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In re Colon

filed: August 13, 1991.

IN RE MIGDALIA COLON; FRED J. SZOSTEK; DENISE M. SZOSTEK, DEBTORS. MIGDALIA COLON; FRED J. SZOSTEK
v.
ROYAL HART, CHIEF CLERK; CITY OF PHILADELPHIA, TRAFFIC COURT; HOWARD YERUSALIM, SECRETARY OF TRANSPORTATION; COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION; COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND HOWARD YERUSALIM, SECRETARY OF TRANSPORTATION, APPELLANTS



On Appeal From the United States District Court for the Eastern District of Pennsylvania; Civil Action No. 90-06683.

Sloviter, Chief Judge, Greenberg and Seitz, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge

We are asked to review an order of the district court dismissing the appeal of two of three orders entered by the bankruptcy court in an adversary proceeding.

The somewhat complicated procedural history of this matter is important to an understanding of the issue to be resolved.

Adversary proceedings were instituted in bankruptcy court by two separate debtors, Migdalia Colon and Fred J. Szostek, to enforce the automatic stay provisions of 11 U.S.C. § 362 (1988) against the Pennsylvania Department of Transportation and its Secretary Howard Yerusalim ("PennDOT"), the Philadelphia Traffic Court and its Chief Clerk Royal Hart ("Traffic Court"), and Edward Sparkman, the standing trustee in bankruptcy. After trial, the bankruptcy court concluded that the defendants willfully violated the automatic stay and by order dated July 11, 1989, enjoined them from further violations. In re Colon, 102 Bankr. 421 (Bankr. E.D. Pa. 1989) (" Colon I "). It deferred resolution of other relief, ordering briefing on the question of sovereign immunity. The district court dismissed an appeal from this order without prejudice as premature.

On June 7, 1990, the bankruptcy court filed an opinion, In re Colon, 114 Bankr. 890 (Bankr. E.D. Pa. 1990) (" Colon II"), in which it decided that sovereign immunity did not bar further relief. Based on that ruling its accompanying order (1) ordered Traffic Court to return traffic fines and pay lost wages to Szostek, (2) ordered that PennDOT and Traffic Court were liable for plaintiffs' attorneys' fees (PennDOT was held liable for Szostek's fees only), and (3) instructed plaintiffs to submit an application for attorneys' fees within thirty days. No appeal was immediately taken from any part of this order. Thereafter, plaintiffs filed an application for fees and on August 24, 1990, the bankruptcy court entered its award of fees and costs in the amount of $12,944.70.

On September 4, 1990 PennDOT filed an appeal to the district court. The notice of appeal recites that PennDOT sought to appeal the orders in Colon I and Colon II as well as the August 23, 1990 order quantifying attorney fees.

Szostek moved to dismiss PennDOT's appeal of the Colon I and II orders for lack of jurisdiction. On February 6, 1991, the district court entered an order granting the motion. In an accompanying memorandum the district court held that the bankruptcy court's second order, dated June 7, 1990 (Colon II), was a final decision when it was entered. Szostek v. Hart, 123 Bankr. 719 (E.D. Pa. 1991). We think the necessary consequence of that ruling was to determine that the first order of the bankruptcy court (Colon I) was rendered final when the bankruptcy court entered its second order. Therefore, references hereinafter to the second order will also encompass the first order. Based on its ruling the district court concluded that the appeal from the second order was required to have been taken within 10 days thereafter. See Bankruptcy Rule 8002. Since that order was not appealed within the requisite time period the district court concluded that it lacked jurisdiction and granted Szostek's motion to dismiss the appeal of the first two orders.

In its opinion the district court stated that the appeal of the third order, the order quantifying fees, was timely, but it did not dispose of that appeal. On March 7, 1991, while the fee appeal was still pending in the district court, PennDOT appealed to this court from the district court's order dismissing the appeal of the first two orders of the bankruptcy court. Our first task is to decide the appealability of this order.

Title 28 U.S.C. § 158(d) (1988) establishes our jurisdiction over decisions of the district courts when those courts are exercising appellate jurisdiction over decisions of bankruptcy courts. It provides:

(d) The courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under ...


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