Tuesday, August 30, 2011

Judge Orders Removal of Good Shepherd's Rector, Two Vestry Members

In a final order entered on August 25, 2011, Judge Stanley Ott of the Court of Common Pleas of Montgomery County (Orphan's Court Division), Pennsylvania, has ordered that the Rt. Rev. David L. Moyer and two members of the vestry of the Church of the Good Shepherd in Rosemont, a suburb of Philadelphia in the Diocese of Pennsylvania, be removed from their offices. The order carefully sorts through the claims made on both sides of this tangled affair, which began in 2002 with a doctrinal dispute between Father Moyer and his then bishop, the Rt. Rev. Charles E. Bennison, Jr. Eventually, Bishop Bennison resorted to the ill-advised use of the Abandonment Canon for Clergy to "depose" Father Moyer from office without the necessity of a presentment or trial.

Father Moyer sued Bishop Bennison in civil court for fraud in removing him without due process under the canons, and surprisingly, the civil court allowed the case to go forward. But it resulted in a jury finding that Bennison had not committed any fraud, and the case was dismissed. Then Father Moyer turned on his trial attorneys and sued them for "malpractice." That suit, too, was eventually dismissed, and Father Moyer and his second attorneys ended up on the receiving end of a malicious prosecution complaint.

Meanwhile, over at the Diocese of Pennsylvania, Presiding Bishop Jefferts Schori inhibited Bishop Bennison after charges were filed against him for protecting his younger brother, a former Episcopal priest who had briefly worked under him, from claims of sexual predation by failing to act on them, or to report them to any superior. His inhibition prevented Bishop Bennison from heading up the lawsuit filed against Good Shepherd in the current case before Judge Ott, which was brought instead by the Standing Committee, acting in its role as the Ecclesiastical Authority while Bishop Bennison remained under inhibition.

One curious fact about Judge Ott's decision is that while it describes the lawsuit between Father Moyer and Bishop Bennison, and refers to its outcome, it makes no reference at all to the subsequent proceedings against Bishop Bennison, which disqualified him from bringing suit in the name of the Diocese. As is well known, the Court of Review for the Trial of a Bishop finally dismissed, on pure statute of limitations grounds, the charges against Bishop Bennison in August of last year, and vacated his sentence of deposition. Although this had the effect of reinstating him as the diocesan of Pennsylvania, there was no move made to substitute him into the lawsuit -- perhaps because relations between the Bishop and his Standing Committee, to say nothing of his Diocese itself, remain very strained.

Instead, the decision by Judge Ott describes matters as they stood when the current lawsuit was amended in early 2010: without any diocesan bishop to act on behalf of the Diocese, the Standing Committee had granted to the Rt. Rev. Rodney R. Michel, assisting bishop, the authority to act for the time being as a Diocesan. For Judge Ott, however, the only relevant history of which he can take cognizance is the earlier deposition of Father Moyer:
Turning to the motion for summary judgment, we perceive the pivotal fact to be the deposition of respondent Moyer which the respondents acknowledge to have taken place. (Response to Motion for Summary Judgment, par. 2.) Under the rule of deference, by which civil courts do not adjudicate controversies involving the internal governance or administration of religious organizations, this Court clearly can not inquire into the propriety of this action. Another matter on which this Court will not rule is whether one ordained by a branch of the Anglican Church can be deemed to be an Episcopal priest. . . .
At initial oral argument on the motion for summary judgment, Father Moyer's attorney tried a delaying tactic, by arguing (contrary to interest, it would seem!) that the "national Church" had a "trust interest" in the Church of Good Rosemont property (i.e., under the Dennis Canon), and that it should be afforded an opportunity to intervene in the proceedings to protect that interest. (I fail to see how that point resulted in anything but a few months' delay. It surely did not advance the interests of Good Shepherd itself.) But after being consulted, ECUSA notified the Court through the Diocese's attorneys that it did not need to intervene, and so Judge Ott proceeded to his decision.

