Dissenting Opinion by
Mr. Justice Bell:This is another attempt to save beautiful St. Peter’s Church from destruction. The Chancellor granted a preliminary injunction.
Appellants admit that counsel for plaintiffs has travelled “to Rome on the basis of an appointment Avith Vatican authorities for the express objective of having the hierarchy of the Roman Catholic Church issue a proper directive to the Bishop of the diocese of Pittsburgh to join in this or a subsequent action. . . .”
The complaint alleges with great particularity specific facts Avhich if proved Avould amount to gross actual as Avell as legal fraud and deceit perpetrated on the Bishop. Although complainants allege that the fraud and deceit Avere intentional, I assume that if any exists it Aims unintentional but Avas the result of changes in plans. Equity has ahvays been jealous to protect *189against both actual and legal fraud, and the facts alleged undoubtedly amount to gross fraud and would compel a Chancellor to grant equitable relief.
The Bishop is joined as an involuntary plaintiff. In the prior case he was improperly joined as a defendant. See: St. Peter’s v. Urban Redevelopment Authority, 394 Pa. 194, 146 A. 2d 724. Res adjudicata, on which defendants rely, has no application where, as here, the original decision was based upon the incapacity of plaintiffs to sue or a misjoinder of parties, or both, and not upon the merits: Scharf v. Richard De Cou Co., 320 Pa. 552, 183 A. 41; Grubb Appeal, 395 Pa. 619, 151 A. 2d 599; Grosso v. Englert, 381 Pa. 351, 113 A. 2d 250; Macan v. Scandinavia Belting Co., 264 Pa. 384, 391, 107 A. 750; 30A Am. Jur., Judgments, §§347, 350; 20 P.L.E., Judgment, §277.
The present case likewise differs from the former case because gross fraud is herein alleged and particularized, and equity, we repeat, is vigilant to prevent fraud.
The sole ground for the destruction of St. Peter’s Church is that the area is euphemistically called blighted, i.e., allegedly in need of economic rehabilitation. I cannot understand the spirit of our times which so often places and values the material above the spiritual. The preliminary injunction merely preserves the status quo for three months. If the Vatican favors the defendants they will have been delayed three months; if the injunction is dissolved and the. Vatican favors the plaintiffs, they can celebrate their pyrrhic victory by tearfully praying amid the rubble and the ruins. Under all the circumstances, we should certainly give the parishioners several months’ opportunity to appeal to the Vatican and save this wonderful Church.
For these reasons I would affirm the Order of the lower Court which granted a preliminary injunction.