RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0372-22
D.T.,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
December 7, 2023
v. APPELLATE DIVISION
ARCHDIOCESE OF
PHILADELPHIA and
MICHAEL J. MCCARTHY,
Defendants-Respondents.
____________________________
Argued October 10, 2023 – Decided December 7, 2023
Before Judges Gilson, Berdote Byrne, and Bishop-
Thompson.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Atlantic County,
Docket No. L-1327-20.
Ruxandra M. Laidacker argued the cause for appellant
(Kline & Specter, PC, attorneys; Charles L. Becker,
David K. Inscho, Lorraine H. Donnelly, and Ruxandra
M. Laidacker, on the briefs).
Nicholas M. Centrella argued the cause for respondent
Archdiocese of Philadelphia (Clark Hill PLC,
attorneys; Nicholas M. Centrella, on the brief).
The opinion of the court was delivered by
GILSON, P.J.A.D.
Plaintiff D.T. alleges that Michael McCarthy, a former Catholic priest,
sexually abused him in New Jersey in 1971. 1 At that time, plaintiff was fourteen
years old, and McCarthy was serving as a priest and teacher in the Archdiocese
of Philadelphia (the Archdiocese). Plaintiff appeals from an order dismissing
his claims against the Archdiocese for lack of personal jurisdiction. Because
there are no facts establishing that the Archdiocese purposefully availed itself
of any benefits in or from New Jersey related to McCarthy's alleged abuse of
plaintiff, we affirm.
I.
We discern the facts from the record developed during jurisdictional
discovery. The Archdiocese is an unincorporated, religious, non-profit
association that operates in Pennsylvania. Its principal place of administration
is in Philadelphia, and it oversees Catholic parishes in five Pennsylvania
counties. The Archdiocese does not oversee or operate any churches, parishes,
or religious facilities in New Jersey. It also does not assign priests to any
parishes in New Jersey.
1
Plaintiff used his initials in his complaint. We use initials to protect privacy
interests concerning allegations of child sexual abuse. See R. 1:38-3(c)(9).
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2
The Archdiocese does not currently own any real property in New Jersey.
In the past, the Archdiocese did own several properties in New Jersey that were
given to it, but those properties were sold before 2013. The Archdiocese also
owned and operated two properties in Ventnor, New Jersey, which it used as
vacation homes for priests. The Ventnor properties were acquired in 1963 and
sold in 2012 and 2013.
McCarthy began working as a parish priest and teacher for the
Archdiocese in 1965. From 1965 to 1989, he taught at Cardinal O'Hara High
School in Springfield, Pennsylvania. McCarthy lived at the St. Bernadette
Parish in Drexel Hill, Pennsylvania, from 1965 to 1975, where he also served as
a priest.
It was while McCarthy was serving as a priest in Drexel Hill,
Pennsylvania, that he came to know plaintiff and plaintiff's family. In 1971,
McCarthy counseled plaintiff's family when plaintiff's parents decided to renew
their wedding vows and baptize plaintiff's father as part of the ceremony.
McCarthy also ministered to the family when plaintiff's father became ill and
died in 1971. At that time, McCarthy offered to mentor plaintiff, who was then
fourteen years old.
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In July 1971, McCarthy invited plaintiff to go with him to a home
McCarthy used in Margate, New Jersey. 2 Plaintiff's mother gave permission,
and McCarthy and plaintiff then drove to the Margate home. When they arrived,
plaintiff alleges that McCarthy showed him pornography, encouraged him to
drink alcohol, and sexually assaulted him.
Plaintiff also alleges that the Archdiocese was "on notice" of McCarthy's
propensity for sexually abusing young boys beginning in 1986. McCarthy
resigned as a parish priest in 1993. The following year, the Archdiocese placed
McCarthy on leave, and in 2003, McCarthy retired from serving as a priest.
