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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 416 U.S. 939

## Text

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-

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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).

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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]

| dee TIER, RPL PE MMO MET ME, ATE AOTC NEON f

ELSA BF DRE Se PAPO RTD IG om

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1682%3A1. Public record. Not legal advice.