In re Barnhart
| Decision Date | 05 March 1925 |
| Docket Number | No. 4628.,4628. |
| Citation | 4 F.2d 269 |
| Parties | In re BARNHART. |
| Court | U.S. District Court — Western District of Pennsylvania |
C. M. Aylesworth, of Nanticoke, Pa., for trustee.
Thomas Butkiewicz, of Wilkes-Barre, Pa., for exceptants.
The claim of the bankrupt's landlord is for 11 months' rent which accrued during the year preceding the filing of the creditors' petition. The referee refused to allow this as a preferred claim. Her decision and order is here for review.
The referee found that judgment was entered on the 19th day of January, 1924, in the court of common pleas of Luzerne county, by authority of a written lease between the bankrupt and his landlord, for the amount of $1,100, being the rent in dispute, and that a writ of fieri facias was placed in the hands of the sheriff, whereon levy was made, and the bankrupt's property was found in the hands of the sheriff when the petition in bankruptcy was filed. The filing of the petition operated as a stay, and the bankruptcy court took the property for administration and distribution among the creditors of the bankrupt.
The referee found that "the landlord's claim is for 11 months' rent, which under Bankruptcy Law, § 64b (5) being Comp. St. § 9648, and the law of the state of Pennsylvania becomes a priority claim by act of law." But she later held that the right to priority was lost, because the landlord "may not have concurrent rights." Having exercised his choice, she concludes that, because "at the time of the institution of the bankruptcy proceedings the goods and chattels of Barnhart upon the demised premises were in the hands of the sheriff, they were not liable to distress by the landlord for rent, and therefore the landlord could not have a priority claim upon the proceeds of the sale of the goods now in the hands of the trustee." This conclusion necessarily arises, she indicates, since the provisions of the Pennsylvania act of 1919 (P. L. 1029; Pa. St. 1920, § 13698), are to the effect "that in all cases where a tenant or tenants become insolvent, and any assignment for the benefit of creditors is executed, or a receiver is legally appointed for, or bankruptcy or other insolvency proceedings are instituted either by or against the tenant or tenants, covering goods and chattels upon demised premises and which are liable to distress by the landlord for rent, the landlord shall be first entitled to receive out of the proceeds of the sale of such goods and chattels by the legal representatives of the tenant any sum or sums of money due the landlord for rent of such demised premises at the time of the institution of the receivership or insolvency proceedings, not exceeding one year's rent."
The conclusion of the referee cannot be sustained. She no doubt fell into error by confusing the character impressed on the tenant's goods, by reason of the landlord's claim, with the means that may not be employed when the same...
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In re Goldstein, 21066.
...1919, 256 F. 584; In re Pittsburgh Drug Co., D.C.W.D.Pa., 1908, 164 F. 482; In re Delaney, D.C.E.D.Pa., 1918, 251 F. 425; In re Barnhart, D.C.M.D.Pa., 1925, 4 F.2d 269; Moss' Appeal, 1860, 35 Pa. 162; Barnes' Appeal, 1874, 76 Pa. 50; Lane v. Washington Hotel Co., 1899, 190 Pa. 230, 42 A. 69......
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In re Bavitz, Bankruptcy No. 5-81-00220
...is supported by case law which gives a landlord a priority claim in bankruptcy under certain circumstances. See, e.g., In Re Barnhart, 4 F.2d 269 (M.D.Pa. 1925). This priority position was available to a landlord because of § 64(a) of the Bankruptcy Act of 1898 (formerly 11 U.S.C. § 104(a))......