Petition for Writ of Certiorari — Kozemchak v. Ukrainian Orthodox Church of America

a ROLES

“ —ouRT, U. Ss.

IN THE

Supreme Court of the United

OctroBEeR TERM 1973

i ae 9

MICHAEL KOZEMCHAK, PHILIP PRONZEN and

ARCHADY LEHACH, as The Board of Trustees of

ST. ANDREW’S UKRAINIAN ORTHODOX CHURCH

OF BRIDGEPORT, CONNECTICUT,

Petitioners,

agamst

THE UKRAINIAN ORTHODOX CHURCH OF AMER-

ICA and THE MOST REVEREND BISHOP ANDREI

KUSCHAK, Ruling Bishop of the Ukrainian Ortho-

dox Church of America,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS :

FOR THE SECOND CIRCUIT

—— —_——

JoHN F. Grimes

Counsel for Petitioners

30 Bay Street

Staten Island, New York 10301

(212) 720-9500

VALENTINE N. HorosHKo

Of Counsel

TABLE OF CONTENTS :

PAGE

Oprxions BEeLow 2

JURISDICTION ... 2 ’

QveEsTION PRESENTED FOR REVIEW ..........------------0-e0-0-0* 2

CONSTITUTIONAL PROVISION 2

ct |, ce a ae 2

Reasons For GRANTING THE WRIT 4

ConcLusion 7

APPENDICES:

A. Opinion of the United States Court of Ap-

peals la

B. Memorandum of the United States District

Court Incorporating Findings of Fact and

Order For Judgment 3a

C. Judgment of the United States Court of

Appeals 28a

Cases Cited

Maryland and Virginia FEldership of the Churches

of God vy. Church of God at Sharpsburg, Ince.,

396 U. S. 367 (1970) 4, 6,7 :

Presbyterian Church in the United States v. Mary .

Elizabeth Blue Hull Memorial Presbyterian Church,

393 U. S. 440 (1969) 4,5

Serbian Orthodox Church Congregation of St.

Demetrius v. Kelemen, 21 Ohio St. 2d 154, 256

N. E. 2d 212, cert. den., 400 U. S. 827 (1970)........... 5

ii TABLE OF CONTENTS

PAGE

Smith v. Church of God at Locust Valley, 526 F.

0, Te tae cacencesteednc nnciamrcs icteric 6,7

Watson v. Jones, 13 Wall. 679 (1872).......................... 6

United States Constitution Cited

ge RET Reet ey eet a a ee Ee 2

Statute Cited

Oe TE Ss TU sictiticceteictticttscions 2

eR EIS oe

IN THE

Suprene Court of the United States

Ocroser TERM 1973

No.

s

>_>

MICHARFL KOZEMCHAK, PHILIP PRONZEN and

ARCHADY LEHACH, as The Board of Trustees of

ST. ANDREW'S UKRAINIAN ORTHODOX CHURCH

OF BRIDGEPORT, CONNECTICUT,

Petitioners,

against

THE UKRAINIAN ORTHODOX CHURCH OF AMER-

ICA and THE MOST REVEREND BISHOP ANDREI

KUSCHAK, Ruling Bishop of the Ukrainian Ortho-

dox Chureh of America,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Michael Kozemehak. Philip Pronzen and Archady Le-

haech, as The Board of Trustees of St. Andrew's Ukrainian

Orthodox Church of Bridgeport, Connecticut, petitioners,

pray that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the See-

4

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OPAC NPMY IF APR RAEN 5 OEE I SO EOE 1

PDT IPRA RINT OTH |

ATR DIA OR

Bester ou sox raninsomnmesigirinamoey: ARORA an eeaIET mee ertmaran

bo

ond Circuit, entered in this case on the 30th day of No-

vember, 1973.

Opinions Below

The opinion of the Court of Appeals below (Appendix

A, infra. pp. la-2a) has not been reported. The Dis-

trict Court's memorandum incorporating findings of fact

and order for judgment, (Appendix B, infra. pp. 3a-27a)

was not reported.

Jurisdiction

The judgment of the Court below (Appendix C, infra.

pp. 28a-29a) was entered on November 30, 1973. Rehearing

was not sought. The jurisdiction of this Court is in-

volved under 28 U.S.C. Sect. 1254(1).

Question Presented for Review

Did the Court below decide the church property dispute

under the “neutral principles of law” as enunciated by

this Court in Presbyterian Church in the United States

v. Mary Elizabeth Blue Hull Memorial Presbyterian

Church, 393 U.S. 440 (1969)?

Constitutional Provision

The First Amendment, United States Constitution.

Statement

The present suit arises from the condemnation of St.

Andrew's Ukrainian Orthodox Church of Bridgeport, Con-

necticut, in 1967 by the State for a public highway. On

September 4, 1969, the parishioners of St. Andrew's, the

petitioners herein, all being citizens of Connecticut, com-

menced their suit for the proceeds of the condemnation

award ($290,000) against the respondents, citizens of New

York, in the United States District Court for the Eastern

District of New York.

At trial on December 6 and 7, 1972, it was found by the

District Court that the appellants were suing on behalf

of an unincorporated religious society with capacity to

sue in the federal courts. (Appendix B, pp. 23a, 24a). It

was further found by the District Court that appellants

performed substantial capital improvements to the church

property over a number of years prior to the date of con-

demnation in July of 1967. (Appendix B, pp. 5a, 6a).

Subsequent to the initial condemnation award appellants

performed some 2,000 hours of work in 1968 and provided

substantial labor and materials, upon the exhortations of

respondents’ attorney, Serge Mihaly, and St. Andrew's

pastor, Father Gabriel Zapotocky. (Appendix B, pp. 19a,

20a). Indeed, the initial condemnation award amounted to

some $170,000 and the final award amounted to some

$290,000. The parishioners testified that they had _ per-

formed the extensive post-condemnation improvements to

St. Andrew's on the promises of their pastor, Father

Zapotocky, and the respondents’ attorney, Serge Mihaly,

that the proceeds of the condemnation award would be

utilized by the respondents for the acquisition of a re-

placement church.

The appellants argued that an express trust concerning

the proceeds of the award existed, or, at least, that they

had an equitable lien for the benefit of the increase to

St. Andrew's amounting to the difference between $290,-

000 and $170,000. The Distriet Court found that. although

respondents’ attorney, Mr. Mihaly, did exhort the appel-

lants to undertake substantial post-condemnation improve-

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ments to St. Andrew's, it was unlikely for an attorney

to promise that the proceeds would be used for a re-

placement chureh, and discounted the parishioners’ testi-

mony—even though Mr. Mihaly never appeared to rebut

such testimony. (Appendix B, pp. 18a-19a). Likewise, the

District Court rejected appellants’ equitable lien argument

on the grounds that they had not established that the

post-condemnation improvements, some 2,000 hours, had

increased the value of the final award in 1969 (Appendix

B, p. 24a).

