                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-2009

Michael Radogna v. Williams Twp
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2358




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                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 08-2358
                                  ___________

                         In re: YOLANDA RADOGNA,
                                                           Debtor

                           MICHAEL A. RADOGNA,
                                                           Appellant
                                        v.

           WILLIAMS TOWNSHIP; WILLIAMS TOWNSHIP
      BOARD OF SUPERVISORS; SALLY HIXSON; ROBERT DOERR,
       FRED MEBUS; RICHARD ADAMS; BRIAN M.P. MONAHAN

                   ____________________________________

                 On Appeal From the United States District Court
                     For the Eastern District of Pennsylvania
                            (D.C. Civ. No. 07-cv-04536)
                  District Judge: Honorable Thomas M. Golden
                 _______________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                                May 18, 2009
             Before: BARRY, SMITH and GARTH, Circuit Judges


                         (Opinion Filed: May 21, 2009)
                                  _________

                                    OPINION
                                   _________

PER CURIAM

    Michael A. Radogna appeals pro se from an order of the District Court affirming
the Bankruptcy Court’s dismissal of an adversary complaint. We will affirm.

                                             I.

       Radogna’s mother, Yolanda Radogna, filed for Chapter 13 bankruptcy protection

in 2001. (Bankr. E.D. Pa. No. 01-24118.) The Bankruptcy Court entered an order

confirming her Chapter 13 plan in 2002. Radogna’s mother died in January 2007. On

August 27, 2007, the Trustee filed his final report stating that the bankruptcy estate had

been fully administered and requesting an order of discharge. The Bankruptcy Court

discharged the estate by order entered September 19, 2007.

       On August 30—after the Trustee filed his final report, but before the Bankruptcy

Court discharged his mother’s estate—Radogna filed an adversary complaint against

Williams Township and certain of its employees. (Bankr. E.D. Pa. No. 07-2078.)

Radogna purported to file the complaint on his mother’s behalf under a power of attorney,

and also asserted claims personal to him. According to Radogna, a Township zoning

officer “trespassed” on his property (which had belonged to his mother) and told him that

he required a grading permit, apparently for construction being done at the property.

Thereafter, the Township issued to Radogna a “stop work” order and three citations for

zoning ordinance violations. These events occurred in April 2007. Radogna also alleges

that Township employees improperly responded to an informational request he made in

connection with these proceedings. He claims that these actions violated the automatic

bankruptcy stay, 11 U.S.C. § 362, and his own constitutional rights to privacy and due



                                             2
process.1

       By order entered September 24, 2007, the Bankruptcy Court dismissed Radogna’s

complaint on the grounds that he was not authorized to represent his mother’s estate pro

se and gave him leave to re-file the complaint through legal counsel. Radogna appealed

to the District Court, which affirmed on the same ground by order entered April 10, 2008.

Radogna now appeals to us.2

                                            II.

       Radogna’s complaint alleges that defendants’ actions both violated the automatic

stay in his mother’s bankruptcy and violated his own constitutional rights. The

Bankruptcy Court dismissed his entire complaint on the grounds that he was not

authorized to represent his mother pro se. We agree with that ruling, and agree that it




  1
    Before filing his complaint, Radogna filed a notice of removal purporting to remove
the zoning citations to federal court. A District Judge summarily remanded the matter,
see Commonwealth of Pa. v. Radogna, E.D. Pa. Civ. No. 07-cv-03027, and Radogna filed
his complaint shortly thereafter.
  2
   The District Court had appellate jurisdiction pursuant to 28 U.S.C. § 158(a), and we
have appellate jurisdiction pursuant to 28 U.S.C. §§ 158(d) and 1291. The dismissal of
Radogna’s complaint technically was without prejudice because both the Bankruptcy
Court and District Court gave him leave to re-file it through counsel, but both courts’
orders effectively are final because Radogna has stood on his purported right to proceed
with the complaint pro se. See Borelli v. City of Reading, 532 F.3d 950, 951-52 (3d Cir.
1976). “Our review of the District Court’s ruling in its capacity as an appellate court is
plenary, and we review the bankruptcy judge’s legal determinations de novo.” In re
Mullarkey, 536 F.3d 215, 220 (3d Cir. 2008).

                                             3
required the dismissal of the complaint insofar as it sought to enforce the automatic stay.3

       Federal courts, including ours, “have routinely adhered to the general rule

prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative

capacity.” Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008) (collecting

cases). See also Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir. 1991)

(holding that parent and guardian could not litigate pro se on behalf of his children).

