Petition for Writ of Certiorari — New York, New Haven & Hartford Railroad v. Baker
Supreme Court brief1972
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L.IrTirars &
COURT, U. Ss.
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SUFPicLtye-
y
;
IN THE
_ Supreme Court of the United States —
_ OCTOEER TERM, 1971
ol
r- | i Yon A
No. ee é mi : ; 8 z
« Pee
In the Matter of
PENN CENTRAL TRANSPORTATION COMPANY,
Debtor.
THE NEW YORK, NEW HAVEN & HARTFORD
RAILROAD COMPANY FIRST MORTGAGE 4%
BONDHOLDERS COMMITTEE,
Petitioner,
against
GEORGE P. BAKER, RICHARD C. BOND, JERVIS
LANGDON; JR., and WILLARD WIRTZ as Trustees
of the Property of the Penn Central Transportation
Company,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
‘ FOR THE THIRD CIRCUIT
Lester C. MicGDAL,
LAWRENCE W. Po.wack,.
Attorneys for Petitioner
598 Madison Avenue
New York, New York 10022
Of Counsel:
Miepat, Low, Tenney & Grass
598 Madison Avenue >
New York, New York 10022
ConeNn, SHaptro, PotisHer, SHIEKMAN and CoHEN
Philadelphia Savings Fund Building
Philadelphia, Pennsylvania 19107
April 26, 1972.
TABLE OF CONTENTS
PAGE
MN WoxC eek ay eee tae Lee ae 1
cpt cece, EE OO ORT OES OCR Dee he Ohl Mia aay. 2
Questions Presented ....%...... uae niente be ahie ss 2
ne oh caer Gate eel et cat 3
enernnens WE Ohne Cie. oc scieecc ds seas ws eke eee es 5)
Reasons for Granting the Writ .................... 8
THE COURT OF APPEALS ERRED IN SIGNIFICANT RE-
SPECTS WHICH RESULT IN PETITIONER BEING DE-
PRIVED OF THE OPPORTUNITY TO BE HEARD. IM-
PORTANT QUESTIONS INVOLVING STANDING AND
SECTION 77 OF THE BANKRUPTCY ACT ARE PRE-~
on pagtl EE EE LEE ELE Ey Oe erie 8
1. The Court of Appeals erroneously limited
the principles enunciated by this Court.in Data
Processing Service v. Camp, 397 U.S. 150 (1970)
and erroneously interpreted Section 77 of the
| | EOE rt eel ay mT re ene fi 8
2. The Court of Appeals erroneously limited
the definition of a ‘‘creditor’’ under Section 77
of the Bankruptcy Act and arbitrarily denied the
New Haven Committee the opportunity to be
ee BE Oe TET COT ET eee aE 11
eae Se HIT oun SPORE eo NE UN SDE rem ey Pes 14
ii TABLE OF CONTENTS
APPENDIX: . - PAGE
Opinion of the Court Below ..... Nha Cana la.
Judgment of the Court Below .................... 13a
Order Number 63 Authorizing Trustee to Affirm
a Memorandum of Intent among Metropolitan
Transportation Authority, Connecticut Trans-
portation Authority and the Debtor .......... 15a
Order Number 72 Amending Order Number 63 ..... 17a
TABLE OF AUTHORITIES
Cases:
Arnold Tours; Inc. v. Camp, 397 U.S. 315 (1970) .... 8°
Data Processing Service v. tia 397 U.S. 150
CE he VAN Kd nin Sobek a eeg eee anaweeewnes 7,8, 9, 10
Flast v. Cohen, 392 U.S, 83 (1968) ..........-.. 7, 8, 9,11
Hardin v. Kentucky Utilities Company, 390 US. 1
COD ce dkcutwekcuneee can Prerirrtie t 8
Horewitz v. Kaplan, 193 F. 2d 64 (1st Cir. 1951),
cert. denied, 342 U.S. 946 (1952) .............. 10
New Haven Inclusion Cases, 399 U.S. 392 (1970) ..4,5, 13
New York, N.H. & H.R.R. First Mortgage Bond-
holders Committee v. United States, 289 F.Supp.
418 (S.D.N.Y. 1968) .............-.. ey ae ee 3
New York, N.H. & H.R.R. First Mortgage Bond-
holders Committee v. United States, 305 F.Supp.
1049 (B.D.N.Y. 1969) . 2... cece eecevccceseess 3)
Statutes: ~
Bankruptey Act §77(b), 11 U.S.C. § 205(b) ........ 3, 11
Bankruptey Act §77(c)(13), 11 U.S.C. § 205(¢) (13)
3, 10, 11
Se 8 Se PI th SERGE ADA LEP EEL ERLER : We
IN THE
Supreme Court of the United States
OCTOBER TERM, 1971
+
In the Matter of
Penn CentraL TRANSPORTATION CoMPany,
Debtor.
Tue New York, New Haven & Harrrorp Ramroap Com-
PANY First Morrcace 4% BonpHoLpERS ComMMITTEE,
Petitioner,
against
Georce P. Baxer, Ricwarp C. Bonn, JERVIS Lancpon, JR.,
and WiLLarp Wirtz, as Trustees of the Property of the
Penn Central Transportation Company,
Respondents.
y%
i
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Petitioner prays that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for
the Third Circuit, entered January 27, 1972, which dis-
missed the appeal of petitioner from an order of the
United States District Court for the Eastern Districi of:
Pennsylyania filed September 29, 1970.
Opinion Below
The opinion of the Court of Appeals has not yet been
officially reported and is set out in the Appendix to this
2
Petition commencing at page la. The judgment of the
Court of Appeals is set out in the Appendix at page 13a.
The orders of the District Court (Order Nos. 63 and 72)
are set out in the Appendix commencing at page 15a.
Jurisdiction |
The judgment of the Court of Appeals was entered
January 27, 1972. The jurisdiction of this Court is in-
voked under 28 U.S.C. § 1254(1)..