Appellants filed a timely appeal to the Court of Ap-

peals for the Second Cireuit. On November 30, 1973, that

Court affirmed the District Court “for substantially the

reasons given in the memorandum of the district court.”

(Appendix A, p. 2a).

Reasons for Granting the Writ

The decision below should be reviewed because it is in

conflict with the applicable decisions of the Court in

Presbyterian Church in the United States v. Mary Eliza-

beth Blue Hull Memorial Presbyterian Church, 393 U.S.

440 (1969).

This is a church property dispute between representa-

tives of the local church and the central church, and as

such is susceptible to judicial encroachment upon the pro-

tection of the First Amendment. Church property dis-

putes should only be resolved by civil courts solely upon

“neutral principles of law” and not upon religious doc-

trine. Presbyterian Church in the United States v. Mary

Elizabeth Blue Tull) Memorial Presbyterian Church,

supra. Unfortunately, the Court below exceeded this

Court's limitations in Presbyterian Church, supra., and its

cuidelines set forth in Maryland and Virginia Eldership

of the Churches of God v. Church of God at Sharpsburg,

Inc., 396 U.S. 367 (1970).

ne ee » a

At the outset, the District Court found the appellants

to be proper parties with capacity to sue in the federal

court. Likewise, respondents were found to be proper

parties, The issue concerned entitlement to the proceeds

of a condemnation award for St. Andrew's, a property

dispute within a civil court’s sphere of review. Appel-

lants relied upon local law involving express trusts and

equitable liens, a permissible constitutional approach un-

der the “neutral principles of law” doctrine of the Pres-

byterian Church case. See e.g., Serbian Orthodox Church

Congregation of St. Demetrius v. Kelemen, 21 Ohio St.

2d 154, 256 N. Ee. 3d 212, cert. den., 400 U.S. 827 (1970).

However, the District Court's decision, as affirmed by

the Court below, is permeated with the constitutionally

proscribed preponderant concern for church organization,

the extent of the utilization of church property for re-

ligious services and the size of the parish. For example,

the District Court stated:

“A cireumstance influencing any view of the mat-

ter is the consideration that the church property

used by the congregation of St. Andrew's was not

as a whole designed or particularly well suited to

function as a parish church for a small congrega-

tion.... The regular liturgical services conducted

by the small congregation performed the indispens-

ible diocesan function of preventing the loss of

property under the reverter clause. It is not found,

however, that the congregation's utilization of the

property at any time constituted a full utilization

of the resources of the property, nor is it found

that the needs of the congregation at any time war-

ranted a congregational or diocesan capital expen-

diture of the magnitude represented by the church

property acquired under the 1953 grant.” (Appendix

B, p. 21a).

ns

—

PODMET IE PARNER PIE CER RET aN

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Again, at p. 25a of Appendix B, the court said:

“It is important to note that the property was

the property of the diocese; it was not parish prop-

erty acquired through parochial contributions and

fund raising efforts. The parish, rather, only had

the use of the diocesan property, and parochial use

was never of a kind or on the scale that reflected

the size, composition and intrinsic value and utili-

ties of the church property.”

The question of a parish's size to qualify as an entity

for the use and occupation or entitlement to specific

property for use as its place of worship certainly ap-

pears to be a question of religious doctrine beyond the

scope of a civil court’s supervision. Watson v. Jones, 13

Wall. 679 (1872). Indeed, it is doubtful whether a re-

ligious denomination itself, let alone a civil court, has or

ean readily establish any formula expressing religious

worship as a function of the number of worshipers and

the size of their edifice.

Appellants relied at trial upon an express agreement

with respondents concerning the disposition of the con-

demnation proceeds. Internal agreements between a par-

ish and the diocese with respect to property should be

determinative between the parties for purposes of civil

litigation. While this Court has not specifically held that

an oral agreement, if enforceable under local law, dis-

posing of Church property could be relied upon by a civil

court to settle a question of property under the “neutral

principles of law’, it appears to Le a logical application

of the “formal title” doctrine discussed by Mr. Justice

Brennan in a concurring opinion in the Maryland and

Virginia Eldership of the Churches of God v. Church of

God at Sharpsburg, Inc., 396 U.S. 367 (1970). To same

effect: Smith v. Church of God at Locust Valley, 326 F.

Supp. 6 (D. Md. 1971), where the District Court, citing

Sharpsburg, supra., stated at p. 13 of 326 F. Supp.:

“Both under the law [Maryland Corporation

Law] and in the absence of that law, the voluntary

internal agreements of the Eldership and the two

loeal churches herein involved with regard to con-

trol of church property upon withdrawal from the

denomination are determinative.”

But the lower court's preoecupation with church organiza-

tion and parish size as being “[a] circumstance influenc-

ing any view of the matter [disposition of the condemna-

tion proceeds]” resulted in a constitutionally proscribed

involvement in religious doctrine, and prevented the lower

court from deciding the case on neutral principles of law.

CONCLUSION

For the reasons set forth above, it is respectively

submitted that this petition for a writ of certiorari

should be granted.

JoHN F. Grimes

Counsel for Petitioners

30 Bay Street

Staten Island, New York 10301

VALENTINE N. HorosHKko

Of Counsel

[AppeNnpices FoLttow]

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ELSA BF DRE Se PAPO RTD IG om <<e7aee

APPENDIX “A”

Opinion of the United States Court of Appeals

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

No. 36—September Term, 1973.

(Argued November 26, 1973 Decided November 30, 1973.)

Docket No. 73-1425

-~<

>

MicuarEL Kozemcuak, Puitie Proxzex, and ArcHADY

Lenacu, as the Board of Trustees of St. Andrew's

Ukrainian Orthodox Church of Bridgeport, Connecticut,

Appellants,

v.

THe Uxratytan Ortuopox Cuvurcn or America and THE

Most Reverexnp Bishop Awnprer Kvuscnak, Ruling

Bishop of the Ukrainian Orthodox Church of America,

Appellees.

Before:

Moore, Hays and TimsBers,

CJ.

Appeal from a judgment of the District Court for the

Eastern District of New York, John E. Dooling, Jr.,

[la]

PRPS POISE AFORE Sa ES

Appendix A

Judge, after a hearing on the merits in favor of the de-

fendants and dismissing plaintiffs action.

Affirmed.

Joun F. Grimes (Connolly, Grimes & Cawse,

New York, N.Y., on the brief) for Appel-

lants.

