In Re J.E. Jennings, Inc.

100 B.R. 749, 1989 Bankr. LEXIS 951, 1989 WL 66415
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedJune 20, 1989
Docket19-10263
StatusPublished
Cited by5 cases

This text of 100 B.R. 749 (In Re J.E. Jennings, 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 J.E. Jennings, Inc., 100 B.R. 749, 1989 Bankr. LEXIS 951, 1989 WL 66415 (Pa. 1989).

Opinion

OPINION

DAVID A. SCHOLL, Bankruptcy Judge.

On February 13, 1989, the district court, per the Honorable Joseph L. McGlynn, Jr., in a Memorandum of Decision reported at 96 B.R. 500, vacated and remanded our Opinion and Order of November 10, 1986, reported at 67 B.R. 106. In that Opinion, we had denied Applications for Compensation filed on behalf of Albert Vogel, appointed as Secretary (hereinafter referred to as “the Secretary”) of the Official Unsecured Creditors’ Committee (hereinafter “the Committee”) by this court on September 13, 1983; and for expenses incurred by four members of the Committee: Blue Bell, Inc. (hereinafter “Blue”); Health Tex, Inc. (hereinafter “Health”); Calabash Fashions, Ltd. (hereinafter “Calabash”); and Tulip Tops, a division of American Argo Corp. (hereinafter “Tulip”) (Hereinafter these parties are collectively referred to as “the Members” and the Secretary and the Members are referred to collectively as “the Applicants”).

In our earlier Opinion, we had reasoned that the exclusion of official committees from the scope of 11 U.S.C. § 503(b)(3)(D) precluded any allowances on either of the Applications. The district court, meanwhile, held that, while § 503(b)(3)(D) was not a basis for allowance of such compensation, reimbursement should have been allowed to the applicants under § 503(b)(1)(A), 1 which states as follows:

(b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including—
(1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case; ...

Having ascertained that the record in this case which was to have been remanded to us was lost by the district court clerk’s office sometime after February 13, 1989, we entered an Order of April 10, 1989, directing counsel for the Applicants to recreate the record and scheduling a conference to determine how this court should proceed on remand on April 26,1989. Only counsel for the Applicants appeared and argued that Judge McGlynn’s Opinion required us to grant their compensation and costs in full as requested. We disagreed, observing that, if this were so, Judge McGlynn would have remanded the matter to us with a direction to enter such an order, rather than, as he did, remanding it generally. We therefore entered an Order of April 27, 1989, requiring the Secretary and the Members to file Supplemental Applications in accordance with In re Meade Land & Development Co., Inc., 527 F.2d *751 280 (3d Cir.1975); In re Metro Transportation Co., 78 B.R. 416, 410 (Bankr.E.D.Pa.1987); and In re Mayflower Associates, 78 B.R. 41, 48 (Bankr.E.D.Pa.1987), on or before May 26, 1989; and advising counsel for the Debtor and the United States Trustee that they had until June 15, 1989, to file and serve any Objections to the aforesaid Amended Applications. We further stated that, if no Objections were filed, we would enter an Order in reference to the Amended Applications without a further hearing.

The Amended Applications were timely filed on May 22, 1989. However, their conformity with the foregoing court decisions, as will be discussed below, is doubtful. They were accompanied by a short Memorandum of Law in which the Applicants reiterated their view that it was inappropriate for this court to review these Applications and that it would be contrary to the Opinion of Judge McGlynn to do other than approve them in full as submitted. The United States Trustee filed Objections to both Amended Applications, pointing out that the lack of receipts for expenses rendered these submissions out of compliance with Mayflower. Those Objections implicitly decline to accept the Applicants’ contention that it is beyond the province of this court to review these Applications to determine if they complied with the Opinions establishing the procedures for submission of fee applications.

The issue of our duties in reference to these Applications is our first subject of discussion. The Applicants concede that we are obliged to independently review applications of professionals submitted pursuant to 11 U.S.C. § 330(a)(1), whether objections are raised thereto or not. See In re J.A. & L.C. Brown Co., 75 B.R. 539, 539-40 (E.D.Pa.1987). However, they point out that applications of professionals pursuant to § 330(a) are allowable as administrative expenses. under 11 U.S.C. § 503(b)(2). Judge McGlynn has held that the Applications for compensation in issue, following principally In re Evans Products Co., 62 B.R. 579, 582-83 (S.D.Fla.1986), were allowable under 11 U.S.C. § 503(b)(1)(A). The Applicants contend that this distinction is highly significant. Cited are several cases which hold that the duties of Committee secretaries are “ministerial or mechanical” and that hence the Secretary is not a “professional.” 2 In re Century Machine Tools, Inc., 43 B.R. 122,125 (S.D.Fla.1984); In re Attorneys Office Management, Inc., 40 B.R. 127, 129-30 (Bankr.C.D.Cal.1984); and In re Barsky, 17 B.R. 396, 397 (Bankr.E.D.Pa.1982). The Applicants also quote a passage in Evans Products stating that, rather than requiring a “substantial contribution” from committee members as is required by § 503(b)(3)(D), such tasks “are presumed to be expenses incurred towards the betterment of the estate and to the benefit of the estate.” 62 B.R. at 853. The applicants apparently believe that this presumption shields their applications from court scrutiny.

The proposition advanced by the Applicants — that the court must scrutinize the requests for compensation of only professionals and not their Applications, because they are not professionals — does not seem very logical. 3 Any awards of compensation to any persons, professionals or not, from assets of the estate, even to creditor representatives, diminishes the assets available for distribution to the creditor-body as a whole. Examination of general principles applicable to claims under § 503(b)(1) and the authorities cited by the Applicants reveal that, indeed, the Applicants’ remarkable proposition that they must be treated differently than “mere” professionals cannot be sustained.

Administrative expenses, given as they are a first priority in distribution ahead of all creditors’ claims, except those accorded *752 super-priority status, see 11 U.S.C. § 507

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Bluebook (online)
100 B.R. 749, 1989 Bankr. LEXIS 951, 1989 WL 66415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-je-jennings-inc-paeb-1989.