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IN RE BOTANY INDUS.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


November 5, 1975

BOTANY INDUSTRIES, INC., H, DAROFF & SONS, INC., HOUSE OF WORSTED-TEX, INC., WEBER & HEILBRONER, INC., BROADSTREET'S INCORPORATED, BROADSTREET'S ST. LOUIS, INC., FASHION PARK, INC., CCS STORES, INC., JADE CLOTHING, INC., BANKRUPTS

The opinion of the court was delivered by: DAVIS

OPINION AND ORDER

 BEFORE HONORABLE JOHN MORGAN DAVIS, S.J.

 DAVIS, S.J.

 Presently pending before the Court is an appeal from two Orders entered May 30, 1975 by the Honorable Emil F. Goldhaber, Bankruptcy Judge, awarding counsel fees and costs to attorneys for the official statutory creditors committees of Botany Industries, Inc. ("Botany") and H. Daroff & Sons, Inc. ("Daroff"), and to attorneys for the Receivers of "Botany" and "Daroff".

 Appellants, various creditors of the bankrupts, are the Philadelphia Joint Board of the Amalgamated Clothing Workers of America, the Amalgamated Insurance Company of New York, and the Amalgamated Insurance Fund of New York.

 Respondents are the following law firms: Adelman & Lavine, attorneys for the receivers of Botany and Daroff; Wachtel, Lipton, Rosen & Katz and Harold E. Kohn, P.A., counsel for the Botany Creditors' Committee; and Hahn, Hessen, Margolis & Ryan and Sklar, Pearl, Lichtenstein & Sklar, counsel for the Daroff Creditors' Committee.

 The Wachtel and Kohn firms, representing the Botany Committee, have moved, by separate motion, to dismiss the appeal as to them claiming that appellants Almalgamated Insurance Fund of New York, are not creditors of Botany and therefore lack standing to perfect this appeal. We disagree.

 Appellants duly filed a proof of claim against Botany on February 8, 1973. No objection as to its validity was interposed before the bankruptcy Judge at any time during the pending bankruptcy proceeding and accordingly no determination as to the creditor status of appellants was ever made by the bankruptcy Judge. We are certainly in no position, based on the record now before us, to make that determination and in light of the disposition we make of this appeal it is unnecessary for us to do so.

 Moreover since the validity of the claims is uncontroverted by objection on the record, the sworn proof of claim itself is prima facie evidence of its validity. Gardner v. State of New Jersey, 329 U.S. 565, 91 L. Ed. 504, 67 S. Ct. 467 (1947). We cannot say that, as such, it is insufficient to confer standing to take this appeal. Accordingly, the motion to dismiss the appeal as to the "Wachtel" and "Kohn" firms will be denied. We now proceed to the merits of the appeal itself. In April 1972, Botany and its subsidiaries, including Daroff, filed petitions for arrangements under ยง 322 of Chapter XI of the Bankruptcy Act (the "Act"). In July of the same year the various creditors committees were elected and counsel, as indicated above, were retained. On October 29, 1973, after several unsuccessful attempts to effect arrangements, Botany and Daroff were adjudicated bankrupts, and Orders were entered directing that bankruptcy be proceeded with. On October 7, 1974, a hearing was held to audit the receivers' and trustees' accounts and Orders were entered allowing counsel fees as follows: Adelman and Lavine, Esquires, Attorneys for Receivers $250,000. Wachtel, Lipton, Rosen & Katz, Esq. and Harold E. Kohn, P.A., attorneys for the Botany Committee 50,00000. Hahn, Hessen, Margolis & Ryan, Esqs. and Sklar, Pearl, Lichtenstein & Sklar, Esq., attorneys for the Daroff Committee 60,000.

19751105

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