Wituim P. McHate (Gehrig, Ritter, Coffey,

McHale & McBride, Hempstead, N.Y., on

the brief), for Appellees.

Per Curiam:

We affirm for substantially the reasons given in the

memorandum of the district court.

3a

APPENDIX “B”

Memorandum of the United States District Court

Incorporating Findings of Fact and

Order for Judgment

UNITED STATES DISTRICT COURT

Eastern District or New YORK

File No: 69C1112

Appearances:

John F. Grimes, Esq. (Messrs. Connolly, Grimes &

Cawse, of Counsel) for plaintiffs.

William MeHale, Esq. (Messrs. Gehrig, Ritter, Cof-

fey, McHale & McBride of Counsel) for defendants.

Doone, D. J.:

On and before April 15, 1953, the church property

here in question was owned by the Missionary Society

of the Diocese of Connecticut, which has been referred

to as an Anglican or Episcopalian Church Society. Under

date of April 13, 1953, by a deed recorded April 19,

1955, the Missionary Society of the Diocese of Connec-

ticut conveyed to the defendant The Ukrainian Orthodox

Churche of America, an ecclesiastical society, the Mis-

sionary Society's interest in the church property in ques-

tion, which is located in Bridgeport, Connecticut. The

grantor reserved title to the bells together with the right

to enter and remove them, and it did later exercise

that right. The habendum of the deed is to “The Urkain-

ian Orthodox Church of America, and to its suecessors

and assigns, to the only use and behoof of the said The

Ukrainian Church of America, its suecessors and as-

signs forever so long as the said The Ukrainian Ortho-

Saree Oe ot ON

Bevis

ee ee RE RS Be EY at =~

ta

Appendix B

dox Church of America shall use the same for church

purposes, and in the event that said The Ukrainian

Orthodox Chureh of America shall at any time use or

permit the use of the property for other than church

purposes or transfer or attempt to transfer said prem-

ises, or the use thereof, to any other person, firm or

corporation, then title to the said premises shall forth-

with revert to the grantor or its successors.” The deed

contained a further provision requiring the grantee to

maintain a bronze tablet in memory of the Reverend FE.

F. Bishop on the sanctuary wall of the church or in

the sacristy, the grantor or its successors to have the

right to enter and repossess the premises if the grantee

failed to maintain the bronze tablet.

The Ukrainian Orthodox Church of America is a

church of the Eastern Orthodox rite and ultimately under

the Ecumenical Patriarch of Constantinople. In this

country The Ukrainian Orthodox Church of America is

under the headship of its own Bishop and he in turn

would look to the Eastern Orthodox Bishop, in the time

latterly in question in the present case, Archbishop Ia-

kovos of the Greek Orthodox Archdiocese of North and

South America.

The church was not large, but the church property

was fairly extensive. A monastery building was at-

tached to the church and there was in addition a free

standing rectory building. The buildings at the times

in question were upwards of one hundred years old.

After the acquisition of the Church property in Bridge-

port it became the subject of considerable vandalism in

the 1950s. When the church property was first to be

put to use as a Ukrainian Orthodox Church, the phys-

ical problem was therefore threefold: to restore the van-

OE LA OF IE he CSTR Re

da

Appendix B

dalism which took place apparently before and during

the effort to rehabilitate the property, to make good

the immediate structural needs of the church and mona-

stery and rectory edifices and bring them up to the point

of safe use, and finally to convert the church proper so

that it would be suited to the Kastern Rite—specifically

by building an iconostasis separating the congregation

from the altar area and an altar—beyond the iconostasis

—for the celebration of the liturgy.

The church was at first identified as the Church of

the Holy Nativity: at a later date but before 1965 the

church became known as St. Andrew's Orthodox Church

and it continued under that name throughout the bal-

ance of the period in question. It appears that at no

time were the parishioners numerous. The only evi-

dence with respect to size is that by Christmas of 1957

there were about 50 or 60 regular parishioners in 25

families, more or less, and that as late as August of

1969, some months after the cessation of regular liturg-

ical service at the church in April of 1969, there were

at least 14 to 16 families, comprising 25 persons, more

or less, who were still actively interested in the preser-

vation of a St. Andrew's parish church.

At no time was the parish well-to-do. It could not at

any time genuinely afford to support a priest, vet at

no time did it receive any subsidy, sustenance or sup-

port from the diocese. The parishioners by their volun-

tary labors and their contributions of money and in kind

took the church property in hand and accomplished all

three of the physical tasks of restoration, repair and con-

version which they faced when the property was acquired

for Ukrainian Orthodox Church use. The parishioners

themselves by their own voluntary labors and with hired

labor, and through their own contributions of materials,

ct eh a or

6a

Appendix B

managed to restore the structural deficiencies of the

ancient buildings, to paint them and clean them sufficiently

so that the church could be used as a place of worship,

and at length were able to install an iconostasis and an

altar and to supply the icons usual in a Ukrainian Ortho-

dox church, and so established a regular Ukrainian Ortho-

dox place of worship. The work was by no means super-

ficial. It included some rather large tasks such as the

removal of an organ that was estimated to be seventy or

eighty years old and was practically a supporting mem-

ber of the church edifice in the altar and choir area. Re-

moval of the organ left a great open space at the right-

hand side of the altar and required the supplying of a

floor, since the organ had rested on the beams and not on

the floor, and the supplying of walls that would take the

place occupied by the organ structure itself. Support

columns had to be placed under the ancient beams both

in the basement areas and elsewhere in church and mon-

astery. In addition the church was painted and the first

floor of the monastery building was restored sufficiently

so that it could be used for meetings, rummage sales, ete.

Enough was done in the rectory building so that the

priest could stay in it on his weekend visits for liturgy

and so that one priest could, for a time at least, live

in the rectory first as resident priest, and, later, in the

first period of his retirement.

While the work of the parishioners in thus bringing

the church property up to the level of usability was very

considerable ard involved both very large amounts of

psrsonally expended labor and considerable amounts of

money, no definite figure can from the nature of the work

and the lapse of time be placed upon it. It is enough

to say that the evidence left no doubt that it was not

merely superficial cleaning and sprucing up but consti-

POT AR i et RS SRE ee

7a

Appendix B

tuted major rehabilitation, capital replacement, repair

and steady maintenance for some years.

