ARBOGAST et al v. CARDIELLO et al
Filing
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MEMORANDUM AND OPINION denying bankruptcy appeals at Civil Action Nos. 12-353; 12-401; and 12-402 and affirming decision of the Bankruptcy Court, as explained therein. Signed by Judge Terrence F. McVerry on 9/14/12. (mh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NATALIE LUTZ CARDIELLO,
Appellant,
v
THOMAS D. ARBOGAST and MARY CLAIRE
ARBOGAST,
Appellees.
)
)
)
) 2:12-cv-353
)
)
)
)
)
)
---------------------------------------------------------------THOMAS D. ARBOGAST and MARY CLAIRE
ARBOGAST,
Appellants,
v
NATALIE LUTZ CARDIELLO and TRZ
HOLDINGS, II,
Appellees.
)
)
) 2:12-cv-401
) 2:12-cv-402
)
)
)
)
)
)
MEMORANDUM OPINION AND ORDER OF COURT
Now pending before the Court are three1 related appeals from a Memorandum Opinion
and Order issued by United States Bankruptcy Judge Bernard Markovitz on February 7, 2012.
The genesis of the underlying dispute was the dissolution of the law firm of Titus and
McConomy (“T&M”), and the resulting breach of its commercial lease over a dozen years ago.
The debtor in this bankruptcy case, Thomas Arbogast, was a partner at T&M and is subject to a
1
A fourth related appeal, Civil Action No. 12-400, has been dismissed by stipulation of the parties. TRZ Holdings,
II, which was the Plaintiff/Appellant in Civil Action No. 12-400, is not a party to the remaining cases, although it is
identified in the captions.
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judgment in favor of the lessee (“Trizec”). In an attempt to enforce its judgment, Trizec filed a
fraudulent transfer action against Arbogast and his wife Mary Clair Arbogast (“Mrs. Arbogast”)
(collectively “the Arbogasts”) on April 23, 2007 in the Court of Common Pleas of Allegheny
County, Pennsylvania (the “Fraudulent Transfer Action”). Arbogast filed a Chapter 7 petition in
January 2010; the Fraudulent Transfer Action was removed to the Bankruptcy Court; and the
Bankruptcy Trustee was substituted for Trizec as the Plaintiff. After lengthy proceedings, Judge
Markovitz ultimately entered judgment in favor of the Trustee and against the Arbogasts in the
amount of $143,389.10. Both sides have filed appeals.
Factual and Procedural Background
The procedural history of this matter is complicated but the parties agree that the
underlying facts are not in dispute. Arbogast was a partner at T&M. When that firm dissolved,
Arbogast began working at the law firm of Schnader Harrison Segal & Lewis, LLP
(“Schnader”). His compensation from Schnader was directly deposited into a checking account
that Arbogast held jointly with his wife as tenants by the entireties.
After prolonged litigation in the Court of Common Pleas of Allegheny County,
Pennsylvania, Trizec obtained a $2.7 million judgment against Arbogast and other former
partners of the T&M law firm. In April 2007, Trizec filed the Fraudulent Transfer Action
against the Arbogasts in an effort to enforce the judgment. The gravamen of the Fraudulent
Transfer Action was that each direct deposit of Arbogast’s salary income into the joint checking
account constituted an actual or constructive fraudulent transfer pursuant to the Pennsylvania
Uniform Fraudulent Transfer Act (“PUFTA”), 12 Pa.C.S.A. § 5101 et seq. Trizec’s judgment
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against Arbogast was subsequently reversed by the Superior Court of Pennsylvania. In response,
Trizec voluntarily discontinued the Fraudulent Transfer Action without prejudice.
In 2009, the Pennsylvania Supreme Court reversed the Superior Court and reinstated
Trizec’s judgment against Arbogast. On January 15, 2010, Arbogast filed a voluntary petition
for Chapter 7 relief in bankruptcy. On February 3, 2010 – in violation of the automatic stay in
bankruptcy – Trizec obtained an order from the Court of Common Pleas of Allegheny County to
re-activate the Fraudulent Transfer Action.2 On February 23, 2010 Arbogast removed the
Fraudulent Transfer Action, and it became an Adversary Proceeding in the Bankruptcy Court.
The Trustee was substituted as a party-plaintiff in June 2010 and the case was assigned to former
Bankruptcy Judge M. Bruce McCullough (since deceased).
