                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2008

In Re: Bricker
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3849




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Recommended Citation
"In Re: Bricker " (2008). 2008 Decisions. Paper 1577.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1577


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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 06-3849
                                      ___________


     IN RE: KENNETH G. BRICKER; ELLEN BRICKER; PAMELA J. MEIER;
                JOSEPH J. MEIER; ADELINE J. HUFFMAN;
               RICHARD F. MONNING; LINDA B. MONNING,

                                       Appellants

                                            v.

                                 THOMAS L. MARTIN

                                      ___________


                    On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                               (D.C. Civil No. 04-cv-01491)
                  District Judge: The Honorable Thomas M. Hardiman

                                      ___________

                             ARGUED OCTOBER 31, 2007

  Before: RENDELL and NYGAARD, Circuit Judges, and McCLURE,* District Judge.


                               (Filed: February 20, 2008)




       *Honorable James F. McClure, Jr., District Judge for the United States District
Court for the Middle District of Pennsylvania, sitting by designation.
Peter V. Marcoline, Jr., Esq. (Argued)
245 Fort Pitt Boulevard, 3 rd Floor
Pittsburgh, PA 15222
                     Counsel for Appellants

Francis C. Sichko, Esq. (Argued)
6 South Main Street
630 Washington Trust Building
Washington, PA 15301
                    Counsel for Appellee

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

       Because our opinion is wholly without precedential value, and because the parties

and the District Court are familiar with its operative facts, we offer only an abbreviated

recitation to explain why we will affirm the decision of the District Court.

       Kenneth Bricker, along with Ellen Bricker, Pamela J. Meier, Joseph Meier,

Adeline J. Huffman, Richard F. Monning, and Linda Monning were investors duped into

a scheme in which debtor and defendant Thomas Martin was allegedly an operative. The

investors were led to believe that their investment provided capital to a venture that

purchased used railroad equipment and resold it to other railroads. When the scheme

collapsed, exposing the sham, the investors sued Mr. Martin in state court on a number of

claims including, inter alia, fraud and securities charges. Shortly after, Mr. Martin filed




                                              2
bankruptcy. The investors filed a complaint to determine dischargeability of their fraud

and unregistered securities claims.

       The court discharged the fraud claims, but abstained from adjudicating the claim

focusing on the sale of unregistered securities. The investors appealed, claiming that the

Bankruptcy Court erred by discharging the fraud claims and erred by sua sponte granting

relief from stay regarding the unregistered security claim. Alternately, the investors

claimed that the District Court erred by affirming the Bankruptcy Court’s abstention from

adjudicating the unregistered securities claim. All of the investors’ arguments lack merit.

       First, we do not agree with the investors that the Bankruptcy Court exceeded its

authority when it acted sua sponte with regard to the unregistered securities claim. The

District Court upheld the Bankruptcy Court’s abstention on this claim. The Bankruptcy

Court may permissively abstain sua sponte. See Gober v. Terra + Corp., 100 F.3d 1195,

1207 n.10 (5th Cir. 1996). Moreover, we do not have jurisdiction to examine the District

Court’s review of the Bankruptcy Court’s abstention. 28 USCA 1334(d).1




       1.
          “Any decision to abstain or not to abstain made under subsection (c) (other than a
decision not to abstain in a proceeding described in subsection (c)(2)) is not reviewable
by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of this
title or by the Supreme Court of the United States under section 1254 of this title.
Subsection (c) and this subsection shall not be construed to limit the applicability of the
stay provided for by section 362 of title 11, United States Code, as such section applies to
an action affecting the property of the estate in bankruptcy.” 28 U.S.C.A. § 1334(d).


                                             3
       Additionally, we do not find any merit in the investors’ argument that the District

Court erred by affirming the Bankruptcy Court’s discharge of the fraud claims. We agree

with the District Court that the Bankruptcy Court did not make a factual or legal error in

finding that the investors failed to meet their burden of proving that Mr. Martin

knowingly made false representations.




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