Questions Presented
1. Did the Court of Appeals err in holding that the prin-
ciples governing questions of standing enunciated by
this Court in Data Processing Service v. Camp, 397
U.S. 150 (1970) do not apply to railroad reorganiza-
tion proceedings under Section 77 of the Bankruptcy .
Act?
2. Whether the New Haven Committee, an active partic-
ipant in pre-bankruptcy litigation against Penn Central
Transportation Company, has standing to protect the
_ fruits of its litigation in the Penn Central Transporta-
tion Company reorganization proceedings?
3. Whether the equitable owners of a claim against a rail-
road in reorganization under Section 77 of the Bank-
ruptey Act have standing to appeal from an order ad-
versely affecting the value of the claim?
4, Whether the Court of Appeals was correct in holding
that -the interests represented by the New Haven Com-
mittee. were ‘‘derivative’’ and that persons having a
‘‘substantial derivative interest’? in a railroad re-
organization proceeding have no right to be heard and
to appeal? |
Statutes Involved
_. The statutes involved in this case are: Bankruptey Act
§ 77(b) and § 77(e) (13), 11 U.S.C. § 205(b) and 205(e) (13):
Those portions of the statutes that are most pertinent to
this Petition are as follows: |
Section 77(b) of the Bankruptcy Act .
11 U.S.C. § 205(b)
“*. . . The term ‘creditors’ shall include, for all pur-
poses of this section all holders of claims of whatever
character against the debtor or its property, whether
or not such claims would otherwise constitute prova-
ble claims under a contract executory in whole or in
part including an unexpired lease. |
‘“‘The term ‘claims’ includes debts, whether liqui-
dated or unliquidated, securities (other than stock and |
option warrants to subscribe to stock), liens, or other
interests of whatever character.”’
Section 77(c)(13) of the Bankruptcy Act
11 U.S.C. § 205(c)(13)
‘*. .. The debtor, any creditor or stockholder, or the
duly authorized committee, attorney or agent of either
or the trustee or trustees of any mortgage, deed of
trust or indenture pursuant to which securities of the.
debtor are outstanding, shall have the right to be
heard on all questions arising in the proceedings, and
upon petition therefor and cause shown, any such
person or any other interested party may be per-
mitted to intervene.”’
Statement of the Case
Petitioner, The New York, New Haven and Hartford
Railroad Company First Mortgage 4% Bondholders Com-
+
mittee (the ““New Haven Committee’’) is the representa-
tive of the First Mortgage Bondholders of The New York,
New Haven anid Hartford Railroad Company (the ‘‘New
- Haven’’), a Debtor in reorganization.*
The New Haven Committee appealed to the Court of
Appeals for the Third Circuit from Order No. 63 of the
District Court for the Eastern District of Pennsylvania
(the ‘Reorganization Court’’?) (App. 15a) as amended
by Order No. 72 (App. 17a). Order No. 63 was entered
without opinion in proceedings for the reorganization of
Penn Central Transportation Company (‘‘Penn Central’’)
under § ® of the Bankruptey Act (11 U.S.C. § 205). The
order resulted from the petition of the Trustees of the
property of Penn Central (the ‘‘Penn Central Trustees’’)
requesting authority to affirm a Memorandum of Intent
with the New York Metropolitan Transportation Agency
(the “‘“MTA’’) and the Connecticut Transportation An-
thority (the ““CTA’’). The Memorandum provided for
the transfer to MTA and CTA of property which had
been transferred to Penn Central by the New Haven on
December 31, 1968 pursuant to orders of the Interstate
Commerce Commission and the United States District
Court for the District of Connecticut acting as the New
Haven Reorganization Court.**
Specifically, Order No. 63 permitted the sale of the New
Haven’s.main line betweema Woodlawn Junction and the
New York State border at Port Chester, New York to
MTA and the transfer, by lease for a term of sixty years,
of the New Haven line from the New York-Connecticut
*The New Haven is and has been a debtor in reorganization
under Section 77 of the Bankruptcy Act since July 7, 1961.
** A description of the transaction is set forth in New Haven
Inclusion Cases, 399 U.S. 392 (1970). The proceedings there re-
manded by this Court to the Interstate Commerce Commission
(“Commission”) have to this date not been set down for hearing
by the Commission.
5
boundary line to the cities of New Haven, Waterbury,
Danbury ‘and New Canaan, to CTA. The Penn Central
Trustees requested that the transfers be made free of the
lien of a Divisional First Mortgage dated as of December
31, 1968, securing the issue of Penn Central 5% Divisional
First Mortgage Bonds due January 1, 1994 delivered-to
New Haven in connection with the December 31, 1968
transfer of the New Haven properties.
The New Haven Committee and the New Haven Trustee
appeared before the Reorganization Court at a hearing
held on September 23, 1970 and objected to the transfer
of the properties free of the first mortgage lien unless the
Penn Central Trustees deposited with the Indenture
Trustees under the divisional mortgage, not merely the
cash received by the Penn Central Trustees, but the fair
value of all the consideration received in any form, As
noted by the Court of Appeals, the New Haven Trustee
compromised and withdrew his objection (App. 3a fn."4).*
The New Haven Committee did not join in the compromise
and when the Reorganization Court promptly entered
Order No. 63, the New Haven Committee prosecuted its
appeal to the Court of Appeals.
Subsequently, the Penn Central Trustees moved in the
Court of Appeals to dismiss the appeal on the ground that
the New Haven Committee had no standing to bring the
*The New Haven Trustee had not sought authority from the
New Haven Reorganization Court to enter its compromise nor did
he seek, or ever receive, approval for this course of conduct. This
was not the first ‘time in the long history of the New Haven re-
organization proceedings that the New Haven Committee pressed
on to oppose agreements made by the New Haven Trustee without
the prior approval of the New Itoees Reorganization Court. See
New Haven Inclusion Cases, supra, at 410-11 fn. 46: New York,
N.H. & H.R.R. First Mortgage Bondholders Committee v. United
States, 239 F.Supp. 418 (S.D.N.Y. 1968); New York, NH. &
H.R.R. First Mortgage Bondholders Committee v. United States,
305 F.Supp. 1049 (S.D.N.Y. 1969).
6
appeal. The motion was argued before a panel of the
Court of Appeals,* which then did not determine the mo-
tion but continued the motion ‘‘for disposition by the panel
of this Court which hears argument on the merits in this
case.”’
