UNITED STATES DISTRICT COURT EASTERN DISTRICT OF...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

ALBERT R. CHAVIES and THOMAS HOLLAND, on behalf of themselves, individually, and on behalf of all others similarly situated, and on behalf of the CHE Plans,

Plaintiffs, v. CATHOLIC HEALTH EAST, a Pennsylvania Non-profit Corporation, ANTHONY CAMARATTO, an individual CLAYTON FITZHUGH, an individual, and JOHN and JANE DOES, each an individual, 1-20,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 2:13-0645-CDJ CLASS ACTION Filed via ECF

DECLARATION OF MATTHEW A. SMITH IN SUPPORT OF PLAINTIFFS’ MEMORANDUM OF LAW IN

OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS I, Matthew A. Smith, declare pursuant to the penalties of perjury under 28 U.S.C. § 1746

as follows:

1. I am an attorney at Cohen Milstein Sellers & Toll P.L.L.C. and am a member in

good standing of the New York State Bar and the District of Columbia Bar. My firm is Counsel

for Plaintiffs. I have been personally involved in the litigation of this matter and am responsible

for the prosecution of this action.

2. I submit this declaration in further support of Plaintiffs’ Memorandum of Law in

Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Complaint.

3. Attached hereto as Exhibit A is a true and correct copy of P.L. 93-406, 88 Stat.

829, § 3(33) (1974), which contains the definition of a Church Plan as it was defined within the

meaning of ERISA at the time of ERISA’s enactment.

Case 2:13-cv-01645-CDJ Document 39 Filed 08/01/13 of 2

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4. Attached hereto as Exhibit B is a true and correct copy of the article, “Home

Board Urges Amendments to ERISA,” Baptist Press (May 16, 1980), retrieved from

http://media.sbhla.org.s3.amazonaws.com/5061,16-May-1980.pdf on July 30, 2013.

5. Attached hereto as Exhibit C is a true and correct copy of excerpts from the

Declaration of Nicholas P. Cafardi filed in Tort Claimants Committee v. Roman Catholic

Archbishop of Portland in Oregon (In re: Roman Catholic Archbishop of Portland in Oregon),

Adv. Proc. No. 04-03292, No. 04-37154-elp11 (D. Or. Sept. 19, 2005).

4. Attached hereto as Exhibit D is a true and correct copy of the Affidavit of

Nicholas P. Cafardi filed in Committee of Tort Litigants v. The Catholic Bishop of Spokane (In

re: The Catholic Bishop of Spokane), Case No. 04-08822-PCW-11, Adv. Proc. No. 05-80038

(E.D. Wash. Nov. 21, 2005).

5. Attached hereto as Exhibit E is a true and correct copy of the Declaration of Msgr.

Steven Callahan, J.C.L. filed in In re: The Roman Catholic Bishop of San Diego, Case No. 07-

00939-LA11 (S.D. Cal. Aug. 27, 2007).

6. Attached hereto as Exhibit F is a true and correct copy of two Official Statements

of Terms for CHE Bond Offerings, respectively dated January 9, 1998 and June 25, 1998.

I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct to the best of my knowledge and belief.

Executed this 1st day of August, 2013, in Washington, D.C.

s/ Matthew A. Smith MATTHEW A. SMITH

Case 2:13-cv-01645-CDJ Document 39 Filed 08/01/13 of 2

http://media.sbhla.org.s3.amazonaws.com/5061,16-May-1980.pdf

EXHIBIT A

Case 2:13-cv-01645-CDJ Document 39-1 Filed 08/01/13 Page 1 of 2

838 PUBLIC LAW 93-406-SEPT. 2, 1974 [88 STAT.

22 u s e 288 note.

26 u s e 501.

26 u s e 513.

organization which is exempt from taxation under the provisions of the International Organizations Immunities Act (59 Stat. 669).

(33) (A) The term "church plan"' means (i) a plan established and maintained for its emj)loyees by a church or by a convention or association of churches which is exempt from tax under section 501 of the Internal Revenue Code of 1954, or (ii) a plan described in subparagraph (C).