Given Fr. Moyer's admitted "deposition", no matter how illegal under the canons, the only conclusion Judge Ott could reach under these facts was that Good Shepherd cannot both remain a parish of the Diocese of Pennsylvania and employ him as their rector:
On the sole question of whether or not the Diocese can ask this Court to force the respondents out of Good Shepherd, the answer is clear. Their eviction, literally and figuratively, is the will of the petitioning Standing Committee and Assisting Bishop. Their decision is the result of the parties' divergent views on ecclesiastical questions and this Court can not get entangled in those controversies. The resolution of the Standing Committee dated November 6, 2002, authorized the Bishop "to take all steps reasonably necessary to secure the property of Good Shepherd for the use of the Episcopal Church." (Exh. H. to amended petition for declaratory judgment.) The respondents argue strenuously that the present action was filed prematurely because the petitioners did not follow the resolution's directive that the Bishop "endeavor to seek an amicable resolution to the disputes with The Church of the Good Shepherd, Rosemont, in order to restore the Parish and the Diocese to that unity which is ours in Christ" before moving against the respondents. Clearly, the members of the Standing Committee, as they are petitioners herein, have determined this "condition" to be impossible of fulfillment, a conclusion that would seem inevitable in light of, inter alia, the aforementioned civil case tried in 2008 between respondent Moyer and the then-Bishop.
In Judge Ott's eyes, Bishop Michel is the bishop who is asking for the removal of Father Moyer (and his supporting vestry members) from their offices. Nevertheless, there is a paradox here. The key resolution of the Standing Committee expressed the condition that, before seeking the officials' removal, the bishop "endeavor to seek an amicable resolution" of the disputes. The Court takes note of the fact that any rapprochement was probably incapable of being reached between Father Moyer and Bishop Bennison, in light of the lawsuit between them, but what about between Father Moyer and Bishop Michel? Was there any proof of the fact that he tried first to resolve the dispute, before seeking judgment? If there was, the court does not mention it.

And the two vestry members appear to have been swept out of their offices by the tide that removed Father Moyer. There is no analysis by Judge Ott of any separate authority of the Bishop of Pennsylvania to remove vestry members, or of any determination by either Bishop Bennison or Bishop Michel that the two members were unfit to serve. Instead, the Standing Committee's Petition simply alleged, in conclusory fashion, that as a result of their support and employment of Father Moyer, the vestry members "have 'rendered themselves ineligible to be members of the congregation, to vote on matters relating to the parish, or to hold office or exercise any authority on behalf of Good Shepherd.'" (This is another example of the "ejectment seat" theory of vestry malfeasance, which has very dangerous implications for the people who now are employing it throughout the Church with such success.)

Judge Ott concludes his decision with this Order:
Accordingly, the Court determines that respondent Moyer and respondents John Heidengren and Timothy Tammany no longer have any right or authority to serve as rector and vestry members of The Church of The Good Shepherd, Rosemont, Pennsylvania, and they are hereby removed from those positions.
As of the time of writing, there has not come to light any official or public response to the decision by Father Moyer, his attorneys, or his congregation.

[UPDATE 08/30/2011: Seven parishioners of Good Shepherd, who describe themselves as "traditional orthodox Anglicans", circulated the following statement about the situation on Sunday, August 28:
A Declaration of the Friends of the Church Good Shepherd, Rosemont

August 28, 2011

We the undersigned believe that in the course of recent events, the leadership of the Church of the Good Shepherd-Rosemont has shifted from, and attempted to move the parish away from, its historic and stated mission of being a pillar of traditional Anglicanism. Given the present situation in the Episcopal Church, we find this understandable, but we also feel that it is lamentable.

The current leadership has stated its objective as being the establishment of an alternate house of worship under the promised Roman Catholic Ordinariate. We are well aware of why they have done this.

