In re A.J. Travisano, Inc.

69 B.R. 593, 1987 Bankr. LEXIS 90
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedJanuary 29, 1987
DocketBankruptcy No. 84-00410T
StatusPublished

This text of 69 B.R. 593 (In re A.J. Travisano, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.J. Travisano, Inc., 69 B.R. 593, 1987 Bankr. LEXIS 90 (Pa. 1987).

Opinion

OPINION

DAVID A. SCHOLL, Bankruptcy Judge.

The tortured procedural history and piecemeal record developed in this case make the decision of the question before us a difficult one. Arising in the context of an Objection to the sale of a liquor license by the Trustee in this Chapter 7 case is the question of what the ownership rights in the license are as between the “lessor” (or “seller”) and the Debtor, a corporate “lessee” (or “purchaser”) of the license. Be[594]*594cause we believe that a prior Order of this Court, per Chief Judge Thomas M. Twar-dowski, on May 14, 1985, establishes that the Objector has peculiar equities in his favor, we are constrained to distinguish this case from the several decisions which have totally protected the property rights of purchasers of liquor licenses from their vendors. We therefore enter an Order refusing to allow the Trustee to. transfer the liquor license to any third party, but requiring the Objector to pay to the Trustee the sum of $5,000.00 to clear his title in the license.1

On June 1, 1983, the Objector, ANTHONY J. TRAVIS ANO (hereinafter “the Objector”), and his wife, EVELYN A. TRAVI-SANO, entered into a contract to transfer a restaurant and bar located at 750 Main Street, Rear, Hellertown, Pennsylvania, along with the establishment’s Pennsylvania Liquor License No. R-19562, to a corporation named on the contract as “A.J. TRA-VISANO, INC., t/a PHILIP.” Designated as a “lease Agreement,” the document required the corporate “lessee” to pay $5,000.00 on the date of the signing of the document; and $14,400.00 annually at $1,200.00 monthly for five (5) years. The contract also included the following among its additional terms: (1) An agreement of sale of the common stock of the corporation, with stock powers to be given to the transferor as security; (2) An option to the “lessee” to purchase the entire bar and restaurant and the liquor license at any time during the five-year lease period for $200,000.00, with all payments on the “lease” to be credited towards the purchase price.

One of the difficulties in piecing together the facts is that the record was made in two (2) brief hearings in connection with a Motion for relief from the stay conducted over two (2) years ago. The first hearing, on June 12, 1984, was attended only by the Objector and his counsel. At the second hearing, on October 17, 1984, testimony was adduced only from Gordon Brader and Kathleen Fischer, two (2) of the group of “purchasers.”2

The Objector had operated the bar and restaurant establishment, as the sole stockholder of the corporation bearing his name, for seven (7) years prior to the transaction in issue, at which time it was known as “the Where House.” (Notes of Testimony, June 12, 1984 (hereinafter “6/84T.”), at 14). The Objector testified that he entered into the contract of June 1, 1983, with a group of “purchasers” including Philip M. Malozi, his wife, Louan C. Malozi, Mr. Brader, Ms. Fischer, John Ley, Harry Singley, and Anthony Trunzo. {Id. at 14-15).

Mr. Brader testified that, by September or October, 1983, the other members of the group of “purchasers” had bought out the interests of Mr. and Mrs. Malozi. (Notes of Testimony, Oct. 17, 1984 (hereinafter “10/84 T”), at 10-11). Also, one Jan Billy apparently purchased the interests of Mr. Trunzo. (6/84T., at 20; 10/84T., at 10). Mr. Brader became President of the corporation after Mr. and Mrs. Malozi left the operation. (10/84 T., at 9).

Apparently, the “purchasers” made the initial $5,000.00 payment to the Objector, and thereafter made the $1,200.00 monthly payments through November, 1983. (6/84 T., at 15-16; 10/84 T., at 19). However, the “purchasers” never did sign the stock powers, and the stock was physically retained by the Objector as security. (6/84 T., at 16-18, 19-20, 22). Although certain steps were taken to do so, a transfer of [595]*595ownership of the liquor license was never effected. (Id. at 16-17).3

In October, 1983, there were negotiations between the Objector and the realigned group of “purchasers” to prepare a new lease that would change the names of the parties and the date of payment to the 15th of the month instead of the first, and that would reduce the period of the lease to three (3) years. (10/84 T., at 11-15). However, certain portions of this document were the subject of objection by the “purchasers,” and no other document was ever executed to amend the June 1, 1983, “lease.” (Id.).

On or about December 10, 1983, the “purchasers” ceased operation of the business, because, per Mr. Brader, “[i]t just wasn’t making any money, and problems.” (10/84 T., at 19). The Objector testified that, before he went on a vacation trip in mid-December, 1983, Mr. Brader asked him to take the business back over when he returned. (6/84 T., at 23). The Objector testified that, when he returned from vacation sometime after December 10,1983, the business had already been locked up and, as he put it, abandoned. (Id. at 16, 17, 23). Mr. Brader testified that the Objector changed the locks, but there is no indication that he did so without at least the tacit permission of the “purchasers.” (10/84 T., at 20). The Objector, at some indeterminate time thereafter, confessed judgment for the rents due under the lease in state court against, presumably, the corporation. (6/84 T., at 18).

On February 7, 1984, the purchasers filed the instant bankruptcy case under Chapter 7 of Title 11, U.S. Code., on behalf of the corporation. (6/84 T., at 23). On or about May 1, 1984, the Objector filed a Motion for Relief from the Automatic Stay in order to allow him to retake the business. At the close of the hearing on June 12, 1984, the court entered an “interim Order” granting this relief. (Id. at 26).

On May 14, 1985, the court entered a Final Order on this Motion. Therein, the Court decreed that the lease agreement terminated sixty (60) days after the Order for Relief by effect of 11 U.S.C. § 365(d)(1),4 that “the estate’s interest, if any, in the property subject to the lease agreement terminated after 60 days,” and that the automatic stay was modified “to permit the movants [the Objector and his wife] to pursue any and all rights which they may have under Pennsylvania law with regard to said license.”

The Objector had, apparently, on the basis of the interim Order of June 12, 1984, already re-taken possession of the business and transferred the liquor license into his name by this time on the strength of the “interim order” of June 12, 1984. However, instead of pursuing any action in state court to obtain a declaration of his rights in the liquor license, as Judge Twar-dowski seems to have contemplated, the Objector, on or about November 15, 1985, filed an Application to attempt to “withdraw” this entire case, apparently on the basis that the purchasers lacked the corporate authority to file same on behalf of the corporation. However, on June 25, 1986, this Court, per Judge Twardowski, denied this Application, stating that the Court perceived the Application to be a motion pur[596]*596suant to 11 U.S.C. § 707(a), and that the showing of cause required by that section had not been met.5

On August 12, 1986, the Trustee, James G.

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Bluebook (online)
69 B.R. 593, 1987 Bankr. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aj-travisano-inc-paeb-1987.