(B) The term "church plan" (notwithstanding the provisions of subparagraph (A)) does not include a plan—

(i) which is established and maintained primarily for the benefit of employees (or their beneficiaries) of such church or convention or association of churches who are employed in connection with one or more unrelated trades or businesses (within the meaning of section 513 of the Internal Revenue Code of 1954), or

(ii) which is a plan maintained by more than one employer, if one or more of the employers in the plan is not a church (or a convention or association of chuiches) which is exempt from tax under section 501 of the Internal Revenue Code of 1954.

(C) Notwithstanding the provisions of subparagraph (B) ( i i ) , a plan in existence on January 1, 1974, shall be treated as a "church plan" if it is established and maintained by a church or convention or association of churches for its employees and employees of one or more agencies of such church (or convention or association) for the employees of such church (or convention or association) and the employees of one or more agencies of such church (or convention or association), and if such church (or convention or association) and each such agency is exempt from tax under section 501 of the Internal Revenue Code of 1954. The first sentence of this subparagraph shall not apply to any plan maintained for employees of an agency with respect to which the plan Avas not maintained on January 1, 1974. The first sentence of this subparagraph shall not apply with respect to any plan for any plan year beginning after December 31,1982.

(34) The term "individual account plan" or "defined contribution plan" means a pension plan which provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participant's account, and any income, expenses, gains and losses, and any forfeitures of accounts of other participants which may be allocated to such participant's account,

(35) The term "defined benefit plan" means a pension plan other than an individual account plan; except that a pension plan which is not an individual accoimt plan and which provides a benefit derived from employer contributions which is based partly on the balance of the separate account of a participant—

(A) for the purposes of section 202, shall be treated as an individual account plan, and

(B) for the purposes of paragraph (23) of this section and section 204, shall be treated as an individual account plan to the extent benefits are based upon the separate account of a participant and as a defined benefit plan with respect to the remaining portion of benefits under the plan.

(36) The term "excess benefit plan" means a plan maintained by an employer solely for the purpose of providing benefits for certain employees in excess of the limitations on contributions and benefits

Post, p. 979. imposed by section 415 of the Internal Revenue Code of 1954 on plans to which that section applies, without regard to whether the plan is funded. To the extent that a separable part of a plan (as determined by the Secretary of Labor) maintained by an employer is maintained for such purpose, that part shall be treated as a separate plan which is an excess benefit plan.

Post, p. 853.

Post, p. 85S


EXHIBIT B


EXHIBIT C


Case 04-03292-elp Doc 288 Filed 09/19/05

EXCERPT


Document Index Attributes

Title - 3292declar0292569.pdf Summary - Declaration Expedited - N CA - PJ Knight


EXCERPT


EXHIBIT D


Case 2:05-cv-00274-JLQ Document 29-2 Filed 11/21/05Case 2:13-cv-01645-CDJ Document 39-4 Filed 08/01/13 Page 2 of 22

EXHIBIT E


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QBTUC\211434.3 CASE NO. 07-00939-LA-11

DECLARATION OF MSGR. CALLAHAN

999999.901031/680118.01

Gerald P. Kennedy (CA #105887) Geraldine A. Valdez (CA #174305) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, California 92101 Telephone: 619-238-1900 Fax: 619-235-0398 E-mail: [email protected]; [email protected] Susan G. Boswell (AZ #004791) Kasey C. Nye (AZ #020610) Lori L. Winkelman (AZ #021400) QUARLES & BRADY LLP One South Church Avenue Suite 1700 Tucson, AZ 85701-1621 Telephone 520.770.8700 Facsimile 520.770.2222 E-mail: [email protected]; [email protected] Attorneys for Debtor, The Roman Catholic Bishop of San Diego

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF CALIFORNIA

In re:

THE ROMAN CATHOLIC BISHOP OF SAN DIEGO, a California corporation sole,

Debtor.

