ROCK AIRPORT OF PITTSBURGH, LLC et al v. MANAGEMENT SCIENCE ASSOCIATES, INC.

Filing 6

MEMORANDUM OPINION (Original filed at Civil Action 14-91). Signed by Judge Arthur J. Schwab on 4/11/14. (lck)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROCK AIRPORT OF PITTSBURGH, LLC,
ET AL.,
14cv0091
ELECTRONICALLY FILED

Appellant,
v.
MANAGEMENT SCIENCE ASSOCIATES,
INC.,
Appellee.

MEMORANDUM OPINION
Appellants, Rock Airport of Pittsburgh, LLC, and RPP, LLC (hereinafter, “Rock Airport”
and “RPP,” respectively) filed an Appeal from the Bankruptcy Court’s December 3, 2013 Order
claiming the Bankruptcy Court abused its discretion in several ways and made clearly erroneous
findings of fact. Appellee, Management Science Associates, Inc. (hereinafter “MSA”), disputes
that the Bankruptcy Court made clearly erroneous factual findings and contends the Court did
not abuse its discretion in any way. This matter has been fully briefed by the parties and is now
ripe for adjudication.

I. Jurisdiction and Standard of Review
This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158(a). A district
court sits as an appellate court in bankruptcy proceedings. In re Michael, 699 F.3d 305, 308 n.2
(3d Cir. 2012).
The standards of review which apply to this case are as follows:

First, this Court cannot disturb the factual findings of a bankruptcy court unless they are
clearly erroneous. In re Gray, __ Fed. Appx.___, 2014 WL 889355 at *3 (3d Cir. March 7,
2014); see also Accardi v. IT Litig. Trust (In re IT Group, Inc.), 448 F.3d 661, 667 (3d Cir.
2006). A factual finding is “clearly erroneous” if the reviewing court is “left with a definite and
firm conviction that a mistake has been committed.” In re W.R. Grace & Co., 729 F.3d 311,
319, n.14 (3d Cir. 2011); see also Gordon v. Lewistown Hosp., 423 F.3d 184, 201 (3d Cir. 2005).
Under the clearly erroneous standard, it is the responsibility of an appellate court to accept the
ultimate factual determinations of the fact-finder unless that determination is either
(1) completely devoid of minimum evidentiary support displaying some hue of credibility or
(2) bears no rational relationship to the supportive evidentiary data.” DiFederico v. Rolm Co.,
201 F.3d 200, 208 (3d Cir. 2000) (citations omitted).
Second, this Court exercises plenary, or de novo, review over any legal conclusions
reached by the bankruptcy court. In re Ruitenberg, ___ F.3d ___, 2014 WL 959485 at *2 (3d
Cir. March 13, 2014); see also Am. Flint Glass Workers Union v. Anchor Resolution Corp., 197
F.3d 76, 80 (3d Cir. 1999).
Third, if the Bankruptcy Court’s decision is a mixed question of law and fact, this Court
must break down the determination and apply the appropriate standard of review to each. In re
Montgomery Ward Holding Corp., 326 F.3d 383, 387 (3d Cir. 2003). The Court should “apply a
clearly erroneous standard to integral facts, but exercise plenary review of the court's
interpretation and application of those facts to legal precepts.” In re Nortel Networks, Inc., 669
F.3d 128, 137 (3d Cir. 2011) (citation omitted).
Finally, this Court reviews a bankruptcy court’s exercise of discretion for abuse. In re
Friedman’s Inc., 738 F.3d 547, 552 (3d Cir. 2013). A bankruptcy court abuses its discretion

2

when its ruling rests upon an error of law or a misapplication of law to the facts. In re O’Brien
Environmental Energy, Inc., 188 F.3d 116, 122 (3d Cir. 1999).

II. Factual and Procedural History
A. Summary of the Facts
In a nutshell, the issues raised by Rock Airport and RPP in this appeal arise from the
following facts: (1) MSA purchased property from Rock Airport and utilized RPP for its
electrical needs with respect to that property; (2) MSA’s electrical needs were such that, over
time, RPP either could not or would not accommodate MSA’s needs, and on several occasions
(and at least once in violation of a Court Order), RPP cut off MSA’s electrical power; and
(3) there came a time when the parties agreed that MSA should migrate from RPP’s electrical
system to West Penn Power’s system, but RPP contends that this migration did not occur in a
timely fashion and was in contravention of a Court Order. Ultimately, the Bankruptcy Court
required Rock Airport to grant an easement to MSA so that a power line from MSA’s building(s)
to West Penn Power’s electrical system could be installed thereby enabling MSA’s electrical
migration from RPP to West Penn Power to occur.
B. Factual and Procedural History
This Court has detailed below the procedural history (which emanated from Orders
entered in both the Court of Common Pleas of Allegheny County (“State Court”) and the
Bankruptcy Court for the Western District of Pennsylvania (“Bankruptcy Court”)) from which
the above-mentioned relevant facts were born.
Rock Airport was acquired in the late 1990s by Mr. Rock Ferrone. After acquiring the
airport, Ferrone developed a business park (“Rockpointe Business Airpark”) and in September of

