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HARMAR COAL COMPANY. APPEAL JOSEPH P. CONNORS (09/02/88)

filed: September 2, 1988.

IN RE HARMAR COAL COMPANY. APPEAL OF JOSEPH P. CONNORS, SR., DONALD E. PIERCE, JR., WILLIAM MILLER, WILLIAM B. JORDAN AND PAUL R. DEAN, AS TRUSTEES OF THE UNITED MINE WORKERS OF AMERICA 1950 PENSION PLAN, 1950 BENEFIT PLAN, 1974 PENSION PLAN, AND 1974 BENEFIT PLAN, COLLECTIVELY KNOWN AS THE UMWA HEALTH AND RETIREMENT FUNDS


Appeal from the Order entered in the Court of Common Pleas of Allegheny County, Civil Division at No. G.D. 85-7452.

COUNSEL

Michael D. Bedrin, Pittsburgh, for amicus curiae, Com. of Pa., Dept. of Environmental Resources.

Thomas M. Zwilling and Edwin J. Strassburger, Pittsburgh, for H. Yale Gutnick, Receiver and Harmar Coal Co.

Jeffrey T. Morris, Pittsburgh, for appellants.

Cirillo, President Judge, and Beck and Popovich, JJ.

Author: Popovich

[ 384 Pa. Super. Page 329]

This is an appeal from the order of the Court of Common Pleas of Allegheny County denying a petition to compel partial distribution of assets by the appellants, Trustees of the United Mine Workers Association Health and Retirement Funds.*fn1 We affirm in a case of first impression.

The facts are not in dispute and reveal that a complaint in equity was filed by Consolidated Coal Company, one of the two shareholders in Harmar Coal Company (Harmar), on April 29, 1985, seeking the appointment of a receiver to wind-up the affairs of Harmar pursuant to the applicable Pennsylvania Business Corporation Law, 15 P.S. ยง 1001 et seq. By order dated May 3, 1985, a receiver was named, and he began the task of liquidating Harmar's assets and running the business until it was completed.

It was not until the receiver had presented his third partial accounting for approval to the lower court that the Trustees, in August of 1987, filed a Motion to Compel Partial Distribution of Funds pursuant to Pennsylvania Rule of Civil Procedure 1534(c), which provides in pertinent part that:

The court at any time may order a partial distribution of money or property in settlement of claims . . . .

Objections to the Motion were filed by the receiver, the Pennsylvania Department of Environmental Resources (DER) and Harmar Township. After oral argument, and in consideration of the Stipulation of Facts and other filings, the lower court denied the Trustees' Motion (for unpaid contributions due the Funds pursuant to a collective bargaining agreement to which Harmar was a signator) as a general unsecured pre-receivership claim, not entitled to preference in payment. The lower court further concluded that the expenses incurred by the receiver, in attempting to comply with the environmental laws of Pennsylvania, were

[ 384 Pa. Super. Page 330]

    entitled to an administrative expense status, and, as such, took priority over the claim of the Trustees. This appeal followed.

The Trustees raise three (3) issues for our consideration which, when synthesized, center upon whether the cost of environmental clean-up by the receiver, on behalf of Harmar, is entitled to priority status as an administrative expense.

All parties agree that the issue at hand has yet to be decided by an appellate court in this Commonwealth. However, before addressing the merits of the issue raised, we find it necessary to determine whether the order appealed is a final one for appellate purposes. This is so despite the fact that no one challenges the appealability of the order in question, a matter into which we have the authority to inquire sua sponte. See Turner v. May Corp., 285 Pa. Super. 241, 245 n. 2, 427 A.2d 203, 204 n. 2 (1981).

Although one may argue that the Trustees, being listed as creditors of Harmar, have a protected right to receive reimbursement for the monies claimed, the fact remains that the expenditures made and to be made by the receiver, to remedy the environmental faux pas by Harmar, will deplete, or even entirely consume, whatever funds are at the receiver's disposal for distribution to creditors.

In this sense, whether priority is to be accorded the Trustees' claim is a right too important to be denied review until Consolidated Coal Company's complaint in equity, seeking a winding-up of the business affairs of Harmar, has run its procedural course. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-547, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). To wait for such a point in the winding-up process to permit an appeal would require one to face, as noted by the Trustees at page 8 of their brief, "the likelihood that the remaining funds held by [the receiver] would be dissipated

[ 384 Pa. Super. Page 331]

    if a partial distribution w[ere] not ordered."*fn2 We see no need to do so in the case at bar, and, thus, we find the order appealed final since it places the Trustees out of court as to their request for a partial distribution of Harmar's assets, and to require the litigant to await the completion of the winding-up process to lodge any complaints to whatever distribution may be forthcoming ...


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