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In re Walsh Trucking Co.

argued: January 4, 1988.

IN THE MATTER OF: WALSH TRUCKING CO., INC., A NEW JERSEY CORPORATION, NATIONAL RETAIL TRANSPORTATION, INC., A PENNSYLVANIA CORPORATION, COASTAL FREIGHT LINES, INC., A PENNSYLVANIA CORPORATION, HEMPSTEAD DELIVERY CO., INC., A NEW YORK CORPORATION AND FRANCIS J. WALSH, JR., INDIVIDUALLY AND D/B/A FRANK WALSH FINANCIAL RESOURCES
v.
INSURANCE COMPANY OF NORTH AMERICA, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PA., GRANITE STATE INSURANCE COMPANY, ROYAL INDEMNITY COMPANY AND ALLIANZ UNDERWRITERS, INC. CENTRE SERVICES, INC., APPELLANT



On Appeal from the United States District Court for the District of New Jersey, Civil No. 85-5607, Dist. of N.J.

Seitz, Hutchinson, and Rosenn, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

Appellant Centre Services appeals the order of the district court dismissing Centre Services' appeal from the order of the bankruptcy court expunging its creditor claim. We have jurisdiction pursuant to 28 U.S.C. § 158(d) (Supp. II 1984).

I.

Each of the four debtors, Walsh Trucking Co., Inc., National Retail Transportation, Inc., Hempstead Delivery Co., Inc., and Coastal Freight Lines, Inc. (collectively "Walsh companies"), and Francis J. Walsh, individually and doing business as Frank Walsh Financial Resources ("Walsh"), filed voluntary bankruptcy petitions in June 1985.*fn1 The bankruptcy court established the Official General Unsecured Creditors' Committee ("general committee") and empowered it to challenge claims of creditors.

Centre Services filed a proof of claim against National Retail Transportation, Inc. and Walsh Trucking Co., Inc., for $184,807.95, which was executed by Its president, Charles Kelchner. Questions were raised regarding other transactions between Centre Services and Walsh. Several subpoenas were issued to Kelchner and Centre Services, which were challenged on various grounds by Kelchner and Centre Services. Kelchner invoked his fifth amendment privilege against self-incrimination and refused to testify concerning various matters relating to Centre Services' claim.*fn2 Subsequently, the United States Trustee and counsel for the general committee filed a Notice of Motion for an Order to Remove Centre Services from the general committee. Centre Services was then dismissed from the general committee.

Thereafter, counsel for the general committee filed an Application for Order Expunging Claims of Centre Services. At a hearing on the motion, Centre Services placed its proof of claim in evidence. At this hearing, Kelchner again refused to testify. The bankruptcy court expunged the claim of Centre Services on the ground that it had failed to prove its claim.

Centre Services filed a Notice of Appeal to the district court. The district court held that the order expunging Centre Services' claim was not appealable as of right. The court also denied Centre Services' motion for leave to appeal such order. This appeal followed.

II.

This appeal requires us to determine (1) whether the order was appealable to the district court since no motion for reconsideration was filed in the bankruptcy court, and, if no such motion was required (2) whether the district court properly interpreted the provisions of 28 U.S.C. § 158(a)(Supp. II 1984). Our standard of review is plenary.

The general committee contends that the order of the bankruptcy court was not final and thus not appealable to the district court because the order could still be reconsidered by the bankruptcy court, although no such motion had ...


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