Filed: Mar. 26, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 3-26-2004 In Re: Woskob Precedential or Non-Precedential: Non-Precedential Docket No. 03-2179 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "In Re: Woskob " (2004). 2004 Decisions. Paper 910. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/910 This decision is brought to you for free and open access by the Opinions of the United State
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 3-26-2004 In Re: Woskob Precedential or Non-Precedential: Non-Precedential Docket No. 03-2179 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "In Re: Woskob " (2004). 2004 Decisions. Paper 910. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/910 This decision is brought to you for free and open access by the Opinions of the United States..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
3-26-2004
In Re: Woskob
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2179
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"In Re: Woskob " (2004). 2004 Decisions. Paper 910.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/910
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-2179
___________
IN RE: LEAH BETH WOSKOB,
Debtor
V.W. BUILDING & DESIGN INC; THE ESTATE OF VICTOR WOSKOB,
Appellants
v.
LEAH BETH WOSKOB
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 02-cv-00380)
District Judge: The Honorable James F. McClure, Jr.
___________
Submitted Under Third Circuit LAR 34.1(a)
March 11, 2004
BEFORE: SLOVITER and NYGAARD, Circuit Judges.
and SHADUR,* District Judge.
(Filed: March 26, 2004)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
V.W. Building & Design, Inc. and the Estate of Victor Woskob
(collectively “V.W.”) appeal the District Court’s decision affirming the Bankruptcy
Court’s denial of their motion for an extension of time to file a notice of appeal and
dismissing their appeal of the Bankruptcy Court’s Order and Opinion in favor of Leah
Beth Woskob (“Woskob”). We have jurisdiction under 28 U.S.C. § 158(d) and will
affirm.
I.
The facts of this matter are well known to the parties and we will recount
them only briefly. On June 16, 1999, Woskob filed for bankruptcy under Chapter 11 of
the United States Bankruptcy Code. W ithin that bankruptcy proceeding, V.W.
commenced an adversary proceeding against Woskob seeking a declaration that Woskob
had no ownership rights in V.W. Building & Design. After a hearing, the Bankruptcy
* Honorable Milton I. Shadur, Senior District Judge for the United States
District Court for the Northern District of Illinois, sitting by designation.
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Court issued a Memorandum Opinion and Order in favor of Woskob. That order was
filed and dated December 27, 2001.
According to V.W., the December 27 order did not arrive at its attorney’s
office until January 2, 2002. V.W.’s attorney claims he did not actually see the order until
January 7, the day he returned from an overseas vacation. The period within which V.W.
could appeal the order to the District Court ended on January 7. On January 15, V.W.’s
counsel filed a notice of appeal of the Bankruptcy Court’s order, together with a motion
for an extension of time to file such an appeal. The Bankruptcy Court denied V.W.’s
motion for an extension of time and the District Court affirmed that denial and dismissed
V.W .’s appeal for lack of jurisdiction.
II.
We review the District Court’s decision not to extend the deadline for
filling a notice of appeal under an abuse of discretion standard. In re Cendant Corp.
Prides Litigation, 233 F.3d 188, 192 (3d Cir. 2000).
III.
Federal Rule of Bankruptcy Procedure 8002(c)(2) (“Rule 8002(c)(2)”)
provides that a request for an extension of time to file a notice of appeal
must be made by written motion filed before the time for filing a notice of
appeal has expired, except that such a motion filed not later than 20 days
after the expiration of the time for filing a notice of appeal may be granted
upon a showing of excusable neglect.
3
Thus, the key issue in determining whether V.W. was entitled to an extension of time is
whether it made a showing of “excusable neglect.” In Pioneer Investment Services
Company v. Brunswick Associates Limited Partnership, the Supreme Court identified
four factors that courts should consider to determine if a party has shown excusable
neglect.1 507 U.S. 380, 395 (1993). The District Court found that V.W. satisfied three of
the Pioneer factors, but that the fourth factor, the reason for the delay in filing the notice
of appeal, did not weigh in favor of granting V.W. an extension of time. It is this
conclusion that is central to this appeal.
V.W. claims it did not file a timely notice of appeal because its attorney,
who saw the December 27 order for the first time on January 7, was confused as to the
date the notice of appeal had to be filed. V.W. further claims that this confusion was
excusable because its attorney had just returned from an overseas vacation and was
scheduled to present an oral argument before this Court in a separate matter on January 7.
Finally, according to V.W., the required presence of its attorney in Philadelphia to argue
1. W e note that in Pioneer, the S uprem e C ourt was interpreting the “excusable
neglect” standard under Rule 9006(b)(1) of the Federal Rules of Bankruptcy
Pro cedure (“Rule 9006(b)(1)”). Pioneer, 507 U.S. at 388. W oskob argues that
Pioneer’s interpretation of excusable neglect under R ule 9006(b)(1) is not applicable
under Rule 8002(c)(2). Instead, W oskob suggests that a more stringent standard must
be used under R ule 8002(c)(2) because it is jurisdictional. W e need not reach this
issue because even under the m ore lenient Pioneer standard, the District Court did not
abuse its discretion in finding that V.W. did not make a sufficient showing of
excusable neglect.
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before this Court on January 7 made it impracticable for him to file a notice of appeal in
Harrisburg on that same day.
The District Court did not abuse its discretion by concluding that V.W.’s
attorney’s miscalculation of the appropriate notice of appeal deadline was not excusable
neglect. V.W.’s attorney received the December 27 order in time to file a timely notice of
appeal and failed to do so only because he mistakenly believed such a notice was not due
until January 16. Finding that this reason is insufficient to constitute excusable neglect
was not an abuse of the District Court’s discretion, and V.W. has not presented any
evidence that convinces us otherwise. We will therefore affirm the District Court’s order
affirming the Bankruptcy Court’s denial of V.W.’s motion for an extension of time, and
dismissing V.W.’s appeal of the Bankruptcy Court’s December 27 order.2
2. V.W . also argues that w e should reach the merits of the Bankruptcy C ourt’s
order because that order results in a “m anifest miscarriage of justice.” A ppellant’s B r.
at 18. Absent an extension of time, however, V.W. failed to properly appeal the
Bankruptcy Court’s order and we are without jurisdiction to reach the merits of that
order. Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997). But in
light of V.W .’s argument, we are constrained to note the high hurdle that would have
to be surmounted to label the Bankruptcy Court’s weighing of the conflicting evidence
before it as “clear error.” In re Engel,
124 F.3d 567, 571 (3d C ir. 1997).
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