February 2, 2011

Details of Commonwealth Court Ruling

As I mentioned in my last post, “Breaking News: Court Rejects Anglican Appeal,” the Commonwealth Court of Pennsylvania has rejected the appeal of the Anglican Diocese of Pittsburgh to the action of the Common Pleas Court of Allegheny County that awarded diocesan property to the Episcopal Diocese of Pittsburgh. I will try to summarize the 19-page opinion and order from Judge Renée Cohn Jubelirer below.

I will not describe all the legal maneuvering that led to the latest ruling, but recall that Calvary Episcopal Church filed suit against then bishop Robert Duncan and other diocesan leaders in October 2003 when it was becoming clear that a plan was being devised to remove the Diocese of Pittsburgh from The Episcopal Church. Two years later, all parties agreed to a stipulation that asserted, inter alia, that
Property, whether real or personal (hereinafter “Property”), held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America (hereinafter “Diocese”) for the beneficial use of the parishes and institutions of the Diocese, shall continue to be so held or administered by the Diocese regardless of whether some or even a majority of the parishes in the Diocese might decide not to remain in the Episcopal Church of the United States of America. For purposes of this paragraph, Property as to which title is legitimately held in the name of a parish of the Diocese shall not be deemed Property held or administered by the Diocese.
After the plan to remove the diocese from The Episcopal Church was implemented, Calvary petitioned the court to enforce the stipulation and return diocesan property to the Episcopal Diocese of Pittsburgh. The Court of Common Pleas granted the request.

The Court of Common Pleas held a hearing about whether the stipulation had been violated on May 27, 2009. The arguments made that day are largely the focus of the Commonwealth Court opinion. (You can read my first-person account of that hearing, “My Day in Court,” as well as find my other posts relating to the Calvary litigation in my Web log’s Table of Contents.)

Judge Jubelirer’s opinion begins by reviewing the history of the litigation and noting that the May 27, 2009 hearing addressed “assuming that the Anglican Diocese validly withdrew from TEC USA [emphasis in original], whether the Anglican Diocese could take or retain control of the property referenced in Paragraph One of the Stipulation without violating the Stipulation.” (Presumably, if the withdrawal was not proper—I have argued it was not—diocesan property clearly should remain with the Episcopal Church diocese.) Of course, Judge Joseph James had concluded that the answer to the question at issue on May 27 was no, and he ordered property returned to the Episcopal diocese.

The first question dealt with in today’s opinion is whether Calvary could petition the court for enforcement, rather than having to initiate new litigation. The Anglican diocese argued that a new action was required. This is the most technical issue dealt with by the court and one I will not try to explain fully. Suffice it to say that the Commonwealth Court ruled that the Court of Common Pleas had retained jurisdiction over compliance with the stipulation and could therefore act on a petition from Calvary Church.

The next question was whether “the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America” in the stipulation simply designates a legal entity at the time the stipulation was written or whether “of the Episcopal Church of the United States of America” was an independent descriptor qualifying “the Episcopal Diocese of Pittsburgh.” The Anglican diocese argued for the former interpretation, but the court concluded that only the latter interpretation was reasonable. It pointed out that the evidence offered at the hearing supported the view that the latter interpretation was intended. (Calvary’s lawyer, Walter DeForest, had insisted on the insertion of the reference to the diocese being in The Episcopal Church, for example.)

The Anglican diocese claimed that its rights to due process were violated in the May 27 hearing because evidence was introduced as to the legitimacy of the Episcopal diocese. (As an aside, I should mention that the opinion adopts a common-sense convention in referring to dioceses, very helpful in litigation in which parties on both sides at some point insisted on being referred to by the same name. “Diocese” is used to refer to the undivided diocese; after the October 2008 split, the dioceses are referred to as the “Anglican Diocese” and the “Episcopal Diocese.”) Anyway, the appellants argued that the assumption that the withdrawal of the Anglican diocese was proper precluded arguments that the Episcopal diocese was legitimate. The Commonwealth Court found, however, that the assumption did not automatically imply that the Episcopal diocese “could not also validly exist.” In other words, the question of the Episcopal diocese’s legitimacy was independent of the assumption of the hearing and evidence bearing on that question was proper to introduce.

The Anglican appellants also argued that the Court of Common Pleas could not order its Board of Trustees to surrender property, since the Board of Trustees was not a party to the litigation. The court pointed out, however, that the Anglican diocese had argued on behalf of the Board of Trustees without asserting the Board’s independence. It called the appellant argument at this time “disingenuous.”

The Anglican diocese also argued that the Episcopal diocese was not a party to the litigation and, therefore, it could not be ordered to receive the property the Anglican body’s Board of Trustees was required to surrender. Commonwealth Court observed that the appellants cited no authorities to support their argument, and, although the use by both sides of the name “Episcopal Diocese of Pittsburgh” confused who was representing whom, the Episcopal diocese had been adequately represented in the litigation. That both Calvary Church and The Episcopal Church argued that the Episcopal Diocese of Pittsburgh should receive the property was good enough for the court.

The opinion concludes: “For these reasons, we affirm the order of the trial court.” The opinion is followed by the following order (emphasis in original):
NOW, February 2, 2011, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby AFFIRMED.


  1. It is amazing and sad that the appellants thought that the decision might be otherwise.

  2. Excellent news! What is next and how long will additional appeals take before the property is returned to the real Episcopal Church? Anyone have a realistic guess?

  3. What a mess! If all the churches are "returned" to the diocese, what happens to the priests/vicars/deacons, not to mention the members? Selling some properties to the Duncan bunch would help the diocesan budget. But which? Are there members who would willingly return to TEC and try to keep the parish going? Interesting.