Meanwhile the parish had a series of clergymen, the

first, Rev. Mark Farrell, serving from 1953 to 1960, the

second, Rev. Nicodemus Warwick, serving from 1960 to

1963, and the third the Rev. Peter Keiluch, serving from

1963 until his retirement in 1965, and finally Father

Gabriel Zapatocky. Exactly what the arrangements with

the earlier pastors had been is not clear and is for present

purposes not important. Father Zapatocky was not a

resident pastor. Ie lived in Metuchen, New Jersey, was

married (as is permitted in the Eastern Rite) and had

regular secular work in New Jersey to which he had to

devote himself throughout the week. He attended at the

St. Andrew's Church for the weekends, staying in the

rectory Saturday nights, celebrating the liturgy on Sun-

day, holding a meeting after liturgy with the parishioners,

and, apparently as a matter of almost regular custom,

having dinner thereafter with the president of the congre-

gation, the plaintiff Michael Kozemchak.

The evidence is that the liturgy was performed by a

regularly ordained clergvinan, Father Zapatocky or his

predecessors, on every Sunday except on occasions when,

through accident, illness or otherwise, the clergyman was

unable to attend. On those oceasions lay services would

be conducted. The evidence is that on every Sunday re-

ligious service was conducted whether or not the divine

liturgy was performed.

It is clear that at all times the Bishops, first Bishop

Bohdan, who had been Bishop since 1937 and continued

as Bishop until his death in November 1965, and there-

after Bishop Andrei Kuschak, who was consecrated and

installed as Bishop in January 17, 1967, and continued as

—_ ee Te ai RE ae ead

Dr we oe

8a

Appendix B

Bishop through the present time, were acutely conscious

that it was imperative that the condition of the deed be

kept to the letter so that it could not be said at any time

that the church property was being used for anything

other than church purposes or that there was ever a

cessation in the use of the property for church purposes.

The evidence is clear too, that the members of St.

Andrew’s parish were made aware of the imperative im-

portance of the condition and that they proceeded in the

consciousness of their obligation to perform the condition

if the church property was not to be lost to The Ukrainian

Orthodox Church.

In the years covered by the evidence it appears without

contradiction that St. Andrew’s Church and the congrega-

tion of St. Andrew’s church never at any time incorpo-

rated, and that neither church nor congregation was given

any formal structure of any form recognized under Con-

necticut or New York statute law. The church and con-

gregation were not formally organized as a _ religious

association, a religious society, a membership corporation,

an unincorporated membership corporation or otherwise.

The church and congregation did not have any written

constitution prepared or adopted by the members of the

congregation. The church and the congregation did not

have any bylaws in writing which had been adopted by

the members of the congregation or agreed upon by

them. Nor so far as appears, did any of the pastors or

either of the Bishops impose any such regulations, bylaws

or constitution on the church and its congregation so

as to give it a formal structure reflected in any writing.

However, the evidence, and it is uncontradicted, is that

the congregation did regard itself as having a customary

organization, The custom of meeting after liturgy on

Sunday took the form, according to the evidence, of weekly

NR BC TR RR a Es 8 ORT Lo

9a

Appendix B

meetings of the congregation. Annual elections were held

at which three oflicers and trustees were elected, the offi-

cers and trustees being the same persons. Notice of the

annual election of the oflicer-trustees was not formal. It

consisted in making the fact of the forthcoming meeting

known to the congregation at the Sunday meetings im-

mediately preceding the annual meeting. At the period

in question and apparently from an early date the officer-

trustees were plaintiffs Michael Kozemchak, President and

Trustee, Philip Pronzen, Secretary and Trustee and

Archady Lehach, Treasurer and Trustee. It is to be

noted that the last regular pastor of the church, Father

Zapatocky, in a long report to Most Reverend Archbishop

Iakovos under date of January 17, 1966 (made two months

after the death of Bishop Bohdan and a year before the

investiture of Bishop Kuschak) took the view that

the church had no elected oflicers and that he as pastor

was officially administrator, president, treasurer and _ see-

retary combined, and that he had selected a Mr. Archady

Lehach from among the parishioners to make the col-

lections, and an unofficial representative “president.”

Michael Kozemechak. In a newspaper article in the

Bridgeport Post on April 9, 1966, Michael Kozemchak is

shown with Father Zapatocky and is identified as choir

director. However, by a communication of September 22,

1966, to The Ukrainian Orthodox Church of America

interim consistory Father Zapatocky as pastor submitted

as authorized lay-representatives of St. Andrew's parish

at the general council meeting to be held at Allentown

on September 24, 1966, the names of Michael Kozemchak.,

President, Archady Lehach, Treasurer, and Philip Pron-

zen, Secretary (caretaker of monastery property).

The parish and or congregation did, at least in 1966,

have a printed letterhead reading “St. Andrew's Ortho-

0 TE PT

3 sie.

10a

Appendix B

dox Church (formerly the monastery of the Holy Na-

tivity), 105 Sylvan Avenue, Bridgeport, Connecticut

06606"; a telephone number is given and there is a printed

reference to the ecumenical patriarchate with the current

Bishop’s name above the name of the pastor with his

home address. The designation of lay-representatives of

September 2, 1966, exhibits the use of a paper-press-

ing seal reading “The-Monastery-of-the-Holv-Nativity” in

the outer circle and inside that and in circular form dis-

posed about a cross “St. Andrew’s—Orthodox—Church.”

Two dates are given in the seal, the date of 1864 in the

circle containing the name of the monastery and a date

which appears to be 1953 in the circle where the name St.

Andrew’s-Orthodox-Church appears.

It is not contended that St. Andrew’s Chureh was open

for daily worship. During a period, not precisely identi-

fied, when there was a resident pastor living in the ree-

tory, it was possible to keep the church open on a daily

basis, so that parishioners could pay “visits” to the

church, but the date and duration of that period were not

made clear by the evidence.

The diocese did unequivocally recognize the existence

of the church and the congregation, although not, it must

be found, in a way having distinctively legal clarity.

How Pastors before Father Zapatocky were chosen is not

clear; presumably they were appointed by Bishop Bohdan.

In any case, by an instrument in writing dated May 8,

1965, by virtue of the power invested in Bishop Bohdan

as Bishop and Metropolitan and Primate of The Ukrain-

ian Orthodox Church of America and Canada, he named,

nominated and appointed Father Gabriel John Zapatocky

as “Permanent and Irremovable Pastor of St. Andrew's

Orthodox Church (formerly the Monastery of the Holy

Nativity) 105 Sylvan Avenue, (rectory 19 Corson Street),

lla

Appendix B

Bridgeport, Connecticut, with proper salary and stole-fees

attendant with the same. His term of office is with life

tenure. We request that the faithful of the parish...

shall consider the Reverend Gabriel John Zapatocky, as

their Spiritual Head in all matters pertaining to that

office.”