The contention of the New Haven Committee on the ap-
peal was that the Reorganization Court, although establish-
_ ing a procedure for determining the extent to which the
consideration deposited with the Indenture Trustee was
not equal to the value of tlie entire consideration, erred in
ordering (in Paragraph 4, App. 16a) that no matter
how far below the fair market value of all elements of con-
sideration the cash consideration will be proven to be,**
the amount deposited with the Indenture Trustee will not
exceed the cash consideration received and to be received
from MTA and CTA, and in permitting the sale without
provision for the deposit with the Indenture Trustee of
the fair value of the property.
In its opinion, the Court of Appeals stated:
‘*Paragraph 4 of the order, however, appears to limit
the Penn Central Trustees’ obligations to the New
Haven Trustee under the Divisional First Mortgage.’’
(App. 4a)
But the Court of Appeals granted the motion of the
Penn Central Trustees to dismiss, concluding that the New
* Argument was heard on April 19, 1971 by Circuit Judges
Seitz, Adams and Rosenn.
** It seemed evident that the cash consideration received or to be
received was not a full measure of the fair value of the property.
The property involved in the transfer to MTA was valued (as of
December 31, 1965) at $11.7 million by the Interstate Commerce
Commission in the proceedings transferring the property from the
New Haven to Penn Central. Under the Memorandum approved
by Order No. 63, MTA paid only $7.2 million in- cash for the
property. In addition, Penn Central received trackage rights and
a subsidy relieving it of operating losses.
7
_Haven Committee lacked standing to prosecute the appeal
(App. 5a-6a).*
The Court of Appeals, in denying standing to the New
Haven Committee, first held that the principles enunciated
by this Court in Data Processing Service v. Camp, 397
U.S. 150 (1970) and Flast v. Cohen, 392 U.S. 83 (1968)
were “‘manifestly not intended to apply to a railroad re-
organization proceeding’? (App. Ga fn. 12). It then held
that, although the interest of the New Haven bondholders
in assuring that the terms of the mortgage are complied
with was ‘‘substantial”’ (App. 7a-8a), their interest was
‘‘essentially derivative’’ from the claim of the New Haven
Trustee (App. 9a fn.-17) and that the language and policy
of Section 77 compelled the conclusior that “Standing to
appeal an order of a railroad reorganization court. re-
quires.a direct personal interest in the subject matter of
the order and a showing that the appellant is aggrieved or
prejudiced by the order’? (App. Sa, fn. 16).
The question as to how ‘‘direct”’ an interest in the sub-
ject matter is required to confer standing is of general
importance. Especially since the Court of Appeals recog-
nized that the New Haven Committee had a substantial in-
terest in the subject matter of the order and was aggrieved
and prejudiced by it.
* The Court of Appeals stated: “In view of our disposition of
this appeal, we need not decide whether there is merit in the New
Haven Committee’s position . . .” (App. 3a fn. 4).
8
REASONS FOR GRANTING THE WRIT
The Court of Appeals erred in significant respects
which result in petitioner being deprived of the oppor-
tunity to be heard. Important questions involving
standing and Section 77 of the Bankruptcy Act are
presented.
1. The Court of Appeals erroneously limited the prin-
ciples enunciated by this Court in Data Processing Service
v. Camp, 397 U.S. 150 (1970) and erroneously interpreted
Section 77 of the Bankruptcy Act. ;
This Court has recently taken firm steps to insure that
those who have an interest which is of the type a statute
was designed to protect shall not be denied their day in
Court because of an absence of standing. See Data Proc-
essing Service v. Camp, 397 U.S. 150 (1970); Arnold Tours,
Inc. vy. Camp., 397 U.S. 315 (1970); Flast v. Cohen, 392
U.S. 83 (1968); Hardin v. Kentucky Utilities Company,
390 U.S. 1 (1968).
In Data Processing Service v. Camp, supra, this Court
declared that only two. questions were required to be an-
swered affirmatively fot a plaintiff to have standing. In
this Court’s language:
‘*Phe first question is whether the plaintiff alleges
that the challenged action has caused him injury in
fact, economic or otherwise.’’ (397 U.S. at 152)
The second question was put as follows:
‘“‘The ‘legal interest’ test goes to the merits. The
question of standing is different. It concerns, apart
from the ‘case’ or ‘controversy’ test, the question
whether the interest sought to be protected by the
complainant is arguably within the zone of interests to
be protected or regulated by the statute or constitu-
tional guarantee in question.’’ (3897 U.S. at 153)
~ ¢
~ 6
9
As to the first question, the New Haven Commiitee al-
leged that Order No. 63 caused the bondholders economic
injury and the Court of Appeals recognized the reality of
the injury claimed. It stated:
‘“‘Thus the New Haven bondholders represented by
the Committee have a lien on substantially all of the
assets held by the New Haven Trustee, including the
Penn Central 5% Divisional First Mortgage Bonds.