In Proceedings Under Chapter 11

Case No. 07-00939-LA11

DECLARATION OF MSGR. STEVEN CALLAHAN, J.C.L. IN SUPPORT RESPONSE TO ORDER TO SHOW CAUSE DATED AUGUST 10, 2007

Hearing Date: September 6, 2007 Hearing Time: 10:00 a.m. Location: Jacob Weinberger U. S. Courthouse, 325 West F Street, San Diego, California 92101-6991

I, Vicar General Very Rev. Msgr. Steven Callahan, J.C.L., declare under penalty of

perjury as follows:

1. I am an adult person.

2. I am a priest of the Diocese of San Diego (the "Diocese") and a canon lawyer. The

Diocese is the canonical entity that is that certain "portion of the people of God" located in San

Case 07-00939-LA11 Filed 08/27/07 Doc 1109 Pg. 1 of 10Case 2:13-cv-01645-CDJ Document 39-5 Filed 08/01/13 Page 2 of 6

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QBTUC\211434.3 2 CASE NO. 07-00939-LA-11 DECLARATION OF MSGR. CALLAHAN

999999.901031/680118.01

Diego and Imperial Counties in California, which is entrusted to Bishop Robert H. Brom for him

to shepherd with the cooperation of clergy in accordance with the ecclesiastical law of the Roman

Catholic Church, the Code of Canon Law.

3. In addition to serving as a priest, I hold several additional canonical offices in the

Diocese: I am one of the Vicars General in the Diocese. As Vicar General I have executive

power over the Diocese and perform administrative functions pursuant to the rights and

obligations attached to my office. I also serve as the Adjutant Judicial Vicar of the Diocesan

Tribunal. In addition to serving as these executive and judicial functions within the Diocese, I

also hold the office of Pastor of St. Brigid Parish, located in the community of Pacific Beach in

San Diego.

4. As the Vicar General, I am authorized to make this statement on behalf of the

Diocese which takes the form of The Roman Catholic Bishop of San Diego, a California

corporation sole, under the civil laws of the State of California and is the debtor and debtor in

possession (the "RCBSD" or the "Debtor"), in the above-captioned Chapter 11 reorganization

case (the "Reorganization Case").

5. I am making this declaration in support of the RCBSD's response to the Court's

Order to Show Cause dated August 10, 2007.

6. Notwithstanding popular perception of the Catholic Church, the Church is not a

monolith operating like a corporation from the top down for the benefit of the shareholders. The

Catholic Church is hierarchical in structure but it is also an aggregate of communities of

individuals1 held together by a common bond of communion. Although the Diocese is above

parishes in the hierarchy of the church, parishes operate nearly completely autonomously from

the Diocese. The Bishop, by virtue of a combination of his office and his personal leadership

abilities, does have a great deal of influence over ecclesiastical pastoral and spiritual matters

(setting the tone, if you will), however the Bishop and the Diocese play almost no role in the day

to day administration of the parish. The Code of Canon Law defines a parish as, "A parish is a

1 There are an estimated 1.1 billion baptized Catholics worldwide.


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certain community of the Christian faithful stably constituted in a particular church, whose

pastoral care is entrusted to a pastor (parochus) as its proper pastor (pastor)…"

7. As I indicated above, I am the pastor of St. Brigid Parish. The St. Brigid Parish is

just as the Code of Canon law provides, a community of faithful. Members of this community

may attend Masses every weekday at 7:30 a.m., at 7:30 a.m. and 5:30 p.m. on Saturdays and five

times on Sunday. Members of the St. Brigid community participate in prayer and bible study

groups, participate in Parish social clubs such as Young Adult, Pacesetter senior women,

Women's club, Surf Club, Adult Community, Boy Scouts, family groups and are active in various

parish organized social ministries. The St. Brigid Parish community has been together since the

1940s. The Bishop and the Diocese play almost no role in the day to day activity at St Brigid.

With respect to its temporal affairs, the financial management of St. Brigid is entirely controlled

by me as pastor in consultation with the Parish Finance Council. The oversight role that the

Bishop plays with respect to the financial dealings of the Parish, are minimal. The relationship

between the Parish and the Diocese is much more akin to the relationship between state and

municipal government than corporate subsidiary relationships.