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2000, sold some the property within Rockpointe Business Airpark to MSA. MSA purchased this
property for the purpose of constructing a data center. MSA used the property purchased from
Ferrone to construct a 42,000 square-foot data center which operates on a 24/7/365 schedule.
MSA’s data center provides back-up support and services to the computer information systems
of its clients, in the event of its clients’ own system failures.
Around the time that MSA purchased this property from Ferrone, Ferrone created RPP
which, in 2002, became MSA’s sole supplier of electricity. RPP also supplied electricity to other
tenants and owners at Rockpointe Business Airpark. After connecting to the RPP electrical
system in 2002, MSA increased its electrical needs in 2004, and again in 2008.
1. Electrical/Power Loss - 2008
Because of the increasing amount of electricity MSA needed, in 2008, RPP either could
not or would not supply power to MSA and terminated MSA’s power. MSA filed a lawsuit
seeking injunctive relief in the Court of Common Pleas of Allegheny County (docket no. GD 088520, hereinafter “State Court”) against Rock Airport and RPP. On April 30, 2008, the State
Court granted MSA preliminary injunctive relief, thereby requiring RPP to restore electrical
power to MSA. MSA v. Rock Airport, Court of Common Pleas of Allegheny County,
Pennsylvania, GD 08-8520, doc. no. 4.
On July 11, 2008, the parties in the State Court case entered into a Consent Order which,
inter alia, required RPP to continue to provide MSA with electrical power, but MSA was to limit
its consumption and migrate off RPP’s system to West Penn Power’s [f/k/a Allegheny Power]
system, “as commercially soon as possible.” Id., doc. no. 13. This Consent Order further
indicated the “parties acknowledge that to migrate to Allegheny Power may require an easement
from [Rock Airport]. [Rock Airport] will grant such easement to Allegheny Power . . . provided

4

they are consistent with the overall development of the [Rockpointe Business] Airpark . . . .” Id.,
doc. no. 13.
On April 30, 2009, Rock Airport filed for Chapter 11 bankruptcy, automatically staying
the aforementioned State Court proceedings. MSA’s migration from RPP to West Penn Power
did not occur before Rock Airport filed for bankruptcy.
2. Electrical/Power Loss - 2011
In July of 2011, RPP shut off the electrical power to MSA. MSA filed an adversary
proceeding in the bankruptcy case on July 15, 2011 to restore its power. MSA v. Rock Airport,
United States Bankruptcy Court, Western District of Pennsylvania, no. 11-02361, doc. no. 1. On
October 14, 2011, a Consent Order was reached in the adversary bankruptcy case dismissing the
adversary proceeding, but granting MSA relief from the automatic stay in the State Court case,
thereby allowing litigation to resume in State Court. Id., doc. no. 18.
3. Electrical/Power Losses – 2012
Starting on February 17, 2012, and continuing throughout much of 2012, while the State
Court litigation was still proceeding, MSA experienced interruptions in its electrical power
supplied by RPP. On April 2, 2012, the State Court ordered, inter alia, Rock Airport and RPP to
immediately restore MSA’s power. MSA v. Rock Airport, Court of Common Pleas of Allegheny
County, Pennsylvania, GD 08-8520, doc. no. 37. On April 3, 2008, Rock Airport and RPP filed
a Notice of Appeal of the April 2, 2012 Court Order. Id., doc. no. 38.
Rock Airport and RPP throughout the litigation in 2012 claimed that MSA’s operation of
one of its transformers was unlawful and/or unsafe, and filed an emergency motion to that effect.
Id., doc. no. 64. The State Court denied Rock Airport’s and RPP’s emergency motion. Id., doc.
no. 72. In addition to Rock Airport and RPP’s emergency motion, MSA filed its own emergency

