Judge v. Diamond (In re Victor Dye Works, Inc.)

48 B.R. 943, 1985 Bankr. LEXIS 6187
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedMay 6, 1985
DocketBankruptcy No. 78-127WK
StatusPublished
Cited by3 cases

This text of 48 B.R. 943 (Judge v. Diamond (In re Victor Dye Works, 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
Judge v. Diamond (In re Victor Dye Works, Inc.), 48 B.R. 943, 1985 Bankr. LEXIS 6187 (Pa. 1985).

Opinion

OPINION

WILLIAM A. KING, Jr., Bankruptcy Judge.

This is an adversary proceeding under the Bankruptcy Act (“Act”) brought by the Receiver against a former officer of the debtor corporation and his wife. The complaint alleges that the defendants committed fraud upon the Receiver, the estate, and the estate’s creditors. The defendants have moved to dismiss the complaint, inter alia, on jurisdictional grounds. For the reasons stated herein, the motion to dismiss will be denied as to defendant Edward Diamond and granted as to defendant Pauline Diamond.

The defendants contend that the complaint should be dismissed for several reasons. First, it is argued, this Court lacks summary jurisdiction over the defendants because we are a Court of special jurisdiction without authority to adjudicate matters which are predicated upon fraudulent acts of individuals.

For the purposes of a motion to dismiss for lack of jurisdiction, we must accept the facts as pleaded in the complaint to be true. Walker Process Equipment Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965); Dwyer v. Bibb Steel and Supply Co. (In re Alan Wood Steel Co.), 1 B.R. 167, 168 (Bankr.E.D.Pa.1979); 2A Moore’s Federal Practice ¶ 12.08 (2d ed. 1982). The allegations of the complaint must be viewed in the light most favorable to the plaintiff. Sinclair Refining Co. v. Atkinson, 290 F.2d 312, 317 (7th Cir.1961). A Court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Hishon v. King & Spalding, — U.S.-, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

The facts as pleaded in the complaint are as follows:

Victor Dye Works, Inc. (“debtor”) filed a petition under Chapter XI of the Act on February 3, 1978. On February 6, 1978, John P. Judge was appointed Receiver of the estate with authority to “employ ... all managers, agents and employees of the Debtor ... ”.

Edward T. Diamond and his wife, Pauline Diamond, are the defendants in this proceeding. Prior to the filing of the Chapter XI petition, Mr. Diamond was President and Chief Operating Officer of the corporation. After the filing of the petition, the debtor remained in possession of its assets and continued in operation. From February, 1978, until February, 1985, Mr. Diamond was employed by the Receiver to run [945]*945the day-to-day operations of the debtor.1 He was permitted to retain the title of President and Chief Operating Officer.

The Receiver’s cause of action against Mr. Diamond arises out of the alleged failure of Mr. Diamond to pay certain tax obligations of the debtor as they became due. The Receiver contends that Mr. Diamond fraudulently misrepresented to him on several occasions that these taxes would be paid or had been paid, and further, that Mr. Diamond fraudulently concealed from him the fact that these taxes had not been paid. As a result of the non-payment of taxes, the estate incurred substantial additional tax, interest and penalties which otherwise would not have accrued had the Receiver been aware of the non-payment of taxes. The amount of post-petition tax owed by the debtor as of August, 1984, was estimated at $278,559.62.

It is further alleged in the complaint that defendant, Edward Diamond, violated the Pennsylvania Uniform Fraudulent Conveyance Act, Pa.Stat.Ann. tit. 39, §§ 354, 356, and 357 (Purdon 1921), by transferring stock he owned in Seaview Country Club to his wife, Pauline Diamond, without fair consideration, and with an intent to hinder, delay or defraud his creditors.

In support of their motion to dismiss for lack of jurisdiction, defendants cite several cases for the proposition that the Bankruptcy Court is a court of limited jurisdiction under the Bankruptcy Act, and as such, lacks jurisdiction over in personam suits for tortious or malicious injury. In re Love B. Woods & Co., 222 F.Supp. 161 (S.D.N.Y.1963) (powers conferred upon courts of bankruptcy by the Bankruptcy Act do not make them courts of general jurisdiction to hear and determine controversies not properly part of a bankruptcy proceeding. In re State Financial Services, Inc., 432 F.Supp. 129 (M.D.La.1977) (bankruptcy court acted properly in not exercising jurisdiction over suit brought by debtor against another corporation alleging misrepresentations and falsehoods contained in application for appointment of receiver). However, none of the cases cited involved a factual situation where the alleged tortfeasor was employed by the Receiver, and the alleged wrongful acts occurred in the operation of the estate’s business.

The case of Governor Clinton Co. v. Knott, 120 F.2d 149 (2d Cir.1941), appeal denied, 314 U.S. 701, 62 S.Ct. 50, 86 L.Ed. 561, properly addresses the jurisdictional issue raised by this proceeding. In Governor Clinton, there was a secret agreement between a company employed to manage the corporate debtor and the debtor’s officers and attorney. The agreement provided for the officers and attorney to share in the fee paid to the management company by the estate. The Court of Appeals for the Second Circuit held that the summary jurisdiction of the bankruptcy court could be invoked where a fraud had been perpetrated on the estate by officers of the debt- or and the debtor’s attorney:

But summary jurisdiction may be invoked for purposes other than to protect property within the actual or constructive possession of the court. Here a contract was made with the debtor in possession and a fraud worked on its estate through a common conspiracy among the respondents. This amounts to a fraud and imposition upon the court itself; and in such cases the court undoubtedly has summary jurisdiction to protect itself and the interests of the persons and property within its custody. Bankruptcy Act, §§ 2, 23, 11 U.S.C.A. §§ 11, 46.

Id. at 152.

The Court further observed that:

[946]*946Such enforcement of contracts made with the court’s officers, or remedy for fraud in the execution or performance of them, is a necessary step in the proper administration of the estate, and well within the powers of a bankruptcy court acting essentially as a court of equity, (citations omitted).

Id. at 153.

Other Courts have followed the rule of law enunciated in Governor Clinton, see, e.g., In re F. W. Koenecke & Sons, Inc., 369 F.Supp. 558 (N.D.Ill.1973); In re California Eastern Airways, 95 F.Supp. 348 (D.Del.1951); Alan Wood Steel, supra. In Koenecke, the United States District Court for the Northern District of Illinois upheld a Referee’s ruling that the Bankruptcy Court had summary jurisdiction to determine whether an accounting firm retained by court order was liable to the estate for the criminal acts of one of its accountants.

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Bluebook (online)
48 B.R. 943, 1985 Bankr. LEXIS 6187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judge-v-diamond-in-re-victor-dye-works-inc-paeb-1985.