OLICK et al v. CITY OF EASTON et al

Filing 9

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE WILLIAM H. YOHN, JR ON 2/5/14. 2/6/14 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(ti, ) Modified on 2/6/2014 (ti, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS W. OLICK
CIVIL NO. 5:13-cv-05452-WY
v.
CITY OF EASTON, et al.

FILED
FEB- 5 2014

ADV. NO. 2:12-ap-00631-ELF

MEMORANDUM

----

February -.5 , 2014

YOHN, J.

Debtor Thomas Olick files this appeal from an order of the bankruptcy court dismissing
in part his bankruptcy adversary action against appellee Northampton County. 1 Because I find I
lack jurisdiction to hear Olick's appeal, I will deny it.
I.

Background
On February 9, 2007, Olick filed for bankruptcy under Chapter 13. Subsequently,

Northampton County filed a claim for payment of taxes owed to itself, the City of Easton,
Palmer Township, and the Easton Area School District. Olick's Chapter 13 plan was confirmed
on January 22, 2008.
On September 22, 2008, Olick filed an adversary complaint against Northhampton
County and the City of Easton entities in which he made claims for conversion, filing of
fraudulent creditors' claims, violation of the automatic bankruptcy stay of state court
proceedings, and harassment. On June 16, 2009, Olick and the defendants in that action reached
a settlement. Paragraphs 19(a) and (b) ofthe settlement agreement read as follows:

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Olick is a prose litigant in this action and also proceeded prose in all related actions before the
bankruptcy court.

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(a) Northampton County, the Northampton County Tax Claim Bureau, the City of
Easton and the Easton Area School District will not take any action of any nature
to collect the claims for taxes that were due as of the date of filing of the Chapter
13 Bankruptcy Petition and acknowledge that to the extent that those claims are
allowed, they will be fully satisfied upon receipt of the amounts allowed by the
Bankruptcy Court from the Trustee in Bankruptcy.
(b) Should the Northampton County, the Northampton County Tax Claim Bureau,
the City of Easton or the Easton Area School District take any steps to collect the
prepetition claims for taxes, through inadvertence or otherwise, this Stipulation of
Settlement shall be deemed a full defense to any such claims or actions and may
be deemed a full defense to any such claims or actions and may be presented to
specific public agency or authority as proof that all prepetition claims for taxes
that are allowed will be satisfied through the bankruptcy process and no other.
On October 11, 2012, Olick filed the adversary action against Northampton County
which is the subject of this appeal. According to Olick, Northampton County has pursued
payment of prepetition debts since the 2009 settlement agreement, including a 2012 tax sale of
Glick's property. Olick claims in his amended complaint this property sale: (1) violated the
automatic stay provided for by 11 U.S.C. § 362 ("Count I"); (2) breached paragraph 19 of the
2009 settlement agreement ("Count II"); (3) sounded in tort for fraud and conversion ("Count
III").
On July 9, 2013, Northampton County moved to dismiss the entire complaint, and, on
August 7, 2013, the bankruptcy court issued an order granting the motion in part and denying the
motion in part. The court found § 362 has no force after a bankruptcy plan is confirmed, but
construed Glick's Count I allegations to state a valid claim under 11 U.S.C. § 105(a), which
permits a Chapter 13 debtor to seek relief from the bankruptcy court to enforce the terms of a
confirmed bankruptcy plan. The court dismissed Count II with prejudice on the basis that, while
the settlement agreement gave Olick a defense against claims for prepetition taxes, it did not
entitle him to pursue damages in the event of breach. The court dismissed Count III with leave to
amend on the basis that Glick's claim amounted to mere labels and conclusions, and thus failed

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to state a plausible claim as required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007).
On September 9, 2013, Olick filed a second amended complaint containing two counts:
(1) claims for "violation ofbankruptcy statutes including but not limited to 11 USC§ 105(a) and
1327(a)" and (2) claims for fraud, negligence, and conversion. These claims are still being
actively litigated in the bankruptcy court
On October 4, 2013, Olick filed this appeal from the August 7, 2013 order ofthe
bankruptcy court. He seeks reversal of the bankruptcy court's dismissal ofhis claims under
Counts I, II, and III of the prior complaint.
II.