At Christmas 1957 Bishop Bohdan celebrated Holy Lit-

urgy at the church of the Holy Nativity (as the church

was still identified) and at a meeting or celebration fol-

lowing the celebration of the Holy Liturgy, Bishop Boh-

dan in substance told the congregation with intended for-

mality that the Church of The Holy Nativity was their

church, that they were to take care of it, that he would

supply them with a priest, that they would have to sup-

port the priest, and that as long as they had services in

the church it would be their church forever. He explained

that the deed contained three conditions: that they main-

tain the plaque of the Reverend Bishop, that they conduct

weekly religious services, and that the property not be

sold.

The evidence is, as already indicated, that the church

property was in uninterrupted use. It is impossible to

find that the church property was utilized to its greatest

capability of use. The church property was used essen-

tially as a missionary chapel; the use represented an

underutilization of the church property. For example,

the second floor of the monastery which apparently con-

tained about ten living-quarter type rooms was not used

at all. The five or six rooms on the first floor of the

monastery portion of the property were apparently used

to some extent for meetings, but whether all of the rooms

were used and, if so, to what extent is not clear. Use of

the property was intermittent, for meetings, rummage

sales and church social events. The church proper, how-

12a

Appendix B

ever, was used, was well maintained and, as the photo-

graphic exhibits demonstrate, at least from 1960 on pre-

sented an excellent and well maintained appearance in

apparent conformity with Eastern Rite liturgical require-

ments.

The threat of a claim of reverter on the part of the

grantor was apparently never too far removed. An in-

stance is reflected in the letter of January 17, 1964, from

the Trinity Episcopal Church in Waterbury which ex-

pressed the understanding that the church property was

not being used, and it proposed that it be used by a

monastie order of the Episcopal Church which was en-

gaged in working among the poor.

In September of 1964 Bishop Bohdan made another

visitation to the Church of St. Andrew during the pas-

torate of Father Peter Kieluch, and near his retirement.

At that time the Bishop said to the congregation, in sub-

stance, that the wolves were around the church and mon-

astery: some at least of his listeners understood him to

refer to the intimation from the grantor that the prop-

erty might be reclaimed under the reverter; the Bishop

continued by saying that “they” were trying to get in

“here,” and that the parishioners should get themselves

a stick and chase the wolves out. The Bishop continued

to say, in substance: This is your church and don't let

anybody have it: it’s up to you people doing what you are

doing, keeping religious services going here, and if you do

that you will not have any trouble.

Bishop Bohdan had held office since 1937 and the evi-

dence is that, whatever other capacities he may have had,

he was not regarded by some of the clergy as a good ad-

ministrator. He was becoming enfeebled through ill

health. his hand and handwriting were palsied and, while

he was not of great age, being only about seventy to

PE ms

13a

Appendix B

seventy-one years in 1964-1965, he was apparently finding

it increasingly difficult to conduct the business correspond-

ence of the diocese and to take care of his own domes-

tie establishment. There is not however, any indication

that he had lost his mental capacity or that his facul-

ties of understanding and decision were impaired. While

he died in November of 1965 a letter in evidence of Au-

gust 6, 1965, indicates that he had a good grasp of what

was going on.

At just this juncture in 1964-1965 and evidently be-

ginning in 1964 there were intimations that Connecticut

Route 25 was going to be relocated and that. while alter-

native routes were under apparently active consideration,

one possible route would involve taking the whole of the

church property. St Andrew's parishioners made inquiry

and they made some organized effort to participate in or

to influence the public decision-making, but by August of

1965, as appears from Bishop Bohdan’s letter of August

6, 1965, the fear that the highway would involve loss of

the property had become very real to Father Zapatocky,

to the Bishop and to the congregation, and that fear was

rendered more acute by the threat that it would furnish

an occasion for the grantor under the reverter to claim

either to take back the whole of the property or else to

share in any award. Bishop Bohdan in 1965 did not think

that the prospect was good and expressed the hope that

Father Zapatocky and his flock could “make a reasonable

agreement with Hartford and avoid hard feelings. He

[Father Zapatocky] has already looked at a few sites but

inner city lots are too costly. Still he thinks a prefabri-

eated building migh[t] save on labor costs.”

One of the church members, Anthony Kowalsky. under

date of November 3, 1965, inquired of the State Highway

Department about the location of the new Route 25, and,

lta

Appendix B

by letter of the Highway Department dated November 10,

1965, he was told that, while no final determinations had

been made, “the preliminary studies have seemed to indi-

cate that the St. Andrew’s American Ukrainian Orthodox

Church located at 105 Sylvan Avenue will be affected.”

By January 17, 1966, when Father Zapatocky wrote his

extended report to Archbishop Iakovos it appears that

condemnation was regarded as most likely, and that Fa-

ther Zapatocky had obtained on an informal basis legal

advice that indicated to him that the condemnation would

not result in a forfeiture of the diocesan interest in the

property under the terms of the grant since it would

represent a taking and not a voluntary sale. Father

Zapatocky expressed the view that the congregation's

maintenance of the church had preserved and enhanced

its value from the condemnation point of view. Father

Zapatocky anticipated that in settlement an award of at

least $250,000 would be attained, but he indicated that

local businessmen and property owners, for reasons which

Father Zapatocky regarded as doubtful, had suggested

that he ask as little as $150,000 for the property.

There was an interregnum from the death of Bishop

Bohdan in November of 1965 until the investiture in Jan-

uary of 1967 of Bishop Andrei Kuschak as Bishop Boh-

dan’s successor (Bishop Kuschak was nominated in Sep-

tember 1966). In July of 1966 (during the interregnum)

a Ukrainian Orthodox Diocesan gathering was held at

St. Andrew’s Church. While the Ukrainian Orthodox

Chureh apparently looked for ultimate authority in the

interregnum to Archbishop Iakovos, there was an interim

eonsistory of the Ukrainian Orthodox Church that fune-

tioned in some way in the interval, and apparently at all

of the times from 1965 or thereabouts forward until his

death Father Zapatocky in addition to being pastor of

lda

Appendix B

St. Andrew’s was secretary of the consistory of the Uk-

rainian Orthodox Church of America.

Not long after September of 1966, it became evident

that the condemnation was a certainty, and before Bishop

Kuschak’s installation Father Zapatocky as secretary of

the consistory of the diocese retained Serge G. Mihaly

as counsel to represent the Ukrainian Orthodox Church

of America with regard to the taking of the church prop-

erties by the State of Connecticut for highway purposes

and notice of that retainer was communicated to the State.

The letters to Mr. Mihaly and to the State were written

from Father Zapatocky’s home address in Metuchen in

the name of the Ukrainian Orthodox Church of America

and Mr. Mihaly’s acceptance of the retainer and state-

ment of terms was addressed to Father Zapatocky as

secretary of the consistory at Metuchen although Father

Zapatocky’s responsive letter of January 11, 1967 (which

was written in the name of the interim consistory of the

Ukrainian Orthodox Church of America) was written on

the letterhead of St. Andrew's Orthodox Church. Al-

though Father Zapatocky was the one who formally han-

dled the retainer of Serge Mihaly, it appears that he

had long been known to Bishop Andrei Kuschak, and that

the choice of Serge Mihaly was the choice of the not vet

invested Bishop and not the individual choice of Father

Zapatocky.

