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 surroundin g the suppression and merger 1
of the Roman Catholic Congregation of Saint Agnes Church (Saint Agnes or Saint Agnes Parish) in Richeyville, Washington County. 2 The A ppellants, P arishioners 3

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 Bentle yville, 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 refer2

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 moneta ry 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 follow s. 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, i n 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 Pari shioners 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 M ass and provided tithes, donations, and offerings and, for a period of 21 months, engage d in fun draising efforts for the benefit of the congregation which raised in excess of $100,000

.

I n 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 Dav id 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 i n meeting operating costs and p aying down debt which
made the C hurch “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 co ncluded that Saint Agnes’s projected costs fel l well below any church in the s outheastern 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 interest s and within the boundaries of the law; were unjustly enriched; converte d their contributions intended for Saint Agnes to the merged parish; misled Parishioners through intentional actions and misrepresentations to believe that th ey would be able to save their C hurch 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 Z ubik filed preliminary objections arguing that the controversy was not ripe ; that the trial court lacked subject matter jurisdiction due to the
constitutional “deference rule” ; th at Parishioners lacked standing; and that each count was legally in sufficient (demurrer)

. After argument and briefing, the trial court sustained the preliminary objection s with respect to lack of subject matte r 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 jurisd iction and additionally finding that Parishioners lacked standing. (R.R. 18 7

- 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.

T he 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. 193 7) (dismemberment of a parish) ; Croatia n Roman Catholic Church of the Holy Trinity Congregation , Ambridge, Beaver C ty. , 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 w hich 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 ). T he 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 subj ect to the control and disposition of such officers and authorities of such church

. . . , having a controllin g 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 S aint Katherine Drexel Parish. Therefore, we
affirm the dismiss al of Count V seeking an injunction to bar the merger

.

Nor, we believe, can Parishioners r eco up their contributions under
theor ies 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 P arish and alone may dispos e of it in accordance with the C anons of t he 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 donat ions contrary to their intent as6

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

. O ur Su preme Court has held that a ny righ ts i n a church’ s property that its p arishioners 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 membe rs 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 ha ve 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
P arish “can neither confer upon the civil court s 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, w e conclude that Count II ( fraud ) may go forward beyond this preliminary stage

. Parishioners have alleg ed that Bishop Zubik made knowingly
fraudulent misrepresentations which caused them to part with their money

. A t this point w e must assume these allegations to be true . S uch conduct
, if proven
, certainly
can be said to “contravene the law of the land,” Sa int 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 i n the condemnation and demolition of a parish

. O ur 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 applicati on 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 t horough 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 th e 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 t he 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 con sider 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.

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

Obviously, a t thi s early stage of the litigation Bishop Zubik and the
Diocese have not filed an answer wherein affirmative defenses would be raised, but

t o the extent a defense has been stated, it is that the relief requested by Parishioners would require the cour t to examine and analyze Canon L aw with respect to th e 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 dism issal 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 ri ght to take the Parishioners’ money under false pretenses, and the latter claim can be litigated9

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

a ccepting 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 Parish ioners may be able to obtain is not at issue here. As noted above, they cannot recoup their contributions given to the C hurch, 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 author ity 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 30 th 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 Memorand a is DISMISSED AS MOOT

.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior J udge