We are concerned, however, that insufficient attention is being paid to the needs of the parishioners who, for reasons of conscience, cannot join them. If the process of division is to be successful and amicable, marked by mutual respect, then we believe that now is the time to start thinking about it.

Therefore, we the undersigned, have formed an ad hoc committee to be known as the Friends of Good Shepherd. We hope and pray that we may be able to assist in the orderly and peaceable process of transition from the status quo in order to preserve and maintain the Church of the Good Shepherd as a viable witness to, and embodiment of the Anglo-Catholic expression of the Christian Faith in the Diocese of Pennsylvania. Several recent events have led us to take this step:

Inasmuch as:

1. Father Moyer has stated publicly that he intends to leave Good Shepherd in the near, but indefinite future to join the Roman Catholic Ordinariate Members of the Vestry have been actively engaged in projects directed toward, and specific to a time when they will have left Good Shepherd to join the Roman Catholic Ordinate.

The Vestry has operated in a less than transparent manner in matters regarding operational, financial and legal information, but especially by using the parliamentary category of Executive Session to keep certain information beyond the reach of the congregation.

In Parliamentary procedure, an Executive Session is that portion of a meeting, specially called, during which minutes of the meeting cease to be kept, and the proceedings are secret. The only attendees are members of the committee and invited guests. Deliberations during an Executive Session are to remain secret and all attendees are honor-bound to maintain confidentiality. This tool is chiefly used when dealing with controversial issues which a committee does not wish to make public, or when members have been encouraged to speak openly without concern for their words being repeated outside the meeting.

2. The Rector and Vestry have turned down a formally presented proposal to work together toward a peaceable transition, and we believe that the formation of an independent committee is desirable and necessary in order to preserve and insure the continued witness and mission of the Church of the Good Shepherd as a parish in the Diocese of Pennsylvania, and the world-wide Anglican Communion;

To this end, we the undersigned members of the Church of the Good Shepherd, Rosemont, have formed and constituted ourselves as what is to be known as the Friends of Good Shepherd,whose purpose is to insure and coordinate the means whereby the aforementioned ends may be achieved. In so doing, we believe it is important that we state what this ad hoc committee is, and what it is not:

We Are Not:

Legal or elected representatives of the Church of the Good Shepherd Rosemont Parish

We Are Not:

Presuming to represent the entire congregation of the Church of the Good Shepherd but to speak for ourselves, and we hope for others, who wish to remain as members of the Parish.

We Are:

Members of the Episcopal Church of the Good Shepherd Rosemont, Pennsylvania as well as traditional orthodox Anglicans.

We Are:

Attempting to exercise our legal rights, as delineated by the Commonwealth of Pennsylvania, and to work in concert with all those who strive for a peaceable transition. It is also appropriate that we say something about what this ad hoc committee will attempt to achieve:

We Will:

As is our right under the Law, review the accounting records to gain a better understanding of our current financial position and share such information with the members of the Good Shepherd congregation.

We Will:

Examine current legal liabilities from standing litigation which could have an impact on the parish in the future, and share such information with the members of the Good Shepherd congregation.

We Will:

Review past and current parish membership files with the intent of identifying individuals and families who wish to remain members of Good Shepherd, as well as those who have left the parish or may be lapsed, and might wish to return to this parish as it moves forward in its continuing role as an orthodox Anglican parish.

We Will:

Develop a "healing" strategy, to be enacted immediately, in order to help ameliorate the hurt, separation, anger, conflict and other spiritual damage experienced by congregants over the last few years.

We Will:

Endeavor to create a dialogue with the Diocese of Pennsylvania with the goal of returning Good Shepherd Rosemont to its historic mission of being a pillar of traditional Anglicanism.

To these ends We Hope and Pray For: A close collaboration with our Rector, the Rt. Rev. David L. Moyer and the current members of the Vestry.

