Saturday, August 7, 2010

Faux Pittsburgh Loses Bid to Dismiss Appeal; ECUSA Wastes More of Your Money

The Commonwealth Court of Pennsylvania has rebuffed an attempt by the ersatz-Episcopal Diocese of Pittsburgh, ECUSA, Calvary Church, and their adherents to dismiss the appeal taken from Judge James's order last January directing the real Diocese of Pittsburgh to hand over all its property and assets to the faux diocese, which I discussed in this earlier post. The appellees (including ECUSA, the faux diocese, Calvary Church, its rector Dr. Lewis, its senior warden and a parishioner) had moved to quash Bishop Duncan's appeal on the ostensible ground that it was taken too late.

The background is technical, but let me try to be brief. Last October, Judge James issued a decision which interpreted an earlier stipulation in favor of the faux diocese, as explained in this earlier post. That decision and order directed further proceedings: the special master previously appointed by the court was to confer with the parties and file with the court an inventory of all the property and assets which were subject to the turnover order; the court retained jurisdiction in the meantime. Once the master filed his inventory, Judge James held another hearing with the parties and entered his January 2010 order, as discussed and linked above.

On their motion to quash the appeal from the January 2010 order (which appeal also included several earlier orders), the appellees argued that the appeal was taken too late, because the October 2009 order had not been appealed from in time, and was now final. In answer, Bishop Duncan and his attorneys argued that the October order was not appealable, because it contemplated further proceedings in the trial court, and did not dispose of all the issues between the parties.

Yesterday the Commonwealth Court issued a memorandum opinion agreeing with Bishop Duncan and his attorneys: the October 2009 order was not appealable until after the court's entry of its January 2010 decision and order. It adopted one of the appellants' arguments, which had noted that the "petition for enforcement" originally brought by Calvary and its related individuals (before the formation of the faux diocese) had sought an accounting of the property and assets, so that they could be turned over. That accounting took place only pursuant to the court's directions in its October 2009 order. Thus the latter order could not have been final at the time, because there were still unresolved issues between the parties, namely, which assets were subject to the court's decision. The Commonwealth Court accordingly denied the motion to quash, in these words:
As part of the relief requested in its Petition for Enforcement, Appellees (who were the initiating parties) claimed they were entitled to "[a]n accounting of the real and personal property of the Diocese and its use since 2003." (Petition for Enforcement ¶ 23(a)(1), R.R. Vol. I at 184a.) Moreover, in the Supplement filed by the Appellees, they requested a court-appointed monitor to: (1) "inventory the Property and to oversee any expenditures or transfers of the Property (including cash assets) until assurance of use of the Property within the Episcopal Church is resolved" (Supplement ¶ 25, R.R. Vol. II at 425a); and (2) "conduct an accounting of the Property (real and personal) held or administered by the Diocese and its use since October 14,2005." (Supplement ¶ 27, R.R. Vol. II at 426a.) Additionally, in the Complaint-In-Intervention filed on behalf of The Episcopal Church of the United States of America by the Right Reverend John C. Buchanan on May 12, 2009, Reverend Buchanan requested the trial court to enter "[a]n order requiring defendant Bishop Duncan and the individual defendants . . . to provide an accounting of all real and personal property of the Episcopal Diocese of Pittsburgh held on October 4, 2008." (Complaint-In-Intervention ¶ 59(d), R.R. Vol. V at 1954a.) Indeed, the trial court acknowledged the outstanding claims regarding the accounting of the property at issue when it ordered, on October 6, 2009, that it would review the Special Master's inventory report "and [would] enter an appropriate order for the orderly transition of possession, custody, and control over said property." (Trial Ct. Order at 1-2, October 6, 2009.)

. . . [T]he trial court did not issue an order adopting the Special Master's Report and inventory of the real and personal property and decreeing the transition of that property until its January 29, 2010 Order. . . . Thus, the trial court's January 29, 2010 Order disposed of all claims by all parties and, as such, is a final order pursuant to Rule 341 (b) from which Appellants may appeal. We therefore find that Appellants did not waive their right to appeal.

