Olick v. Kearney (In re Olick)

IN RE: THOMAS W. OLICK, DebtorTHOMAS W. OLICK, Appellant

v. JAMES KEARNEY; THOMAS JENKINS;THE KNIGHTS OF COLUMBUS; AETNA LIFE INSURANCE COMPANY

No. 12-1147

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

September 20, 2012

Opinion filed: September 21, 2012

NOT PRECEDENTIAL

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2:10-cv-00458)

District Judge: Honorable William H. Yohn

Submitted Pursuant to Third Circuit LAR 34.1(a)

Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges

OPINION

PER CURIAM

Thomas Olick, proceeding pro se and in forma pauperis, seeks review of a series of decisions from the United States Bankruptcy Court for the Eastern District ofPennsylvania. We will affirm.

I.

Although this appeal arises from a bankruptcy action, its roots extend to 2006, when appellant Olick filed a pro se complaint in Northampton County, Pennsylvania against the Knights of Columbus ("Knights") and James Kearney ("Kearney"). Olick, a former insurance salesman for the Knights, attacked both the circumstances surrounding his termination from their employ and the adverse benefits-related consequences of the termination, raising claims under a variety of legal theories.¹ Olick later amended his state complaint, adding defendant Aetna, who successfully removed the matter to the United States District Court for the Eastern District of Pennsylvania in April 2006, where it was eventually consolidated with another federal suit against the same defendants; Thomas Jenkins ("Jenkins"), the final party (who allegedly "replaced" Olick in his former capacity for the Knights), was added via amended complaint shortly thereafter. See E.D. Pa. Civ. Nos. 2:06-cv-01531, 2:07-cv-00121. In a thorough opinion, the District Court granted some parts of the defendants' motions to dismiss and denied other parts without prejudice to later renewal via motion for summary judgment. See generally Olick v. Kearney, 451 F. Supp. 2d 665 (E.D. Pa. 2006). Afterwards, Olick moved to dismiss the case without prejudice pursuant to Fed. R. Civ. P. 41(a)(1), a request theDistrict Court granted on February 20, 2007.

This dismissal, however, did not bring matters to a close, for Olick had filed for Chapter 13 bankruptcy protection a few days earlier, see E.D. Pa. Bankr. No. 07-10880. In connection with the new bankruptcy action, Olick commenced two adversary proceedings, docketed as 07-00052 and 07-00060,² that asserted substantially the same claims against the Knights, Kearney, Jenkins, and Aetna that he had raised earlier in his Northampton and District Court suits. Recognizing that this duplication posed a problem, Bankruptcy Judge Frank decided to "adopt a particular case management philosophy," treating the new actions as proceedings "designed to 'complete' the prior litigation . . . that was near disposition (by summary judgment and/or trial) at the time of Mr. Olick's voluntary dismissal under Rule 41." Olick v. Kearney (In re Olick), Adv. No. 07-060, 2008 Bankr. LEXIS 3521, at *11-12 (Bankr. E.D. Pa. Aug. 12, 2008). Judge Frank's first order of business was to sift through Olick's voluminous filings, structuring the allegations into ten recognizable counts. The final list, to which all parties have referred throughout this litigation, was as follows:

• Count 1: Age discrimination and retaliation against Aetna, the Knights, Kearney, and Jenkins, pursuant to the ADEA³ and its Pennsylvania and Connecticut state-law equivalents;

• Count 2: "Job discrimination" against the Knights and Kearney;

• Count 3: "Violations of ERISA⁴ and COBRA⁵ Laws." Judge Frank subdivided this allegation into several subclaims:

? Count 3A: Violation of COBRA sections 502(a)(1)(A) and 606(a)(4) against the Knights and Aetna;

? Count 3B: Violation of ERISA section 502(a)(1)(B) against the Knights and Aetna;

? Count 3C: Violation of ERISA section 502(a)(3)(B) against the Knights and Aetna;

? Count 3D: Violation of ERISA sections 502(a)(2)(B) and 409(a) against the Knights and Aetna;

• Count 4: Breach of contract against the Knights and Kearney;

• Count 5: Tortious interference in business and contracts against the Knights, Kearney, and Jenkins;

• Count 6: Breach of contract against Aetna; and

• Count 7: Breach of contract and conversion against the Knights.

In a June 2007 order, Judge Frank dismissed several of the claims. See ECF No. 73. Count 1 against Aetna was dismissed, per Olick's express consent; Count 3A was dismissed against Aetna; Count 3B was dismissed against the Knights; Count 3D was dismissed against all defendants; and Count 6 was dismissed against Aetna. This had the effect of "narrow[ing] the claims . . . to those that had survived the motions to dismiss in the District Court case." Olick, 2008 Bankr. LEXIS 3521, at *10.

