UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: January 3, 1972.
IN THE MATTER OF PENN CENTRAL TRANSPORTATION COMPANY, DEBTOR. APPEAL OF RICHARD JOYCE SMITH, TRUSTEE OF THE NEW YORK, NEW HAVEN & HARTFORD RAILROAD. APPEAL OF THE NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY FIRST MORTGAGE 4% BONDHOLDERS COMMITTEE
Aldisert, Gibbons and Max Rosenn, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
These appeals originally required an interpretation of Order No. 296 of the District Court for the Eastern District of Pennsylvania, In The Matter of Penn Central Transportation Company, Debtor.*fn1 Appellants contended initially that the order (1) precluded the New Haven Trustee from taking steps to apply to the United States Supreme Court for certiorari before judgment of the Court of Appeals of the Second Circuit in In The Matter of The New York, New Haven and Hartford Railroad Company, Debtor, a pending appeal from the bankruptcy court, the District Court for the District of Connecticut, No. 30226; (2) prevented them from taking necessary steps to schedule further proceedings before the Interstate Commerce Commission to implement the remand of the New Haven bankruptcy court and (3) prevented them from taking further action to record or perfect the recordation of an equitable lien.*fn2 After filing these appeals, the parties agreed that Order No. 296 does not prevent appellants from pursuing the course of conduct contemplated by (1) and (2).
Subsequent to a Prehearing Conference, called by the court pursuant to F.R.A.P. 33, the parties conferred with the district court, at our suggestion, on any restrictions relating to point three, and were advised:
In my opinion, neither the New Haven Trustee nor his counsel, nor anyone else acting at their request or suggestion, could take any further action to record or perfect the recordation of the "equitable lien" without violating Order No. 296 as it now stands. Accordingly, if these activities were to be permitted, a modification of Order No. 296 would be required. It would be necessary for someone to make application for such amendment, and there would have to be a hearing at which the views of all interested parties could be presented.
I believe it would be inappropriate for me to give any indication of whether such amendment would be approved, in the absence of a formal application, and without having heard the views expressed at such a hearing. I do not know whether your conference with the Third Circuit panel would justify the conclusion that this issue should be dealt with somewhat less formally than I have just indicated. But even if this question could be disposed of informally, I do not believe I have any jurisdiction to amend Order No. 296 while an appeal is pending.
We believe that the ends of justice will be best served by remanding these proceedings to the district court to afford appellants the opportunity to make application for a modification of Order No. 296.
The appeals will be dismissed without prejudice and the proceedings will be remanded to the district court.