Radogna’s power of attorney may have conferred certain decision-making rights under

state law, but it does not allow him to litigate pro se on behalf of his mother in federal

court. See Powerserve Int’l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001).4

       Radogna also lacked standing to enforce the automatic stay on his own behalf. He

appears to argue, as he argued for the first time in the District Court, that he may assert a

violation of the automatic stay because he is a “co-debtor” with his mother. But Radogna

was not a co-debtor in his mother’s bankruptcy. The Chapter 13 petition bears her name



  3
   We note, without deciding the issue, that the Williams Township zoning citations may
not have been subject to the automatic stay in the first place. See In re Mystic Tank Lines
Corp., 544 F.3d 524, 526-27 (3d Cir. 2008) (discussing “police and regulatory power”
exception to automatic stay under 11 U.S.C. § 362(b)(4)).
  4
    Both the Bankruptcy Court and District Court opined that Radogna was practicing or
attempting to practice law without a license in violation of state law. Radogna takes issue
with those statements and appears to argue that the District Court erred in failing
conclusively to resolve that issue. That issue, however, was not before the Bankruptcy
Court or the District Court and is not before us. Like the Bankruptcy Court and District
Court, we decide merely that Radogna’s power of attorney did not permit him to litigate
pro se on behalf of his mother in federal court as a matter of federal law. The statements
below regarding the unauthorized practice of law were surplusage.

                                              4
only, and she remained the only debtor in the Bankruptcy Court from the time she filed

her petition until the time her estate was discharged. Nor does Radogna’s potential status

as a “co-debtor” with his mother in some other capacity (which he does not assert) confer

standing to enforce the automatic stay. See In re New Era, Inc., 135 F.3d 1206, 1210 (7th

Cir. 1998) (“[T]he stay is for the protection of the debtor and its creditors.”); Winters v.

George Mason Bank, 94 F.3d 130, 133 (4th Cir. 1996) (“It is well settled that the

automatic stay does not apply to non-bankrupt codebtors.”). Accordingly, Radogna

lacked authority to enforce the automatic stay on behalf of his mother, and lacked

standing to enforce it on behalf of himself.5

       This ruling does not dispose of Radogna’s own constitutional claims. Neither the

Bankruptcy Court nor the District Court addressed those claims, but there is no reversible

error in that regard. The Bankruptcy Court lacked jurisdiction over Radogna’s claim

regarding the automatic stay. See Goode v. City of Philadelphia, 539 F.3d 311, 317 (3d

Cir. 2008) (Article III standing is a “jurisdictional prerequisite”). Thus, Radogna’s

constitutional claims required an independent jurisdictional basis. See also In re

Mullarkey, 536 F.3d at 223 (“we adopted a claim-by-claim approach to determine the

extent of a bankruptcy court’s jurisdiction”). They do not have one.



  5
    The District Court believed that it was “not in a position to determine whether
appellant is, in fact, a co-debtor, as doing so is beyond the scope of its authority as an
appellate court.” (Dist. Ct. Op. n.1.) Determining whether Radogna was a co-debtor in
his mother’s bankruptcy, however, entails nothing more than a review of the Bankruptcy
Court record and a determination of whether Radogna was a debtor in that proceeding.

                                                5
       Bankruptcy courts have jurisdiction to adjudicate claims “arising under” Title 11

or “arising in” a Title 11 bankruptcy case (collectively, “core” claims), as well as those

“related to” a bankruptcy case. Stoe v. Flaherty, 436 F.3d 209, 216-17 (3d Cir. 2006).

Radogna’s constitutional claims fall within neither the Bankruptcy Court’s “core” or

“related to” jurisdiction. Radogna’s claims are not core claims because it cannot be said

that “the Bankruptcy Code creates the cause of action or provides the substantive right

invoked” (and thus that they “arise under” Chapter 11), or that they “‘have no existence

outside the bankruptcy’” (and thus “arise in” the bankruptcy). Stone, 436 F.3d at 216-17

(citation omitted). To the contrary, Radogna’s claims allegedly arise under the

Constitution and are wholly independent of his mother’s bankruptcy.

       Neither are his claims “related to” that bankruptcy. Claims are “related to” a

bankruptcy if their outcome “‘could conceivably have any effect on the estate being

administered in bankruptcy.’” Id. at 216 (citation omitted). “[A]t the post-confirmation

stage, ‘the claim must affect an integral aspect of the bankruptcy process—there must be

a close nexus to the bankruptcy plan or proceeding.’” Id. at 216 n.3 (citation omitted).

Radogna’s constitutional claims clearly do not qualify. His claims seek redress for harm

allegedly done to him, and he seeks damages for his own alleged “serious mental anguish,

psychological and emotional distress, character assassination, and financial disdain.”

(Compl. ¶ 24.) These claims bear no conceivable relation to his mother’s bankruptcy,

which already had been fully administered when Radogna filed his complaint.



                                              6
       Accordingly, the District Court’s order will be affirmed. Radogna’s motion for

sanctions is denied.6




  6
    Radogna initially sought sanctions because he claimed that he did not receive a copy
of appellees’ brief or their motion to file it out of time. Appellees responded that they
sent both to Radogna, that their mailings were not returned as undeliverable, and that he
must have received a copy of their brief. In his reply, Radogna does not dispute those
assertions and instead makes additional allegations that we find to be immaterial. To the
extent that Radogna’s reply on the issue of sanctions might be construed also as a motion
to enlarge the record on appeal, that aspect of the motion is denied as well.

                                            7