In 2005, a Philadelphia grand jury issued a report concerning sexual abuse
of minors by priests in the Archdiocese. McCarthy was identified as one of the
perpetrators. The report stated that the Archdiocese received allegations of
sexual abuse by McCarthy in 1986, 1991, and 1992. The report also included
summaries of witnesses' testimony, several of whom described sexual abuse by
McCarthy at the home in Margate.3 The following year, in 2006, the
2
The record is not entirely clear, but one of McCarthy's relatives appears to
have originally owned the home in Margate. McCarthy purchased the home in
1973. It is undisputed that the Archdiocese did not own or conduct any activities
at the home in Margate.
3
The Archdiocese contends that the grand jury report is hearsay and should not
be considered. We deem the report relevant discovery related to the question of
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4
Archdiocese "laicized" McCarthy; meaning that McCarthy was dismissed from
the clerical state and lost all rights and obligations associated with ordination.
Glossary of Terms, The Diocese of Springfield, Mass.,
https://diospringfield.org/osevaglossaryofterms/ (last visited Nov. 30, 2023)
(defining "laicization").
In May 2020, plaintiff filed this complaint against McCarthy and the
Archdiocese in New Jersey. Plaintiff alleged that defendants negligently
provided pastoral services to him when McCarthy sexually abused plaintiff in
New Jersey. Plaintiff also contended that the Archdiocese was vicariously liable
for McCarthy's tortious acts and that the Archdiocese was negligent in hiring
and supervising McCarthy. In addition, plaintiff asserted a claim for assault and
battery against McCarthy.
In November 2020, the trial court granted the Archdiocese's motion to
dismiss plaintiff's claims against it for lack of personal jurisdiction. The court
also denied plaintiff's request for jurisdictional discovery.
We granted plaintiff's motion for leave to appeal and, on January 11, 2021,
summarily vacated and reversed the trial court's order of November 17, 2020.
personal jurisdiction over the Archdiocese. In doing so, we take no position on
whether the report is hearsay or whether it would be admissible for other
purposes.
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We remanded the matter so that jurisdictional discovery could be conducted.
Order on Motion, D.T. v. Archdiocese of Phila., No. 0188-20 (App. Div. Jan.
11, 2021). The Supreme Court denied the Archdiocese's motion for leave to
appeal.
On remand, the parties conducted jurisdictional discovery. Thereafter, the
Archdiocese again moved to dismiss the claims against it for lack of personal
jurisdiction. On December 6, 2021, the trial court entered an order granting that
motion. The court also entered an order granting the Archdiocese's motion to
dismiss McCarthy's crossclaims against it.
On January 14, 2022, we granted plaintiff's second motion for leave to
appeal and summarily vacated the trial court's December 6, 2021 order. Order
on Motion, D.T. v. Archdiocese of Phila., No. 1234-21 (App. Div. Jan. 14,
2022). We remanded the matter and directed the trial court to "create a proper
record" concerning the Archdiocese's ownership of property in New Jersey. In
the order, we stated in relevant part:
After receiving competent proofs regarding [the
Archdiocese's ownership of real property in New
Jersey], the [trial] court shall [then] reconsider its
decision based on this fully developed record and
address whether the nature and extent of the
Archdiocese's past ownership of property in New
Jersey, during relevant time periods, shows that the
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6
Archdiocese purposefully availed itself of the privilege
of conducting activities with New Jersey.
Thereafter, we denied the Archdiocese's motion for reconsideration, and the
Supreme Court denied the Archdiocese's motion for leave to appeal.
Following the second remand, the parties conducted additional discovery
concerning the Archdiocese's former ownership of property in New Jersey. The
Archdiocese produced records and submitted a certification from a
representative of its Office of Property Services that described the real property
the Archdiocese had previously owned in New Jersey. That discovery
established that plaintiff had never been to any of those New Jersey properties
and there was no evidence that McCarthy had ever sexually assaulted plaintiff
at any of those properties.
