Third Circuit disposition — 064151np-pdf

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-4151
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IN RE: LARRY J. GRANOFF,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 06-cv-02908)
District Judge: Honorable John P. Fullam
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Submitted Under Third Circuit LAR 34.1(a)
September 27, 2007
Before: McKEE, BARRY and FISHER, Circuit Judges.
(Filed: October 9, 2007 )
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Larry J. Granoff appeals from the District Court’s order affirming the bankruptcy
court’s order excepting his debt from discharge pursuant to 11 U.S.C. § 523(a)(6). The
bankruptcy court determined that Granoff’s debt to Kristen Bibus was nondischargeable
because it was incurred when he willfully and maliciously injured her. We find that the
bankruptcy court properly concluded that, based on the excessive force Granoff

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intentionally used relative to the petite size of Bibus, his conduct was willful and
malicious. Thus, we will affirm the order of the District Court.
I.
As we write only for the parties who are familiar with the factual context and the
procedural history of the case, we set forth only those facts necessary to our analysis. In
July 2003, Bibus and Granoff were involved in a brief physical altercation at the party of
a mutual acquaintance. Bibus, a petite woman weighing under 110 pounds, apparently
struck Granoff on his face. Then Granoff, an average-sized man whose weight is
undisclosed in the record, slapped Bibus across her face with an open palm. After this
incident, Bibus experienced pain and a buzzing sound in her left ear and bleeding from
her nose. Granoff sustained no serious injury.
Bibus sought medical treatment the next day, and discovered that she had a nose
fracture and a perforation of the tympanic membrane in her left ear, causing a partial loss
of hearing. She had closed-reduction surgery on her nose and received treatment for her
ear injury for six months. Her resulting medical bills totaled $8,010.41.
As a result of the altercation, Granoff was charged with two counts of simple
assault. After trial in December 2003, he was found guilty on one of the counts, a third
degree misdemeanor.
In February 2004, Bibus filed a personal injury action against Granoff, alleging
injuries from assault and battery, including damages for medical bills, lost wages, pain

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and suffering, punitive damages, and attorney’s fees. The civil action was directed to
compulsory arbitration, and in September 2005, the arbitration panel found in favor of
Bibus in the amount of $25,000, though that amount might be modified in the arbitration
appeal that has been stayed pending the outcome of this appeal.
Granoff also filed a voluntary petition for Chapter 7 bankruptcy, seeking to have
all of his debts discharged. Bibus filed a motion for exception to discharge in the
bankruptcy court. In June 2006, the bankruptcy court granted the motion in a written
memorandum and order, concluding that Granoff’s debt to Bibus was nondischargeable
under 11 U.S.C. § 523(a)(6) because Granoff acted willfully and maliciously in striking
Bibus with excessive force relative to her small stature, thereby causing the eardrum
injury. The District Court affirmed that decision. This timely appeal followed.
II.
The District Court had jurisdiction under 28 U.S.C. § 158(a). We have jurisdiction
pursuant to 28 U.S.C. §§ 158(d) and 1291. Our review of the District Court’s decision
“effectively amounts to review of the bankruptcy court’s opinion in the first instance.” In
re Hechinger Inv. Co. of Del., 298 F.3d 219, 224 (3d Cir. 2002). Factual findings of the
bankruptcy court are reviewed for clear error, while legal determinations are subject to
plenary review. In re Fruehauf Trailer Corp., 444 F.3d 203, 209-10 (3d Cir. 2006).
“Factual findings may only be overturned if they are completely devoid of a credible
evidentiary basis or bear no rational relationship to the supporting data.” Id. at 210

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(internal alteration, citation, and quotation marks omitted). However, determining
dischargeability of a debt arising from willful and malicious injury is a question of law.
In re Gerhardt, 348 F.3d 89, 91 (5th Cir. 2003).
Section 523 of the Bankruptcy Code excepts from discharge “any debt . . . for
willful and malicious injury by the debtor to another entity or to the property of another
entity.” 11 U.S.C. § 523(a)(6). A debtor’s actions are willful and malicious under
§ 523(a)(6) “if they either have a purpose of producing injury or have a substantial
certainty of producing injury.” In re Conte, 33 F.3d 303, 307 (3d Cir. 1994). Further,
“[l]iabilities arising from assault or assault and battery are generally considered as
founded upon a willful and malicious injury and are therefore within the exception.” 4
Collier on Bankruptcy ¶ 523.12[4] (15th ed. rev. 2007). The burden is on the creditor to
prove willful and malicious injury by a preponderance of the evidence. Grogan v.
Garner, 498 U.S. 279, 291 (1991).
Granoff argues that Bibus did not meet her burden of establishing that he engaged
in conduct that was substantially certain to produce injury. We disagree. First, Bibus is a
petite woman, and from the extent of her injuries and resulting medical treatment, the
bankruptcy court did not commit clear error when it found by a preponderance of the
evidence that Granoff used disproportionate and excessive force in intentionally striking
her. Granoff himself concedes that if his “force was enormously out of all sense and
proportion as compared with the blows which [he] received, then perhaps [Bibus’s] injury

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or other serious injury was substantially certain to occur.” (Reply Br. at 13.) Moreover,
the fact that Granoff might not have been substantially certain that Bibus’s left tympanic
membrane would be perforated does not alter the determination that Bibus established by
a preponderance of the evidence that Granoff was substantially certain that his striking
her would produce some significant injury. Therefore, the bankruptcy court did not err in
concluding that Granoff’s conduct was willful and malicious under § 523(a)(6) and
Conte, and it correctly excepted his debt to Bibus from discharge.
III.
For the foregoing reasons, we will affirm the order of the District Court.

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