There was considerable wrangling over the burden of proof and scope of the evidence,
including a motion for sanctions. In a pretrial ruling, Judge McCullough precluded the Trustee
from introducing evidence of each payment into the joint checking account. Instead, he ordered
the Trustee to identify the transfers out of the joint checking account which were alleged to be
improper. Eventually, the Trustee identified five such groups of disbursements which totaled
approximately $900,000. Presently at issue are two of these groups of disbursements – sums
applied in payment for memberships in three different country clubs, and disbursements relating
to a second home in Florida. A two-day hearing was held in October 2010 before Judge
McCullough. Unfortunately, Judge McCullough died before a decision was rendered.
The case was re-assigned to Judge Markovitz, who determined that a retrial was
necessary. It is apparent that the parties disagree as to the scope of the retrial and/or the
continued effect of “stipulations” or understandings the parties had reached with respect to the
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Even though Trizec had, technically, violated the bankruptcy stay by obtaining an order to reinstitute its Fraudulent
Transfer Action in the state court, Judge Markovitz concluded that the Trustee would have been able to obtain that
relief in any event. That decision has not been appealed.
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original trial conducted by Judge McCullough. Judge Markovitz conducted an evidentiary
hearing in April 2011. On February 7, 2012, he issued a 74-page Memorandum Opinion and
Order of Court.
Legal Analysis
There are five issues raised in the consolidated appeals. In Civil Action No. 12-353, the
Trustee appeals two discrete legal issues: (1) the length of the “look-back period”; and (2) who
bore the burden of proof as to whether the funds were used to purchase necessities. Separate, but
identical, appeals were filed by the Arbogasts at Civil Action Nos. 12-401 and 12-402 because
Judge Markovitz’s Order resolved both the Fraudulent Transfer Action and objections to
exemptions claimed in the underlying bankruptcy proceeding. The Arbogasts appeal three
aspects of Judge Markovitz’s decision: (1) the test for determining what expenditures constitute
fraudulent transfers; (2) whether the expenditures on country club memberships were properly
determined; and (3) whether the expenditures on a Florida second-home were properly
determined. The Court will address these issues seriatim.
1. Look-Back Period
The Trustee argues on appeal that because the state court complaint alleged a continuing
violation and sought injunctive relief into the future, the Trustee is able to recover all fraudulent
transfers made from April 2003 through trial (i.e., a seven-year period). The Arbogasts contend
that Judge Markovitz applied the correct look-back period and that the Trustee limited her claim
at trial.
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The Court agrees with the Arbogasts on the ground that the Trustee limited her claim to
the 2003-2007 time period. The original state court complaint in the Fraudulent Transfer Action
did allege a continuing violation and did seek to enjoin further transfers of funds by Arbogast.
However, at the outset of the trial before Judge McCullough on October 14, 2010, there was a
specific discussion of the time period covered by the Trustee’s claims in this case. Judge
McCullough asked whether anyone disputed that a four-year period was at issue. Counsel for the
Trustee agreed. Judge McCullough then confirmed: “So, we’re dealing with four years back
from the date of the filing of the complaint? Is that right?” Counsel for the Trustee responded:
“Correct, your Honor. And that would be four years back from the date of the filing would be
April 23rd of 2003, which is why you see that date on some of Mr. Venetia’s exhibits.” Thus, the
Trustee clearly limited its claims to the 2003-2007 time period – she did not seek damages
beyond 2007, as she now maintains. The Court and opposing party proceeded based on that
representation and premise.
There is no evidence that the Trustee expanded the scope of its claim during the retrial.
Before Judge Markovitz, the Trustee continued to advocate a look-back period from April 2003April 2007, while the Arbogasts objected and advocated a look-back period from January 2006January 2010.3 Judge Markovitz observed that the period proposed by the Trustee was actually
more favorable to the Arbogasts and deemed the dispute “largely academic.” Opinion at 16-17,
20. He implemented the 2003-2007 look-back period. In sum, Judge Markovitz believed that
the parties advocated two separate time periods and that he had resolved the dispute in the
Trustee’s favor.
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The Arbogasts’ argument was based on the timing of the state-court discontinuance; the bankruptcy filing; and the
reinstatement of the Fraudulent Transfer Action.
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The Trustee has failed to specify or designate any portion of the transcript or hearing
record at which she objected to this ruling. Nor has the Trustee shown that she clearly
communicated her intention to seek damages over the entire seven-year period. That one of the
Trustee’s trial exhibits itemized damages from the 2007-2010 timeframe cannot overcome the
clear representation of counsel to the Court that the Trustee’s claim was limited to the four-year
period of 2003-2007. The ruling of the Bankruptcy Court on this issue will be affirmed.