We Hope and Pray For:

The cooperation of the Episcopal Diocese of Pennsylvania in assisting the healing and return of the Church of the Good Shepherd Rosemont to its historic role as a pillar of orthodox Anglicanism in the Diocese of Pennsylvania.

Barbara K. Clement
Charles F. Clement 3rd
George A. Anderson 3rd
Dr. Charles Zeiders
Maria Demopoulos
The Rev. Vernon Austin
Dr. Arthur Waldron
There should be more to report about this situation after this coming weekend.]

[UPDATE 08/31/2011: The Vestry of Good Shepherd has now circulated the following message:

August 31, 2011


As a follow up to yesterday’s communication to the parish, the Vestry has issued the following statement for parishioners:

Today the Vestry conducted an unscheduled emergency meeting to discuss actions related to Judge Stanley Ott’s decree issued on August 25th. The Vestry met by teleconference at 11 a.m. EST and a quorum was present to conduct business. Brian Dickerson, outside legal counsel for the Vestry also participated.

First, the Vestry apologizes for any confusion on the timing of the Judge’s order in yesterday’s communication. The Court issued the order on August 25th, but it was not communicated to the Vestry until August 29th.

Second, the Vestry is fully complying with the order and spirit of Judge Ott’s Decree and the following actions were taken:

1. CHURCH OPERATIONS AND STAFFING – The elected Vestry of Good Shepherd is responsible for the general welfare of the parish, to respond to the needs and desires of the parish, and for the management of its assets and resources.

It has been confirmed that the Vestry remains the authorized corporation to conduct church business as empowered by the charter, by-laws and standing rules of the church and Diocese. The Church of the Good Shepherd, Rosemont continues to be part of the Episcopal Church in the United States and the Diocese of Pennsylvania.

The Rector - The Rt. Rev. Dr. David Moyer no longer officiates or serves in any religious leading capacity at the Church of the Good Shepherd, Rosemont.

The Vestry was thankful and grateful for Bishop Moyer’s more than 20 years of service to the parish, congregation, and spiritual leadership as our “Good Shepherd.” His leadership and convictions to our parish’s orthodoxy, apostolic beliefs, and Anglo-Catholic traditions will forever be remembered and cherished. The Vestry will work with the Moyers to ensure a reasonable and fair amount of time is given to vacate the Rectory and Rector’s office after so many years of valued service and residence.


Resignations - The Vestry accepted the resignations of John Ewing as Rector’s Warden and Tim Tammany as Recording Secretary and Vestryman. Their years of service was gratefully appreciated.

Appointments - The Vestry named David Rawson to serve as Senior Warden with financial authority to review and approve regular operating expenses of the parish, in consultation with the Vestry.

3. VESTRY VACANCIES - Recognizing that a number of vacancies exist, the Vestry desires to fill vacancies with eligible members from the parish that would like to help lead.

Over the past years, members of the parish have cited risk of legal liability in considering Vestry service – or have resigned from Vestry service. With all litigation now concluded, counsel has confirmed that legal liability should no longer be a concern moving forward. The Vestry must and will continue to work for the good of all members of the congregation.

The Vestry invites eligible parish members interested in helping lead Good Shepherd to attend the next regularly scheduled Vestry meeting on Wednesday September 7, at 7:30 pm in the Church Library.

4. DIOCESAN COMMUNICATION - The Vestry is contacting the Episcopal Diocese of Pennsylvania to assure full cooperation with Judge Ott’s Decree. The Vestry is actively identifying supply priests for future worship and the undertaking of a search for a new Rector.

The Rt. Rev. Rodney Michel, Assisting Bishop of the Diocese of Pennsylvania, is expected to officiate on Sunday, September 4th. *

With the approaching end of summer and a new liturgical year, we are all saddened by the toll the filing of this lawsuit has had on our parish and Rector. We pray the diocesan leadership will accommodate and support orthodox parishes like Good Shepherd and embrace our ideological and religious differences inclusively. As Christians, we are called to “bear one another’s burdens, and so fulfill the law of Christ.” We commit ourselves to this, and humbly ask you to join us in doing the same.