Then follows the most highly controversial point in

the ease. After Bishop Andrei Kuschak had been in-

stalled in January 1967, some time in early February

but after February 3, 1967, a typed letter was prepared

on the letterhead of the “Ukrainian Orthodox Church of

America Ecumenical Patriarchate” for the signature of

Bishop Andrei Kuschak. The letter was adressed to

Father Zapatocky who was addressed as Pastor of St.

AS eB oo ar ae BOS SLA — ee ee rs eee

l6a

Appendix B

Andrew's, Bridgeport, and its text was that, as Bishop

and Primate of the Ukrainian Orthodox Church of Amer-

ica, Bishop Kuschak informed Father Zapatocky that it

was his decision that the Parish of St. Andrew's Ortho-

dox Church, the Rectory, in Bridgeport, “shall continue its

existence, despite any condemnation of the property .. .

and that you Father Gabriel J. Zapatocky shall con-

tinue as its pastor for life-tenure.” A closing paragraph

of the letter would have said that, in connection with

the condemnation, Bishop Kuschak approved Father Za-

patocky’s retaining Serge G. Mihaly as attorney on the

terms agreed upon.

Father Zapatocky is dead. His widow testified with

vehemence to her belief that the letter had been signed,

but her testimony falls short of proof that the original

of the letter was ever signed or delivered. At the period

in question all of the files of the consistory and, ap-

parently, some of the files of the Bishop, as well as the

correspondence files of St. Andrew’s church were main-

tained in the Zapatocky household in Metuchen, since

Father Zapatocky was secretary of the consistory as well

as pastor of St. Andrew’s and used his home as his

base of operations for both his offices. Two unsigned

copies of the letter were produced. One is a zerox copy

of a carbon copy of the letter (Exhibit 15) and the other

is a carbon copy with a pen and ink addition to it in the

handwriting of Father Zapatocky (Exhibit C). Exhibit

C has written on it a reference to the materials being

supplied to Serge Mihaly, and then contains the follow-

ing in Father Zapatocky’s handwriting: “Your Grace, [

solemnly promise, that after the condemnation—procecd-

above

ings, — I am at your disposal, for assignment, where

your Grace may deem it necessary.”—Below that appears

Father Zapatocky’s signature.

lia

Appendix B

Bishop Kuschak testified that he and Father Zapatocky

met at a restaurant on 86th Street, Manhattan, at about

the time of the date of the letter preparatory to their

going together to call on Archbishop Takovos, whose resi-

dence was in Manhattan. Bishop Kuschak says that he

did not sign the letter. Plaintiff Michael Kozemchak on

the other hand says that Father Zapatocky exhibited

to him at St. Andrew’s at about this period a letter

which, perusing the content of Exhibit 15, he thought was

that very letter. The letter he saw was a signed letter,

bearing a pen and ink signature and the handwritten

cross which, apparently, both Bishop Bohdan and Bishop

Andrei Kuschak placed before their signatures, at least

on episcopal documents. While Bishop Kuschak’s testi-

mony in this area left much to be desired and his recollec-

tion was so imperfect that confidence in his testimony was

necessarily undermined, it is concluded that plaintiffs have

failed to sustain the burden of proving that the letter

was signed and delivered by Bishop Andrei Kuschak.

If the letter had been signed, except as to the pastor’s

tenure its meaning would be very uncertain; it promises

nothing except that the parish as a recognized congre-

gation of the Ukrainian Orthodox Church of America

would continue after and despite the condemnation. It

does not promise an interest in the proceeds of the con-

demnation or to provide new church property, or to

give financial assistance in obtaining or supporting a

new church property. Whether it implied some such

promise is a separate question, but had the letter been

signed, it could not have been found that, on the other

evidence in the ease, or taken with the other evidence in

the case, the letter fairly implied either an undertaking

to make over a part of the proceeds of the condemnation

to St. Andrew’s congregation so that it could establish a

new church or an undertaking to see to it that St. An-

PIL TRS BAe ae

18a

Appendiz B

drew’s congregation were housed in a church in Bridge-

port either at the sole cost or with the financial assist-

ance of the diocese.

It was evidently well understood that the condemna-

tion proceedings were moving right along, and Bishop

Kuschak says that the letter of July 1. 1967 (Exhibit

20), from him to Father Zapatocky (referring to extend-

ing the.use of the church property to include a pro-

jected seminary and printing plant and to serve for an-

nual diocesan pilgrimages) was prepared by Serge Mihaly

and was really written “for the record” with a view to

serving two interests in connection with the condemna-

tion, first, the interest of preventing a forfeiture to the

Episcopal Diocese by showing continuity of religious ac-

tivity right down to the end, and, second, the existence

of a definite and expanding program for the use of the

church properties including the monastery space and fa-

cilities.

The formal taking in condemnation occurred on July

6, 1967, and the State deposited $171,800 as the damages

assessed in respect of the property to the use of the

person or persons entitled to it. While the title was

taken the property continued to be used as church prop-

erty. Indeed, it was used until April 1969. The de-

posit was not satisfactory to Mihaly or to the parties

at interest. Apparently in the spring of 1968 Mihaly

came to the property and there met with the active mem-

bers of the congregation and impressed upon them that

they should raise the property to a high level of evi-

dent maintenance and use, so that when the State ap-

praisers made their next trip to look at the property.

they would be in a position to put a higher value upon it.

(T is not found that Mihaly then or ever advised the

parishioners that the compensation for their effort would

19a

Appendix B

be receipt of the award or enough money to build a big-

ger church, Tr. 194: that testimony is improbable and

does not reflect what it is expectable that a lawyer would

say in the circumstances. Nor is it found that such a

statement on his part was authorized or that. if made, it

would have the effect of altering legal relationships al-

ready existing.)

