JEFFERY A. DELLER, Bankruptcy Judge.
The matter before the Court is a Motion for Judgment on the Pleadings filed by the Defendant, the Pennsylvania Department of Revenue (the "Department"), pursuant to a Complaint to Determine Tax Liability filed by the Plaintiff, Mon View Mining Company (the "Debtor"). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. The matter is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A) and (B). Venue is proper
The lead bankruptcy case under which this adversary action arises, Case No. 05-50219-JAD (the "Lead Bankruptcy Case"), was commenced by the filing of a voluntary petition under Chapter 11 of the United States Bankruptcy Code on November 22, 2005. A declaration signed by John W. Hatch, the President of the Debtor, was attached to the petition, declaring under penalty of perjury that the information contained in the schedules (the "Bankruptcy Schedules") was true and correct. (See Case No. 05-50219-JAD, Doc. #17).
On January 3, 2012, the official Committee of Unsecured Creditors filed its Second Amended Chapter 11 Plan (the "Plan") and Second Amended Disclosure Statement (the "Disclosure Statement"). (See Docs. #1308, #1310). This Court entered an Order Confirming the Chapter 11 Plan of the Official Committee of Unsecured Creditors (the "Order Confirming the Plan") on April 25, 2012. (See Doc. #1348).
While in bankruptcy, the Debtor began efforts to effectuate a sale of its property and mineral rights located in Washington County, Pennsylvania. On May 14, 2008, after a sale hearing was held on May 9, 2008, this Court entered an Order Authorizing Public Sale Auction of Real and Personal Property (the "Order Authorizing Sale") on May 16, 2008 (See Doc. #556), which confirmed "on the recommendation of the Movant (Debtor's counsel)" the sale of all the Debtor's real and personal property to CRG Energy, Inc. ("CRG") for a sales price of $25,000,000. The sale (the "2008 Sale") was subject to a secured promissory note (the "Note") requiring $1,000,000 payable at the closing and $2,000,000 payable 90 and 180 days from the date of closing, and the balance of $20,000,000 payable over ten years in equal monthly installments. (See Id.) An asset purchase agreement (the "Asset Purchase Agreement") was filed the same day. (See Doc. #557). On or about July 30, 2008, CRG assigned its right to its affiliate, Coal Financing, LLC ("Coal"). (See Doc. #806).
As a result of the 2008 Sale, on August 4, 2008, two deeds (one for the surface tracts and one for the coal tracts) were recorded in Washington County. State and local realty transfer taxes totaling $219,621.95 were paid upon their recording. (See Case No. 12-02068-JAD, Doc. #32, Exhibit 1). State and local realty transfer taxes were not paid on the $25,000,000 sales price, but rather on
Subsequently, Coal and CRG defaulted on the payment obligations under the Asset Purchase Agreement and Note (See Doc. #506; Case No. 08-02557-JAD, Doc. #1), prompting the Debtor to file a Complaint in Confession of Judgment against Coal and CRG in Adversary Case No. 08-02557 (See Case No. 08-02557-JAD, Doc. #1). This Court entered a judgment against Coal and CRG for $25,300,000 on November 25, 2008 (See Case No. 08-02557-JAD, Doc. #3), which the Debtor later entered against Coal and CRG in District Court at Case No. 09-00134 (See Case No. 09-00134-DWA, Doc. #1). The Debtor filed a Motion to Schedule Execution Sale, which the District Court granted on June 8, 2009. (See Case No. 09-00134-DWA, Docs. #4, #6). Pursuant to these actions, a U.S. Marshall executed a deed conveying the property back to the Debtor.
The Debtor filed a Motion to Sell Real Property on December 8, 2009, which this Court granted on May 10, 2010. (See Docs. #984, #1134). The District Court issued an Order Approving Sale on June 17, 2010 (See Doc. #1177), and the assets were then sold to A.T. Massey Coal Company, Inc. ("Massey") and Canestrale Environmental Control Corporation ("Canestrale").
On June 3, 2009, the Department filed an administrative claim in the Lead Bankruptcy Case.
On February 12, 2012, the Debtor filed a Complaint to Determine Tax Liability
The Department filed a Motion to Dismiss based on several grounds (See Doc. #5), as did the United States (See Doc. #8). Subsequently, the Debtor, through responsive pleadings and at a hearing on April 24, 2012, began modifying its prayer for relief.
