United States District Court, M.D. Pennsylvania
October 14, 2005.
WILLIAM G. SCHWAB, TRUSTEE for AMERICAN HOME ALLIANCE, INC., Plaintiff
ROBIN KUNZ, et al., Defendant.
The opinion of the court was delivered by: JOHN JONES III, District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is a Motion for Leave to Appeal ("the
Motion") (doc. 1) by the Plaintiff, William G. Schwab, Trustee
for American Home Alliance ("Plaintiff" or "Debtor")which seeks
appeal an Order of Chief Judge John Thomas of the United States
Bankruptcy Court for the Middle District of Pennsylvania denying
disqualification of Defendant Robin Kunz's attorney. (Rec. Doc.
7). Also pending before the Court is Plaintiff's Motion for Leave
to File Notice of Appeal Nunc Pro Tunc (doc. 4) which seeks leave
of the Court to untimely file a notice of appeal of the
For the following reasons, the Motions are remanded to the
United States Bankruptcy Court.
STATEMENT OF FACTS & PROCEDURAL HISTORY
The procedural history of this case is checkered, and took
considerable time for us to unravel. Plaintiff is the Chapter 7
Trustee of American Home Alliance, Inc. On November 10, 2004,
Plaintiff filed a Motion to Disqualify Defendant's counsel,
namely the law firm of Anders & Massington, L.L.C. After hearing
argument, Chief Judge Thomas denied the motion. Plaintiff then
filed yet another Motion to Disqualify on March 31, 2005. After a
full evidentiary hearing before Chief Judge Thomas, the second
motion was dismissed by his Order dated May 11, 2005.
On May 20, 2005, Plaintiff filed a Motion to Reconsider the
Order of May 11, 2005. On July 14, 2005, Chief Judge Thomas
ordered that the Motion for Reconsideration was deemed withdrawn
because Plaintiff did not file a brief in support of its motion.
On July 25, 2005, a Motion to Reconsider Order of July 14, 2005
was filed. This Motion to Reconsider was denied on July 26, 2005.
On August 10, 2005, the instant Motion was filed in this Court,
without a notice of appeal. Apparently realizing his omission,
Plaintiff filed a Motion for Leave to File Notice of Appeal Nunc
Pro Tunc on August 22, 2005. The Motions have been fully briefed
by both parties and are therefore ripe for disposition. STANDARD OF REVIEW
Pursuant to Bankruptcy Rule 8001(b), an appeal from an
interlocutory order of a bankruptcy judge shall be taken by
filing a notice of appeal with the clerk, accompanied by a motion
for leave to appeal. US Bankruptcy R 8001(b). To be timely, the
notice of appeal must be filed with the clerk within ten (10)
days of the date of the entry of the order appealed from. US
Bankruptcy R 8002(a).
As Plaintiff states in its Nunc Pro Tunc Motion, the Clerk of
the United States Bankruptcy Court appears to have prematurely
transferred the instant Motions to this Court. Pursuant to our
reading of the Bankruptcy Rules, the initial decision whether or
not to grant leave to appeal should have been rendered by Chief
Judge Thomas, and not this Court. Clearly, the rapid and
premature transfer to us prohibited that from happening. Should
Chief Judge Thomas decide to certify an appeal on this
interlocutory matter, then we would be empowered to decide
whether to allow the nunc pro tunc filing, and if so to resolve
the issues raised on appeal. We will thus place this matter back
in the capable hands of Chief Judge Thomas, as we believe that we
are powerless to act on the merits until leave to appeal has been
granted. NOW, THEREFORE, IT IS HEREBY ORDERED:
1. The Motions are REMANDED to the United States
Bankruptcy Court for disposition of the Motion for
Leave to Appeal (Rec. Doc. 1).
2. The Clerk of Court shall close this file.
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