These New Haven bondholders, therefore, have a sub-
stantial derivative interest in assuring that the terms
of the mortgage which secures these bonds are com-
plied with. Put in the simplest terms, the more cash
that is deposited with the Mortgage Indenture Trus-
tees when former New Haven assets are sold, the more
likely it is that the Penn Central’s obligations to the
New Haven Trustee will be met, and therefore the
more likely it is that the New Haven Committee bond-
holders will have their claims against the New Haven
satisfied.’’ (App. 7a-S8a)
It seems obvious that the realistic interest sought to be
protected by the New. Haven Committee is ‘‘arguably
within the zone of interests to be protected’’ by Section 77
of the Bankruptey Act... However, instead of following the
tests established by this Court in Data Processing Service
v. Camp, supra, the Court of Appeals, in a footnote, held
the principles declared in the Data Processing Case and
in Flast v. Cohen, supra, to be inapplicable to Section 77
of the Bankruptey Act (App. 6 fn. 12). In respect of the
language of this Court, it stated:
“This language, however, was manifestly not in-
tended to apply to a railroad, reorganization proceed-
ing, where Congress has enacted a specific statutory
scheme which outlines the parties entitled to partici-
pate and provides a means by which an ‘interested
party’ may be permitted to intervene ...’’ (App. 6
fn. 12)
10
The ‘‘specifie statutory scheme’’ referred to by the
Court of Appeals is contained in § 77(c)(13) ‘of the Bank-
ruptey Act, as follows:
‘‘The debtor, any creditor or stockholder, or the duly
authorized committee, attorney or agent of either or
the trustee or trustees of any mortgage, deed of trust
or indenture pursuant to which securities of the debtor
are outstanding, shall have the right to be heard on
all questions arising in the proceedings and upon peti-
tion therefor and cause shown, any such person or any
other interested party may be permitted to intervene.”’
While § 77(c)(13) specifically declares some persons to
be ‘‘interested’’, it also recognizes that persons other than
those listed may be ‘‘interested’’. As-to the latter, the
section attempts no limitation, but suggests a procedure
of formal interyention.* The Court of Appeals has con-
eluded that only those persons specifically listed in § 77(c)
(13) have standing and the right to be heard. This con-
elusion simply eontradicts the holding in the Data Process-
ing Case that persons who allege an injury in fact and who
seek to protect an interest ‘‘arguably within the zone of
interests to be protected or regulated’’, have standing and
the right to be heard.
There is no authority for the holding of the Court of
Appeals that § 77(c)(13) was intended as an exclusive list
of those who have a right to be heard and none was cited
by the Court of Appeals. Generally, the Bankruptcy Laws
have been liberally interpreted to allow full participation
in reorganization proceedings by interested persons. See
Horowitz v. Kaplan, 193 F. 2d 64 (1st Cir. 1951), cert. de-
nied, 342 U.S. 946 (1952).
* The Court of Appeals recognized the rule that “the failure to
formally intervene will not preclude an appeal if the appellant in
fact had a right to be heard in the reorganization proceedings.”
(App. 6a fn. 11) (emphasis in original). See Horowitz v. Kaplan,
193 F. 2d 64 (1st Cir. 1951), cert. denied, 342 U.S. 946 (1952).
11
So long as ‘‘the dispute sought to be adjudicated will be
presented in an adversary context and in a form histori-
cally viewed. as capable of judicial resolution’’,* the right
to be heard should be recognized, There is no valid policy
reason for the promulgation of a more limited rule in rail-
road reorganization proceedings.
2. The Court of Appeals erroneousy limited the defini-
tion of a “creditor” under Section 77 of the Bankruptcy
Act and arbitrarily denied the New Haven Committee the
opportunity to be heard.
Having concluded that §77(¢)(13) of the Bankruptcy.
Act prevented application of the general principles govern-
ing standing in the federal courts, the Court of Appeals
then went on to discuss the question of whether the New
Haven Committee had standing because the bondholders
represented by it were ‘‘creditors’’ under § 77 of the Bank- .
ruptcy Act.
Section 77(b) contains the following definitions:
‘The term ‘creditors’ shall include, for all purposes
of this section all holders of claims of whatever char-
acter against the debtor or its property, whether or
not such claims would otherwise constitute provable
claims under this Act, including the holder of a claim
under a contract executory in whole or in part includ-
ing an unexpired lease.
‘The term ‘claims’ includes debts, whether liquidated
or unliquidated, securities (other than stock and op-
tion warrants to subscribe to stock) liens, or other in-
terests of whatever character.’’ (emphasis added)
The broad definitions contained in §77(b) clearly re-.
flect the intention of Congress to permit any person likely
* Flast _v. Cohen, 392 U.S. 83, 101 (1968). Here, the New
Haven Committee represents those persons who have the largest
financial interest in the outcome of these proceedings.
12
to he economically affected by the reorganization proceed- |
ings to be considered as a ‘‘creditor’’. The Court of
‘Appeals, in effect, recognized that the interest of the New
Haven Committee was such that it was obviously the
‘tholder of claims’’. It held, however, that the claims
were not ‘‘against the debtor or his property’’ but were
‘‘essentially derivative’? and that ‘‘Congress did not in-
tend that those with simply a derivative interest in a rail-
road reorganization proceeding have a right to be heard
and to appeal’’ (App. 8a, 9a).
Although limiting its enunciation to a footnote, the
Court of Appeals promulgated and applied the following
general principle:
‘‘Standing to appeal an order of a railroad reorgan-
ization court requires a direct personal interest in the
subject matter of the order and a showing that “
appellant is aggrieved or prejudiced by the order.”
(App. 8a fn. 16)
It is submitted that this general declaration is unwork-
able, unduly restrictive and entirely dependent upon the
placing of arbitrary ‘‘labels’’ upon the ‘interests sought
to be protected. This Court should grant this petition to
consider whether the requirements for standing imposed
by the Court of Appeals reflect the intention of Congress.
The harshness of the Court of Appeals’ rule is drama-
tized in the instant case. It is apparent that the New
Haven Committee has shown that it ‘‘is aggrieved or
prejudiced by the order’? and that ought to be sufficient
to recognize standing as an interested party. But_ the
Court of Appeals has labeled the substantial interest of
the New Haven Committee as ‘‘derivative’’ and therefore
not a ‘‘direct personal interest.’? The Court of Appeals
stated:
‘‘The lien which these New Haven bondholders once
had on the New Haven property . . . -was explicitly
. 13
released when this property was transferred to Penn
Central on December 31, 1968. Furthermore, the lien
which the New Haven bondholders have against the
proceeds of -the sale to Penn Central does not give
them a claim against the Penn Central. The claim
against the Penn Central for these proceeds is held
by the New Haven Trustee; the New Haven bond-
holders have a claim only against the amounts which
the New Haven Trustee receives from Penn Central.’
