In re Jackson

• Decision Date: 09 December 1988
• Docket Number: 81-04010T and 81-04615T,Bankruptcy No. 81-00396T,Adv. No. 82-2179T.
• Citation: 92 BR 987
• Parties: In re Wilton B. JACKSON, Janet G. Jackson, t/a Greenbank Farm, A Partnership, Debtors. In re Wilton B. JACKSON, and Janet G. Jackson, Individually, and as partners in Greenbank Farm, Debtors. In re Walter B. JACKSON, and Carol E. Jackson, husband and wife, individually, and Walter B. Jackson, as a partner in Greenbank Farm, Debtors. In re James R. LEONARD, Jr., Trustee, Plaintiff, v. Henry WESSEL, and Alan S. Carpel, individually and t/d/b/a Wessel and Carpel, A Partnership, Defendants.
• Court: U.S. Bankruptcy Court — Eastern District of Pennsylvania

92 B.R. 987 (1988)

In re Wilton B. JACKSON, Janet G. Jackson, t/a Greenbank Farm, A Partnership, Debtors In re Wilton B. JACKSON, and Janet G. Jackson, Individually, and as partners in Greenbank Farm, Debtors In re Walter B. JACKSON, and Carol E. Jackson, husband and wife, individually, and Walter B. Jackson, as a partner in Greenbank Farm, Debtors In re James R. LEONARD, Jr., Trustee, Plaintiff, v. Henry WESSEL, and Alan S. Carpel, individually and t/d/b/a Wessel and Carpel, A Partnership, Defendants.

Bankruptcy Nos. 81-00396T, 81-04010T and 81-04615T, Adv. No. 82-2179T.

United States Bankruptcy Court, E.D. Pennsylvania.

November 9, 1988.

As Amended December 9, 1988.

COPYRIGHT MATERIAL OMITTED

James R. Leonard, Jr., Lancaster, Pa., Trustee.

Reeder Fox, Frank D. Chaiken, Michael M. Mustokoff, Athena Skaleris, Philadelphia, Pa., for defendants.

William J. Gallagher, Frederick P. Kramer, II, West Chester, Pa., for plaintiff.

MEMORANDUM

DAVID A. SCHOLL, Bankruptcy Judge.

A. INTRODUCTION

For six years, the instant adversary proceeding was stayed pending resolution of jurisdictional issues raised by the decision in Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Suddenly, however, it has become a fountainhead of legal issues and, in the matter before us, a subject of considerable paper-production as well. In an Opinion and Order of September 6, 1988, reported at 90 B.R. 126, we held that we could conduct the jury trial requested by the Plaintiff. We are now presented with the Defendant's Motion for Partial Summary Judgment, filed on August 29, 1988. This Motion is, in substance, limited in its usefulness in resolving this matter, or even narrowing the issues presented in it, because it merely pecks about at various isolated aspects of the Plaintiff's case, rather than seeking to level a serious blow to any significant aspect of it.

In particular, the Defendants herein seek to strike the Plaintiffs' claim for alleged loss of anticipated future profits and emotional injuries suffered by the Debtors, and for punitive damages for injuries to the Debtors' credit. The Defendants also move for summary judgment of that aspect of the Plaintiff's claim contending that they overlooked state law remedies available to stop the sheriff's sale of the Debtors' property in seeking relief from the bankruptcy court, and as to the claims of malpractice because there was allegedly no attorney-client relationship between them and the individual Debtors. The Plaintiff's lengthy response includes an attack on the Affidavit submitted by the Defendants' counsel in support of their Motion. We hold as follows: (1) The portions of defense counsel's affidavit objected to by the Plaintiff should not be stricken from the record; (2) The Defendants are not entitled to summary judgment as to any of the issues raised in the Motion, and therefore, it is denied in its entirety.

B. PROCEDURAL HISTORY

The history of this proceeding from the filing of the initial underlying Chapter 11 case on February 4, 1981, through the date of our previous Opinion and Order of September 6, 1988, is already recited in that Opinion, 90 B.R. at 127-28, and hence we will only recite the developments in this matter since that date. On September 19, 1988, the Defendants followed our suggestion, at 90 B.R. 135 in that Opinion, and filed an interlocutory appeal and a Motion for Stay Pending Appeal of this court's interlocutory Order of September 6, 1988. The Plaintiff eschewed our suggestion that he re-think persistence in his jury demand. Id. We granted the Defendants' Motion for a Stay on September 21, 1988. On September 19, 1988, the District Court, per the Honorable Marvin Katz, granted the Defendants' Motion for permission to file an interlocutory appeal.

Unknown to us when we filed our Opinion of September 6, 1988, the Defendants had set the instant pleading into motion a few days before, on August 29, 1988. Accompanying the motion was a supporting Affidavit of Reeder R. Fox, Esquire, lead defense counsel, and a lengthy Brief. The Plaintiff filed an even more sizable response to the Defendants' Motion, including a Motion to strike portions of Mr. Fox's Affidavit; Affidavits of one of the Plaintiff's attorneys, Frederick P. Kramer, II, Esquire, Debtor Janet G. Jackson, and Accountant Allan T. Schiffman; numerous portions of the pleadings; and a lengthy Brief. The Defendants countered with an Answer and a Supplemental Affidavit of Mr. Fox in support of their Motion. It is our observation that these filings were excessive and, largely, unnecessary in light of our disposition.