The Archdiocese then moved for a third time to dismiss the claims against
it for lack of personal jurisdiction. On August 19, 2022, the trial court issued
an order and a statement of reasons granting that motion. The trial court found
that the Archdiocese's past ownership of property in New Jersey did not
constitute purposeful availment of any benefit from New Jersey related to
McCarthy's alleged sexual abuse of plaintiff. The trial court also found that the
Archdiocese had not purposefully availed itself of any benefit in New Jersey
related to plaintiff's allegations because those allegations "only involve[d] the
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7
unilateral act[s] of [McCarthy]" and did not involve deliberate conduct by the
Archdiocese. In its written decision, the trial court also rejected plaintiff's
"agency" theory of jurisdiction, finding that there was "no credible evidence the
Archdiocese's supervisory activities purposefully targeted New Jersey." In
addition, the trial court found that plaintiff's claims did not arise out of or relate
to any contact the Archdiocese had with New Jersey.
Thereafter, plaintiff moved for, and we granted, leave to appeal the August
19, 2022 order dismissing the claims against the Archdiocese for lack of
personal jurisdiction. Plaintiff's claims against McCarthy are still pending.
II.
On appeal, plaintiff makes two arguments. First, he contends that the
Archdiocese is subject to specific jurisdiction in New Jersey through the actions
of McCarthy, who was an "agent" of the Archdiocese. In that regard, plaintiff
asserts that the Archdiocese "purposefully availed itself of the privilege of
conducting activities in New Jersey through the conduct of priests like
McCarthy." Plaintiff goes on to contend that McCarthy's "pastoral and
mentoring activities" were not beyond the scope of the agency the Archdiocese
conferred on him as a priest. Second, plaintiff argues that the trial court erred
when it focused only on McCarthy's abusive actions in New Jersey.
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Having considered these arguments in light of the record and governing
law, we reject them. The facts disclosed during jurisdictional discovery
established that the Archdiocese is not subject to jurisdiction in New Jersey
because it did not purposefully avail itself of activities in New Jersey sufficient
to satisfy the "minimum contacts" required for personal jurisdiction. See Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316-17 (1945).
A. The Law Concerning Personal Jurisdiction.
Personal jurisdiction is a "'mixed question of law and fact' that must be
resolved at the outset, 'before the matter may proceed.'" Rippon v. Smigel, 449
N.J. Super. 344, 359 (App. Div. 2017) (quoting Citibank, N.A. v. Est. of
Simpson, 290 N.J. Super. 519, 532 (App. Div. 1996)). We review a trial court's
findings of fact with respect to jurisdiction "to determine if those findings are
supported by substantial, credible evidence in the record," but conclusions of
law are reviewed de novo. Id. at 358. "A trial court's interpretation of the law
and the legal consequences that flow from established facts are not entitled to
any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
"A New Jersey court may exercise in personam jurisdiction over a non-
resident defendant 'consistent with due process of law.'" Bayway Refin. Co. v.
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9
State Utils., Inc., 333 N.J. Super. 420, 428 (App. Div. 2000) (quoting R. 4:4-
4(b)(1)). New Jersey courts "exercise jurisdiction over non[-]resident
defendants 'to the uttermost limits permitted by the United States Constitution.'"
Jardim v. Overley, 461 N.J. Super. 367, 377 (App. Div. 2019) (quoting Avdel
Corp. v. Mecure, 58 N.J. 264, 268 (1971)).
To be subject to personal jurisdiction in a forum state, due process requires
that the non-resident defendant "have certain minimum contacts with it such that
the maintenance of the suit does not offend 'traditional notions of fair play and
substantial justice.'" Int'l Shoe Co., 326 U.S. at 316 (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940)); Blakey v. Cont'l Airlines, Inc., 164 N.J. 38, 65
(2000). "[T]he requisite quality and quantum of contacts is dependent on
whether general or specific jurisdiction is asserted." Citibank, 290 N.J. Super.
at 526. General jurisdiction "requires affiliations 'so "continuous and
systematic" as to render'" a non-resident organizational defendant "'essentially
at home in the forum State.'" Daimler AG v. Bauman, 571 U.S. 117, 133 n.11
(2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
915, 919 (2011)). The parties agree that the Archdiocese is not subject to
general jurisdiction in New Jersey. Accordingly, we focus on whether there is
specific jurisdiction.