(App. 8a-9a)
The New Haven Trustee is, however simply a fiduciary
appointed by a court to conduct proceedings in reorgan-
ization. No one can pretend that the New Haven Trustee
has a personal interest. At best, in traditional trust terms,
the New Haven Trustee has legal title while the bond-
holders hold the equitable title. An equitable interest is
not a ‘‘derivative interest’. The equitable owners are
the ones who suffer the injury imposed by the order. This
Court has recognized that it is the bondholders who hold
the essential rights determined in the long history of this
litigation. In New Haven Inclusion Cases, supra, this
Court said:
‘*Moreover, we today require a reassessment of the
consideration that Penn Central is to give in exchange
for those properties. We thereby accord the bond-
holders the right to a liquidation and a per-parcel
sale that is theirs by virtue of their mortgage liens.’’
(399 U.S. at 489-90) (emphasis added)
The New Haven Committee appeared in the Penn Cen-
tral proceedings in order to insure that in the course of a
‘‘liquidation and per-parcel sale’’ of property that was
theirs by virtue of their mortgage liens, the property
should not be transferred without a deposit with the In-
denture Trustee of the fair value of the consideration re-
ceived on such a sale. The Court of Appeals’ decision
14
holds that the bondholders have no standing any longer to
protect the rights accorded by this Court. |
The Court of Appeals has created rigid and arbitrary
requirements for the determination of standing under § 77
of the Bankruptcy Act. The decision of the Court of
Appeals has wide and important ramifications in the ad-
ministration of an important statute and important judi-
cial proceedings and this Court should review the decision
of the Court of Appeals.
CONCLUSION
For the reasons above stated, this Petition for a writ
‘of certiorari should be granted.
Respectfully submitted,
Lester C, Micpat,
LAWRENCE W, POLLACK, |
Attorneys for Petitioner
598 Madison Avenue
New York, New York 10022
Of Counsel:
Micpat, Low, Tenney & Gass
598 Madison: Avenue
New York, New York 10022
Conen, SHAPIRO, PoLIsHER, SHIEKMAN and CoHEN
Philadelphia Savings Fund Building
Philadelphia, Pennsylvania 19107
April 26, 1972.
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Opinion of the Court of Appeals
UNITED STATES COURT OF APPEALS
For tHe THirp Circuit
No. 19,503
—_
In the Matter of:
PENN CENTRAL TRANSPORTATION COMPANY,
Debtor
THE NEW YORK, NEW HAVEN & HARTFORD
RAILROAD COMPANY FIRST MORTGAGE
4% BONDHOLDERS COMMITTEE,
Appellant
——
APPEAL From tHe Unitep States District Court
For tHe Eastern District OF PENNSYLVANIA
Argued November 9, 197]
Before Van Dusen and Rosen, Circuit Judges,
and Layton, District Judge
OPINION OF THE COURT
(Filed January 27, 1972)
Van Dusen, Circuit Judge.
This case involves an appeal by the New. York, New
Haven & Hartford Railroad Company First Mortgage 4%
Bondholders Committee (“the New. Haven Committee”)
from an order of the District Court for the Eastern District
of Pennsylvania sitting as a Reorganization Court In the
Matter of Penn Central Transportation Company, Debtor.
The order in dispute, Order No. 63, resulted from a peti-
~ _—
2a
tion filed on September 11, 1970, by the Penn Central
Trustees, requesting authority to affirm a Memorandum
of Intent with the New York Metropolitan Transportation
Authority (“the MTA”) and the Connecticut Transportation
Authority (“the CTA”). This Memorandum provided for the
sale to the MTA of the Penn Central line between Wood-
lawn Junction and Port Chester in New York (a line for-
merly owned and operated by the New York, New Haven
& Hartford Railroad Company (“the New Haven”))' and
a 60-year lease to the CTA of the Penn Central lines ex-
tending from the New York-Connecticut boundary to the
Connecticut cities of New Haven, Waterbury, Danbury and
New Canaan (lines also formerly owned and operated
by the New Haven)? A hearing on the Trustees’ peti-
tion was held on September 23, 1970, by the Penn Cen-
tral Reorganization Court. The Trustee of the New Haven
and the New Haven Committee appeared at this hearing»
to object to the conveyances contemplated by the Memo-
1. Substantially all of the assets and operations of the New
2 Under the terms of the Memorandum, Penn Central was to
receive $7.2 million cash from the MTA and a cash annual rental
from the CTA equal to 5% of the aggregate salvage value of the
leased lines. (The CTA also was given an option to purchase the
leased lines during the term of the lease at a price equal to their
salvage value when the option is exercised. ) The Memorandum also
provided that Penn Central would retain free trackage rights over
the transferred lines for 60 years and would receive a minimum
cash toll of $2.9 million per year for the use by the MTA and the
CTA of the Penn Central track between Woodlawn Junction and
Grand Central Station (track no* formerly owned by the New
Haven). Provision was also made for a service contract under which
Penn Central would continue to operate the transferred lines in
exchange for an annual management fee of $100,000. plus reim-
bursement by the MTA and the CTA for any deficits Penn Central
incurred in these operations.
3a
randum unless the Penn Central Trustees deposited with
the Indenture Trustees of a Penn Central Divisional First
Mortgage* an amount in cash equal to the fair value of
the properties transferred, not simply the cash which
Penn Central was to receive in direct payment for the
transfers.* After some discussion; the hearing was re-
cessed to allow the parties to effect a compromise.