The Debtor filed an Amended Complaint to Determine Tax Liability on May 15, 2012, seeking "to eliminate any additional transfer tax obligation of the sale to CRG and to object to the administrative claim of the [Department] for real estate transfer taxes." (See Doc. #24, ¶ 25). The Debtor asserts that "[t]he real estate taxes paid at closing (based on a Realty Transfer Tax Statement of Value for Real Estate of $10,791,170) represented the fair market value of the real estate in the transaction" and that "no additional transfer taxes ... are due." (See Id. at ¶¶ 19, 23).
The Department filed a Motion for Judgment on the Pleadings on June 27, 2012, alleging in its Memorandum that the Debtor does not have a cause of action against the Department upon which relief may be granted, that the Debtor is judicially estopped from arguing that the value of the property is $10,791,170, and that the Debtor is collaterally estopped from re-alleging the fraud arguments it made in its initial Complaint. (See Doc. #35, pp. 20, 48-49).
The Debtor filed a Response to the Motion for Judgment on the Pleadings on July 23, 2012, averring that material facts are in dispute, specifically in regards to the value of the property. (See Doc. #43). The Debtor believes approximately $13,000,000 of the sales price was paid in exchange for personal property and requests that realty transfer taxes be paid only on the value of the transferred real estate. (Id.) The Department filed a Response to the Response on July 27, 2012 (See Doc. #44), and a hearing was held on July 31, 2012. The matter is now ripe for discussion.
After pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings. See Fed.R.Civ.P. 12(c) (applicable in bankruptcy
A motion for judgment on the pleadings will not be granted "unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 290 (3d Cir.1988), quoting Society Hill Civic Association v. Harris, 632 F.2d 1045, 1054 (3d Cir.1980). In considering a motion for judgment on the pleadings, courts are required to "view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Jablonski, 863 F.2d at 290-91, quoting Society Hill Civic Association, 632 F.2d at 1054.
The issue before the Court is whether, under a reasonable reading of the pleadings, the Debtor has sufficiently set out a claim upon which relief can be granted. As set forth more fully below, because a material issue of fact remains, and because the Debtor is entitled to offer evidence to support its claims, the Debtor has sufficiently set out a claim upon which relief can be granted, and the Department's Motion for Judgment on the Pleadings must be denied.
The Debtor avers that there is a material dispute as to the value of the realty and personalty transferred in the 2008 Sale. Arguing that a substantial amount of the purchase price of the 2008 Sale was allocated to personal property, which is not subject to realty transfer taxes, the Debtor asserts that its realty transfer tax liability should be based only on the computed value of the real estate as set forth in the Asset Purchase Agreement, or $10,791.170. Because the Debtor already paid realty transfer taxes on the computed value, the Debtor argues that no additional realty transfer tax is due to the Department, and the Department's Administrative Proof of Claim is based on an incorrect value. (See Doc. #26, p. 25, Doc. #32, Exhibit 7).
In response, the Department avers they are required by statute to use the $25,000,000 sales price as the value for realty transfer tax purposes. (See Doc. #35, Attachment 1, Memorandum of Law, pp. 4-5). The Pennsylvania Realty Transfer Tax Act provides that "[e]very person who ... presents for recording any document ..., shall be subject to pay for and in respect to the transaction ..., a State tax at the rate of one per cent of the value of the real estate represented by such document ..." 72 Pa. Stat. Ann. § 8101-C. The statute defines "document" as "[a]ny deed, ... or writing which conveys, transfers, ..., or evidences any transfer of title to real estate," and "real estate" as "[a]ny lands ... within this Commonwealth, including, without limitation, buildings, structures, fixtures, mines, minerals, oil, gas, quarries, ..., trees and other improvements, immovable or interests which by custom, usage or law pass
Id. "Bona fide sales transaction" is defined as "[a] transfer between a buyer, willing but not obligated to buy, and a seller, willing but not obligated to sell, each acting with adverse economic interests at arm's length in his own self-interest and with knowledge of the value of the realty transferred." 61 Pa.Code § 91.131.