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To determine whether a non-resident defendant may be subject to specific
personal jurisdiction, courts examine the "relationship among the defendant, the
forum, and the litigation." Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323
(1989) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). "In order for a
state court to exercise [specific] jurisdiction over a non[-]resident defendant, the
lawsuit 'must aris[e] out of or relat[e] to the defendant's contacts with the
forum.'" Jardim, 461 N.J. Super. at 376 (third and fourth alterations in original)
(quoting Daimler, 571 U.S. at 127); accord Waste Mgmt., Inc. v. Admiral Ins.
Co., 138 N.J. 106, 119 (1994), cert. denied, 513 U.S. 1183 (1995); see also Ford
Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. ___, 141 S. Ct. 1017, 1025
(2021).
"The 'minimum contacts' requirement is satisfied so long as the contacts
resulted from the defendant's purposeful conduct and not the unilateral activities
of the plaintiff." Lebel, 115 N.J. at 323 (citing World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 297-98 (1980)); see also Waste Mgmt., 138 N.J. at
126 (explaining that "the existence of minimum contacts turns on the presence
or absence of intentional acts of the defendant to avail itself of some benefit of
a forum state"). The contacts "must be the defendant's own choice and not
'random, isolated, or fortuitous.'" Ford, 141 S. Ct. at 1025 (quoting Keeton v.
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11
Hustler Mag., Inc., 465 U.S. 770, 774 (1984)). Moreover, courts determine,
based on the defendant's "'conduct and connection' with the forum stat e . . .
whether the defendant should 'reasonably anticipate being haled into court [in
the forum state].'" Bayway Refin., 333 N.J. Super. at 429 (alteration in original)
(quoting World-Wide Volkswagen, 444 U.S. at 297).
In determining whether the requirement to comport with "fair play and
substantial justice" is satisfied, courts evaluate several factors. Asahi Metal
Indus. Co. v. Superior Ct., 480 U.S. 102, 113 (1987). A court "must consider
the burden on the defendant, the interests of the forum State, and the plaintiff's
interest in obtaining relief." Ibid. A court must also weigh "the interstate
judicial system's interest in obtaining the most efficient resolution of
controversies; and the shared interest of the several States in furthering
fundamental substantive social policies." Ibid. (quoting World-Wide
Volkswagen, 444 U.S. at 292).
B. The Lack of Specific Jurisdiction Over the Archdiocese.
Neither the Archdiocese's former ownership of properties in New Jersey
nor its supervision over McCarthy as one of its priests established specific
jurisdiction over the Archdiocese in New Jersey related to McCarthy's alleged
sexual abuse of plaintiff in New Jersey.
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1. The Archdiocese's Former Ownership of Property in New Jersey.
There is no evidence that the Archdiocese's former ownership of real
properties in New Jersey had any relation to plaintiff's allegation of abuse by
McCarthy. Plaintiff has certified that he was abused by McCarthy at a private
home McCarthy was using in Margate, New Jersey in 1971. The Archdiocese's
former ownership of other properties in New Jersey was not related to
McCarthy's use of the home in Margate. Nor did plaintiff allege that McCarthy
used the former properties to sexually abuse plaintiff. Specific jurisdiction
requires "a connection between the forum and the specific claims at issue."
Bristol-Myers Squibb Co. v. Superior Ct., 582 U.S. 255, 265 (2017).
The facts of Doe 1 v. Archdiocese of Phila., in which the Law Division
held the Archdiocese had the requisite minimum contacts with New Jersey to
confer personal jurisdiction, are distinguishable. 461 N.J. Super. 406 (Law Div.
2019). In Doe 1 the Law Division took judicial notice that, from 1963 to 2013,
the Archdiocese owned properties in Ventnor and that the Diocese of Trenton,
New Jersey was "partners" with the Pennsylvania seminary that the priest
alleged to have abused Doe 1 attended. Id. at 424. The court also noted the
Archdiocese's property was "located only a few miles from the alleged location
of the abuse." Ibid. Unlike in Doe 1, there is no evidence in this record that
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plaintiff's parish was "partnered" with any New Jersey diocese or parish.