  4. So is the stipulation still in effect? Are there any churches where the property is actually in the parish or vestry's name rather than the diocese? Or does it all go to TEC now?

  5. The stipulation is indeed still in effect. The Board of Trustees of the Episcopal diocese owns properties other than that of St. Philip’s, but it does not own all parish property. The stipulation says that congregations wishing to leave the diocese—presumably all those now in the Anglican diocese—must follow the negotiation path set out in the stipulation to establish final ownership. It may take a long time to work out all the agreements.

  6. Just a note to Dallas Bob: the ruling of the Court of Common Pleas to enforce the Stipulation that in 2005 settled the lawsuit brought by Calvary Church against the Episcopal Diocese of Pittsburgh, now affirmed by the Commonwealth Court, addressed only those assets covered by "Paragraph One" of the Stipulation--assets "of the diocese," and not those "of individual parishes" (except in the case where parish property was titled in the name of the Trustees of the diocese.) These assets were "returned" to the Episcopal Diocese by the Anglican Diocese when directed to do so by the court, and our Episcopal Diocese has thus had control of them for some time.

    Lionel is correct that the announcement of the negotiated settlement with the congregation of St. Philip's in Moon Township has taken place in accordance with "Paragraph Two" of the Stipulation, having to do with parishes. This paragraph outlines very generally a process to be undertaken when a congregation wishes to depart from the (Episcopal) diocese. As I understand it, there is no provision for any "general settlement." Each congregation will need to enter into conversation with the diocese in an effort to find a mutually satisfactory resolution.

    I am personally delighted that such a successful, mutually satisfactory resolution was found in the conversation with the St. Philip's congregation, and I pray it will be the first of many.

    Bruce Robison

  7. Bruce: You will need to explain what assets you believe are property of individual parishes rather than the Episcopal Diocese of Pittsburgh. You assume that a parish is a separate legal entity which has any right to own property that is somehow distinguished from property held in trust by the diocese. Your use of quotation marks on the use of the word "returned" indicates that you believe that such property can exist. If a parish vestry unilaterally attempts to transfer property from the diocese into the parish's name, it is not just a violation of fiduciary duty but also amounts to theft.

    The suggestion that the stipulated process is only a precedent for certain property is nonsense. Duncan signed the stipulation in the first place because he was informed by his counsel that he could not win. His subsequent attempts to weasel his way around the express terms of that stipulation are a contemptible effort to rationalize theft. The Commonwealth Court is exactly right when it states that the terms of the stipulation are not susceptible of any other meaning. It is not easy to get a re-hearing en banc by the Commonwealth Court and Duncan is highly unlikely to get one. Few appellants bother, but rather submit petitions for review to the State Supreme Court. In this case, Duncan's legal arguments are so poor that it would not be out of the question for a court to direct the Duncan group to pay the attorneys fees of the Episcopal Diocese.

    Why then is Duncan continuing to stretch this out? Does he think that he will be rescued from the cross of his own making, at the very last moment? Hardly. Duncan probably wants to delay the end of the dispute for his own very mundane, megalomaniacal reasons. The longer that his separate diocese battles, the more that it appears to be an equal of an Episcopal diocese. The protracted dispute gives Duncan the opportunity to prolong the illusion that his diocese is legitimate and worthy of greater acceptance. It keeps Duncan and his self-made diocese in the news, rather than just fading away into obscurity.

    Despite Piskie's comment, the ECUSA is doing an admirable job to clean up the mess which Duncan created. Just like any other denomination, unneeded real property will be listed for sale. The secessionist priests and vicars resigned and are gone. Any members who want to return will be welcomed back. I do agree with Bruce on one point. I am also pleased that a peaceful and apparently fair resolution has been negotiated with one former parish. Hopefully more will be forthcoming.

  8. Hi Gary,

    It is I think settled that Parishes can own property. Real estate may be titled, for example, to "The Rector, Wardens, and Vestry of St. Andrew's Church." The legal and canonical question centers on whether the officers of the parish can escape the fiduciary duties imposed by the canons of the diocese and of the Episcopal Church. My view and the view expressed in the Stipulation is that they cannot. The canons of the diocese, in conformity with the canons of the Episcopal Church, require that real property may not be encumbered or sold by parish officers without the consent of the Board of Trustees of the Episcopal Diocese of Pittsburgh. If a congregation--an organized group of people who formerly were members of a parish of the Episcopal Church, but who are no longer such--wishes to own or use properties titled in the name of a parish of the Episcopal Church, or titled in the name of the Trustees of the Episcopal Diocese, then they must negotiate an agreement to the satisfaction of the Trustees of the diocese for the sale/transfer of assets and for the release of the diocese's trust interest. The process would essentially be the same if the building were vacant and those who were in negotiation with the diocese were, say, the local YMCA. The substance of the process is of course somewhat different. The members of the negotiating congregations are our dear friends who for 150 years have shared life, ministry, and mission with us, and we would acknowledge in the present moment the grace of their ministries and of the substantial spiritual and material investment they have made over many years to create and enhance the true "value" of these places of ministry. We must of course be careful to follow both civil law and canonical requirements in our actions. But I do continue to pray that there will be as well a deeper spirit of Christian charity and true generosity. Although my friends in the Anglican Diocese are understandably hurt by the situation with St. Philip's, and while I personally disagree with some elements of our diocese's approach, I do believe that we can rejoice that, despite some predictions, it does appear to be the case that mutually satisfactory resolutions can be found. Neither "side" perhaps getting all that it wants, but both sides getting what they need, and all of us able to move forward with some sense of grace and health.


  9. Bruce,

    When you get a chance, I want you to introduce me to some of your dear friends who have shared ministry with us for the past 150 years. All my friends are younger.

  10. Dear Lionel,

    We move in different circles!



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