5

motion, seeking a Court Order precluding Rock Airport and RPP from terminating its electrical
service, claiming that RPP was charging MSA $30,000 in “administrative/legal/equipment
rental” fees for which there was no substantiation. Id., doc. no. 94. On November 28, 2012, the
State Court barred Rock Airport and RPP from terminating electricity without a Court Order.
Id., doc. no. 97.
On December 28, 2012, Rock Airport and RPP filed a Motion in State Court seeking
authorization to terminate MSA’s electrical power, claiming MSA had not fully paid its prior
electrical invoices.1 On February 28, 2013, the State Court entered two Orders: one granted
MSA’s motion to compel the deposition of Ferrone, Rock Airport, and RPP; the other denied
Rock Airport’s motion for recusal of Judge Ward.
4. Electrical/Power Losses – 2013
Shortly after entry of these Orders on February 28, 2013, RPP terminated electrical
service to MSA without first obtaining a Court Order in contravention of the November 28,
2012, State Court Order.
As a result of the February 28, 2013 interruption of power, on March 1, 2013, MSA
initiated a new adversary proceeding (docket no. 13-02078) in Bankruptcy Court. The
Bankruptcy Court entered an Order dated March 2, 2013, requiring, inter alia, RPP to reconnect
electrical service within 24 hours in accordance with the July 11, 2008 State Court Consent
Order, and MSA to “complete the transfer of electric service from RPP to [West Penn] Power”
within 90 days from March 2, 2013. MSA v. RPP, LLC, United States Bankruptcy Court,
Western District of Pennsylvania, no. 13-02078, doc. no. 6. On March 4, 2013, RPP filed a
Motion asking the Bankruptcy Court to reconsider its March 2, 2013 Order and/or terminate the
1

A hearing on this motion was scheduled for March 5, 2013, but at Rock Airport’s request, the hearing
was postponed by the State Court “to a date to be determined.”

6

July 11, 2008 State Court Consent Order. Id., doc. no. 5. Throughout the month of March, 2013
the parties fought over how much MSA owed RPP for power versus “administrative fees” and
whether the migration was occurring.
On April 24, 2013, the Bankruptcy Court entered a Consent Order: (1) staying two ongoing adversary proceedings (nos. 13-02078 and 13-02158); (2) staying the 90-day electricity
migration time frame established by the Court’s prior March 2, 2013 Order; (3) requiring the
parties to comply with the July 11, 2008 State Court Order; and (4) instructing the Trustee to
work with MSA to utilize the DQE easement for the installation of MSA’s line to a new
electrical system RPP to pay West Penn Power a fee to commission a design study for the
placement of the electrical system to MSA’s facility. Id., doc. no. 59.

On May 31, 2013, the

Bankruptcy Court modified the April 24, 2013 Consent Order, which ordered in relevant part:
(1) RPP was ordered to pay the $10,000 fee sought to be charged by West Penn Power for a
design study regarding placement for MSA’s electrical system; (2) the completed design study
was to be filed in the main bankruptcy case by the trustee; and (3) the parties were to agree to
one of the designs established by the West Penn Power study for the migration, but if the parties
could not agree then Order indicated that the Court would chose the design.2 Id., doc. no. 65.
Once the study was filed in the main bankruptcy case (case no. 09-23155), MSA filed a
Motion to Order Implementation of West Penn Power’s Design Plan. Doc. no. 424. The
Bankruptcy Court held a status conference on September 10, 2013 and discussed MSA’s Motion
to Order Implementation of West Penn Power’s Design Plan with the parties.
On December 3, 2013, the Bankruptcy Court issued its Opinion and Order on MSA’s
Motion to Implement West Penn Power’s design plan in the main bankruptcy case (no. 092

The May 31, 2013 Order was modified to provide clarification for West Penn Power’s benefit
on July 18, 2013. Id., doc. no. 79.
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23155) as well as in the two on-going adversary proceedings (nos. 13-02078 and 13-02158).
That Opinion and Order granted MSA’s Motion to implement the West Penn Power Design Plan.
Rock Airport and RPP appealed the Bankruptcy Court’s December 3, 2013 Order which
required Rock Airport to grant an easement to West Penn Power Company (“West Penn”) so that
MSA could obtain power through West Penn, as opposed to RPP. MSA v. RPP, LLC, United
States Bankruptcy Court, Western District of Pennsylvania, no. 13-02078, doc. no. 112.

III. Discussion
Rock Airport and RPP have appealed the Bankruptcy Court’s December 3, 2013 Order
claiming: (1) the Court abused its discretion by entering the Order primarily claiming the process
that led to this Order was improper under Stern v. Marshall, __ U.S. __, 131 S.Ct. 2594 (2011);
and (2) the Court’s conclusions were clearly erroneous.
A.