A> settlement agreement reached between all the
participants except the New Haven Committee was re-
flected in Order No. 63 of the Penn Central Reorganiza-
tion Court, dated September 29, 1970. This order author-
ized the Penn Central Trustees to affirm the Memo-
-randum, but reserved jurisdiction to determine the valu-
ation and disposition of the consideration to be re-
3. When the Penn Central purchased the assets and opera-
tions of the New Haven on December 31, 1968, a part of the con-
sideration paid to the New Haven Trustee was an issue of Penn
Central 5% Divisional First Mortgage Bonds, which were secured by
a Divisional First Mortgage on all the New Haven assets which had
been transferred to Penn Central. The New Haven Trustee is the
only holder of these Penn Central 5% Bonds.
4. The claim by the New Haven Committee is apparently
based upon the following language in the Penn Central Divisional
First Mortgage:
Section 10.09(a): '
“{A]ll cash and securities receivable from any and all
sales or condemnations of Mortgaged Properties, plus any cash
required to be paid by the Company to the Corporate Trustee
pursuant to §10.08, shall be deposited with the Corporate
Trustee and held by it as Deposited Cash and Securities.”
Section 10.08(4):
“(There shall also be deposited] [{s}uch cash, if any, to
be held by the Corporate Trustee as Deposited Cash and
Securities as shall be equal to the excess of the fair value of the
portion of the Mortgaged properties being released pursuant
to section 10.01 over the fair value of the proceeds to be re-
ceived, as shown by the officers’ Certificate.”
In view of our disposition of this appeal, we need not decide
whether there is merit in the New Haven Committee's position
(which apparently was first advanced and then compromised by the
. New Haven Trustee).
4a
ceived by the Trustees from the MTA and the CTA5
Paragraph 4 of the order, however, appears to limit the
Penn Central Trustees’ obligations to the New. Haven
Trustee under the Divisional First Mortgage.“ The New
5. Presumably also reserved for future resolution was the
issue raised by the New Haven Committee as to whether the 60-year
lease to the CTA constitutes a sale within the meaning of the Penn
Central Divisional First Mortgage. See footnote 4, supra.
Pending these determinations, the Penn Central Trustees were
directed to deposit all cash consideration received with respect to
property released from. the Divisional First Mortgage lien with the
Mortgage Indenture Trustee (*3(a)) and to deposit other cash re-
ceived pursuant to the Memorandum in a special bank account
(€3(b)). But see footnotes 6 & 20, infra.
6. Paragraph 4 of Order No. 63 declares as follows:
“4. The obligations, if any, to be discharged by the
Debtor's Trustees hereunder with respect to the claims of per-
sons other than MTA and CTA are hereby limited to an
amount which shall not exceed the sum of cash received from
the sale of any property subject to the lien of the Divisional
Mortgage leased to CTA pursuant. to said lease plus annual
rental payments as and when received by the Debtor's
Trustees under said lease.”
Because of our disposition of this appeal, we need not decide
whether the limitation contained in this paragraph is appropriate.
We note that the Penn Central Reorganization Court has an obliga-
tion to protect the interests of the creditors and the public interest.
See Penn Central Merger Cases, 389 U.S. 486, 507-11 (1968); New
Haven Inclusion Cases, 399 U.S. 392, 489-95 (1970). Section 77(o)
of the Bankruptcy Act, 11 U.S.C. §205(0) declares that when the
reorganization court orders the sale of property free from liens, the
“proceeds derived from any such sales shall be received by the
trustee ... subject .. . to any liens thereon at the time of
sale . . . .” Paragraph 2 of Order No. 63 appears consistent with
the above-quoted language and paragraph 4 must be read in light
of the other paragraphs of the order.
Order No. 147 of the Penn Central Reorganization Court dated
January 26, 1971 (the substance of which was approved by the New
Haven Reorganization Court on January 27, 1971, after a hearing
on January 22, 1971), authorized the division between the Penn
Central Trustees and the New Haven Trustee of approximately
$18 million held by the Indenture Trustees of the Penn Central
Divisional First Mortgage, which money included deposits made
5a
Haven Committee objected to the entry of this order,
largely because of the limitation contained in para-
graph 4.7 This appeal followed.*
A threshhold issue in this appeal involves the author-
ity of the. New Haven Committee to appeal the entry of
Order No. 63 by the Penn Central Reorganization Court.®
For the reasons to be stated, we conclude that the New
Haven Committee is not authorized by the controlling
bankruptcy statutes to prosecute this appeal. We there-
pursuant ‘to €3(a) of Order No. 63. The Penn Central Trustees con-
tended that this division and distribution of funds permitted the
continued operation of the Penn Central Railroad at a time when _
such operation was in extremis (N. T. 1133). See In the Matter of
Penn Central Transportation Co., Debtor, First Wisconsin National
Bank, Appellant (3rd Cir., Nos. 19,340-19,346, decided December
23, 1971), where Judge Hastie pointed out:
“Even secured creditors of a railroad must submit to the
risk inherent in judicial suspension of the rights they normally
would have to enforce their liens against property of the debtor
during the pendency of a reorganization proceeding. New
Haven Inclusion Cases, 1970, 399 U.S. 392, 489-94.”
See also Central RR. v. Manufacturers Hanover Trust Co., 421 F.2d
604 (3rd Cir. 1970). Further, the division of the $18 million between
the New Haven Trustee and the Penn Central Trustees was in the
nature of a settlement agreement (N. T. 1127-29, 1135 ff.) and such
agreements, insofar as those participating in them are concerned,
are favored by the law. See Kelly v. Greer, 365 F.2d 669, 671 (3rd
Cir. 1966): Main Line Theaters v. Paramount Film Distributing
Corp., 298 F.2d 801 (3rd Cir.), cert. denied, 370 U.S. 939 (1962).
7.-On October 27, 1970, the Penn Central Reorganization
Court entered Order No. 72, which amended Order No. 63 to make
.it clear (1) that the New Haven Committee had not consented to
Order No. 63, but (2) that no other party would be deemed to have
agreed that the New Haven Committee had standing to object.
