PNC Bank v. Varsity Sodding Service, Inc. (In re Varsity Sodding Service, Inc.)

191 B.R. 306, 28 U.C.C. Rep. Serv. 2d (West) 761, 1996 Bankr. LEXIS 44
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedJanuary 12, 1996
DocketBankruptcy No. 5-93-02078
StatusPublished
Cited by3 cases

This text of 191 B.R. 306 (PNC Bank v. Varsity Sodding Service, Inc. (In re Varsity Sodding Service, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PNC Bank v. Varsity Sodding Service, Inc. (In re Varsity Sodding Service, Inc.), 191 B.R. 306, 28 U.C.C. Rep. Serv. 2d (West) 761, 1996 Bankr. LEXIS 44 (Pa. 1996).

Opinion

OPINION AND ORDER

JOHN J. THOMAS, Bankruptcy Judge.

First Eastern Bank, N.A., now known as PNC Bank, (“Bank”), has filed a Motion for Relief against the Debtor seeking authority to pursue certain collateral of the Debtor including equipment and accounts receivables. The Debtor opposes relief from the automatic stay as does the Internal Revenue Service, a creditor of the estate that maintains that it has a security interest in receivables superior to the interests of the Bank.

The Debtor has also filed an objection to the proof of claim filed by the Bank.

Intervening in the relief motion is one, John Yarosz, who, as an officer of Varsity Sodding Service, Inc., was personally obligated to the IRS for the taxes. If the Bank succeeds in having a priority in the receivables over the IRS, this would apparently be to the detriment of Yarosz.

At the time of the trial on September 12, 1994, the parties entered into a stipulation that resolved some of the issues before the court. The IRS agreed to withdraw its objection to the motion for relief filed by the Bank and the IRS and the Bank agreed that the pre-petition account receivable in the total amount of Forty-Four Thousand One Hundred Four and 20/100 Dollars ($44,-104.20) was subject to a lien in favor of the IRS superior in position to the Bank’s lien.

There was a further stipulation read into the record which focused the issues to be decided by the court. The parties agreed that the Bank had a security interest in equipment and receivables based on certain documents executed by the Debtor. The Debtor admits that no post-petition payments have been made to the Bank with regard to the security agreements.

The issue in this ease turns on whether the Bank’s filed financing statements in Pennsylvania were sufficient to secure an interest in the Debtor’s equipment which was located out of state. The Bank maintains that these items of equipment were “mobile goods” under the provisions of 13 Pa.C.S.A. § 9103(e). If these goods are “mobile goods” as defined by the statute, then under the provisions of Section 9103(c), the filing in the jurisdiction of the Debtor’s “chief executive office” would be sufficient to perfect its security interest against the equipment. On the other hand, if the items are not “mobile goods”, then a secured party would lose its perfected status against third parties (such as a trustee in bankruptcy) if the refiling does not take place in the state of the location of the property within four (4) months after its removal to that jurisdiction.

John Yarosz and the Debtor maintain that the equipment was not mobile goods. The Bank maintains otherwise. It is admitted that the equipment was located in Maryland and New Jersey. It is admitted that the Bank’s financing statements are filed solely in Pennsylvania.

The equipment consists of various items identified in Yarosz’ Exhibit No. 1. They are generally described as items used in the landscaping business including backhoes, loaders, mulch spreader, trencher, landscape rakes, vibrator plow, hydro-seeders, etc. None of these items could be used over the roads. All of them would have to be “trail-ered” or chained onto a flat-bed trailer for movement from one area to another. While the equipment is used to move earth in landscaping operations, none of it is of a large-scale nature such as what exists with regard to excavation equipment.

[308]*308Traditionally, the Debtor engaged in a residential landscaping business with its equipment primarily located in Luzerne County, Pennsylvania. Nevertheless, at some point, the Debtor became involved in projects that were outside of the Commonwealth of Pennsylvania and work was done in New York state, Maryland, New Jersey and Washington, D.C.

The equipment has been stipulated to be worth Eighty-Two Thousand Six Hundred Dollars ($82,600.00) and the debt to the Bank exceeds Five Hundred Thousand Dollars ($500,000.00).

There seems to be no dispute that the equipment has been located outside of the Commonwealth of Pennsylvania for a number of years prior to the Debtor’s bankruptcy on December 1, 1993, and the Bank made no filing in the states in which the equipment was located.

DISCUSSION

Section 9103 of the Pennsylvania Uniform Commercial Code (13 Pa.C.S.A. § 9103) indicates that the filing statement for “mobile” goods can be filed in the state where the chief executive office is located. In such instance, the financing statement need not be refiled in the jurisdiction where the collateral is situated.

To be under the umbrella of Section 9103(c), there are four (4) requirements for the goods in question, as follows:

(1) The goods must be mobile;
(2) The goods must be of a type normally used in more than one jurisdiction, “... such as motor vehicles, trailers, rolling stock, airplanes, shipping containers, road building and construction machinery and commercial harvesting machinery and the like ... ”;
(3) Goods cannot be covered by a certificate of title; and
(4) The goods must be either equipment of the Debtor or inventory leased or held for use by the Debtor.
“Of these, only the first two requirements pose much interpretive difficulty. Does the term ‘normally used’ refer to a particular debtor’s actual use of the collateral, or does it imply an objective standard of what can be normally used in more than one state? If the latter, should ‘normal’ be given a local or a national objective meaning?” 2 White and Summers, Uniform Commercial Code at p. (3rd ed. 1988).

Fortunately, our circuit has given us guidance on this question in making it clear that “... the test for mobile goods turns on the type of goods involved and not on their aetual use in or transportation between more than one jurisdiction.” In the Matter of Dennis Mitchell Industries, Inc., 419 F.2d 349, 358 (3rd Cir.1969).

We thus must discount any suggestion that the current location of the Debtor’s equipment in states other than Pennsylvania are of any value in arriving at our ultimate decision as to whether the equipment is in the classification of “mobile goods”.

Despite this guidance from the circuit, the bankruptcy court in In re Nardulli & Sons Co., Inc., 66 B.R. 871 (Bkrtcy.W.D.Pa.1986), rev’d on other grounds, 836 F.2d 184 (3rd Cir.1988) examining the applicability of this section to a Caterpillar dozer, two wheel loaders and a truck scale, noted that this type of equipment might very well be used for road building and construction and, thus, might qualify as “mobile goods” but, because they were actually used for strip-mining, the court concluded that the equipment was not “mobile goods” under Section 9103. Id. at p. 879. The reliance of the Nardulli court on the “actual use” of the equipment cannot be justified in light of the clearly contrary instructions given by the circuit court in In the Matter of Dennis Mitchell, supra. Moreover, the language of the UCC quite naturally lends itself to defining the normal use as focusing “...

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Related

In Re Varsity Sodding Service
139 F.3d 154 (First Circuit, 1998)
PNC Bank v. Varsity Sodding Service
139 F.3d 154 (Third Circuit, 1998)
In Re: Varsity
Third Circuit, 1998

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Bluebook (online)
191 B.R. 306, 28 U.C.C. Rep. Serv. 2d (West) 761, 1996 Bankr. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pnc-bank-v-varsity-sodding-service-inc-in-re-varsity-sodding-service-pamb-1996.