In Christ,

The Vestry

The Church of the Good Shepherd, Rosemont

Wednesday of the Twenty-second week in Ordinary Time

* PS: There will be both an 8:00 am and a 10:00 am Mass on Sunday, Sept. 4.

-- End of message; End of Update]


  1. While the situation here is very confused, I think it points out a basic problem with "continuing Anglicanism". The Episcopal Church is on a path leading to self-destruction, with loss of membership and out-of-control spending on litigation. "Continuing Anglicans", on the other hand, appear to me to be delusional in thinking they can sustain themselves as one, two, or several dozen separate denominations. The numbers and the money aren't there. The Anglican compromise is in effect a "don't ask -- don't tell" policy dating from the 17th century relating to divisions between Catholic and Protestant. The current worldwide split in the Anglican Communion is indicative of what is almost certainly an irreparable breakdown in that compromise -- yet the Church of the Good Shepherd people signatory to that document seem to think they can somehow work things out on the old basis.

    There seems to be a great deal of distrust of the Ordinariate, which is clearly reflected in the divisions within the Church of the Good Shepherd. It seems to me that a better option would be to rethink the unspoken premises of the old compromise and either decide to become Presbyterians or Catholics. TEC isn't going to last much longer.

  2. Isn't what you call the theory of ejectment actually just Roman Catholicism?

    It's clear that the Standing Committee had the right to remove Reverend Moyer, because he no longer had the license to officiate--whether that earlier taking was legitimate or not.

    Where does the Standing Committee get the power to remove the vestry members? The judge clearly says that his decision is not turning on Pennsylvania trust law?

    So where is the power coming from?

    (Roman Catholicism?)

  3. Hoofin, I am just as puzzled by the legal basis for the Judge's decision as you are, but I am not privy to the legal memoranda filed on both sides. Perhaps there was a Diocesan canon on point, as there was in the San Diego case, which allowed the Bishop to replace vestry members in case of malfeasance or stalemate. If there were such a canon, then of course the Standing Committee could exercise it, if it were the "Ecclesiastical Authority" of the Diocese at the time. But that's what is so confusing to me -- +Bennison was automatically restored to his post last August, and now it is a year later -- so why does the Court not reference an action by +Bennison, if that were the source of the removal power? Thus it makes me suspect that it was just a variation of the old "ejectment seat" theory, using the "well and faithfully perform the duties of that office" language under Canon I.17. But I'm not sure how to equate that theory with some doctrine or practice of Roman Catholicism -- care to elaborate a bit?

    John, your reading of the situation may be right, given Fr. Moyer's announced intention to lead his followers into the Ordinariate. I am uncertain, however, as to which "document" you mean the parish was a "signatory", unless you are speaking only in figurative terms.

  4. The document I'm referring to is the one you quote in your update in the original post, the "Seven parishioners of Good Shepherd, who describe themselves as 'traditional orthodox Anglicans', circulated the following statement about the situation on Sunday, August 28:
    A Declaration of the Friends of the Church Good Shepherd, Rosemont" etc. On re-reading it, yes, they are certainly saying they now want to work something out with TEC whereby they can continue as traditional Anglicans within it, whatever that means. I'm sure that Bennison and Jefferts Schori will have a most accommodating response.

    As far as I can see, they're saying they want to keep driving their Priuses and thinking good thoughts, and let's get all this behind us. Lotsa luck.

  5. Mr. Haley, did you get my recent response? Sometimes my comments get lost in the verification process?

  6. Hoofin, no, there were no other comments of yours to moderate on this post other than the two of yours that I have published thus far. Perhaps you can remember what you wanted to say -- at any rate, please try again.

  7. Ah, it's so frustrating when that happens. I hit "preview" and the software wants me to verify my name and data--then it tells me there has been some cookie error. Everything I wrote vanished.