From that time in the spring of 1968 until late in the

summer of 1968, a period of over four months, the mem-

bers of the congregation expended strenuous efforts and

considerable amounts of their own money to rehabilitate

the property. First, a great deal of cleaning was done,

the attic of the monastery was thoroughly cleaned out

(it had apparently been in seriously bad condition): the

basement areas were cleared of an accumulation of debris,

rejected material, furniture, etc. that went back appar-

ently for the life of the property. The upstairs rooms

of the monastery were put in livable condition, actually

supplied with furniture from the congregation’s homes,

with sheets, ete., from their homes, and all of the rooms

were thoroughly cleaned and painted. It was estimated

that over fifty gallons of paint were expended on the

property, and extensive repairs were also made both to

church, monastery and rectory so that everything was

in good order and ready for final inspection. In addi-

tion much was done to landscape the grounds, put in

plantings and a flower bed, and even to lay a sidewalk

around the front of the church and leading off to the

monastery side of it. One member of the congregation

testified to his devotion of 12 to 15 hours a week of work

in some weeks and 20 to 30 hours work in other weeks,

and his estimate was that at least five other parishioners

expended 20 hours a week of work, plus the work of

weekend volunteers and the like. The harder working

PE) DORR o>) AS RT ORE Ree.

20a

Appendix B

parishioners did their work evenings as well as on the

weekends.

The evidence of the parish work done to enhance the

value of the property is uncontradicted and impossible

to evaluate in dollars. It was very substantial and it is

found that it approximated 2,000 hours of work. It is

not clear to what extent, if at all, the work enhanced the

award.

It is found that the parish effort expended upon the

property was expended in the expectation that it would

enhance the award, and upon the assumption that the

congregation had an interest, never articulated or de-

fined by or to them, in enhancing the award. There is

no evidence that the members of the congregation ex-

pected to be remunerated for the work, labor and services

with a money portion of the award as their individual

compensation. It is found that the parishioners expected

that what they were doing was directly related to the

continuation of St. Andrew’s as a parish and to the

diocese’s giving some kind of financial assistance toward

the congregation’s having church quarter for some con-

tinuation of St. Andrew’s parish in Bridgeport. It is not

found that the congregation relied on any express prom-

ise or implied promise or undertaking that the congrega-

tion would be entitled to the whole of the award for the

purpose of establishing a new church or that their ex-

pectation was any more precise than that after the con-

demnation and the final taking of the church from them,

they would be provided with financial assistance in ob-

taining the means of continuing worship in a place of

worship as St. Andrew’s parish.

Who was responsible for the expectation of the pa-

rishioners has not been established by a preponderance

of the evidence. Father Zapatocky was either the source

mb

CAG aaa Set

2la

Appendix B

or the conduit of statements which produced the expecta-

tion and induced the activities of the parishioners in the

period of intense rehabilitation that extended from the

spring to the last part of the summer of 1968. Plain-

tiffs have failed, however, to show that the diocese was

responsible for the statements which produced the ex-

pectation and induced the activities of the parishioners,

although it is clear that, to an extent not susceptible of

measurement, their work may have materially enhanced

the final award for the property.

It is not found that the difference between $170,000

and $290,000 was attributable to the parishioners’ ef-

forts: the quantum of enhancement would be a matter to

be determined at best through expressions of expert

opinion.

A circumstance influencing any view of the matter is

the consideration that the church property used by the

congregation of St. Andrew’s was not as a whole designed

or particularly well-suited to function as a parish church

for a small congregation. It had been a monastie or semi-

narian establishment, and a very substantial part of the

structures consisted in the two-story monastery wing

abutting the chapel that was used as a church. The regu-

lar liturgical services conducted by the small congrega-

tion performed the indispensable diocesan function of pre-

venting a loss of the property under the reverter clause.

It is not found, however, that the congregation's utiliza-

tion of the property at any time constituted a full utili-

zation of the resources of the property, nor is it

found that the needs of the congregation at any time war-

ranted a congregational or diocesan capital expenditure of

the magnitude represented by the church property ac-

quired under the 1953 grant. The congregation over the

PaO NAAN LN AOI TE CATE SOPOT Le rs

t.. MY Li eae OHH &

Ma

Appendix B

years had the advantage of an ecclesiastical capital in-

vestment at no capital cost to the parish in exchange for

the congregation’s maintenance of the property in the

required use without excessive deterioration and with

some making-up for previous under-mainteance and des-

uetude.

Under date of January 14, 1969, the State Highway

Commissioner paid into Court the amount of $118,501.15

which, when taken with the original deposit of $171,800

constituted the entire award for the whole of the church

property and all interests in it. There were certain en-

cumbrances, apparently of modest size, and the rever-

sionary interest of the Missionary Society of the Diocese

of Connecticut to be taken care of out of the award.

The aggregate award was therefore $290,301.15 and the

amount of the award which was ultimately paid to the

Missionary Society in respect to its reverter interest was

$49,950 and $300 was paid in Clerk’s fees. The net amount

paid to the diocese was $240,051.15 from which legal fees

and expenses must be deducted.

Services at the church continued until the latter part

of April 1969 when all religious services ceased. The

church structures were actually taken down apparently

some time in July of 1969.

Under date of August 18, 1969, a meeting of the mem-

bers of the congregation to the number of fourteen or

fifteen persons representing perhaps as many as eight

families occurred, and, apparently being a majority of

the remaining persons who could be regarded as mem-

bers of the congregation, the meeting adopted a resolu-

tion authorizing the retaining of counsel to commence a

suit against the Orthodox Church Diocese to have the

condemnation proceeds used for the benefit of the parish-

ee

23a

Appendix B

ioners of St. Andrews for the acquisition of another

church to replace the one condemned and to take what-

ever action was deemed necessary to protect the parish-

ioners’ interest. Under date of September 9, 1969, Bishop

Andrei Kuschak advised plaintiff Michael Nozemchak

that the diocesan consistory advised and recommended

that the congregation afliliate with the “Mother Church,

St. Mary’s on Beech Street. This Church as you know

is in the process of beginning their new life. St. Mary's

the Pastor and the Congregants, will be happy to provide

you time for English Services, as much as their schedule

permits.” The law suit followed.

1. The parishioners were never incorporated under, for

example, Article S-A of the New York Religious Cor-

porations Law ({{ 169-a to 169-e, applying to Churches

of the Ukrainian Orthodox Church of America) nor any

parallel Connecticut statute (Con. Gen'l. Stat. 633-243,

seeming to permit of religious societies either incorporated

or formed by voluntary association: a voluntary associa-

tion must file articles in order to have the right to take

legal title to land, ete.. Conn. Gen. Stat. 633-245). But

that does not mean that the parish congregation was de-

void of associative being. See, e. g.. WeAuwliffe v. Rus-

sian Greek Catholic Church, 1944. 130 Conn. 541, 36 Atl.

2d 52, 60. Under New York CPLR ‘£1025 such an un-

incorporated association may sue by its president or

treasurer on behalf of the association, as authorized by

General Associations Law, ‘* 12-13. and foreign asso-

ciations may so sue in the New York Courts. Ayew v.