The Department argues that because the sale was bona fide, the value is the "amount of the actual consideration therefor, paid or to be paid." 72 Pa. Stat. Ann. § 8101-C. However, the Department admitted at the July 31, 2012 hearing on this matter that, while there is a "presumption of correctness" of the Department's assessment, that presumption can be rebutted. (See Audio Recording of Hearing Held in Courtroom D, July 31, 2012 (11:31 AM)). The Department also asserted in the hearing that an allocation schedule may be used as the basis of the realty transfer tax assessment, if this allocation can be supported by additional evidence. (See id. at (11:23-11:24 AM); See also Case No. 05-50219, Doc. #998, ¶ 38, § b). According to the Department, the Debtor failed to respond to several requests for this supporting documentation, and as such, the Department assessed its realty tax pursuant to the statute, using the entire purchase price as the basis. (See Doc. #998, ¶ 37, §§ f, g).
Notwithstanding its failure to provide additional information at the Department's request, the Debtor argues that the Department must consider the large amount of personal property that was transferred in the sale, including "coal fines, gob pile and equipment," which the Debtor avers accounted for approximately $13,000,000 of the $25,000,000 sales price. (See Doc. #43, ¶ 2).
The Department asserts that the full purchase value of the 2008 Sale is subject to the realty transfer tax, while the Debtor argues that a significant portion of the property transferred in the 2008 Sale was personal property and not subject to the realty transfer tax. Thus, a material fact regarding the value of the real and personal property transferred in the 2008 Sale is still in dispute.
Although a material fact remains in dispute, the Department alleges that the Debtor is judicially estopped from offering evidence to support its claims that personal property was transferred in the 2008 Sale, and thus, the Motion for Judgment on the Pleadings should be granted. An estoppel defense can be pleaded affirmatively and determined on a pretrial motion for judgment on the pleadings. See Blonder-Tongue Laboratories, Inc. v. University of Illinois, 402 U.S. 313, 91 S.Ct. 1434, 1452, 28 L.Ed.2d 788 (1971).
Under the doctrine of judicial estoppel, "where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may
While a court's decision to apply judicial estoppel is not subject to "inflexible prerequisites or an exhaustive formula," New Hampshire v. Maine, 532 U.S. at 751, 121 S.Ct. 1808, Supreme Court *and Third Circuit) precedent establishes that some aggravating factor, and not mere inconsistency, is necessary for the application of judicial estoppel. Chao v. Roy's Const., Inc., 517 F.3d 180, 186, n. 5 (3d Cir.2008). The Supreme Court has identified several factors to consider when determining whether to apply judicial estoppel, including whether a party adopted inconsistent positions, whether the party succeeded in persuading a court to accept that party's earlier position, and whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. New Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. 1808.
Cases emanating from the Third Circuit Court of Appeals require three elements to be met before a court may apply judicial estoppel:
Montrose Medical Group Participating Savings Plan v. Bulger, 243 F.3d 773, 777-78 (2001). The Montrose court, guided by Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), held "that a party has not displayed bad faith for judicial estoppel purposes if the initial claim was never accepted or adopted by a court or agency." Id. at 778.
The Department alleges that the Debtor's confession of judgment, the Debtor's support for a $25,000,000 sales price for the 2008 Sale, and the Debtor's Bankruptcy Schedules are all inconsistent with the Debtor's current position that the value of real estate transferred in the 2008 Sale is $10,791,170. However, "mere inconsistency" alone cannot support the invocation of judicial estoppel. See Chao v. Roy's Const., Inc., 517 F.3d at 186. Because no court or agency ever accepted or adopted any prior position regarding asset valuation proposed by the Debtor, this Court finds that judicial estoppel cannot apply.
Similarly, the Department cites the Debtor's support for a $25,000,000 bid for the 2008 Sale as an additional reason for this Court to invoke judicial estoppel. (See id. at p. 49). However, in endorsing the $25,000,000 sale price, the Debtor never asserted or adopted any valuation of personalty or realty which was adopted or accepted by a court or agency. Furthermore, the resulting Order Approving Sale also does not assert or adopt any asset valuation. Thus, neither supports the Department's argument that a court or agency accepted or adopted a prior inconsistent position of the Debtor regarding valuation.
Lastly, the Department asserts that this Court should invoke judicial estoppel because the Debtor's Bankruptcy Schedules, which identified $22,000,000 of real property and $2,001,883 of personal property, are inconsistent with the Debtor's current assertion that approximately $13,000,000 of personal property was transferred in the 2008 Sale.