Further, there is no indication that any sexual abuse of plaintiff occurred at the
Archdiocese's properties. In short, the Archdiocese's former ownership of
property, absent a connection to plaintiff's cause of action, is insufficient to
establish personal jurisdiction.
2. The Archdiocese's Supervision and Employment of McCarthy.
There is no evidence that the Archdiocese controlled, supervised, or was
even aware of McCarthy's alleged sexual assault of plaintiff in New Jersey. The
record does not contain any evidence that the Archdiocese had been notified of
McCarthy's attraction to young boys in or before 1971. Indeed, plaintiff
concedes that the Archdiocese was first on notice of McCarthy's propensity to
sexually abuse young boys in 1986.
Moreover, there was no evidence that the Archdiocese knew of, approved,
or sanctioned McCarthy taking plaintiff to a private home in Margate.
Accordingly, there is no evidence demonstrating that the Archdiocese
purposefully availed itself of any benefit or activity in New Jersey in connection
with plaintiff's allegations against McCarthy.
We reject plaintiff's agency argument because the facts do not support it.
Plaintiff contends the Archdiocese employed and controlled McCarthy at all
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times when he was a priest of the Archdiocese. Plaintiff then argues that
McCarthy was counseling and ministering to plaintiff when he brought him to
New Jersey and sexually assaulted him.
Initially, we note that determining personal jurisdiction is a separate
question from determining vicarious liability. See Ford, 141 S. Ct. at 1026
(explaining that the United States Supreme Court has "never framed the specific
jurisdiction inquiry as always requiring proof of causation—i.e., proof that the
plaintiff's claim came about because of the defendant's in-state conduct").
Nevertheless, the authorized acts of an agent can establish personal jurisdiction
over the principal. See Daimler, 571 U.S. at 135 n.13.
To hold a principal vicariously liable for an agent's tortious conduct, the
agent must be acting within the scope of his or her employment and
responsibilities. Haviland v. Lourdes Med. Ctr. of Burlington Cnty., Inc., 250
N.J. 368, 378 (2022); Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405,
416 (1994). "An employee is acting within the scope of employment if the
action is 'of the kind'" that the employee is hired to perform; "it occurs
substantially within the authorized time and space limits;" and "it is actuated, at
least in part, by a purpose to serve the [employer]." Abbamont, 138 N.J. at 416
(quoting Di Cosala v. Kay, 91 N.J. 159, 169 (1982)).
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If an agent is acting outside the scope of his or her employment, the
employer may be held vicariously liable if it "delegates the authority to control
the work environment to a supervisor and that supervisor abuses that delegated
authority." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 620 (1993). That
inquiry requires the factfinder to determine that: "(1) the employer gave the
authority to the supervisor to control the situation about which the plaintiff
complains; (2) the supervisor exercised that authority; (3) the exercise of
authority resulted in a violation . . . ; and (4) the authority delegated by the
employer to the supervisor aided the supervisor in injuring the plaintiff."
Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 101-02 (2006).
Moreover, that individuals may be agents for one purpose, does not mean
that they are agents for every purpose. See Daimler, 571 U.S. at 135; see, e.g.,
Thompson v. Roman Cath. Archbishop of Wash., 735 F. Supp. 2d 121, 129-30
(D. Del. 2010) (explaining that a priest did not act within the scope of his
employment because he performed the claimed act of sexual abuse for his own
gratification and not at the direction of the diocese); Doe v. Liberatore, 478 F.
Supp. 2d 742, 758 (M.D. Pa. 2007) (stating that it is "clear that [the priest's]
sexual molestation of [p]laintiff was not within the scope or nature of his
employment as a priest").
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McCarthy was not acting within the scope of his responsibilities as a priest
when he sexually assaulted plaintiff. In addition, in 1971, the Archdiocese had
no knowledge of prior sexual assaults by McCarthy, and, therefore, at least at
that time, would have had no reason to restrict or strip him of his priestly duties.
Further, there is no evidence that the Archdiocese delegated to McCarthy the
authority to control plaintiff by counseling and ministering to plaintiff in his
private home in New Jersey. Instead, the facts establish that plaintiff's mother
gave McCarthy permission to take plaintiff to the home in Margate.