    In short.

    I. The duties of a Pennsylvania nonprofit corporation officer, when the corp. is a religious society

    a. Is the duty back to the parishioners (majority of parishioners), or is it to some strongman-bishop? Or standing committee? Where is this spelled out in PA law? Where is this spelled out in canons?

    b. The ejectment seat canon (I.17.8) only seems to indicate that the vestry member has a fiduciary duty. Who judges a potential breach? The bishop? Standing committee? Aren't there supposed to be separate PA law standards that are divorced from religion?

    c. If the real reason was employing Fr. Moyer, an unlicensed priest, why didn't Judge Ott just say so? If you say you are running the Red Cross, but run it as if it's the Purple Cross, then you haven't done your fiduciary duty, have you?

    d. Is the duty to "the hierarchy"? How does the deference rule require this?

    e. Judge Ott specifically says that Pennsylvania trust law does not come into play? Does Pennsylvania corporate law? Why not?

    II. St. Clement's Church

    My case from 20 years ago. Vestry was not following canons, but the Philadelphia Orphans' Court wouldn't let the case go forward. They wanted an "adjudication" from the bishop (but no discovery, so, in effect, no result). Where did "membership adjudication" arises within the Episcopal Church? The rule is clear. Where did the new rule come from? Pennsylvania law? Why does "the hierarchy" get to decide this, if they choose (or not)?

    III. Pittsburgh parishes affiliated with ACNA (former Diocese of Pittsburgh)

    The Pennsylvania trial court said that the diocese could not disaffiliate without leaving the property behind. Where did this rule come from? Isn't it still the Episcopal Diocese of Pittsburgh? Where did "the hierarchy" get the right to change the Episcopal Diocese of Pittsburgh into something else?

    In all three cases above, it's clear that "the hierarchy" is cleaned up language for the rule in Roman Catholic Church, if what we had before us was a Roman Catholic matter. As I have previously remarked, this is what was inelegantly referred to in the 19th century as "popery"--the imposition of the rule of Rome for the laws of the United States of America.

    The deference rule only meant that the civil courts are supposed to refer to rules as already determined within the religion that has hierarchical governance. It's not supposed to defer to any desire (or silence) that comes out of hierarchical officials.

    I think the Pennsylvania bench has been incredibly derelict in this area of the law, and none of the trial court level judges are doing anything to clean it up.

  8. On the other hand, I don't think it would accomplish anything positive to keep litigating this matter. Bp Moyer and some number of Good Shepherd parishioners have indicated their intention of going into the Ordinariate, which should occur in some manner later this year. It's my understanding that they will get the use of a closed Roman Catholic church building in the area. My assumption is that they had already determined to leave the existing Church of the Good Shepherd building behind -- whether that can continue as a viable TEC parish is an open question, especially considering the expressed preference of some members to go on somehow as a pillar of traditional Anglicanism.

    I think the best move is to set an example of a functioning Ordinariate parish for other Anglicans in the area who may be considering the best way to move forward.

  9. I agree with the sentiment that continued litigation is not in the Good Shepherd's interest, but only because you can't trust the Pennsylvania court system on these religious society issues.

    Remember, this is a court system where one judge was taking million dollar bribes from a private jailer in order to send juveniles into his incarceration business.

    Several years back, one of the supreme court justices was obtaining Prozacs illegally by forcing a subordinate to go and get a prescription.

    Once these men (mostly men, but there are a few woman) are elected (and they're all elected--not merit appointed), they treat the office as a political appointment. They dispense "justice" only in places and ways that they think will maintain or advance their political fortunes. (With Judge Ciavarella, mentioned above as the cash-for-kids judge, their monetary fortunes, too.)

    Relying on these men and women (again, mostly men) to do right is like hoping to win the lottery. It's the Pennsylvania Lottery that few people know about until they have to rely on the courts here.