8. The New Haven Committee filed its Notice of Appeal on
October 23, 1970; but did not seek either a stay of execution from
the Penn Central Reorganization Court or a supersedeas from this
court. Accordingly, on January 4, 1971, the transfers contemplated
by the Memorandum were concluded.
9. On March 3, 1971, the Penn Central Trustees filed a motion
in this court to dismiss the appeal of the New Haven Committee on
the ground, inter alia, that it lacked standing to appeal. On May 4,
9 ba
fore grant the motion made by the Penn Central Trustees
to dismiss the appeal.®
The standing of a participant to a railroad reorgani-
zation to appeal from an order of the reorganization court
turns on whether Section 77(c) (13) of the Bankruptcy
Act, 11 U.S.C. §205(c) (13) (1964), grants him a right to
be heard.'®° See Horowitz v. Kaplan, 193 F.2d 64, 66
(Ist Cir. 1951); Im re Keystone Realty Holding Co., 117
F.2d 1003, 1005 (3d Cir. 1941). Section 77(c) (13) grants
this right to be heard to the “debtor, any creditor or
stockholder.”'' Thus the New Haven Committee is
authorized to bring this appeal only if it is a “creditor” or
a “stockholder” of the Penn Central as these terms are
defined in the Bankruptcy Act.!2
Note Q—Continued .
1971, after the filing of briefs and oral argument, this motion was
continued for disposition by the panel hearing the merits of the
appeal.
10. The fact that the New Haven Committee was allowed to
participate in the Penn Central Reorganization Court proceedings
does not give rise to an automatic right of appeal. See Peckham uv.
Casalduc, 261 F.2d 120, 121 (1st Cir. 1958), cert. denied, 359 U-S.
958 (1959) (Chapter X Reorganization).
11. Section 77(c)(13) also provides that “upon petition there-
‘for and cause shown .. . any other interested party may be per-
mitted to intervene.” The New Haven Committee, however, did not
petition to intervene, so that it cannot claim a right to appeal as an
intervenor. On the other hand, the failure to formally intervene will
not preclude an appeal if the appellant in fact had a right to be
heard in the reorganization proceedings. See Horowitz v. Kaplan,
193 F.2d 64, 66 (1st Cir. 1951).
12. The New Haven Committee has argued that the broad
language respecting standing in several recent decisions of the
Supreme Court, particularly Data Processing Service v. Camp, 397
U.S. 150 (1970), and Flast v. Cohen, 392 U.S. 83 (1968), supports
its right to appeal the entry of Order No. 63. This language, how-
ever, was manifestly not intended to apply to a railroad reorganiza-
tion proceeding, where Congress has enacted a specific statutory
scheme which outlines the parties entitled to participate and pro-
vides a means by which an “interested party” may be permitted to
intervene (see footnote 11, supra). See Data Processing Service v.
Camp, 397 U.S. 150, 154, 157 (1970). ’
se ON IR LTE IE OE
7a
The New Haven appears to argue that it is a “creditor”
of the Penn Central because of the very substantial in-
terest which its members have in the property which the -
New Haven Trustee receives from the Penn Central. The
members of the New Haven Committee are the holders of ©
New Haven First Mortgage 4% Bonds which were out-
standing at the time that the assets and operations of the
New Haven were sold to Penn Central on December 31,
1968.'3 The transfer of assets to Penn Central, how-
ever, was made free of this mortgage lien, with the lien
attaching to the proceeds of the sale held by the New .
Haven Trustee.'* Thus the New Haven bondholders
represented by the Committee have a lien on substantial-
ly all of the assets held by the New Haven Trustee, includ-
ing the Penn Central 5% Divisional First Mortgage
Bonds.'> These New Haven bondholders, therefore, have
a substantial derivative interest in assuring that the
13. See footnote 1. supra.
14. After extensive negotiations and proceedings, the New
Haven Reorganization Court on December 24, 1968, approved the
release of the New Ha.ven assets to the Penn Central pursuant to a
plan of sale under which the transfers were to be substantially
free and clear of all liens and encumbrances; these liens and en-
cumbrances shifted to the proceeds of the sale and thereby re-
mained an obligation of the New Haven estate. See New Haven
Inclusion Cases, 399 U.S. 392, 410-16, 410 n. 45 (1970). This trans-
fer of the liens and encumbrances from the assets themselves to the
proceeds of sale is authorized by the following language of Section
77(0) of the Bankruptcy Act, 11 U.S.C. §205(0):
“The judge may order and decree any sale of property
. Subject to or free from liens. The proceeds derived from
any such sales shall be received by the trustee . . . subject,
in case the property was sold free from lien, to any liens there-
on at the time of sale, and shall be applied or disposed of in
‘ such manner as the judge by further order shall direct.”
15. The total price to be paid by Penn Central for the New
Haven assets and operations has not yet been finally determined
and is the subject of litigation which has already reached the
Supreme Court. See New .Haven Inclusion Cases, 399 U.S. 392
(1970). Of course, the Committee has a very substantial interest in
8a
terms of the mortgage which secures these bonds are
complied with. Put in the simplest terms, the more cash
that is deposited with the Mortgage Indenture Trustees
when former New Haven assets are sold, the more likely
it is that the Penn Central's obligations to the New
Haven Trustee will be met, and therefore the more likely
it is that the New Haven Committee bondholders will
have their claims against the New Haven satisfied.
The relevant language of the Bankruptcy Act indi-
cates, however, that Congress did not intend that those
with simply a derivative interest in a railroad reorganiza-
tion proceeding have a right to be heard and to appeal.
See Callaway v. Benton, 336 U.S. 132, 139 (1949);
Boston & Providence Railroad Stockholders Develop-
ment Group v. Smith, 333 F.2d 651 (2d Cir. 1964). Cf.
Peckham v. Casalduc, 261 F.2d 121 (1st Cir. 1958).!6
Section 77(b) of the Act, 11 U.S.C. §205(b), provides as
follows: | .
