Nicholas Malfitano Jun. 16, 2016, 3:59pm


PHILADELPHIA – A federal appellate court recently affirmed a ruling in the U.S. District Court for the Eastern District of Pennsylvania to dismiss an appeal from a pair of plaintiffs in U.S. Bankruptcy Court.

In a per curiam ruling issued on June 10, Judges Julio M. Fuentes, Cheryl Ann Krause and Anthony J. Scirica of the U.S. Court of Appeals for the Third Circuit granted trustee William C. Miller’s motion to affirm the District Court ruling on the appeal of Henry W. Jarusik and Kathleen M. Brady, as the Court felt it “presents no substantial question.”

“In July 2012, appellants filed a bankruptcy petition in the United States Bankruptcy Court for the Eastern District of Pennsylvania. Upon the trustee’s motion, the Bankruptcy Court entered an order dismissing the case on Sept. 23, 2014,” the Third Circuit said.

At that same time, the Bankruptcy Court barred the appellants from filing another bankruptcy petition for a period of one year.

“On March 18, 2015, Appellants filed a motion in the District Court seeking reconsideration of the Bankruptcy Court’s Sept. 23, 2014 dismissal order. The District Court construed appellants’ motion for reconsideration as a notice of appeal from the Bankruptcy Court’s Sept. 23, 2014 order,” the Third Circuit stated. “Upon review of Appellants’ filing, the District Court determined that the appeal was untimely under Federal Rule of Bankruptcy Procedure 8002(a), and dismissed the appeal for lack of subject matter jurisdiction.”

Jarusik and Brady subsequently appealed to the Third Circuit, which led Miller to petition the high appeals court for summary affirmance – a move the appellants did not oppose.

“As an initial matter, we agree with the District Court’s decision to characterize appellants’ motion for reconsideration as a notice of appeal. Appellants filed their motion directly in the District Court and requested that the District Court vacate the decision of the Bankruptcy Court and remand the case for further proceedings,” the Third Circuit said.

“Thus, because appellants were clearly seeking to appeal the Bankruptcy Court’s final order (rather than requesting that the Bankruptcy Court reconsider its own order), the District Court properly construed appellants’ filing as notice of appeal. Indeed, appellants do not take issue with the District Court’s characterization of their filing,” the Third Circuit judges added.

The appellate court concluded the District Court “properly determined” it lacked jurisdiction over Jarusik and Brady’s appeal from the order of the Bankruptcy Court.

“Appeals from bankruptcy courts must be brought ‘in the time provided by Rule 8002 of the Bankruptcy Rules.’ 28 U.S.C. Section 158(c)(2) Rule 8002(a)(1) states that a notice of appeal must be filed within 14 days of the entry of a bankruptcy court’s order. We have held that this 14-day time limit is mandatory and jurisdictional,” the Third Circuit said.

The appeals court noted the Bankruptcy Court entered its order dismissing the appellants’ bankruptcy case on Sept. 23, 2014 and per the aforementioned Rule 8002, the appeal notice was due by Oct. 7, 2014. In this particular litigation, the appellants instead filed their appeal almost six months later, on March 18, 2015, and did not request an extension of time to do so.

“Thus, as the District Court determined, appellants’ notice of appeal was untimely and it lacked jurisdiction to review the Bankruptcy Court’s order. Accordingly, we will affirm the District Court’s Aug. 27, 2015 order,” the Third Circuit said.

The plaintiffs are represented by Robert J. Lohr II of Lohr & Associates, in West Chester.

U.S. Court of Appeals for the Third Circuit case 15-3262

U.S. District Court for the Eastern District of Pennsylvania case 2:15-mc-00105

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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