Willard Hawes & Co., 1st Dept. 1937, 250 App. Div. 596,

295 N. Y. Supp. 49. aff'd 1938, 276 N. Y. 634.

Plaintiff Michael Kozemehak is president of the con-

gregation and Archady Lehach is its treasurer. While

24a

Appendix B

plaintiffs are designated as trustees the intention to sue

on behalf of the association of worshippers is plain

(amended complaint, par. Fourth); identity of the as-

sociation and its officers is completely ascertainable from

the pleadings and record and can be controlled by the

form of judgment. Cf. General Associations Law §17.

Under Rule 17(b) reference is to New York law. Mason

v. American Express Co. “d Cir. 1964, 384 F. 2d 392,

393 and fn. 1.

2. In the first cause of action plaintiffs allege a 1954

agreement by Bishop Bohdan that the property was to be

held in trust for St. Andrew's parish if St. Andrew's re-

repaired, maintained and used the property. As the find-

ings made above demonstrate, the evidence forbids put-

ting that interpretation of fact, and imposing that conclu-

sion of law on Bishop Bohdan’s words and acts.

3. In the second cause of action plaintiffs allege that

after the first notice of condemnation was received, an

agreement was made between the diocese and the parish

that improvements of the property would be undertaken

in order to obtain the highest possible condemnation

award and the improvements made by the congregation

enhanced the award by about $100,000. As the findings

made above esablished, no agreement was made, although

Mihaly did exhort the parishioners to undertake work

which amounted in all to about 2,000 hours of parishioner

effort and involved their expending an indeterminable

amount of money for materials and supplies. There is

no evidence that the work in fact enhanced the award, al-

though, certainly, any evidence of active parochial use

of the property tended to safeguard the claim of the

diocese to the award as against the claim of grantor mis-

sionary society under the reverter language.

LONE aT MMOS er ha ea , «las

25a

Appendix B

The facts as found above are that the parishioners

were neither promised nor led to believe that they would

receive the award or any specific part of it as a paro-

chial church endowment but that they expended their

effort and money in the expectation that the diocese

would make some provision for a place of worship for

St. Andrew's as a continuing parish. But, as has been

found above, the diocese was not responsible for that

expectation.

It is important to note that the property was the prop-

erty of the diocese; it was not parish property ac-

quired through parochial contributions and fund-raising

efforts. The parish, rather, only had the use of the

diocesan property, and parochial use was never of a kind

or on a scale that reflected the size, composition and in-

trinsic value and utilities of the church property.

The plaintiffs have failed to establish the second cause

of action—for the award or a share of its based on the

1968 improvement work and expense and the expecta-

tion in which they took place—by a preponderance of the

evidence. Whether representatives of the diocese could

commit themselves to such an undertaking is a separate

matter. The property was diocesan church property,

and it had to be administered as such in religious uses.

In determining the uses, the diocese would have to be

guided by religious, including parochial-religious, con-

siderations. Cf. Conklin vy. State, 3rd Dept. 1954, 284

App. Div. 193, 180 N. Y. S. 2d 618, 620-621; St. Peter’s

R. C. Par. vy. Urban Development Authority, 1958, 394

Pa. 194, 146 Atl. 2d 724 (condemned church built with

parish funds). The proceeds of condemnation had no

predestinate dedication to St. Andrew's parish and its

congregation, and, while fair compensation out of the

26a

Appendix B

award for work done to enhance it could, no doubt, take

an ingenious form, and be devoted by those who earned

it is to the uses they chose—as, for example, Mihaly

could his legal fee—it must be doubted that the diocese

could undertake to devote all or an indeterminate part

of the award to a particular religious use on any basis

other than a diocesan judgment of the nature and dimen-

sion of the religious need as such.

4. The third cause of action is really contained within

the second, but it is more explicit. It alleges an agree-

ment to turn the proceeds of the condemnation over to

St. Andrew's Church for the purpose of obtaining prop-

erty and constructing a new church. As the findings

above demonstrate, plaintiffs have failed to show the

making of such promise.

5. The fourth cause of action alleges that as part of

the settlement agreement, in which the reverter claim of

the grantor Missionary Society was comprised, it was

understood that the remainder of the award would be

paid over to St. Andrew's Church for the purpose of ac-

quiring property and erecting a new church. As the find-

ings above demonstrate, plaintiffs failed to show that

such a settlement was made, and that such an under-

standing was arrived at.

Plaintiffs argue that they ought at least to have a lien

on the proceeds of the award as a means of preventing

unjust enrichment, referring to Bishop Kuschak’s testi-

mony (Tr. 255). Cf. Restatement of the Law, Restitu-

tion (£40(¢), 41(b). Again, the problem is with the ab-

sence of sufficient evidence to show the value of the work

and the extent of enhancement of the award, if there was

any enhancement, before reaching the question whether

27a

Appendix B

an equitable lien can or should be imposed in the cir-

cumstances of the present case. Plaintiffs can, in any

case, take only upon a trust for their unincorporated

religious society, and, on the present record, that might

simply result in reversion of the funds to the diocese if

St. Andrew's is not longer an active parish and the mem-

bers of old congregation have become members of other

Eastern Rite church.

It must be concluded that plaintiffs cannot prevail in

this action.

It is, accordingly,

OrvereD that the Clerk enter judgment that the plain-

tiffs take nothing and that the action is dismissed on the

merits. No costs.

Brooklyn, New York

February 2, 1973.

Joun F. Doorine, Jr.

0.6. Dd. d.

a a SA EON, ee oS oe

28a

APPENDIX “C”

Judgment of the United States Court of Appeals

Unrrep States Court or APPEALS

For THE Seconp Circvit

At a stated Term of the United

States Court of Appeals for the

Second Circuit, held at the United

States Courthouse in the City of

New York, on the thirtieth day of

November one thousand nine hun-

dred and seventy-three.

Present:

Hox. Leonxarp P. Moore,

How. Pact R. Hays,

Hox. Wittiam H. Trivers,

Cireuit Judges,

=

>

MicuHaeEL Kozemcuak, Pump Proxzexn and ArcHADY

Lewach, as the Board of Trustee’s of St. Andrew's

Ukrainian Orthodox Church of Bridgeport, Connecticut,

Plaintiffs-Appellants,

v.

THe Ukranian Ornruopox Cuvurcu or America and THE

Most Reverexp Bisuop Anprer Kuscwax, Ruling

Bishop of the Ukrainian Orthodox Church of America,

Defendants- Appellees.

73-1425

=

vw

29a

Appendix C

Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Eastern District of New York, and was argued by counsel.

Ox ConxsmeraTION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed with costs to be taxed

against the appellants.

A. DanteL Fvsaro,

Clerk

By: Vrycent A. Carry,

Chief Deputy Clerk