside engineering firm to assess the church buildings within the parishes of the 

proposed merger and the report concluded that Saint Agnes’s projected costs fell 

well below any church in the southeastern portion of Washington County over five 

and ten years. 

Parishioners assert that the Diocese and Bishop Zubik breached a 

fiduciary duty to act in their best interests and within the boundaries of the law; were 

unjustly enriched; converted their contributions intended for Saint Agnes to the 

merged parish; misled Parishioners through intentional actions and 

misrepresentations to believe that they would be able to save their Church from 

closure by raising funds; and only sought those funds to improve the market value 

of Saint Agnes’s property to sell it at a higher profit. 

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

Diocese and Bishop Zubik filed preliminary objections arguing 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 legally insufficient (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.) 

 

5

42 U.S.C. §§ 12101- 12213.
4

This appeal ensued.6 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:

7

(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.

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 1935,8 10 P.S. § 81, in holding that members of a Roman 

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

parish. See 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. 

 

6 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 Rule 751 of the Pennsylvania Rules of Appellate Procedure. 

7 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).

8 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. 
5

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 Agnes or its merger into the Saint Katherine Drexel Parish. Therefore, we 

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

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 Agnes 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.2d 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 
6

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. 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 

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

enrichment). 

However, we conclude that Count II (fraud) may go forward beyond 

this preliminary stage. 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.

9 The 

 

9 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: 
7

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 

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: 

 

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

[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 

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

underlying decision to suppress Saint Agnes. 

We are cognizant that examining the underlying decision to suppress 

Saint Agnes 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 
9

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.10

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

further proceedings on the claim of fraud.11 

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

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

 

10 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.

11 The Diocese argues that the case is not ripe because of ongoing proceedings under Canon 

Law administered by authorities of the Roman Catholic Church. The Diocese does 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

Andy Pagac, Carol Osethsky, :

Donna Ewedosh, Bernard ;

Kurjanowicz, Steven M. Kime, and :

Marge Sawicky, Individually and on :

Behalf of The Roman Catholic :

Congregation of St. Agnes, :

Appellants :

:

 v. : No. 1350 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 the 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