The opinion of the court was delivered by: KRAFT
Before us now, after hearings,
is the petition of William P. Thorn, Esq. for review of orders of the Referee allowing counsel fees to petitioner in sums substantially less than prayed for and alleged to be substantially less than was reasonable and proper.
In the Chapter XI proceedings, in which petitioner was debtor's counsel, the Referee allowed a fee of $ 300 upon a petition for $ 3,500. In the later bankruptcy proceedings, in which petitioner was the bankrupt's counsel, the Referee allowed a fee of $ 200 upon a petition for $ 700.
The review is opposed by the United States to which was awarded, upon its tax claims, the balance of the fund after payment of administration expenses and wage claims.
While ordinarily we accept the judgment of the Referee, the record before him in the instant matter scarcely serves as a model for a resolution of controversies. On the petition for $ 3,500 the Referee, somewhat impetuously we think, forthwith expressed the thought that it 'is so out of proportion * * *'
and then inquired if there was any objection. Upon entry of the objection by the United States, responsive to his inquiry, and without hearing from petitioner, the Referee immediately expressed his thought that the request was 'outrageous' and stated that he 'was going to allow $ 300 in that capacity' (Chapter XI proceeding) and 'as attorney for the debtor' in the bankruptcy he 'was going to allow the sum of $ 200' and granted the unheard petitioner an 'automatic exception'. When petitioner expressed a request to be heard, he made a lengthy statement which the Referee followed with a lengthy statement of his own, concluding with an invitation to the petitioner to offer his petition in evidence. This the petitioner did, without objection.
Under these circumstances the record before the Referee fails, unfortunately, to disclose upon what factual bases the respective awards of $ 300 and $ 200 were made. Except for the introduction into evidence of the petition and its attached summary of services, by invitation of the Referee and without objection, no evidence was heard for or against either petition for counsel fee.
In the Referee's later written opinion,
the Referee stated he allowed petitioner to put in evidence in each instance the summary of services performed. The Referee then stated that he was 'totally unable to reconcile it', the Chapter XI summary, 'with his recollection of the entire case'. The record does not disclose what was the Referee's recollection and so we do not know with what evidence or facts the Referee attempted to reconcile petitioner's summary, which was apparently admitted as an unchallenged statement of petitioner's services.
The Referee also opined 'that the so-called arrangement under Chapter XI was not a bona fide one', because the debtor filed a consent to adjudication as a bankrupt 15 days after filing this petition for arrangement. Petitioner contends, to the contrary, that the time interval was no fair criterion of the bona fides under the circumstances, and that the intervention of the City of Philadelphia, because of alleged involvement in graft of some of its employees, and the indictment of Travis, with attendant wide notoriety, rendered the Chapter XI hopeless and the bankruptcy inevitable.
In its brief before us the Government stresses the Referee's disallowance in the Chapter XI proceeding of a claim for $ 275 fee by counsel for the receiver and the want of any appeal therefrom. Disregarding the utter irrelevance of this fact, we may note, in passing, that this disallowance was simultaneous with the allowance in full, over the Government's objection of claims for counsel fees of $ 2,000 and $ 650 by counsel for the receiver in bankruptcy and the trustee in bankruptcy, respectively, one of whom was the attorney whose claim for $ 275 was disallowed. Perhaps the allowance of the greater may have tempered any dissatisfaction stemming from the disallowance of the lesser.
From the evidence adduced before us we find the following
1. The attempted reorganization of the debtor was not successful.
2. Between April 4, 1961, when proceedings under Chapter XI became a practically and definitely determined course of action, and May 3, 1961, when petitioner's services in the Chapter XI proceeding ceased, petitioner, as attorney for the debtor, rendered 43 hours of professional services which were reasonably necessary and were rendered in aiding the debtor to prepare its schedules of assets and liabilities and to perform other statutory duties.
3. The fair and reasonable value of the services so rendered by petitioner in the Chapter XI proceeding, which ...