In re Curran's Restaurant & Baking Co.
| Citation | 11 F. Supp. 8 |
| Decision Date | 10 April 1934 |
| Docket Number | No. 15716.,15716. |
| Parties | In re CURRAN'S RESTAURANT & BAKING CO. |
| Court | U.S. District Court — Western District of Pennsylvania |
D. Benj. Kresch, of Philadelphia, Pa., for landlord.
Thomas O. Haydock, Jr., of Philadelphia, Pa., for wage claimants.
This case arises out of the distribution of the proceeds of a sale by a receiver in bankruptcy and involves the status of certain wage claims as against a landlord's claim for rent. There is no doubt that the landlord, having distrained, acquired a lien and his claim is therefore covered by section 67d of the Bankruptcy Act, 11 USCA § 107 (d). Shalet v. Klauder (C. C. A.) 34 F.(2d) 594. The question in this case is whether the wage claims are also liens within the meaning of that section. If they are, the Pennsylvania statute (Act of June 12, 1878, P. L. 207, § 1, 43 PS Pa. § 230) expressly places them ahead of the landlord regardless of the date on which they attached. If they are not, their priority depends upon section 64b of the Bankruptcy Act, as amended by Act May 27, 1926, 11 USCA § 104 (b), and, while preferred to general creditors, they must come in after the rent claim.
The facts, briefly, are that (1) the landlord distrained; (2) the goods were levied upon under an execution by a judgment creditor; (3) the landlord notified the sheriff of his claim for rent; (4) a petition in bankruptcy was filed; (5) a receiver was appointed, and the assets were sold by the receiver under order of court.
The wage claimants gave no notice of their claim prior to bankruptcy. Upon this point the learned referee concluded that they had no lien, holding that "failure to give such notice prior to the bankruptcy disentitles them to the position of lien claimants and their priority is merely that which the Bankruptcy Law under Section 64 gives them and is junior to the administrative expenses," and also to the landlord.
I agree with the conclusion reached by the referee, but I do not think that it depends upon the matter of notice. While the Pennsylvania Act of May 12, 1891, P. L. 54, § 1 (43 PS Pa. § 221), upon which the rights of the claimants depend, does use the word "lien," it is apparent that what is given is not a true lien upon the property of the employer but a priority in the fund realized from a judicial sale of it. The language of the act is: "* * * Shall be a lien upon said real or personal property * * * and shall be preferred and first paid out of the proceeds of the sale of such real and personal property."
In Wilkinson v. Patton, 162 Pa. 12, 29 A. 293, the court said: ...
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Miners Sav. Bank of Pittston, Pa. v. Joyce, 6302
...proceeds of a judicial sale, Wilkinson v. Patton, 162 Pa. 12, 29 A. 293; Mettfett v. Mohn, 171 Pa. 395, 33 A. 367; In re Curran's Restaurant & Baking Co., D.C., 11 F.Supp. 8, and then only if notice in writing of their claims is given before the sale to the officers making the same, 43 P.S.......
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In re Jay & Dee Store Co.
...of one year's rent over the costs of administration (Shalet v. Klauder, 3 Cir., 34 F.2d 594), and over wage claims. In re Curran's Restaurant & Baking Co., D.C., 11 F.Supp. 8. Since the passage of that Act, several cases have been decided in which like conclusions were reached in construing......
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In re Quaker City Uniform Co.
...The proceeds of that agreed sale represent the bulk of the funds in the hands of the trustee. 2 See In re Curran's Restaurant & Baking Co., D.D.E.D.Pa.1934, 11 F.Supp. 8, 9, where it was decided that the Pennsylvania statute (43 Purdon's Pa.Stat. Annot. § 221) did not give wage claimants a ......
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