Universal Minerals, Inc., In re, 84-3424

Citation755 F.2d 309
Decision Date08 February 1985
Docket NumberNo. 84-3424,84-3424
Parties, Bankr. L. Rep. P 70,270 In re UNIVERSAL MINERALS INC., a Pa. Corp. and Cambria Mining and Manufacturing Co. a wholly owned subsidiary debtor. Appeal of GREENLEY ENERGY HOLDINGS OF PENNSYLVANIA, INC., Appellant. . Submitted Under Third Circuit Rule 12(6)
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Sanford M. Lampl, Lampl, Sable and Makoroff, Pittsburgh, Pa., for appellee.

Jay G. Fischer, Lachall, Brion, Cohen & Valocchi, Downingtown, Pa., for appellant.

Before GARTH and BECKER, Circuit Judges, and ROSENN, Senior Circuit Judge.

OPINION OF THE COURT

GARTH, Circuit Judge:

The failure by counsel for appellant, Greenley Energy Holdings of Pennsylvania, Inc., to respond to a jurisdictional argument raised by appellee, Universal Minerals, Inc., is but one of the disturbing aspects of this appeal. Greenley not only ignored the threshold issue presented in this case, but also ignored the court's direction to respond to that jurisdictional issue. We can only ascribe to such actions on the part of Greenley's counsel an insensitive disregard for the most minimal requirements of our profession.

Greenley seeks to appeal an order of the bankruptcy court granting an application to rescind the sale of certain assets purchased from the bankrupt estate of Universal Minerals, Inc. Greenley, however, has failed to file a timely notice of appeal from the bankruptcy court's order. Nor has counsel for Greenley, as noted above, responded to requests from this court to file a supplemental letter memorandum addressing the question of whether untimely notice deprives the district court, and hence this court, of jurisdiction to review the bankruptcy court's order. As a consequence, we have been obliged to undertake the tasks which the appellant should have discharged.

Our research has revealed that failure to file timely notice within the meaning of Bankruptcy Rule 8002 is indeed a jurisdictional defect barring appellate review. Yet, even if the jurisdictional defect did not compel dismissal of the instant appeal, the conduct of Greenley's counsel both in failing to acknowledge the court's inquiry and in refusing to reply to the court's directions, is sufficient to warrant dismissal.

I.

A review of the facts is complicated by the incomplete state of Greenley's brief and appendix on appeal. 1 However, the following course of events may be gleaned from the scant record before us. On January 26, 1982, the trustee in bankruptcy for Universal Minerals conducted a public sale to dispose of various assets belonging to Universal. L & L Coal bid successfully for certain coal reclamation piles, screening plants, and various rights held by Universal. The sale was confirmed by the bankruptcy court by order dated April 18, 1982 and modified April 23, 1982.

L & L Coal thereafter entered into an option agreement granting Laurel Investment Services an option to purchase all of L & L's interests in the Universal assets. Consideration for this option agreement was $5,000 paid by Laurel to L & L. Laurel in turn transferred its interests in the option agreement to Greenley. In accordance with an order of the bankruptcy court, an escrow closing was held on September 26, 1983. L & L paid the trustee the bid price of $160,000 pending resolution of certain title defects. The parties agreed that the escrow closing would not prejudice L & L's right to demand rescission and/or credit in the event the trustee proved unable to deliver good title to the assets sold. When it later became apparent that the trustee could not deliver good title, L & L and the trustee agreed to rescind the transaction.

Accordingly, the trustee filed an Application to Rescind and Set Aside Sale. Greenley, as assignee of the option agreement, opposed this application and filed objections to which the trustee and L & L replied. On March 16, 1984, a hearing was held before the bankruptcy court. The court dismissed Greenley's objections and approved rescission of the sale. The bankruptcy court's order, dated March 16, 1984, was duly entered and docketed by the clerk of the bankruptcy court on March 19, 1984.

On April 2, 1984, fourteen days after the entry of the rescission order, Greenley filed a notice of appeal to the district court. L & L Coal thereupon moved for an order dismissing Greenley's appeal as untimely taken. The district court, noting that Bankruptcy Rule 8002(a) imposes a 10-day filing requirement for timely notice of appeal, concluded that the rule was jurisdictional in effect and that the district court could not, on its own motion, extend the time for filing. The district court therefore dismissed Greenley's appeal as untimely. We affirm.

II.

Bankruptcy Rule 8002(a) states:

The notice of appeal shall be filed with the clerk of the bankruptcy court within 10 days of the date of the entry of the judgment, order, or decree appealed from. (emphasis added)

The ten day mandate of Rule 8002(a) has been strictly construed, requiring strict compliance with its terms. See Matter of McGuire, 1 B.R. 496, 499 (D.C.W.D.Pa.1979) aff'd, 615 F.2d 1353 (3d Cir.1980); see also Matter of Ramsey, 612 F.2d 1220, 1222 (9th Cir.1980); Matter of Butler's Tire & Battery Co., Inc., 592 F.2d 1028, 1034 (9th Cir.1979); Matter of Best Distribution Co., 576 F.2d 1360 (9th Cir.1978). Nor can it be doubted that the rule is jurisdictional in effect. The Advisory Committee's Note to Rule 8002 expressly states that it is "an adaptation of Rule 4(a) of the Federal Rules of Appellate Procedure." Failure to file a timely notice of appeal thus deprives the district court of jurisdiction to review the bankruptcy court's order or judgment. See In re LBL Sports Center, Inc., 684 F.2d 410, 412 (6th Cir.1982); Matter of Robinson 640 F.2d 737, 738 (5th Cir.1981); Matter of Ramsey, supra, at 1222; In re H. Daroff & Sons, Inc., 403 F.Supp. 234 (E.D.Pa.1981); In re W.T. Grant Co., 425 F.Supp. 565, 567 (S.D.N.Y.1976), aff'd mem. sub nom. Berger v. Rodman, 559 F.2d 1202, 1206 (2d Cir.1977).

In the present case, the ten-day period for filing a notice of appeal, as prescribed in Rule 8002(a), began on March 20, 1984, and ended on March 29, 1984. See Bankruptcy Rule 9006(a) and Fed.R.Civ.P. 6(a). Greenley's notice of appeal, filed on April 2, 1984, was clearly out of time. 2 The sole provision in the Bankruptcy Rules allowing for an extension of time beyond the ten-day period requires that a motion for extension be filed in the bankruptcy court. Rule 8002(c) provides:

The bankruptcy court may extend the time for filing the notice of appeal by any party for a period not to exceed 20 days from the expiration of the time otherwise prescribed by this rule. A request to extend the time for filing a notice of appeal must be made before the time for filing a notice of appeal has expired, except that a request made no more than 20 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect if the judgment or order does not authorize the sale of any property or the obtaining of credit or the incurring of debt under Sec. 364 of the Code, or is not a judgment or order approving a disclosure statement, confirming a plan, dismissing a case, or converting the case to a case under another Chapter of the Code.

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