           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.
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.


                                                2
               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

                                          3
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).




                                               4
              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.


                                             5
             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

                                            6
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.



                                                7
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



                                           8
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.


                                                9
        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                              :


                                     ORDER


            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