8. There has been a great deal of discussion regarding the Diocesan policy that

directs parishes and schools deposit funds in excess two months operating expenses with the

Diocese (i.e., with the Parish and School Deposit and Loan Trust fka "Diocesan Bank") contained

in the Diocesan Handbook (the "Handbook"). As a Pastor and Diocesan official familiar with

oversight of parish administrative and financial functions, it should be emphasized that the policy

is designed to be flexible. There are many reasons for this, not the least of which is that parish

receipts do not come on a straight line. Most funding in a parish typically comes from the weekly

collection, supplemented by a substantially larger collection on Christmas and Easter, and

possibly from a seasonal festival. In many parishes, summer is both the time of year with the

fewest donations, and the time of year that the parish undertakes the most significant repair and

improvement projects. As a result, it is not surprising parishes would hold onto funds beyond

policy in May, when Mr. Neilson was conducting his reviews, in order to do some maintenance


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and repair projects in the summer months. Many parishes have a policy of allowing funds to

accumulate to certain level, $50,000 or $100,000 for example, then transferring larger sums.

Simply put, if and when to invest excess funds in the PSDL Trust is clearly within a pastor's

discretion. "Enforcement" of Handbook's guidelines, therefore is necessarily flexible.

9. I understand that one of the areas of concern for the Court is that parish related

organizations were allegedly not reconciling their bank accounts on a timely basis or, perhaps, not

keeping copies of the reconciliations. First, it should be noted that parishes and parish related

organizations are different. Parish related organizations are organizations that may function

within a parish such as the boy scouts, auxiliary guilds and the like. There are certain

"guidelines" in the Handbook with respect to parish related organizations.

10. It should also be noted that the "Guidelines for Parish Financial Procedures and

Controls" (the "Guidelines") contained in the Handbook are just that -- guidelines. As stated in

the Preface to the Guidelines, a copy of which is attached to this Declaration as Exhibit "A", the

Guidelines are recommendations which can be modified by the pastor and the parish finance

council.

11. In addition, the guidelines regarding parish-related organizations are attached

hereto as Exhibit "B" which is part of the Guidelines in the Handbook. While I would agree that

it is a good business practice for organizations to reconcile their bank accounts timely, I am not

surprised that this policy is not "strictly" followed as stated by Mr. Neilson. Some of these parish

related organizations are very small and have few checks.

12. The Court, in the OSC, references page 138, lines 14-22 of Mr. Neilson's report as

a basis for the OSC and possible dismissal of the Reorganization Case. Specifically, Mr. Neilson

states on page 138, that the Diocese "does not request, nor as a matter of course, receive the

Parish reconciliations." First, it appears that Mr. Neilson is confusing parishes and parish related

organizations. They are different as is apparent from Exhibit "B". Second, it is not contemplated

by the Guidelines that RCBSD would receive the reconciliations. Nothing in the Guidelines


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related to parish related organizations and the reconciliation of bank accounts directs or suggests

that the reconciliations be provided to RCBSD.

13. None of this is to say that the Diocese is not active with respect to oversight of

parishes and schools. As is described in the Declaration of Richard Mirando, RCBSD has an

office dedicated to conducting financial reviews of parishes and schools, and providing support so

that parishes and schools financial practices are sound. In my capacity as Vicar General, I have

access to the reviews. Of the approximately 50 reviews completed within the past year, for the

most part we have found that the parishes comply with Diocesan policies and are conscientious

and meticulous in their accounting and financial practices. Typically, the parish administration

department is able to suggest "best practices" to improve various areas of parish operations.

14. There have been a few isolated incidents where auditors have uncovered serious

discrepancies. Deacon Powers met with the pastor in each instance, engaging me and/or Bishop

Brom as necessary. In the most serious case, the problem resulted in Bishop Brom removing the

pastor. In the other cases, the Office for Parish Administration worked together with the pastor to

immediately implement corrective measures.

I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct.

DATED: August 27, 2007 /s/ Msgr. Steven Callahan________

MONSIGNOR STEVEN CALLAHAN Vicar General of the Diocese of San Diego The Roman Catholic Bishop of the Diocese of San Diego


EXHIBIT F


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