2. Burden of Proof
The Trustee contends that the use of funds to purchase necessities constitutes an
affirmative defense, on which the Arbogasts should bear the burden of proof. The Arbogasts
contend that Judge Markovitz correctly placed that burden on the Trustee. In addition, they
contend that this issue is a “red herring” which is rendered moot by the actual findings of Judge
Markovitz.
Judge Markovitz placed the ultimate burden of persuasion of proving a constructive
fraudulent transfer on the Trustee. He relied on Comment 6 to 12 Pa.C.S.A. § 5102, and rejected
the contrary conclusion reached in the case of In re Meinen, 232 B.R. 827, 843 (W.D. Pa. Bankr.
1999). Judge Markovitz adhered to In re Meinen in all other material respects, and reached his
decision as to the burden of proof “reluctantly.” Opinion at 32. On the other hand, Judge
Markovitz placed the burden to produce evidence regarding the use of funds from the entireties
account upon the Arbogasts.
The Court concludes that Judge Markovitz properly allocated the burden of persuasion to
the Trustee. Even though the question of whether deposits into a joint checking account may be
protected from creditors because they were spent on “necessities” bears many of the
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characteristics of an affirmative defense, under Pennsylvania law the burden of proof remains
with the Trustee throughout. Comment 6 to § 5102 specifically rejected the burden shifting
approach in constructive fraud claims which is now being advocated by the Trustee. The drafters
of PUFTA described such burden-shifting as an “archaism” which “in any event should not be
followed in applying this chapter.” See, e.g., Fidelity Bond & Mortgage Co. v. Brand, 371 B.R.
708, 717-18 (E.D. Pa. 2007). Judge Markovitz correctly determined that the burden to prove that
the relevant deposits into the joint checking account were not spent on necessary household
expenses remained part of Plaintiff’s prima facie case. The ruling of the Bankruptcy Court on
this issue will be affirmed.
3. Luxuries v. Necessities
The parties dispute the underlying test to determine which use of funds constitutes a
fraudulent transfer. The Arbogasts contend that only purchases of “luxury items” constitute
fraudulent transfers, citing the opinion(s) of the Allegheny County Court of Common Pleas in a
parallel case (the “Titus Decisions”) 4; the text of the Bankruptcy Code, 11 U.S.C. §
523(a)(2)(C); and the interlocutory ruling of Judge McCullough. The Trustee contends that
Judge Markovitz applied the correct legal test.
The Court agrees with the Trustee. As an initial matter, Judge Markovitz correctly
determined that he was not bound by the Titus Decisions or Judge McCullough’s initial
interlocutory rulings and that decision has not been appealed. Turning to the substantive
dispute, Judge Markovitz concluded that funds directly deposited into a joint checking account
may constitute fraudulent transfers (or at least constructive fraudulent transfers) “unless they
were spent on necessities.” The Judge explained that this holding is consistent with In re
4
The Titus Decisions appear to be unpublished and were not provided to the Court as part of the record.
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Meinen, which he found to be “far more persuasive” than the contrary holding of the state court
in the Titus Decisions. Judge Markovitz, citing In re Alexo, 436 B.R. 44, 49 (N.D. Ohio Bankr.
2010), explained that the Titus Decisions created a false dichotomy by assuming that anything
that is not a “luxury” must be a “necessity.” Judge Markovitz opined that “many items can fall
between the two categories.” In addition, he illustrated the potential unfairness of considering
the pre-existing life-style of a debtor (by criticizing a case which held that “a mink coat
constituted a necessary!”). Opinion at 37 (emphasis in original).
It is important to recognize that the cause of action at issue is the PUFTA claim originally
filed by Trizec. Thus, the question of what uses of money from the entireties checking account
constitute fraudulent transfers is governed by Pennsylvania law rather than the bankruptcy code.
In Watters v. DeMilio, 16 Pa. D&C.2d 747 (Ct. Common Pleas Carbon Cty., 1957), the Court
stated: “The general rule of law is that conveyances without a fair consideration made by an
insolvent debtor in diminution of his assets must be held to be fraudulent under law and against
the creditors of the insolvent.” However, the Watters Court recognized an exception based on
Welker v. Strohmeyer, 45 Berks 21, “that an insolvent's expenses for the maintenance of his
family, if shown to be reasonable and necessary, may be a legitimate employment of his money
in hand, and will not in such case be considered a conveyance fraudulent in law as to his
creditors.” Id. at 752.