C. SUMMARY JUDGMENT MAY ONLY BE GRANTED TO THE DEFENDANTS AS TO ANY ISSUE IF AND ONLY IF THE COURT IS CONVINCED THAT THERE IS NO GENUINE ISSUE MATERIAL FACT AND THAT THE DEFENDANTS WILL INEVITABLY PREVAIL AS TO THAT ISSUE

Bankruptcy Rule (hereinafter "B.Rule") 7056 pursuant to which the Defendants' Motion was filed, incorporates Rule 56 of the Federal Rules of Civil Procedure (hereinafter "F.R.Civ.P."). F.R.Civ.P. 56(b) allows us to grant summary judgment for the defending party if we determine from our "examination of the allegations in the pleadings and any other evidential source available that no issue as to a material fact remains for trial, and the moving party is entitled to judgment as a matter of law." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976). While the Supreme Court has recently stated that summary judgment is not to be regarded as "a disfavored procedural short cut," Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986), courts have consistently been cautious in granting summary judgment. Earlier, the Supreme Court stated that "Rule 56 should be cautiously invoked to the end that parties may always be afforded a trial where there is a bona fide dispute of facts between them." Associated Press v. United States, 326 U.S. 1, 6, 65 S.Ct. 1416, 1418, 89 L.Ed. 2013 (1944). More recent decisions of the Court of Appeals have characterized summary judgment as "`a drastic remedy,'" Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir.1981), quoting Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981), in turn quoting Tomalewski v. State Farm Insurance Co., 494 F.2d 882, 884 (3d Cir.1974). This court has also similarly characterized the summary judgment procedure. See In re Saler, 84 B.R. 45, 48 (Bankr.E.D.Pa.1988); In re Leedy Mortgage Co., 76 B.R. 440, 445 (Bankr.E.D.Pa. 1987); In re American International Airways, Inc., 74 B.R. 691, 696 (Bankr.E.D.Pa. 1987); and In re H & H Beverage Distributors, Inc., 65 B.R. 243, 244 (Bankr.E.D.Pa. 1986).

As a result of the serious consequences of summary judgment, the burden of showing the absence of a genuine issue of material fact as to any issue presented in the motion has always been placed upon the moving party. See J. MOORE, MANUAL OF FEDERAL PRACTICE AND PROCEDURE, § 17.103 (1987 ed.). The Circuit Court of Appeals has frequently stated that courts are to resolve any doubts as to the existence of genuine issues of fact against the moving parties. See Hollinger, supra, 667 F.2d at 405; Ness, supra, 660 F.2d at 519; and Tomalewski, supra, 494 F.2d at 884. We have followed these decisions in Leedy, supra, 76 B.R. at 445; and H & H, supra, 65 B.R. at 244. It is important to note that a motion for summary judgment is designed to be granted only when there is no material issue of fact or a lack of evidence to support a claim. Where there is evidence to be weighed, this is a question for the fact-finder at trial and summary judgment is not appropriate. Where some inconsistent evidence is offered, parties are entitled to exercise their right of cross-examination. This allows the fact-finder to view the demeanor of the witness, an element which is not available in deciding a motion for summary judgment. "It may well be that the weight of the evidence would be found on a trial to be with defendant. But it may not withdraw these witnesses from cross examination, the best method yet devised for testing trustworthiness of testimony. And their credibility and the weight given to their opinions is to be determined, after trial, in the regular manner." Sartor v. Arkansas Gas Corp., 321 U.S. 620, 628-29, 64 S.Ct. 724, 729, 88 L.Ed. 967 (1944). Therefore, the first responsibility of this court in determining each issue raised by the Defendants' motion for summary judgment is to decide whether there are any genuine material issues of fact, and if not, proceed to determine whether the Defendants are entitled to judgment as to such issue as a matter of law.

D. THE PORTIONS OF DEFENSE COUNSEL'S AFFIDAVIT OBJECTED TO BY PLAINTIFF WILL NOT BE STRICKEN FROM THE RECORD

F.R.Civ.P. 56(e) requires that an affidavit in support of summary judgment must be made on personal knowledge, set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.¹ This section further indicates that a court may allow affidavits to be supplemented by depositions, interrogatories, or further affidavits.

In the present case, counsel for the Defendant himself took the only Affidavit presented in support of the motion for summary judgment. A great portion of counsel's Affidavit would appear to be conclusory and without personal knowledge. Upon filing his responses to the Defendants' Motion, the Plaintiff noted this apparent violation of Rule 56(e) and additionally alleged that counsel for the Defendants was not an appropriate affiant because he would most likely not be, competent to testify at trial. In counter-response, the Defendants submitted a supplemental Affidavit which included copies of depositions not supplied previously. The supplemental Affidavit explained that the information contained in the initial Affidavit was gained while the counsel-affiant attended...