Accordingly, the Motion to Quash Appeal is denied.
In a previous post, I noted that the Commonwealth Court had tentatively ordered oral arguments on the appeal for November 8, and I gave a link to the appellate court's docket sheet. On page 9 of that docket sheet, one learns that there had been an application made to the Court on June 10 to admit as counsel pro hac vice [for the pending matter] one David Booth Beers, Esq. and one Mary Kostel as co-counsel for the appellee Episcopal Church. The Court granted the applications on June 14, and noted in its order: "Jennifer E. Watson, Esq., the moving attorney herein, shall continue to be responsible as counsel of record for the conduct of this matter on behalf of appellee The Episcopal Church, by the Right Reverend John C. Buchanan."

On the same page 9, we learn that the Court had granted Bishop Duncan's attorneys a brief extension of time until July 15 to file their reply brief in the appeal. Then on the next page, we see that on July 6, the appellees filed their motion to quash, along with a supporting brief signed by, among others, David Booth Beers and Mary Kostel. This now gave the appellants a double deadline to meet, since the Court had directed a response to the motion to quash be filed by July 20. So they filed another request for an extension to file the reply brief until July 23, which the Court granted. Argument on the motion to quash was heard by telephone conference call on July 22, the morning before the reply brief was due. Does anyone else want to join me in concluding that the timing of the "motion to quash" was not a coincidence?

The motion, as we now see from the Court's disposal of it, was a waste of everyone's time. As the Court points out in its opinion, it was Calvary Church itself -- later joined by ECUSA in its own complaint in intervention -- which had asked for an accounting in its original petition, and which Judge James ordered take place following his October 2009 order. The contention that the October order was "final" was bogus, since the appellees had not treated it as final when it was handed down, but had met and conferred on the accounting, and then gone back to court to argue for the results to be incorporated in a truly final order. (If the previous order had been "final", there would have been no reason to enter the second one in January.)

Bogus as it was, the motion to quash did not require the talents of the Presiding Bishop's chancellor, David Booth Beers, or of her executive assistant for litigation, Mary Kostel, to appear and argue it -- in addition to counsel of record for ECUSA, Jennifer E. Watson, and counsel for Calvary and the other appellees as well. From a query made by five bishops to the Executive Council (which was not contradicted), we know that Mr. Beers charges over $500 per hour to ECUSA for his litigation services -- a "discount" from his normal hourly rate. Ms. Watson's hourly rate is most likely also several hundred dollars an hour, and no one knows what Ms. Kostel charges ECUSA, or whether she is on a salary, or what -- her cost is presumably buried in the nearly $3 million budgeted over the next three years for the cost of the Presiding Bishop's "staff."

But one can know this: the charges to ECUSA for getting its counsel specially admitted, and then drafting, filing and arguing this bogus motion were on the order of thousands and thousands of dollars. If the three ECUSA counsel were on the telephone together, the "argument" alone was costing ECUSA at least over $1000 per hour. (And what would be the point of being admitted pro hac vice just in time to file the motion to quash, if one were not also going to take part in the argument of the motion?)

The point here is not that New York and Pennsylvania attorneys are expensive; we all know that. The point instead is that no one is minding the store, or overseeing what legal work is being done for ECUSA and in its name, on an impartial basis. (Mary Kostel used to work under David Booth Beers at Goodwin Procter -- so how much objective oversight on legal strategies and expenses could she provide? If she is even performing some of that function, she would be overseeing someone who used to be her boss -- and who still, as the Presiding Bishop's Chancellor, has quite a lot of unchecked authority.)

In their response to the query made by the bishops to the Executive Council, two members of that Council (who are both attorneys) claimed that “We give you our professional opinion that the church is receiving extraordinary value for the funds it does spend.” That claim is very much open to dispute, as this little incident in Pittsburgh demonstrates. But there is even more that is wrong with this current situation. In a later post, I shall have a good deal more to say about it.


  1. You quote from the Commonwealth Court opinion. Is this opinion available on the Web?


  2. Lionel Deimel, VirtueonLine has posted the full text, but not the .PDF. If you want to email me, I can send you the .PDF.