Olick v. Kearney et al

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF PENNSYLVANIA
IN RE:
THOMAS W. OLICK, 	: 	Chapter 13
Debtor(s) 	:
:
:
: 	Bky. No. 07-10880ELF
THOMAS W. OLICK, 	:
Plaintiff 	:
:
v. 	:
:
JAMES KEARNEY, 	: 	Adv. No. 07-052ELF
THOMAS JENKINS, 	:
THE KNIGHTS OF COLUMBUS and 	:
AETNA LIFE INSURANCE CO. 	: 	Adv. No. 07-060ELF
Defendants 	:
O R D E R
AND NOW, Plaintiff Thomas W. Olick (“the Plaintiff”) having filed complaints
initiating the above adversary proceedings;
AND, the adversary proceedings having been consolidated for trial under Adv. No. 07-
060 (Docket Entry No. 63);
AND, the Plaintiff having asserted a number of different claims against the Defendants,
see Order dated March 17, 2008 (Docket Entry No. 242) & accompanying oral bench opinion
(Docket Entry No. 241);
AND, all but two (2) of the Plaintiff’s claims having been settled or dismissed on
summary judgment prior to trial; 1
For a relatively comprehensive summary of the procedural history of this proceeding, see1
In re Olick, 2008 WL 3837759, at *2-4 (Bankr. E.D. Pa. Aug. 12, 2008); see also In re Olick, 398 B.R.
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AND, trial of this adversary proceeding having been concluded on December 22, 2008;
AND, post-trial memoranda having been submitted, with the final submission having
been filed on May 4, 2009 (Docket Entry No. 375);
AND, the court presently holding under advisement the two (2) remaining claims;
* 	* 	* 	*
AND, the Plaintiff having filed a Notice of Appeal docketed on May 14, 2009 (“the
Notice of Appeal”) (Docket Entry No. 378);
AND, the Notice of Appeal stating that the Plaintiff was appealing this court’s orders of:
3/17/08 (Docket Entry No. 242);
5/21/08 (Docket Entry No. 270);
6/3/08 (Docket Entry No. 287);
10/2/08 (Docket Entry No. 344); and
12/22/08 (Docket Entry No. 364);
AND, it being unclear to what order the Plaintiff seeks to appeal in referencing “the
Court’s Order[] of 12/22/08,” in the Notice of Appeal, as the docket does not reflect the entry of
any order dated or docketed on that date;2
532 (Bankr. E.D. Pa. 2008) (denying reconsideration of pretrial Order dismissing of one of the Plaintiff’s
claims).
The only docket entry on 12/22/08 states:2
“12/22/2008 ................ 364 ........... Trial Hearing Held and concluded. Matter
taken under advisement. (related document(s), 363 , 347 ). (D., Stacey) (Entered:
12/23/2008).”
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AND, all of the other Orders referenced in the Notice of Appeal being pretrial Orders
dismissing or otherwise related to the process that culminated in the dismissal of certain claims
raised by the Plaintiff in the complaints;
* 	* 	* 	*
AND, subject to exceptions not applicable here, the district court only having subject
matter jurisdiction to hear appeals of final judgments, orders and decrees of the bankruptcy court,
see 28 U.S.C. §158(a);
AND, the general rule being that an order that terminates fewer than all claims, or claims
against fewer than all parties, does not constitute a “final” order for purposes of appeal; see, e.g.,
Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 140 (3d Cir. 2001) (stating principle in
connection with 28 U.S.C. §1291(a)); see also Hill v. City of Scranton, 411 F.3d 118, 124 (3d
Cir. 2005) (absent entry of a final judgment under Fed. R. Civ. P. 54(b), court of appeals lacks
subject matter jurisdiction under 28 U.S.C. §1291(a) over appeal from trial court order that does
not dispose of all the claims against all the parties); 15A Charles Alan Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice & Procedure: Jurisdiction and Related Matters §§3914.6,
3914.7 (West 2009);
AND, at no time this court having directed the entry of a “final judgment” within the
meaning of Fed. R. Civ. P. 54(b) with respect to any of the claims that were dismissed prior to
trial; 3
Fed. R. Civ. P. 54, incorporated by reference in this proceeding by Fed. R. Bankr.3
P.7054, provides:
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AND, because the orders referenced in the Notice of Appeal are not final orders, there
appearing to be no legal basis for the Plaintiff to invoke the appellate jurisdiction of the district
court;
* 	* 	* 	*
AND, the Plaintiff having filed a Motion for Leave to Appeal In Forma Pauperis (“the
IFP Motion”) in connection with the Notice of Appeal on May 15, 2009 (Docket Entry No. 380);
AND, the court having held an hearing on the IFP Motion on May 27, 2009, at which
time the Plaintiff offered evidence regarding his indigency and argument in support of the IFP
Motion;
AND, one of the requirements which must be met before the court may grant a motion
seeking leave to proceed on appeal in forma pauperis is that the appeal be filed in good faith, see
Coppedge v. United States, 369 U.S. 438, 444 (1962); In re Smith, 1989 WL 4028, at *3 (Bankr.
E.D. Pa. 1989);
AND, the court concluding that the Notice of Appeal was not filed in good faith due to
the obvious the lack of appellate jurisdiction, see In re Smith,at *3 (frivolous appeal is not in
When an action presents more than one claim for relief--whether as a claim,
counterclaim, crossclaim, or third-party claim--or when multiple parties are
involved, the 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. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities
of fewer than all the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights and liabilities.
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good faith);4
AND, therefore, the court concluding that the IFP Motion should be denied, see, e.g.,
Tate v. Frank, 2008 WL 410654 (E.D. Wis. Feb. 12, 2008); Salerno v. Michigan, 2007 WL
1594868 (W.D. Mich. June 1, 2007);
It is hereby ORDERED that
1. 	The IFP Motion is DENIED.
2. 	On or before June 12, 2009, the Plaintiff shall pay the filing fee for the Notice of Appeal filed on
May 14, 2009.
Date: 	May 28, 2009
ERIC L. FRANK
U.S. BANKRUPTCY JUDGE
cc: Thomas W . Olick
4014 Crestview Avenue
Easton, PA 18045
The Plaintiff’s stated motivation for filing the appeal also contributes to my conclusion4
that the appeal was not filed in good faith. At the hearing on the IFP Motion, the Plaintiff explained that
he was aware that he could appeal the pretrial dismissal of claims after the disposition of the two (2)
remaining claims that went to trial and that presently are under advisement. However, he stated that
throughout this proceeding he has not promptly received the mailed copies of court orders. Accordingly,
he expressed a concern that he might not receive the order determining the remaining claims in this
proceeding, thereby creating a risk that he will miss his opportunity to file a timely appeal – or at least
that his time frame for filing a timely appeal will be significantly reduced, thereby causing him undue
anxiety and expense.
The justification offered by the Plaintiff for filing this appeal of interlocutory orders is
deficient. First, I do not credit the Plaintiff’s statement that he does not promptly receive copies of court
orders. Not only has the Clerk served him with a copy of every Order entered in this proceeding, but, in
addition, my chambers regularly mails the Plaintiff separate copies of every Order entered, no later than
the day after the date of the Order. Second, his explanation is an admission that he is aware that the
appeal is premature and that he is simply placing his own convenience ahead of the rules of finality that
have been established by Congress (through 28 U.S.C. §158(a)) and the Supreme Court (through Rule
54(b)).
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