In support of this argument, the Department directs the Court's attention to Stroh v. Grant (In re Stroh), 34 Fed.Appx. 562 (9th Cir.2002), which held that a Chapter 7 debtor's claims to prepetition and postpetition earnings from an alleged partnership were barred by the doctrine of judicial estoppel, because the debtor specifically declared in his bankruptcy schedules that he had no partnership interests. The instant matter is clearly distinguishable from Stroh, as it involves a valuation of assets, not an omission of a claim. The Department has failed to prove to this Court, or to provide any supporting case law, that any binding effect should be afforded to a valuation included in the Debtor's Bankruptcy Schedules.
The Department has also failed to show how a court or agency has "adopted" the valuations contained in the Debtor's Bankruptcy Schedules. The Bankruptcy Schedules were filed in December of 2005, and the Order Confirming the Plan was entered in April of 2012. The Order Confirming the Plan, the Plan and the Disclosure Statement do not refer to the valuations in the Bankruptcy Schedules, nor do they refer to the 2008 Sale; rather, they all refer to the subsequent sale of the Debtor's assets to Massey and Canestrale in August of 2010. (See Case No. 05-50219-JAD: Doc. #1384, ¶ 17; Doc. #1308, Article 1. 11, Article 4.1(a)-(f); Doc. #1310, Article I, § 6(b)-(f), Article IV). Thus, the Plan does not "accept" the $22,000,000 real estate valuation included in the Debtor's Schedule A, and no court or agency has otherwise "accepted" the asset valuations in the Bankruptcy Schedules.
Furthermore, "application of the doctrine of judicial estoppel as applied to estimates of value in a bankruptcy is considered with a different, more relaxed, view." Kasbee v. Huntington National Bank (In re Kasbee), 466 B.R. 719, 726 (Bankr.W.D.Pa.2010). "It is well settled that `estimates of value made during bankruptcy
Thus, because no court or agency has "accepted or adopted" the Debtor's prior positions regarding valuation, this Court cannot apply the doctrine of judicial estoppel.
The Department also argues that the Debtor is "collaterally estopped from re[-]alleging fraud as the Court dismissed the [Debtor's] first Complaint based on the Department's [M]otion to [D]ismiss which averred the invalidity of the Debtor's fraudulent arguments." (See Doc. #35, Attachment 1, p. 4) (italics added).
The doctrine of collateral estoppel bars an action when the foundation upon which the claims rest has already been litigated. CoreStates Bank, N.A. v. Huls America, Inc., 176 F.3d 187 (3d Cir. 1999). Pursuant to this doctrine, "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir.2006) (quoting Restatement (Second) of Judgments § 27 (1982)). Thus, collateral estoppel "does not automatically bar a subsequent prosecution, but rather, it bars redetermination in a second prosecution of those issues necessarily determined between the parties in a first proceeding that has become a final judgment." Com. v. Holder, 569 Pa. 474, 480, 805 A.2d 499, 502 (2002), citing Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246, 251 (1988).
Under Pennsylvania law, collateral estoppel applies if the following elements are present:
R & R Capital LLC v. Merritt, 426 Fed. Appx. 85, 89 (3d Cir.2011) cert. denied, ___ U.S. ___, 132 S.Ct. 763, 181 L.Ed.2d 484 (2011), citing Rue v. K-Mart Corp., 552 Pa. 13, 713 A.2d 82, 84 (1998).
The Debtor is not collaterally estopped from alleging fraud because the original Complaint was dismissed without prejudice, and therefore did not result in a final judgment on the merits. "Generally, an order which dismisses a complaint without prejudice is neither final nor appealable because the deficiency may be corrected by the plaintiff without affecting the cause of action. Only if the plaintiff cannot amend or declares his intention to stand on his complaint does the order become final and appealable." Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir.1976). Because the Debtor's original Complaint against the Department was dismissed without prejudice with the specific intent of allowing the Debtor to amend its Complaint, there was no "final judgment on the merits" to substantiate the application of collateral estoppel to the Debtor's fraud claims.
The doctrine of collateral estoppel would also not bar the Debtor from offering evidence to support any claims regarding the valuation of the personal property transferred
The Department's Motion for Judgment on the Pleadings is denied. The Debtor is entitled to produce evidence to this Court to support its argument that personal property was transferred in the 2008 Sale and the realty transfer tax assessment should not be based on a real property value of $25,000,000. An appropriate Order shall be entered.
This 28th day of September 2012, for the reasons stated in the Memorandum Opinion issued herewith, this Court hereby ORDERS, ADJUDGES and DECREES that the Pennsylvania Department of Revenue's Motion for Judgment on the Pleadings is DENIED.
