ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Gibbons, Garth and Higginbotham, Circuit Judges. Garth, J., dissenting.
Main Line Federal Savings and Loan Association ("Main Line") appeals a decision of the District Court for the Eastern District of Pennsylvania in its continuing action against Tri-Kell, Inc. The district court dismissed as moot an appeal from a bankruptcy court's lifting of an automatic stay against Main Line's foreclosure of a lien against Tri-Kell. It did so on the basis of an "Order" filed by the bankruptcy judge while the appeal to the district court was pending, terminating the automatic stay "upon counsel's verification . . . that approval of the dismissal or withdrawal of any outstanding appeals from the said Order has been granted by the . . . District Court." Main Line contends that this order was invalid since the bankruptcy court was divested of jurisdiction as soon as the appeal was filed with the district court, and therefore that the district court's dismissal of the appeal as moot was erroneous. Tri-Kell disputes this, and contends further that the dispute before us is moot since Main Line is attacking the dismissal of an appeal from an order in its favor. We hold that the action is not moot and that the district court's dismissal was erroneously predicated upon an invalid order of the bankruptcy court. Accordingly, we remand to the district court.
I. FACTS AND PROCEEDINGS BELOW
Tri-Kell, Inc., a Pennsylvania corporation, has been a debtor under Chapter 11 of the Bankruptcy Act since April 27, 1978. Tri-Kell's sole asset is an unimproved tract of land in Montgomery County, Pennsylvania. Appellee Kelly is President and Chief Executive Officer of Tri-Kell as well as its primary unsecured creditor. Appellee Trinsey is also an unsecured creditor (and, according to Main Line, a former President) of Tri-Kell. Appellee Gulph Mills Townhouse Village, Inc. ("Gulph Mills") a Pennsylvania corporation, is presently the beneficial owner of the tract. Appellant Main Line is a secured creditor of Tri-Kell, and holds a mortgage on the tract.
Main Line has been attempting to foreclose on Tri-Kell's mortgage since 1981. Its principal obstacle has been the automatic stay on lien enforcement provided for debtors by Bankruptcy Rule 11-44.*fn1
On October 22, 1982, the Bankruptcy Court for the Eastern District of Pennsylvania entered an order terminating the stay as of February 1, 1983. App. at 16. The order was based on the purported consent of the two parties to the adversary proceeding. One week after the order was filed, however, Trinsey, Kelly, and Gulph Mills all appealed to the district court, contending that Tri-Kell's original attorney exceeded his authority and entered an order without their consent. Main Line argued that the three parties were strangers to the proceedings and moved to quash the appeal. (Tri-Kell itself joined the appeal much later.) On January 17, 1983, the case record was transfered from the bankruptcy court to the district court. App. at 9. Before the district court could act on the appeal the bankruptcy judge issued a further order in response to a motion by Tri-Kell. The order, issued on February 16, 1983, purported to vacate the court's previous order lifting the automatic stay "upon counsels' verification to this court that approval of the dismissal or withdrawal of any outstanding appeals from the said order has been issued by the district court."*fn2
Armed with the bankruptcy judge's order, Tri-Kell, Trinsey, Kelly, and Gulph Mills asked the district court to dismiss their appeal pursuant to Fed. R. Civ. P. 41(a)(2).*fn3 App. at 178, 181.
On March 3, 1983, the district court granted their request:
it appearing that the Bankruptcy Court has indicated its intention to vacate its Order of October 22, 1982, and it further appearing that said order forms the subject matter of this appeal, it is hereby ORDERED that the Appeals . . . are dismissed as authorized by Federal Civil Rule 41(a)(2) as moot.
One order has been entered since the decision of the district court. On June 16, 1983, well after the filing of the appeal by Main Line to this court, the bankruptcy judge issued a "Statement of the Court's Intent." In this document the bankruptcy judge declares that his order of February 16, 1983 was entered "inadvertently," and that if the case is remanded back to the bankruptcy court the original order lifting the automatic stay of foreclosure will be reinstated. See Appellant's Reply Brief at "Exhibit A".
II. JURISDICTIONAL ISSUES
Main Line argues on this appeal that the district court's dismissal for mootness was erroneous, since the bankruptcy court's February 16, 1983 order was void for want of jurisdiction. It argues that jurisdiction passed from the bankruptcy court to the district court with the filing of the appeal and that any subsequent order was entered without jurisdiction.
Filing a notice of appeal automatically transfers jurisdiction from the district court to the appellate courts. Hovey v. McDonald, 109 U.S. 150, 157, 27 L. Ed. 888, 3 S. Ct. 136 (1883); Hattersley v. Bollt, 512 F.2d 209, 215 n.17 (3d Cir. 1975); Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275, 276-77 (3d Cir. 1962); 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice P203.11 (2d. ed. 1983). It is true that a district court (or a bankruptcy court acting as a district court) retains such jurisdiction as is necessary to aid the higher court in consideration of the appeal. See Commonwealth of Puerto Rico v. S. S. Zoe Colocotroni, 601 F.2d 39, 41 (1st Cir. 1979); Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976); First National Bank of Salem, Ohio v. Hirsch, 535 F.2d 343, 345-46 (6th Cir. 1976). But the bankruptcy court's action in this instance was not in aid of the appellate case. It entered what can only be described as a "conditional judgment," which was to become effective as soon as the higher court had dismissed the action.
The appellees argue that the procedure in this case was consistent with appellate practice under Fed. R. Civ. P. 60(b). They cite Smith v. Pollin, 90 U.S. App. D.C. 178, 194 F.2d 349, 350 (D.C. Cir. 1952), for the proper procedure dealing with post-appeal motions to the lower court:
When an appellant in a civil case wishes to make a [Rule 60(b)] motion . . . while his appeal is still pending, the proper procedure is for him to file his motion in the District Court. If that court indicates that it will grant the motion, the appellant should then make a motion in this court for a ...