                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"In Re: Woskob " (2004). 2004 Decisions. Paper 910.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/910


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                                                     NOT PRECEDENTIAL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.

                                             2
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.

                                               4
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).

                                              5