Abuse of Discretion

As noted above, this Court reviews a Bankruptcy Court’s exercise of discretion for abuse.
In re Friedman’s Inc., 738 F.3d 547, 552 (3d Cir. 2013). A Bankruptcy Court abuses its
discretion when its ruling rests upon an error of law or a misapplication of law to the facts. In re
O’Brien Environmental Energy, Inc., 188 F.3d 116, 122 (3d Cir. 1999). Here, Rock Airport and
RPP primarily argue that the Bankruptcy Court failed to follow the process set forth by the
United States Supreme Court in Stern.
In Stern, a plurality of the Supreme Court explained that the Bankruptcy Court did not
have the authority to rule on a specific matter, because the Bankruptcy Court lacked the
Constitutional authority to adjudicate that particular matter. The matter at issue in Stern was a
counterclaim brought as an adversary proceeding by a widow in her Chapter 11 case to recover

8

damages for her stepson’s alleged tortious interference with her expectancy of an inheritance or
gift from her deceased husband. The Supreme Court, in Stern, held that the Bankruptcy Court
lacked the authority under Article III of the Constitution to enter final judgment on the widow’s
counterclaim; rather, the Supreme Court determined that the Bankruptcy Court had to enter
proposed findings of fact and conclusions of law on the matter so that the District Court could
issue a final ruling on the matter.
This Court finds that the Stern decision was predicated upon a set of facts and a
procedural history whereby the Bankruptcy Court attempted to enter a final judgment on a statelaw based tort, brought as a counterclaim to a proof of claim. Despite the cogent arguments
advanced by Rock Airport and RPP, this Court disagrees that the set of facts of history of the
instant case is akin to Stern, and therefore, concludes that the Bankruptcy Court was not bound
by Stern. Moreover, given the set of facts and procedural history here (as recounted above), this
Court finds that the Bankruptcy Court did possess the Constitutional authority to issue a final
judgment because Rock Aiport and RPP consented to same as be will discussed in greater detail
below.
1. “Core” versus “Non-Core” Proceedings
Congress enumerated sixteen different proceedings which determine whether a matter is
a “core” proceeding. 28 U.S.C. §157(b)(2). Of those sixteen, and important to the matter at
hand, the following “core” proceeding descriptions are relevant:
(2) Core proceedings include, but are not limited to—
(A) matters concerning the administration of the estate;
*

*

*

(K) determinations of the validity, extent, or priority of liens;

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28 U.S.C. §157(b)(2).
If a proceeding is indeed a “core” proceeding, then, as Chief Justice Roberts succinctly
noted in Stern, “[b]ankruptcy judges may hear and enter final judgments in ‘all core proceedings
arising under title 11, or arising in a case under title 11.’” 131 S.Ct. at 2603, citing 28 U.S.C.
§ 157(b)(1).
“Non-core” proceedings are defined as, “a proceeding that is not a core proceeding
but . . . is otherwise related to a case under title 11.” 28 U.S.C. §157(c)(1). Whenever the matter
is not a core proceeding, “the bankruptcy judge shall submit proposed findings of fact and
conclusions of law to the district court, and any final order or judgment shall be entered by the
district judge after considering the bankruptcy judge’s proposed findings and conclusions and
after reviewing de novo those matters to which any party has timely and specifically objected.”
Ibid. Simply stated, the Bankruptcy Judge must issue proposed findings and conclusions of law
for the District Court to consider, in lieu of issuing a final judgment.
However, the parties to a “non-core” proceeding can consent to the Bankruptcy Court
treating a matter as if it were a core proceeding, thereby enabling the Bankruptcy Court to enter
final judgment on the matter. 28 U.S.C. § 157(c)(2). Consent need not be express, but rather,
can be implied. See, e.g., In re Bartock, 398 B.R. 135, 152-3 (W.D. Pa. 2008) (“When parties
stipulate to the settlement of an action they thereby consent to the exercise of the court's power to
compel compliance.”); In re Winstar Communications, Inc., 348 B.R. 234, 250 (D.Del. 2005)
(“Consent may be implied from failure to object or from any act indicating a willingness to have
the bankruptcy court determine a claim.”)(citation omitted).

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2. Core Proceeding
As noted by the parties, the Bankruptcy Court normally deems a matter to be a “core” or
“non-core” proceeding. Because that did not occur here, this Court undertook a review of all of
the proceedings – both in the State Court and Bankruptcy Court.
As noted by MSA in its Brief in Opposition, and as this Court has confirmed from its
own detailed review of the adversary docket entries and transcripts, the Bankruptcy Court did not
declare whether this matter was a “core” or a “non-core” proceeding. Rock Airport and RPP
have interpreted December 3, 2013 final judgment to have erroneously arisen out of a non-core
proceeding, while MSA believes the judgment arose out of a core proceeding.
MSA relies on a case from the Northern District of Illinois to convince this Court that the
matter of granting MSA and/or West Penn an easement on Rock Airport property was a core
issue because this decision would impact “the validity, extent, or priority of liens” and thus fall
under 28 U.S.C. §157(b)(2)(K). Additionally, MSA argues that because the granting of an
easement could encumber the real property of Rock Airport, and in doing so impact the
administration of the estate, the adversary proceeding at issue was “core” under 28 U.S.C.
§157(b)(2)(A).
This Court agrees that the adversary case which gave rise to the December 3, 2013 Order
was a “core” proceeding. The December 3, 2013 Order will impact the administration of the
estate because as it creates an encumbrance upon Rock Airport’s real property.
As noted in the fact section above (see section “II.” infra.), a loss of electrical power
caused MSA to file a lawsuit in State Court seeking a remedy to the problem that was created by
MSA’s usage and RPP’s lack of ability or desire to continue to provide electricity to MSA. This
lawsuit incepted prior to Rock Airport filing for bankruptcy, and resumed in the State Court once