In re Meinen confronted the same issue as this case. After a review of Pennsylvania law,
Judge McCullough determined that Watters and Welker were still good law. Accordingly, the
Court held that “an insolvent debtor's deposits of his or her own funds into an entireties account
are not fraudulent as to said debtor's creditors to the extent that said funds are then used to satisfy
reasonable and necessary expenses for the maintenance of said debtor's family.” 232 B.R. at
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842. Judge McCullough explained that this test is consistent with the PUFTA, 12 Pa.C.S.A. §
5103(a), because the payment of necessary household expenses can be viewed as a receipt of
reasonably equivalent value in that the funds are used to satisfy an antecedent debt. Id. Accord
In re Dawley, 2005 WL 2077074 (E.D. Pa. Bankr. Aug 10, 2005).
Judge Markovitz explained that he would follow the In re Meinen test, although he
rephrased it slightly. He held that “direct deposits of the Debtor’s individual compensation into
the Entireties Checking Account may constitute fraudulent transfers, at least constructive
fraudulent transfers, unless they were spent on necessities.” Because Judge Markovitz explicitly
stated that he was adopting the In re Meinen test, the Court is not persuaded by the Arbogasts’
effort to create a distinction between the phrases “reasonable and necessary expenses” and
“necessities.” Indeed, Judge Markovitz stated that the phrases were intended to be synonymous.
Opinion at 34. Judge Markovitz applied the correct standard under Pennsylvania law.
Accordingly, the ruling of the Bankruptcy Court on this issue will be affirmed.
4. Country Club Memberships
The Arbogasts contend that Judge Markovitz erred by ruling that the expenditures for
country club memberships could be recovered by the Trustee. They contend that such
expenditures did not constitute fraudulent transfers because they were made solely by Thomas
Arbogast for his own business and personal benefit, and did not benefit Mrs. Arbogast. In the
alternative, the Arbogasts contend that a trial stipulation approved by Judge McCullough must be
enforced such that the case would be remanded to determine the actual recoverable amount.
The Trustee contends that Judge Markovitz ruled correctly. In particular, the Trustee
contends that the Arbogasts mischaracterize the issue by focusing on whether the golf
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memberships benefited Mr. and Mrs. Arbogast jointly. Instead, the Trustee reasons that the
initial transfers into the joint checking account constituted (constructive) fraudulent transfers,
which are recoverable because the expenditures on club memberships did not qualify as
“necessary household expenses.” The Trustee also contends that at the retrial with Judge
Markovitz there was no “stipulation” to reserve ruling on damages. The Trustee contends that
the initial “stipulation” was designed to avoid the necessity of an evidentiary review by Judge
McCullough and that another hearing is not necessary because Judge Markovitz actually
reviewed the evidence and decided the amount of damages.
For the reasons set forth above, the Court concludes that Judge Markovitz applied the
correct test to determine what expenditures constituted fraudulent transfers. The general rule
under Pennsylvania law is that “conveyances without a fair consideration made by an insolvent
debtor in diminution of his assets must be held to be fraudulent under law and against the
creditors of the insolvent.” The use of funds from a joint checking account for necessary
household expenses is an exception to this general rule. Country club memberships do not fall
within the exception.
Turning to the alternative argument of the Arbogasts, the Court concludes that there is no
need to remand for further factual findings. The alleged stipulation prior to the proceeding in
October 2010 before Judge McCullough provided that if the Court found that exemptions were
not proper and/or that some transfers were fraudulent, then counsel would confer on the dollar
amount(s) and absent agreement, the amount(s) would be determined in a supplemental hearing.
This “stipulation” must be viewed in light of the pretrial discussions of the parties with Judge
Markovitz in April 2011 and the detailed findings of fact which he personally made.
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At the start of the retrial in April 2011, Judge Markovitz elicited the parties’ positions as
to the issues in dispute and explained that his objective was to avoid having the case tried a third
time by “Judge X.” Tr. at 13. Although the parties referenced earlier stipulations – particularly
as to the admissibility of exhibits – neither party requested a subsequent hearing on damages.
Judge Markovitz also put the parties on notice that they were “here now to try the case . . . so you
do what you need to do.” Tr. at 22.