In reaching this holding, we have considered the New Jersey Legislature's
2019 enactment of the Child Victims Act (CV Act). L. 2019, c. 120. The CV
Act provides a two-year revival window for victims to file otherwise time-barred
claims for sexual abuses committed against them while minors. N.J.S.A. 2A:14-
2b(a). The CV Act also amended the Charitable Immunity Act to allow
retroactive liability against religious and other charitable organizations.
N.J.S.A. 2A:53A-7(c); N.J.S.A. 2A:14-2b(b). While the CV Act evidences New
Jersey's strong public policy to protect and compensate children who were
sexually abused, the CV Act does not change the federal constitutional due
process protections concerning personal jurisdiction. Accordingly, to sue a non-
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17
resident defendant in New Jersey, the non-resident defendant must still be
subject to personal jurisdiction in New Jersey.
Our holding is also consistent with rulings by other courts that have
considered whether Catholic dioceses, including the Archdiocese, are subject to
personal jurisdiction because of alleged sexual abuses committed by priests. 4
Like this case, those cases depended on the specific jurisdictional facts involved.
The facts in this case are analogous to the facts in the cases that have held there
is no personal jurisdiction. See Cath. Diocese of Green Bay, Inc., v. John Doe
119, 349 P.3d 518 (Nev. 2015) (holding there was no personal jurisdiction over
the Catholic Diocese of Green Bay because the priest alleged to have committed
sexual abuse unilaterally sought employment in Nevada and the Diocese did not
maintain control or supervision over the priest's day-to-day work); Tercero v.
Roman Cath. Diocese of Norwich, 48 P.3d 50 (N.M. 2002) (concluding there
was no jurisdiction over the non-resident Diocese of Norwich because at the
time of the alleged abuse, the Diocese had little, if any, connection to,
participation with, or control over the priest or the treatment center it had sent
him to for therapy); Archdiocese of Detroit v. Green, 899 So. 2d 322 (Fla. Dist.
4
The parties cite to several unpublished opinions. We, however, do not rely on
or cite to unpublished opinions because they do not constitute binding precedent.
R. 1:36-3.
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Ct. App. 2004) (finding no basis for jurisdiction on an agency theory when a
priest unilaterally moved to Florida and the Diocese later gave permission for
his incardination without any knowledge of the allegations of sexual
misconduct); Doe v. Roman Cath. Diocese of Boise, Inc., 918 P.2d 17 (N.M. Ct.
App. 1996) (holding the Diocese of Boise was not subject to suit in New Mexico
because giving a priest permission to leave Idaho without retaining any control
over his ministerial duties did not constitute a purposeful act).
By contrast, the facts of this case are distinguishable from the facts in
cases where courts have found personal jurisdiction. See Archdiocese of
Milwaukee v. Superior Ct., 5 Cal. Rptr. 3d 154 (Cal. Ct. App. 2003) (finding
personal jurisdiction where the Milwaukee Archdiocese excardinated a priest
convicted of sexual perversion in Wisconsin and knowingly facilitated his
incardination in California despite the risk of harm to young boys); John Does
1—9 v. Compcare, Inc., 763 P.2d 1237 (Wash. Ct. App. 1988) (holding personal
jurisdiction existed where the Diocese of Lafayette in Louisiana relocated a
priest it had suspended for sexual misconduct with minors for treatment at a
Jesuit House in Spokane to avoid harmful publicity and additional legal
consequences stemming from his pedophiliac problems).
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Finally, we also reject plaintiff's vague contentions concerning sexual
abuses by other priests of the Archdiocese. Initially, we note that there is no
evidence or even an allegation that activities by other priests affected plaintiff.
More critically, as we have analyzed, to establish specific jurisdiction in this
case, plaintiff must establish that the Archdiocese purposefully availed itself of
benefits from New Jersey related to McCarthy's alleged sexual abuse of plaintiff.
Non-specific allegations about sexual abuse of other children by other priests of
the Archdiocese do not provide such proof.
Affirmed.
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