11

the automatic stay was lifted. However, although the parties in State Court quickly and readily
agreed to MSA’s migration from RPP to West Penn Power, after nearly six years of litigation in
State Court, the migration had not occurred, but multiple violations of the State Court’s interim
Orders had.
Once the matter came before the Bankruptcy Court as an adversary matter, the sole issue
was how to effectuate the parties July 11, 2008 State Court Consent Order, which potentially
required an easement on Rock Airport land, thereby encumbering the estate, so that MSA could
migrate from RPP to West Penn Power’s electrical system. This Court sees this very discrete
issue as one which squarely falls under 28 U.S.C. §157(b)(2)(A), given the facts of this case and
the impact the granting of an easement and encumbrance of real property can have on the
administration of the estate. Thus, the adversary proceeding from which the December 3, 2013
decision arose, was “core.”
3. Non-Core Proceeding
Alternatively, even accepting Rock Airport’s and RPP’s position that the adversary
proceeding was a non-core proceeding, this Court finds that Rock Airport and RPP agreed to
treat the matter as if it were a core proceeding, thereby enabling the Bankruptcy Court to enter
final judgment through its December 3, 2013 Order.
As noted above, this Court has spent considerable time reviewing the docket submissions
and transcripts from the adversary proceeding that culminated in the December 3, 2013 Order of
Court. To that end, this Court notes that hearings before the Bankruptcy Court were held on
March 22, 2013, April 5, 2013, May 23, 2013 and May 30, 2013. During the course of these of
hearings, the Bankruptcy Court and the parties determined that West Penn Power should
determine where the electrical line should be placed so that MSA could migrate from RPP’s

12

system. There is no dispute that MSA’s migration from RPP’s system was an important piece of
the July 11, 2008 State Court Consent Order. Likewise there is no dispute that migration did not
occur at any time from July 11, 2008 (the date of the State Court Consent Order) up to December
3, 2013 (the date of the Bankruptcy Court Order now on appeal).
Although there is no “affirmative” or “affirming” language uttered by counsel for Rock
Airport or RPP during any of these hearings specifically stating that this adversary proceeding
could be considered a “core” proceeding Rock Airport and RPP actively participated in this
proceeding. In fact, their counsel played an active role in the decision to have West Penn Power
conduct a study to determine where the electrical line should be placed. During the May 30,
2013 hearing, Rock Airport and RPP’s “special counsel” unequivocally stated, “ . . . we ought to
let West Penn Power figure out what the best way they . . . can deliver power to MSA. . . . Let
West Penn Power say how MSA can get its service . . . because that’s what we agreed to in 2008
and that’s what we’d like to [see] happen.” MSA v. RPP, LLC, United States Bankruptcy Court,
Western District of Pennsylvania, no. 13-02078, doc. no. 71.
In addition to these statements made by their own special counsel during the May 30
hearing, on May 31, 2013, the Bankruptcy Court clarified its April 24, 2013 Order which stated
in pertinent part:
Regarding this court’s order of April 24, 2013, IT IS Further Ordered:
1 - so as to facilitate the transition in power delivery going to Management
Science Associates, Inc. (MSA) from RPP, LLC, to West Penn Power, the Debtor
RPP, LLC, shall pay the $10,000 fee sought to be charged by West Penn Power
(and may pay up to an additional $5000 without further order) so that West Penn
Power will commission a design study regarding placement for the electrical
system to MSAs facility; and
2 - all parties shall cooperate with West Penn Power in the effort to
accomplish the design study; and

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3 - not later than August 5, 2013, the design study and any report based
thereon shall be shared by West Penn Power with the Debtors RPP, LLC and
Rock Airport of Pittsburgh, Trustee Cardiello, MSA; . . . and;
4 - Trustee shall file a copy of the design study and report in the Rock
Airport case (which may be filed under seal if necessary); and
*

