Saint John The Baptist Greek Catholic Church v. Musko

Concurring Opinion by

Mr. Justice Roberts :

1 concur in the result but do so not on the reasoning of the majority. My concurrence is based on the “formal title” approach discussed in my dissenting opinion in St. John Chrysostom Greek Catholic Church of Pittsburgh v. Elko, 436 Pa. 243, 256, 259 A. 2d 419, 425 (1969) (dissenting opinion).

In urging the adoption of the “formal title” approach, I pointed out in St. John that: “. . . the titleholder of the property has the right to determine the use of the property with neither theology nor administrative church law as relevant considerations. Churches need not be classified as either hierarchial or congregational as in the Watson [v. Jones] approach. The civil courts under this alternative would enforce deeds, reverter clauses, and general state corporation laws in the same manner as in resolving any property dispute.’ Comment, 54 Iowa L. Rev. 89.9, 907 n.53 (1969). Cf. Presbyterian Church, 393 U.S. at 452, 89 S. Ct. at 607 (Harlan, J., concurring).” 436 Pa. at 260-61, 259 A. 2d at 427.

This approach to church controversies has the constitutional advantage of obviating the hazard of utilizing impermissible ecclesiastical doctrines and considerations in the adjudication of such controversies, whereas the approach employed by the majority involves examination and utilization of ecclesiastical matters inadmissible under Presbyterian Church.

Mr. Justice Nix and Mr. Justice Manderino join in this concurring opinion.