In re Allegheny Square

32 B.R. 31, 1983 Bankr. LEXIS 5746

• Court: District Court, W.D. Pennsylvania
• Decided: July 22, 1983
• Docket: Bankruptcy No. 82-00128
• Status: Published

Opinion

MEMORANDUM AND ORDER TRANSFERRING BANKRUPTCY CASE TO THE WITHIN COURT

WILLIAM B. WASHABAUGH, Jr., Bankruptcy Judge:

This matter came on to be heard Monday, July 18, 1983 on Petition of the Chapter 11 trustee in the within case to transfer a certain Chapter 7 proceeding in the Matter of James W. Simonsen (S.S. No. 163-30-7999) before the United States Bankruptcy Court for the Middle District of Florida, Tampa division at No. 82-2698 filed December 20,1982 to the within Court. Lawrence S. Kleinfeld, trustee in bankruptcy of the estate of said James W. Simonsen in the Middle District of Florida case filed a Response to the Petition for Removal setting forth that he filed a proof of claim on behalf of that estate in the within proceeding and that he has rendered substantial services as trustee in bankruptcy and attorney pro se for the trustee in the Florida case, but did not appear at the hearing.

The within Chapter 11 case was filed March 11, 1982, and Mark M. Ristau, Esq., Warren, Pennsylvania was appointed Chapter 11 trustee therein on the request of counsel for principal parties in interest at a hearing before the undersigned at Erie, Pennsylvania December 16,1982 in which it appeared said Ristau, the only member of the panel of trustees in bankruptcy of the within Court who resides in Warren County, was eminently well-qualified to operate the business of the debtor’s hotel situate in said county, and to obtain a purchaser therefor for the best possible price.

James W. Simonsen, debtor in the Middle District of Florida case, is a general partner in the within captioned case of Allegheny Square, a limited partnership, and said James W. Simonsen is an affiliate of the debtor in said case.

The within captioned Chapter 11 case of the debtor, Allegheny Square, a limited partnership, was filed March 11, 1982, before the filing of the case of the debtor’s affiliate in the Middle District of Florida, December 20, 1982, as aforesaid, and for that reason the within Court has jurisdiction to determine in which forum the cases shall continue under Bankruptcy Rule 116(c) and the opinion of the Third Circuit Court of Appeals in the Matter of Imperial “400” National Inc., 429 F.2d 671 (3rd Cir.1970). See also In the Matter of Macon Uplands Venture, 2 B.R. 429 (D.C.M.D.Ga.1979), and other cases.

It is found from the matters submitted at the hearing, that 95% of the total assets of the debtors in the referred to cases are located in the County of Warren, Commonwealth of Pennsylvania, including the hotel known as the Allegheny Square Hotel and the real estate on which erected and the fixtures and furniture comprising the contents thereof together with a Pennsylvania hotel liquor license bearing Pennsylvania Liquor Control Board No. H-735 which was issued in the name of Mountain Brigade, Inc. but has been exclusively used by the hotel in its considerable business which comprises the principal asset of the within debtor’s estate. This business has been successfully managed by the Chapter 11 trustee, Mark M. Ristau, Esq. under Orders of this Court, and a comparison of the revenues reported in the cash flow reports of said trustee indicate it is flourishing at a substantially higher level than it did before the Chapter 11 filing under the direction of the debtor in the Florida case, James W. Simonsen.

It is found that the convenience of the parties in interest and the interests of justice will be served by the transfer of the case of James W. Simonsen, debtor, in case No. 82-2698 in the United States Bankruptcy Court for the Middle District of Florida to the within United States Bankruptcy Court for the Western District of Pennsylvania, for consolidation with the within captioned Chapter 11 case of Allegheny Square, a limited partnership, at No. 82-00128 in said Court if ordered, and/or administration in connection therewith under the supervision of this Court.

No conflict of interest arises from the filing of a proof of claim in the within debtor’s case on behalf of the estate of James W. Simonsen hereby transferred as alleged in the Response of Lawrence S. Kleinfeld, Esq., trustee of the estate of James W. Simonsen.

IT IS ORDERED, ADJUDGED and DECREED for the foregoing reasons that the case of James W. Simonsen, No. 82-2698 in the Middle District of Florida, Tampa Division, be, and the same hereby is, removed from said Court and transferred to the United States Bankruptcy Court for the Western District of Pennsylvania and that the Clerk of the Bankruptcy Court in the Middle District of Florida shall perform all administrative acts necessary to effectuate said transfer.

IT IS FURTHER ORDERED that Lawrence S. Kleinfeld, Esq., 695 Central Avenue, Suite 207, St. Petersburg, Florida, 33701, trustee of the estate of said James W. Simonsen in the Middle District of Florida shall file in the within Court a report and accounting of his receipts, disbursements and services rendered in the transferred case together with an application for payment of his commissions as trustee in bankruptcy and for his fees for legal services as attorney for the trustee in said case.