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In re Global Industrial Technologies

May 4, 2006

IN RE: GLOBAL INDUSTRIAL TECHNOLOGIES, INC., ET AL., DEBTORS,
GLOBAL INDUSTRIAL TECHNOLOGIES, INC. AND HARBISON-WALKER REFRACTORIES COMPANY, DEBTOR-APPELLEE,
v.
ASH TRUCKING COMPANY, INC., CLAIMANT/APPELLANT.



The opinion of the court was delivered by: Ambrose, Chief District Judge.

(Bkcy. No. 02-21626 - JFK)

OPINION and ORDER OF COURT

SYNOPSIS

Pending is an appeal filed by Ash Trucking Company, Inc. ("Ash Trucking"), Claimant-Appellant, from the United States Bankruptcy Court for the Western District of Pennsylvania. Ash Trucking seeks an order reversing the Order of the Bankruptcy Court dated November 29, 2005. (Docket No. 9). After a careful review of the appellate briefs filed by the parties and based on my opinion below, I am vacating the November 29, 2005, Order of the Bankruptcy Court, and remanding the case to the Bankruptcy Court for proceedings consistent with this Opinion.

I. BACKGROUND*fn1

Ash Trucking filed claims in a bankruptcy action filed by Harbison-Walker Refractories Company ("Harbison") and its parent, Global Industrial Technologies, Inc. ("Global") (collectively referred to as "Debtors"), relating to equipment sold by Debtors to Ash Trucking. Debtors filed objections to the claims based on the statute of limitations. Ash Trucking responded to the objections. On November 2, 2005, the Bankruptcy Court issued a Memorandum Opinion and Order ("the November 2, 2005, Order") sustaining the objections and disallowed the claims filed by Ash Trucking as time barred. (Docket No. 9-6). The November 2, 2005, Order was e-filed*fn2 and mailed to counsel of record. Id.

On November 16, 2005, Ash Trucking filed a Motion to Set Aside Order requesting the Bankruptcy Court set aside its Order dated November 2, 2005.*fn3 (Docket No. 9-2). Ash Trucking sought this relief based on the statement that its counsel had not received notice of the November 2, 2005, Order in time to file a notice of appeal. Id. Without a response from Debtors or a hearing, the Bankruptcy Court issued an Order on November 29, 2005, denying the Motion to Set Aside. (Docket No. 9-1). Ash Trucking filed a notice of appeal of the November 29, 2005, Order.

II. ORDERS OF THE BANKRUPTCY COURT

Ash Trucking appeals from November 29, 2005, Order relating to the November 2, 2005, Order. The November 2, 2005, Order provides as follows:

ORDER

AND NOW, this 2nd day of November, 2005, for the reasons expressed in the foregoing Memorandum Opinion, it is ORDERED, ADJUDGED, AND DECREED that Movants' objection to the claims of Ash Trucking Company, Inc. is SUSTAINED. Ash Trucking Company's claims are disallowed as time barred. s/ Judith K. Fitzgerald The Case Administrator will electronically send copies of the Memorandum Opinion and Order to the parties listed on the current service list in addition to those listed below. cc: Richard A. Getty, Esquire

C. Thomas Exxell, Esquire

Getty & Mayo, LLP 1900 Lexington Financial Center 250 West Main Street Lexington Kentucky 40507 (Docket No. 9-6, pp. 16-17). The ...


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