Several other counts would also be resolved before trial. In a March 2008 oral opinion rendered from the bench, the Bankruptcy Court granted summary judgment in favor of the defendants on: the Count 1 discrimination claim (but not the retaliationclaim), the Count 2 job discrimination claim, the Count 3C equitable claim for premiums (but not the equitable claims regarding policy conversion against the Knights), the Count 4 breach of contract claim, the Count 5 tortious interference claim, and the Count 7 breach of contract and conversion claim. See ECF No. 242 (order). Pursuant to motions for reconsideration filed in the wake of that opinion, the Court also granted summary judgment in favor of Jenkins on the Count 1 retaliation claim, see ECF No. 246,⁶ and reaffirmed its decision to grant summary judgment in favor of Jenkins, Kearney, and the Knights on the Count 1 discrimination claim in an October 2008 opinion, see Olick v. Kearney (In re Olick), 398 B.R. 532 (Bankr. E.D. Pa. 2008). Around this time, Aetna and Olick entered into a Fed. R. Bankr. P. 7068 offer of judgment, which resolved the remaining claims against Aetna. See ECF Nos. 256 (offer), 286 (order). Left standing were the Count 1 ADEA retaliation claim against the Knights and Kearney, the Count 3A COBRA claim against the Knights, and the Count 3C equitable ERISA claim against the Knights.

Before we discuss the final merits determination in Bankruptcy Court, two additional non-merits orders require a mention. In October 2007, Olick was sanctioned in the amount of $1,000 for his attempt to relitigate claims against Aetna that had already been dismissed by the District Court. See ECF No. 167. And in August 2008, the Bankruptcy Court addressed a Fed. R. Bankr. P. 7054(b) costs dispute between Aetna andOlick, finding that Olick was entitled to costs in the amount of $1,349.50 against Aetna. See generally Olick, 2008 Bankr. LEXIS 3521.

The parties took the remaining three claims to trial in December 2008. In a comprehensive opinion containing numerous findings of fact, the Bankruptcy Court entered judgment in favor of Olick and against the Knights on Counts 1 and 3A, for a combined judgment amount of $14,997.83. The Court entered judgment in favor of Kearney on Count 1 and in favor of the Knights on Count 3C. See generally Olick v. Kearney (In re Olick), 422 B.R. 507 (Bankr. E.D. Pa. 2009).

Olick appealed in forma pauperis to the District Court, attacking the orders discussed above (with the exception of the initial June 2007 dismissal). The District Court affirmed. See generally Olick v. Kearney (In re Olick), 466 B.R. 680 (E.D. Pa. 2011). Significantly, Judge Yohn declined to reach any of the claims resolved from the bench in the March 2008 summary judgment opinion, as Olick had failed to provide transcripts of that decision, stymieing review. See id. at 694-95 & n.15. Although Olick did not timely appeal, he filed a motion in which he claimed to have never received the Court's final order, along with a tardy notice of appeal. The District Court granted relief pursuant to Fed. R. App. P. 4(a)(4)(A)(6), bringing the matter before us. It has been fully briefed⁷ and is ripe for disposition.

II.

We have jurisdiction under 28 U.S.C. §§ 158(d) and 1291. In re Phila. Newspapers, LLC, No. 11-3257, ___ F.3d ___, 2012 U.S. App. LEXIS 15419, at *10 (3d Cir. Pa. July 26, 2012). We duplicate the standard of review employed by the District Court and evaluate the Bankruptcy Court's orders "unfettered by the District Court's determination." In re Orton, No. 11-4157, ___ F.3d ___, 2012 U.S. App. LEXIS 14898, at *4 (3d Cir. Pa. July 20, 2012); Lampe v. Lampe, 665 F.3d 506, 513 (3d Cir. 2011) ("In effect, we are reviewing the Bankruptcy Court's disposition of this case."). We review grants of summary judgment arising out of bankruptcy adversary proceedings de novo. See Robeson Indus. Corp. v. Hartford Accident & Indem. Co. (In re Robeson Indus. Corp.), 178 F.3d 160, 164 (3d Cir. 1999). With regard to the claims resolved after trial, we apply a "clearly erroneous standard to the Bankruptcy Court's findings of fact and aplenary standard to its legal conclusions." Orton, 2012 U.S. App. LEXIS 14898, at *4 (citations, quotations omitted); see also Fed. R. Bankr. P. 8013. "A factual finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Schlumberger Res. Mgmt. Servs. v. CellNet Data Sys. (In re CellNet Data Sys.), 327 F.3d 242, 244 (3d Cir. 2003) (citations, quotations omitted). The decisions by the Bankruptcy Court to impose sanctions upon Olick and to allocate costs are reviewed for abuse of discretion. See Waldron v. Adams & Reese, L.L.P. (In re Am. Int'l Refinery, Inc.), 676 F.3d 455, 461 (5th Cir. 2012); In re Gioioso, 979 F.2d 956, 962 (3d Cir. 1992). An abuse of discretion occurs when the Court rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact. Cross-Appellees in 09-1432 v. BEPCO, LP (In re 15375 Mem'l Corp.), 589 F.3d 605, 616 (3d Cir. 2009) (quotations, citations omitted).

III.

We...