The opinion of the court was delivered by: Judge Caputo
Presently before the Court is an appeal from an order issued by the United States Bankruptcy Court for the Middle District of Pennsylvania. Appellee moves to dismiss the appeal as untimely under Federal Rule of Bankruptcy Procedure 8002, or in the alternative, for dismissal of the appeal for failure to comply with Federal Rule of Bankruptcy Procedure 8006. For the reasons stated below, the Appellee's motion will be granted and the appeal will be dismissed based on lack of subject matter jurisdiction due to the untimely filing of the notice of appeal. Because the appeal will be dismissed based upon lack of jurisdiction, the arguments regarding failure to comply with Federal Rule of Bankruptcy Procedure 8006 will not be discussed.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 158(a)(1), which provides that the district courts of the United States have jurisdiction to hear appeals from final judgments, orders, and decrees of the bankruptcy court sitting within their respective judicial district.
The Debtor filed a Chapter 13 Bankruptcy Petition on October 14, 2005. (Appellee's Mot. to Dismiss Appeal ¶ 1, Doc. 4; Appellant's Answer to Appellee's Mot. to Dismiss Appeal ¶ 1, Doc. 10.) On May 24, 2007, the Debtor filed an Amended Chapter 13 Plan. (Doc. 4 ¶ 2; Doc. 10 ¶ 2.) On May 27, 2007, the Bankruptcy Noticing Center served the Notice to Creditors and Other Parties in Interest, which provided that Objections to the Amended Plan were to be filed by June 21, 2007. (Doc. 4 ¶ 3; Doc. 10 ¶ 3.) The Bankruptcy Noticing Center filed a certificate of service on May 28, 2007, listing all entities who had been served with notice. (Doc. 4 ¶ 3; Doc. 10 ¶ 3.) One of the listed recipients was "Mary Curley, Administratrix, Estate of Robert A. Curley, c/o Michael Mey Esq., 318 Penn Avenue, Scranton, PA 18503-1950." (Doc. 4 ¶ 3; Doc. 10 ¶ 3.) The Estate was listed as a creditor in the original petition, and received other documents, such as the Notice of Commencement of the case. (Doc. 4 ¶ 3; Doc. 10 ¶ 3.) Furthermore, the attorney for the Estate actively participated in conference calls with creditors and the Bankruptcy Court. (Doc. 4 ¶ 3; Doc. 10 ¶ 3.)
The Amended Plan was confirmed without objection on June 25, 2007. (Doc. 4 ¶ 4; Doc. 10 ¶ 4.) On July 2, 2007, the Appellant filed an objection to the confirmation of the amended plan. (Doc. 4 ¶ 5; Doc. 10 ¶ 5.) On July 3, 2007, the Court entered an Order overruling the objection as untimely. (Doc. 4 ¶ 6; Doc. 10 ¶ 6.) On August 3, 2007, the Appellant filed a motion of reconsideration of the July 3, 2007 order. (Doc. 4 ¶ 6; Doc. 10 ¶ 6.) The same day, the Appellant also filed a Notice of Appeal. (Doc. 4 ¶ 6; Doc. 10 ¶ 6.) The motion and notice of appeal was docketed on August 7, 2007. (Doc. 4 ¶ 6; Doc. 10 ¶ 6.)
On August 8, 2007, Debtor's counsel filed a motion to dismiss the motion for reconsideration and the notice of appeal as untimely. (Doc. 4 ¶ 9; Doc. 10 ¶ 9.) At a hearing held on September 5, 2007, Chief Bankruptcy Judge John J. Thomas entered an order denying the motion for reconsideration. (Doc. 4 ¶ 10; Doc. 10 ¶ 10.)
The Appeal was docketed with this Court on September 28, 2007. (Doc. 1.) On October 3, 2007, the Appellee filed the present motion to dismiss for lack of jurisdiction and as frivolous filing. (Doc. 5.)
This motion is fully briefed and ripe for disposition.
The district court, sitting as an appellate tribunal, applies a clearly erroneous standard to the bankruptcy court's factual findings and reviews de novo its conclusions of law. FED. R. BANKR. P. 8013; In re O'Brien Envtl. Energy Inc., 188 F.3d 116, 122 (3d Cir. 1999); In re Workman, No. 3:03-CV-1229, 2004 WL 1004979, at *2 (M.D. Pa. Mar. 30, 2004). Bankruptcy decisions involving the court's exercise of discretion are reviewed for abuse of discretion. In re Vertientes, Ltd., 845 F.2d 57, 59 (3d Cir. 1988). In instances where a lower court has interpreted a statute, however, the reviewing court must exercise plenary review, being sure to read the disputed provision(s) in the context of the entire statute, while being mindful of the statute's objectives and policy arguments. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., 508 U.S. 439, 455 (1993); see also Mitchell v. Cellone, 389 F.3d 86, 89-90 (3d Cir. 2004).
Because the Bankruptcy Court based its denial of the Appellant's objection and the subsequent motion for reconsideration on an interpretation of the Federal Rules of Bankruptcy Procedure, this Court -- sitting as an appellate tribunal -- will apply plenary review to those statutory interpretations. In re Atl. Bus. and Cmty. Dev. Corp., 994 F.2d 1069, 1071 (3d Cir. 1993).
Pursuant to the Middle District of Pennsylvania's Bankruptcy Local Rule 9023-1, "A motion for reconsideration must be filed within ten (10) days after the entry of the judgment, order or decree concerned." This is an addition to the Federal Rule of Bankruptcy Procedure 9023, which incorporates Federal Rule of Civil Procedure 59, except in one instance not applicable here. Federal Rule of Civil Procedure 59 similarly ...