Jurisdiction and Analysis
Under 28 U.S.C. § 158(a)(1), the district court has jurisdiction of all appeals from "final

judgments, orders, and decrees" of the bankruptcy court. See 28 U.S.C. § 158(a)(l). "When an
action presents more than one claim for relief ... the [bankruptcy] court may direct entry of a
final judgment as to one or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay." Fed. R. Civ. P. 54? Otherwise, "orders [ofthe
bankruptcy court] that do not fully adjudicate a specific adversary proceeding or that require
further factual development are governed by the ordinary finality precepts of routine civil
litigation." United States v. Nicolet, Inc., 857 F.2d 202, 206-07 (3d Cir. 1988). And "ordinarily in
civil litigation only those orders that dispose of all issues as to all parties to the case are
considered final." In re Prof! Ins. Mgmt., 285 F.3d 268, 279 (3d Cir. 2002). Accordingly, barring
the bankruptcy court's express determination that there is no just reason for delay, "[a]n order in
an individual adversary proceeding is not final unless it 'ends the litigation on the merits and

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Rule 54 applies to adversary proceedings in bankruptcy. See Fed. R. Bankr. P. 7054(a).

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leaves nothing more for the court to do but execute the judgment."' In re Truong, 513 F.3d 91,
94 (3d Cir. 2008) (quoting Bethel v. McAllister Bros., Inc., 81 F.3d 376, 381 (3d Cir. 1996)); see
also In re 400 Walnut Associates, L.P., 473 B.R. 603, 607 (E.D. Pa. 2012) (holding creditor did
not have right to appeal under § 15 8( a)(I) from an order dismissing one of two claims pending in
litigation).
Under 28 U.S.C. § 158(a)(3), the district court has discretion to hear appeals from
interlocutory orders of the bankruptcy court. Because neither§ 158(a)(3) nor the Federal Rules
of Bankruptcy Procedure provide criteria for when leave should be granted to file an
interlocutory appeal, district courts faced with this question look to the analogous provisions of
28 U.S.C. § 1292(b), which sets forth the requirements for interlocutory appeals from district
courts to the courts of appeals. In re 400 Walnut Associates, L.P., 473 B.R. 603, 607 (E.D. Pa.
2012); Finkel v. Polichuk, No. 10-219,2011 WL 2274176, at *2 (E.D. Pa. June 8, 2011); In re
Sandenhill, Inc., 304 B.R. 692, 694 (E.D. Pa. 2004). § 1292(b) provides that, "when a district
judge, in making in a civil action an order not otherwise appealable under this section, shall be of
the opinion that such order involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation, he shall so state in writing in such order."
§ 1292(b). If that occurs, "the court of appeals which would have jurisdiction of an appeal of
such action may thereupon, in its discretion, permit an appeal to be taken from such order, if
application is made to it within ten days after the entry of the order."§ 1292(b).
Here, the order of the bankruptcy court from which Olick appeals denied dismissal as to a
re-construed Count I, dismissed Count II with prejudice, and dismissed Count III without
prejudice. The bankruptcy court's order thus did not "dispose of all issues" in the case, and thus

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cannot be considered a final order under ordinary finality principles. See In re Prof! Ins. Mgmt.,
285 F.3d at 279. Because the order is not final, Olick does not have the ability to appeal to this
court as of right under§ 158(a)(l). See 28 U.S.C. § 158(a)(l). Meanwhile, the bankruptcy court
does not certify in the order or otherwise that the order "involves a controlling question of law as
to which there is substantial ground for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of the litigation." See§ 1292(b).
Accordingly, I decline to hear this appeal under 28 U.S.C. § 158(a)(3). See§ 158(a)(3).
An appropriate order follows.

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