*

*

7 - one of the West Penn designs shall be utilized to accomplish the
transition ordered by this court. That design shall be selected by the parties but if
they are unable to reach a consensus, then by the court which shall choose based
on, inter alia a design that (a) puts the meter required for this change onto MSAs
property on the east side of the runway, and (b) provides for a system that does
not require installation underneath the active runway, and (c) is the most
functionally useful, and (d) is the most cost effective in terms of dollars to be
expended and length of time to complete the transition of providing power to
MSA from RPP to West Penn Power, and (e) will accomplish the full transition
from RPP to West Penn Power within 180 days of the beginning of work.
Id., doc. no. 65.
On June 13, 2013, MSA filed a Motion for Clarification, or Reconsideration of the above
May 31, 2013 Order, set forth above. Id., doc. no. 73. Rock Airport and RPP filed a Response
to MSA’s Motion which states in pertinent part:
I. PRELIMINARY STATEMENT
*

*

*

2.
. . . [t]he design study was suggested by special counsel for RAP
and RPP, as a possible means by which the controversy in the above matter could
be finally resolved.
3.
. . . [Rock Airport] and RPP admit that the Court’s discussions that
weight would be placed upon the WPP Design Study. RAP and RPP believe that
the Court’s Order following the hearing and discussions represent the Court’s
considered conclusion on the matter.
*

*

*

11.
. . . [Rock Airport]’s concerns are valid and consistent with MSA’s
agreement in the Order of July 11, 2008 in which [Rock Airport] agreed to
provide [West Penn Power, f/k/a/] Allegheny Power with an easement to allow it
14

to provide direct power to MSA consistent with the development of [Rock
Airport] Business Park and the concerns of [Rock Airport] are genuine in that
regard.
*
*
*
WHEREFORE, RAP and RPP respectfully request that the Court deny the
Motion for Clarification or, in the alternative, Motion for Reconsideration.
Id., doc. no. 77.
On July 18, 2013, the Bankruptcy Court denied MSA’s Motion for Reconsideration of
the May 31, 2013 Order, but it did clarify the May 31, 2013 Order in relevant part as follows:
2.
To the extent that West Penn Power or any other party misconstrued the
[May 31, 2013] Order to require that any proposed design plan must meet all of
the criteria set forth in paragraph 7 of [that] Order in order to be considered a
viable design plan, it cannot be determined prior to the conclusion of the design
study whether any design plan can meet all of the criteria listed as Judge
Fitzgerald clearly indicated on the record. Therefore clarification is necessary so
as to permit West Penn Power to proceed with its design study regarding
placement of the electrical system to MSA’s facility. As clearly provided in
Paragraph 7, the criteria set forth therein will be applied by the Court in selecting
a plan in the event that West Penn Power provides more than one design pan and
the parties are unable to reach a consensus in selecting one to be implemented.
Id., doc. no. 79. Neither Rock Airport nor RPP raised any objection to this Clarification Order.
In accordance with these Orders, West Penn Power conducted its design study, and on
August 23, 2013, the Trustee filed West Penn Power’s proposed design on the main bankruptcy
docket, again, in accordance with these Orders. Neither Rock Airport nor RPP raised any
objection to these proceedings. It was only after MSA filed a Motion to Implement the
Proposed West Penn Power Design that Rock Airport and RPP raised any objection. Their
objection was based on their assertion that the proposed design, if implemented, was
“inconsistent” with the planned expansion of the airport runway and other planned future
development modifications. Rock Airport and RPP did not challenge the Bankruptcy Court’s
authority to enter an Order on MSA’s Motion to Implement. To the contrary, Rock Airport and

15

RPP spent their time and energy arguing against the substance of the matter, not the lack of
procedure or jurisdiction.
This Court concludes, after reviewing all of the relevant docket entries and transcripts,
that the following actions taken by Rock Airport and RRP signified their consent to the
Bankruptcy Court treating this matter as a “core” proceeding: (1) it was Rock Airport and RPP’s
counsel’s suggestion to let West Penn Power determine the best place to lay an electrical line to
service MSA; (2) the statements made by Rock Airport and RPP in their Response to MSA’s
Motion for Modification of the May 31, 2013 Order; and (3) the statements made by Rock
Airport and RPP’s counsel during the May 30, 2013 hearing. In addition, the Court notes that
the inaction of Rock Airport and RPP – such as the failure to raise this jurisdiction issue at any
point prior to this appeal – especially when contrasted to their active participation in the
underlying adversary proceeding, further convinces this Court that Rock Airport and RPP,
consented to treating this matter as “core.”
Finally, it appears to this Court that Rock Airport and RPP are disingenuously attempting
to argue the Bankruptcy Court’s lack of jurisdiction (as discussed in Stern), especially after
spending nine months zealously advancing their position that West Penn Power should conduct
its design study so as to “suggest” where the best placement of the electrical line should lay, and
after specifically stating “[t]he design study was . . . a possible means by which the controversy
in the . . . matter could be finally resolved.” As noted above, Rock Airport and RPP, both orally
and in writing, provided the requisite consent – albeit implied – to the Bankruptcy Court’s
authority to enter final judgment on this matter. Accordingly, this Court finds that the
Bankruptcy Court did not abuse its discretion in entering the December 3, 2013 Order as a final
judgment.

