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SOVEREIGN ORDER OF ST. JOHN OF JERUSALEM-KNIGHTS O

August 30, 1983

SOVEREIGN ORDER OF SAINT JOHN OF JERUSALEM-KNIGHTS OF MALTA BY WILLIAM H. COLEMAN, II, TRUSTEE AD LITEM, SOVEREIGN ORDER OF SAINT JOHN OF JERUSALEM, INC., and THORBJORN WIKLUND
v.
SALVATORE T. MESSINEO, LEONARD J. MESSINEO, SR., LEONARD J. MESSINEO, JR., FRANCISCO J. VASILE and ALEKSEI NICHOLAEVICH ROMANOFF, A/K/A MICHAEL GOLENIEWSKI



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 I. INTRODUCTION

 This action involves a complex dispute among many parties over the control of a non-profit, religious-military order and charitable organization, the Sovereign Order of Saint John of Jerusalem -- Knights of Malta, and a non-profit Delaware corporation, Sovereign Order of Saint John of Jerusalem, Inc., organized to accomplish the purposes of the order. The action also presents claims and counterclaims for trademark infringement. Jurisdiction is based upon 28 U.S.C. § 1331 and diversity of citizenship, 28 U.S.C. § 1332. Before me is plaintiff's motion for a preliminary injunction on Count III of the complaint, which involves the issue of corporate control. Plaintiff seeks to enjoin the defendants from continuing to represent themselves as directors or members of the corporation, from using the corporation's registered marks, from soliciting or accepting contributions on behalf of the corporation and order, and from carrying on corporate business in any way. The parties have submitted voluminous briefs, affidavits, trial depositions and exhibits. I held a hearing on April 27, 1983, at which additional testimony was taken. Oral argument was held on May 9, 1983. Based upon this hearing, the memoranda submitted by the parties, and the entire record, I conclude that the plaintiff did not meet his burden of showing irreparable injury or likelihood of success on the merits and that his motion must be denied. This opinion constitutes my findings of fact and conclusions of law for the purposes of plaintiff's preliminary injunction motion only.

 Findings of Fact

 The parties have submitted a short stipulation of fact. I adopt this stipulation and incorporate it by reference. I make the following additional findings of fact.

 1. The order has its roots in an ancient religious and military order founded in 1048 A.D. Through the years, the order has gone through various stages and has been based in several countries. During the 18th century, the order was based on the island of Malta. About 1800 the members of the order were driven from Malta, and relocated in Russia, where the order remained until the Russian Revolution. Throughout its existence members of the nobility have held the position of "protector" of the order. In the mid-1920s, Grand Duke Alexander of Russia became its protector, and remained so until his death in 1933. The order relocated to the United States during the late nineteenth century.

 2. The purposes of the order are most admirable. The order has historically dedicated itself to charitable deeds. Religious beliefs play an important role in the activities of the order and in the requirements established for membership. In light of its ancient roots, however, the lines of authority have become blurred and the order is steeped in historical controversies. There have been many groups who claim to comprise the "true" Sovereign Order of Saint John. Unfortunately, these groups sometimes publish written essays and histories, contesting the historical legitimacy of other groups, while attempting to document their historical continuity with the original order. (D 4, exhibit "D") The present action resulted from a dispute among members of one such group. This group, to which plaintiff and the defendants all once belonged, while exhibiting the unimpeachable charitable motives of the order, has experienced considerable internal strife, and struggles among its members for title and authority. (See D 2) Indeed, this is not the first time members of this group have turned to the courts for legal intervention in their internal disputes. (E.g., Sovereign Order of St. John of Jerusalem, Inc., et al. v. Pichel, No. 80-0501 (M.D. Pa. Dec. 28, 1981).

 3. Charles Pichel became active in the order during the 1950s. Pichel and the other leaders of the order called themselves the "Supreme Council". (P 12) As a leader of the order, Pichel participated in the forming of a corporation in 1956. (See D 11)

 4. The corporation, Sovereign Order of Saint John of Jerusalem, Inc., was formed on August 9, 1956, pursuant to the Delaware General Corporation Law, Del. Code Ann. tit. 8, § 101 et seq. (1972). (Stipulated Fact 13; Id. Exhibit A; D 17)

 5. The certificate of incorporation states that the purpose of the corporation is to act as "the historical and legal continuity of an ancient non-profit religious-military Order and charitable organization supported by the voluntary gifts, contributions, devises, and/or bequests of its members and associates, and the Corporation is pledged to promote, protect and teach the Christian religion, aid the needy, lame, blind, afflicted, build and maintain churches, clinics, hospitals and provide ambulances, all without restriction as to color, race or religion. In order to better accomplish these purposes it is proposed to further and more completely identify the corporation historically as the American Grand Priory of the Sovereign Order of Saint John of Jerusalem, (Knights of Malta), including the Grand Priory of Russia, originating in Jerusalem about 1050 A.D. Malta 1530, Russia 1798 and established in the United States since 1908, this title being descriptive only, and the corporation name to remain as herein designated." (Stipulated facts, exhibit A).

 6. The certificate of incorporation states the conditions of membership in the corporation as follows:

 
The membership of the corporation shall be restricted to those persons complying with the historical requirements established by the Order and interpreted or modified from time to time by the Order or the Board of Directors.

 (Id.)

 7. At the time the Delaware corporation was formed, there existed a New Jersey corporation, Knights of Malta, Inc. (D 11)

 8. The first meeting of the Delaware corporation was held on September 7, 1956. Present at that meeting were the members of the board of directors of the New Jersey corporation. The directors voted to accept the certificate of incorporation of the Delaware corporation, along with the resignation of the incorporators. The directors of the New Jersey corporation then voted that they should be retained and elected as directors of the Delaware corporation. (Id.)

 9. The directors of the corporation were, almost without exception, members of the supreme council. (D 11-18)

 10. During the years 1956-76, Pichel unilaterally ran both the corporation and the order. Pichel utilized proxies from members of the board of directors of the corporation and from members of the supreme council, as a formality, to accomplish those actions he wished the corporation and the order to take.

 11. Since the corporation was formed, the affairs of the order and the affairs of the corporation were often intertwined. (See D 11-14) The board of directors discussed the affairs of the order, and the members of the supreme council discussed corporate business. (Id.; D 15-18; P 6-9) On occasion, the supreme council directed that the corporation should take a particular action. The corporation did not generally follow any of the directives. (Id.; Salvatore Messineo testimony).

 12. During the years 1966-1980, the board of directors of the corporation only held meetings in conjunction with meetings of the supreme council. The directors first met informally in the mornings; following that meeting, the supreme council met; then the board of directors held its formal meeting. (Id.; Edelen testimony).

 13. On February 28, 1977, Pichel resigned as leader of the order and director of the corporation. The terms of his resignation are reflected in an agreement, which divided the "power" over the order into two positions -- the "grand priory of Europe" and the "grand priory of the United States." (D 18k)

 14. On February 28, 1977, a new board of directors of the corporation was elected by the current members of the board. (Id.)

 15. At its meetings from 1977-80, the supreme council regularly admitted and expelled members from the order. The supreme council also regularly elected and expelled members from the supreme council itself. As a result of this activity, over the three year period the entire composition of the supreme council changed. (D 18k-r; P 6)

 16. From 1956 until 1983, at none of its meetings did the supreme council ever formally elect members of the board of directors of the corporation. (Id.; P ...


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