The Arbogasts contend that they were deprived of the opportunity to present evidence as
to the funds contributed to the joint checking account by Mrs. Arbogast. However, it appears
that the parties did develop an evidentiary record on this issue (see the Exhibits and Transcripts
cited at the Arbogasts Reply Brief at 3; Opinion at 46-47). Indeed, Judge Markovitz specifically
excluded one payment to Marsh Landing Country Club on the ground that the Arbogasts had
proven that “such disbursement came not from the Entireties Checking Account but rather from
Mrs. Arbogast’s Sole Account.” Opinion at 56. Thus, it appears that Judge Markovitz did
consider whether disbursements were made with funds contributed by Mrs. Arbogast.
In any event, the Arbogasts have not demonstrated that they communicated their intent to
reserve damages for a retrial. Indeed, they “freely admit that the Trial Stipulation was not
elaborately addressed in the subsequent hearing before Judge Markovitz.” It is readily apparent
that Judge Markovitz was not aware of any such “stipulation” because he actually analyzed the
evidentiary record and made specific factual findings. See Opinion at 53-57. In sum, there is no
basis to remand this matter for further findings of fact. Accordingly, the decision of the
Bankruptcy Court will be affirmed on this issue.
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5. Florida Home
The Arbogasts’ arguments regarding expenditures on the Florida home parallel their
positions as to the country club memberships. They contend that Judge Markovitz failed to
apply a stipulation entered into for the October 2010 trial before Judge McCullough. In
particular, the Arbogasts contend that many of the expenditures came from sources other than the
joint checking account and seek a remand to the Bankruptcy Court for additional findings of fact.
The Trustee contends that a remand is unwarranted, because Judge Markovitz made
thorough, careful findings as to the amount of the fraudulent transfers. The Trustee also
contends that the Arbogasts failed to preserve any stipulation to reserve findings on damages
pending a second hearing and that remand for such a hearing is unnecessary.
These arguments parallel the contentions made by the parties with respect to the country
club memberships, and therefore, the Court reaches the same conclusions. Judge Markovitz
applied the correct substantive legal standard; at the April 2011 retrial, no “stipulation” to
reserve damages issues was communicated to Judge Markovitz; and there is no need to remand
for further proceedings because Judge Markovitz analyzed the well-developed evidentiary record
and made detailed findings of fact. Accordingly, the decision of the Bankruptcy Court will be
affirmed on this issue.
Conclusion
This is a complex case, which was rendered more difficult by the unexpected death of
Judge McCullough and subsequent reassignment to Judge Markovitz. It appears that the parties
did not clearly communicate to Judge Markovitz their expectations as to the scope of the retrial
and the applicability of understandings that had been reached prior to the reassignment. The
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Trustee did not clearly express her intent to seek a seven-year “look-back period,” and the
Arbogasts did not express their expectation that damages would be reserved for a subsequent
hearing. Judge Markovitz proceeded to consider the entire evidentiary record developed by the
parties and rendered a thorough and legally-supported decision. Upon consideration of the
extensive memoranda of law submitted by the parties, the Court concludes that the opinion and
order of Bankruptcy Judge Markovitz will be affirmed in all respects.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NATALIE LUTZ CARDIELLO,
Appellant,
v
THOMAS D. ARBOGAST and MARY CLAIRE
ARBOGAST,
Appellees.
)
)
)
) 2:12-cv-353
)
)
)
---------------------------------------------------------------THOMAS D. ARBOGAST and MARY CLAIRE
ARBOGAST,
Appellant,
v
NATALIE LUTZ CARDIELLO and TRZ
HOLDINGS, II,
Appellees.
)
)
) 2:12-cv-401
) 2:12-cv-402
)
)
)
)
ORDER OF COURT
AND NOW, this 14th day of September, 2012, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that the Notice of
Appeal in Civil Action No. 12-353 is DENIED; the Notices of Appeal in Civil Action Nos. 12401 and 12-402 are DENIED; and the Memorandum Opinion and Order of Bankruptcy Court
dated February 7, 2012 is AFFIRMED. The clerk shall docket these cases closed.
BY THE COURT:
s/Terrence F. McVerry
United States District Judge
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cc:
Neal H. Levin, Esquire
Email: nhlevin@freebornpeters.com
Nicholas D. Krawec, Esquire
Email: nkrawec@bernsteinlaw.com
Joseph F. McDonough, Esquire
Email: jmcdonough@mmlpc.com
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