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4. The July 11, 2008, State Court Consent Order
Next, Rock Airport and RPP contend that the Bankruptcy Court’s December 3, 2013
Order “improperly modifie[d]” that State Court’s July 11, 2008 Consent Order.3 Rock Airport
and RPP contend that this “improper modification” violates the Rooker-Feldman doctrine. The
Court disagrees.
First, the Rooker-Feldman doctrine, only applies when four requirements are met: (1) the
federal plaintiff loses in state court; (2) the plaintiff complains of injuries caused by the statecourt judgments; (3) those judgments were rendered before the federal suit was filed; and (4) the
plaintiff is inviting the district court to review and reject the state judgments. Day v. Florida,
743 F.3d 40, 42 (3d Cir. 2014) (internal quotes and citation omitted). Here, none of the four
criteria have been met. In fact, there has not been a final judgment in State Court. Thus, the
Bankruptcy Court’s December 3, 2013 Order does not violate the Rooker-Feldman doctrine.
Next, the July 11, 2008, State Court Consent Order has not been “improperly modified”
by the December 3, 2013 Bankrutpcy Court Order. The handwritten State Court Consent Order
states in pertinent part:
(6)(1) MSA will continue its planning and will act as commercially soon
as possible to shift, its electrical usage to [West Penn f/k/a] Allegheny Power.
(6)(2) The parties acknowledge that to migrate to [West Penn f/k/a]
Allegheny Power may require an easement from defendant [Rock Airport].
Defendant [Rock Airport] will grant such easement to [West Penn f/k/a]
Allegheny Power to facilitate MSA’s plans provided that the easements provided
they are consistent with the overall development of the Park . . .

3

The Court believes subsection “III. A. 1.” of this Memorandum Opinion, above, adequately addresses
and encompasses the issue raised by Rock Airport and RPP in their appellate brief (doc. no. 6, pp. 20-22)
relating to the “propriety” of the Bankruptcy Court’s orders entered prior to December 3, 2103 in MSA v.
RPP, LLC, United States Bankruptcy Court, Western District of Pennsylvania, no. 13-02078, and thus, no
further discussion on that issue is required or warranted.

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MSA v. Rock Airport, Court of Common Pleas of Allegheny County, Pennsylvania, GD 08-8520,
doc. no. 13.
As noted, the Bankruptcy Court held several hearings before entering its December 3,
2013 Order. This Court’s review of those transcripts and the Memorandum Opinion issued by
the Bankruptcy Court contemporaneously with its December 3, 2013 Order evidences the
Bankruptcy Court’s consideration of the impact of the line on the purported future development
of Rock Airport and the Park. Notably, the Bankruptcy Court’s Opinion states, “[T]here is no
credible testimony that the implementation of the [West Penn Power] design would interfere
with the overall development of the Business Park.” MSA v. RPP, LLC, United States
Bankruptcy Court, Western District of Pennsylvania, no. 13-02078, doc. no. 111, p. 13.
This Court concurs that Rock Airport and RPP failed to provide credible testimony on
this point. Accordingly, there is no conflict – let alone an “improper modification” – to the State
Court’s July 11, 2008 Consent Order, and thus, the Bankruptcy Court did not abuse its discretion
by entering the December 3, 2013 Order.
5. West Penn Power’s Singular Design
Rock Airport and RPP also contend that the Bankruptcy Court required West Penn Power
to provide more than one design for the placement of the electrical line, yet approved West Penn
Power’s Design Study which only contained a single design option. Rock Airport and RPP
claim that the December 3, 2013 Order which implements the singular design option constitutes
an abuse of discretion.
However, the Bankruptcy Court also thoroughly addressed this issue in its
contemporaneously issued Memorandum Opinion. The Bankruptcy Court, after quoting from a
hearing transcript, noted: “The Court did not explicitly require West Penn Power to produce a

