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In re Universal Minerals

February 20, 1985

IN RE: UNIVERSAL MINERALS INC., A PA. CORP. AND CAMBRIA MINING AND MANUFACTURING CO. A WHOLLY OWNED SUBSIDIARY DEBTOR GREENLEY ENERGY HOLDINGS OF PENNSYLVANIA, INC., APPELLANT


On Appeal from the Order of the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 84-1149, Gustave Diamond, Judge.

Garth and Becker, Circuit Judges, and Rosenn, Senior Circuit Judge.

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge

The failure by counsel for appellant, Greenley Energy Holdings of Pennsylvania, Inc., to respond to a jurisdictional argument raised by appellee, Universal Minerals, Inc., is but one of the disturbing aspects of this appeal. Greenley not only ignored the threshold issue presented in this case, but also ignored the court's direction to respond to that jurisdictional issue. We can only ascribe to such actions on the part of Greenley's counsel an insensitive disregard for the most minimal requirements of our profession.

Greenley seeks to appeal an order of the bankruptcy court granting an application to rescind the sale of certain assets purchased from the bankrupt estate of Universal Minerals, Inc. Greenley, however, has failed to file a timely notice of appeal from the bankruptcy court's order. Nor has counsel for Greenley, as noted above, responded to requests from this court to file a supplemental letter memorandum addressing the question of whether untimely notice deprives the district court, and hence this court, of jurisdiction to review the bankruptcy court's order. As a consequence, we have been obliged to undertake the tasks which the appellant should have discharged.

Our research has revealed that failure to file timely notice within the meaning of Bankruptcy Rule 8002 is indeed a jurisdictional defect barring appellate review. Yet, even if the jurisdictional defect did not compel dismissal of the instant appeal, the conduct of Greenley's counsel both in failing to acknowledge the court's inquiry and in refusing to reply to the court's directions, is sufficient to warrant dismissal.

I.

A review of the facts is complicated by the incomplete state of Greenley's brief and appendix on appeal.*fn1 However, the following course of events may be gleaned from the scant record before us. On January 26, 1982, the trustee in bankruptcy for Universal Minerals conducted a public sale to dispose of various assets belonging to Universal. L&L Coal bid successfully for certain coal reclamation piles, screening plants, and various rights held by Universal. The sale was confirmed by the bankruptcy court by order dated April 18, 1982 and modified April 23, 1982.

L & L Coal thereafter entered into an option agreement granting Laurel Investment Services an option to purchase all of L&L's interests in the Universal assets. Consideration for this option agreement was $5,000 paid by Laurel to L&L. Laurel in turn transferred its interests in the option agreement to Greenley. In accordance with an order of the bankruptcy court, an escrow closing was held on September 26, 1983. L&L paid the trustee the bid price of $160,000 pending resolution of certain title defects. The parties agreed that the escrow closing would not prejudice L&L's right to demand rescission and/or credit in the event the trustee proved unable to deliver good title to the assets sold. When it later became apparent that the trustee could not deliver good title, L&L and the trustee agreed to rescind the transaction.

Accordingly, the trustee filed an Application to Rescind and Set Aside Sale. Greenley, as assignee of the option agreement, opposed this application and filed objections to which the trustee and L&L replied. On March 16, 1984, a hearing was held before the bankruptcy court. The court dismissed Greenley's objections and approved rescission of the sale. The bankruptcy court's order, dated March 16, 1984, was duly entered and docketed by the clerk of the bankruptcy court on March 19, 1984.

On April 2, 1984, fourteen days after the entry of the rescission order, Greenley filed a notice of appeal to the district court. L&L Coal thereupon moved for an order dismissing Greenley's appeal as untimely taken. The district court, noting that Bankruptcy Rule 8002(a) imposes a 10-day filing requirement for timely notice of appeal, concluded that the rule was jurisdictional in effect and that the district court could not, on its own motion, extend the time for filing. The district court therefore dismissed Greenley's appeal as untimely. We affirm.

II.

Bankruptcy Rule 8002(a) ...


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