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ORTHODOX CHURCH AMERICA v. JOSEPH MIKILAK (07/26/85)

filed: July 26, 1985.

ORTHODOX CHURCH IN AMERICA, DIOCESES OF EASTERN PENNSYLVANIA, THE RIGHT REVEREND HERMAN, BISHOP OF PHILADELPHIA, ST. BASIL'S RUSSIAN ORTHODOX CHURCH OF SIMPSON, PENNSYLVANIA, MICHAEL S. MIKILAK, DENNIS BUBERNIAK, STEPHEN KOWALSKY, DENISE COBB, ESTHER KOWALSKY, MARY BURKE, REVEREND MICHAEL H. EVANS, APPELLEES,
v.
JOSEPH MIKILAK, ANNA EGNATOVICH, ALEXANDER KOWALKO, STEPHEN FEDAK, DEEMER V. SUMPLE, KAREN CHAPARO, JUNE BARNA, JOHN LUCHONOK, SR., AND FRANK FERENCE, JOHN DOE, JANE DOE, APPELLANTS



Appeal from Order of the Court of Common Pleas, Civil Division of Lackawanna County, No. 82 Equity 1982.

COUNSEL

Gene E. Goldenziel, Scranton, for appellants.

William R. Lee, Scranton, for appellees.

Wieand, Olszewski and Popovich, JJ. Wieand, J., files a dissenting opinion.

Author: Olszewski

[ 344 Pa. Super. Page 183]

The parties, rival factions, vie for control of St. Basil's Russian Orthodox Church. The matter before us resolves to a question of control over parish property. Appellants represent that part of the congregation which voted to secede. The lower court, finding that inadequate notice had preceded the vote, issued an order restoring possession of the church to appellees and enjoining appellants from interfering with appellees' use of the property. By agreement of the parties, the lower court reached the ultimate issue and found that St. Basil's was a "hierarchical," as opposed to a "congregational" church.

Jurisdiction over an appeal in an action involving a corporation not-for-profit lies properly with the Commonwealth Court. See 42 Pa.C.S. Sec. 762. Rather than exercise our discretion to decide the questions in this case, we transfer

[ 344 Pa. Super. Page 184]

    this matter to the court vested with jurisdiction to hear the appeal, the Commonwealth Court.

Accordingly, pursuant to Pa.R.A.P. 751 and 42 Pa.C.S. Sec. 5103(a), this case is hereby transferred to the Commonwealth Court. Jurisdiction is relinquished.

WIEAND, Judge, dissenting:

A majority of the members of St. Basil's Russian Orthodox Greek Catholic Church of Simpson, Pennsylvania, voted to transfer affiliation from the ecclesiastical jurisdiction of the Orthodox Church in America to that of the Russian Orthodox Church Outside of Russia (Church Abroad). The Orthodox Church in America and the congregational minority, who are the appellees, commenced an action in equity in the Court of Common Pleas of Lackawanna County and obtained an injunction*fn1 restoring possession of church property to them and preventing any future interference with their use of the property to conduct religious services. On appeal, the majority contends that St. Basil's is a congregational church; and, therefore, the congregation, by majority vote, may use the church property to worship God in affiliation with whatever church body it chooses.

A majority of this Court has determined sua sponte that the appeal should be transferred for decision to the Commonwealth Court. I respectfully dissent. No party has objected to the jurisdiction of this Court to hear and decide the appeal; and, therefore, this Court's jurisdiction has been perfected. Pa.R.App.P. 741(a).*fn2 ...


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