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certain number of design options to consider.” Id., p. 14. The Bankruptcy Court also stated that
it did not require West Penn Power to consult with Rock Airport or RPP before or during its
design study, and further noted that Rock Airport and RPP do not contend that they were
precluded from providing information to West Penn Power. Furthermore, the Bankruptcy Court
stated:
Instead, after an approximately seventy-five day, ten-thousand dollar design study
was completed, [Rock Airport and RPP] now ask for a new design to
accommodate a factor that could have been raised in a timely manner. . . . Had
[Rock Airport and RPP] offered their full cooperation, they would have found a
way to provide West Penn Power with all relevant information. Under the
circumstances, it is extremely difficult to understand why [Rock Airport and RPP]
did not provide notice of the potential for expansion of the runway when [Rock
Airport and RPP] now assign such significance to it. . . . Furthermore, it has not
been established that the implementation of the [West Penn Power] Design
precludes the option to expand the runway in the future.
Id., Doc. no. 111, p. 14-15 (emphasis in original).
In light of these comments, as well as this Court’s review of the hearing transcripts, this
Court finds that the Bankruptcy Court carefully considered the assertions made by Rock Airport
and RPP concerning the impact the singular design plan would have on the potential future plan
for runway (and Park) expansion. This Court unequivocally concurs that if Rock Airport and
RPP were genuinely concerned about their potential future development plans, they could have
and would have apprised West Penn Power of those plans without being ordered to do so.
Further, there is nothing in the record to suggest that Rock Airport and RPP were estopped by the
Bankruptcy Court from providing West Penn Power with information concerning any potential
expansion plans or ideas. Accordingly, the Court finds that the Bankruptcy Court did not abuse
its discretion by entering the December 3, 2013 Order allowing West Penn Power and MSA to
implement the electrical line design plan.

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6. MSA’s CEO, Alfred Keuhn
Rock Airport and RPP’s final argument claiming the Bankruptcy Court abused its
discretion by entering the December 3, 2013 Order also fails. Rock Airport and RPP claim the
Bankruptcy Court abused its discretion by quashing the subpoena that they served upon Alfred
Keuhn, MSA’s CEO, in order to “authenticate his emails” which were introduced when Mr.
Ferrone testified. Rock Airport and RPP’s Brief before this Court argues that Mr. Keuhn would
have established “more emphatically” that MSA had knowledge of Rock Airport and RPP’s
proposed expansion plans. Doc. no. 6, p. 32. Rock Airport and RPP admit that MSA agreed, in
front of the Bankruptcy Court, that there was a plan to expand the runway. Id.
Denying Rock Airport and RPP the ability to “more emphatically” argue anything is not
an abuse of discretion. Rock Airport and RPP cite no law to support their entitlement to argue
“more emphatically.”
Moreover, as noted above, if the expansion of the runway was such an important, hotbutton issue for Rock Airport and RPP, again, then they should have made those expansion plans
known to West Penn Power before or during the time West Penn Power conducted its design
study. It was not incumbent upon their opponent (MSA) of six years to inform West Penn Power
of Rock Airport’s potential expansion.
Accordingly, the Court declines to find that the Bankruptcy Court abused its discretion in
this regard.
B.

Clearly Erroneous

The bases upon which Rock Airport and RPP predicate their arguments that the
December 3, 2013 Order of the Bankruptcy Court was “clearly erroneous” generally stem from
the same arguments they advance in the “Abuse of Discretion” section. See doc. no. 6, pp. 33-

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44. In sum, Rock Airport and RPP: (1) accuse West Penn Power of colluding with MSA to
develop a singular path for the proposed electrical line instead of “fully evaluating all possible
routes[;]” (2) argue that West Penn Power’s design plan is not consistent with their future plans
for the runway and Park; and (3) claim that moving West Penn Power’s proposed electrical line
in the future should the expansion proceed as “planned” is not an option.4
As this Court has expressed throughout the body of this Memorandum Opinion, above,
the Bankruptcy Court thoughtfully and carefully considered the evidence before it and rendered a
sound decision as explained in its Memorandum Opinion which accompanied the December 3,
2103 Order of Court at issue here.
Importantly, and as noted above in the standard of review, this Court may only deem a
factual finding to be “clearly erroneous” if the Court is left with a definite and firm conviction
that a mistake has been committed. In re W.R. Grace & Co., 729 F.3d 311, 319, n.14 (3d Cir.
2011); see also Gordon v. Lewistown Hosp., 423 F.3d 184, 201 (3d Cir. 2005). Here, it is this
Court’s responsibility, under the clearly erroneous standard, to accept the ultimate factual
determinations of the Bankruptcy Court unless that determination is either: (1) completely
devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no
rational relationship to the supportive evidentiary data. DiFederico v. Rolm Co., 201 F.3d 200,
208 (3d Cir. 2000) (citations omitted).
Neither of the two criteria have been met by Rock Airport or RPP in this case.
Accordingly, this Court cannot find that the Bankruptcy Court’s December 3, 2013 Order was
clearly erroneous for the reasons suggested by Rock Airport and RPP, and thus, it declines to
disturb that decision.
4

Although Rock Airport and RPP delineated seven points which, they argue, illustrate that the
Bankruptcy Court rendered a clearly erroneous decision through its the December 3, 2013 Order, this
Court believes that the seven are collapsible into the three topics outlined immediately above.

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IV. Conclusion
The Court will affirm the final judgment of the Bankruptcy Court as expressed in its
December 3, 2013 Order and accompanying Memorandum Opinion. An appropriate Order shall
follow.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge

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