“The term ‘creditors’ shall. include, for all purposes
of this section all holders of claims of whatever
character against the debtor or his property ... .
(emphasis added.)
This record requires the conclusion that the members of
the New Haven Committee do not hold claims against
either the Penn Central or the property of the Penn Cen-
tral, as required by the language of Section 77(b). The
lien which these New Haven h SoneereTS « once had on the
Note ais
the determination of this purchase price and, in fact, has actively
participated in the New Haven Reorganization Court litigation. See
399 U.S. at 489-95.
16. Standing to appeal an order of a railroad reorganization
court requires a direct personal interest in the subject matter of the
order and a showing that the appellant is aggrieved or prejudiced.
by the order. See, e.g.. Comstock v. Thompson, 158 F.2d 151 (8th
Cir. 1946); In Re ‘Huntingdon & Broad Top Mt. RR. & Coal Co.,
213 F.2d 411 (3rd Cir. 1954).
ed ~ =
9a
New Haven property (some of which Penn Central has
transferred to the MTA and the CTA pursuant to Order
No. 63) was explicitly released when this property was
transferred to Penn Central on December 31, 1968.!7
Furthermore, the lien which the New Haven bondholders
have against the proceeds of the sale to Penn Central'*
does not give them a claim against the Penn Central. The
claim against the Penn Central for these proceeds is
held by the New -Haven Trustee; the New Haven bond-
holders have a claim only against the amounts which the
New Haven Trustee receives from Penn Central. Thus,
since the members of the New Haven Committee do not
have claims either against Penn Central property or
against the Penn Central, they are not “creditors” of
Penn Central within the applicable language of the Bank-
ruptcy Act and, therefore, had no automatic right either
17. See pp. 7-8 and footnote 14, supra.
The New Haven Committee argues that it is not entirely clear
that the New Haven property has finally passed to the Penn Central
in view of the Supreme Court's decision that the Penn Central must
pay more for this property than the amounts originally determined
by either the I.C.C. or the New Haven Reorganization Court. The
New Haven Committee argues that the New Haven Trustee now
holds an “equitable lien” on the former New- Haven property be-
cause the I.C.C. and the New Haven Reorganization Court may yet
decide that the entire transaction (that is, the sale of the New
Haven to Penn Central) should be undone and the property re-
turned to the New Haven. But even if the New Haven Trustee has
such an “equitable lien” on this property (see holding of New Haven
Reorganization Court quoted at footnote 2 of In the Matter of Penn
Central Transportation Company, Debtor, Smith, Trustee, appel-
lant, F.2d (opinion of 1/3/72, 3rd Cir., Nos.-71-1582 and
71-1734)), it does not follow that the New Haven bondholders have
a claim to the property within the meaning of Section 77(b) of the
Act. As in the case of the claim to the proceeds of the sale of the
New Haven assets to Penn Central (discussed below), the claim of
the New Haven Committee is essentially derivative from the claim
of the New Haven Trustee and thus does not fall within the terms
of Section 77(b).
18. Sec footnote 3, supra.
10a
to be heard in the Penn Central reorganization or to ap-
peal the entry of. Order No. 63.'9 ~
This result’ will effectuate the purposes of Section 77
of the Bankruptcy Act. If those with purely derivative in-
terests in a railroad reorganization were allowed not
only to participate in these proceedings but also to appeal
from the resulting decisions, the already complicated and
elaborate reorganization process developed by Congress
might become hopelessly confounded. Further, there is no
reason to believe that the New Haven Trustee will not
adequately protect the interests of creditors of the New
Haven, including the members of the New Haven Com-
mittee, in the Penn Central reorganization proceedings.
Finally, we have held only that the New Haven Committee
has.no right to appeal from a decision reached in the Penn
Central Reorganization Court. This is not to say, how-
ever, that the New Haven Committee was prevented from
contesting the terms of the arrangement embodied in Order
No. 63 in another, more appropriate forum.?°
19. The New Haven Committee has suggested that its mem-
bers should be considered “stockholders” of the Penn Central be-
cause of the possibility that they will own all the stock of the New
Haven. Even if this were to ‘occur, however, it would not aid the
Committee, since it is clear that the stockholders of a creditor are
not themselves “creditors” within the meaning of Section 77(b).
See Callaway v. Benton, 336 U.S. 132, 139 (1949).
20. For example, the New Haven Committee is a party to the
New Haven reorganization proceedings and it might have initiated
an action in that court to challenge the New Haven Trustee's
agreement to the entry of Order No. 63 if it felt that this agreement
violated the terms of the Penn Central Divisional First Mortgage.
See footnotes 3 & 4, supra. Indeed, the appropriateness of this
agreement was at least indirectly before the New Haven Reorgani-
zation Court at a hearing on January 22, 1971 sur Petition of
Trustee For Approval of Agreement with Penn Central Trustees
dated 1/20/71, reciting in paragraph 4 the agreement to divide the
funds as stated in note 6 above, after which that court entered its
Order No. 631 on 1/27/71 approving this agreement. The effect of
Orders ‘631 and 147 (in which the Penn Central Reorganization
Court approved this agreement on 1/26/71) was to modify ‘3(a)
ah SSD RD ai AREER RIES SAO REO RE
lla
For the foregoing reasons, we grant the Penn Central |
Trustees’ motion to dismiss the appeal.
of Order No. 63 to allow a distribution of the money held by the
Mortgage Indenture Trustees (see footnotes 5 & 6, supra). The New
Haven Committee, though a party to the New Haven reorganization
proceedings, did not object to the court's approval of the agreement
(see N.T. of 1/22/71 hearing).
A True Copy :
Teste :
Clerk of the United States Court of Appeals
for the Third Circuit.
13a
Judgment of the Court of Appeals
United States Cort of Appeals
For tHe Tuirp Ciecvit
No. 19,508
In the Matter of:
Penn Centra, Transportation Company, Debto:
Tue New York, New Haver & Harrrorp
Raitroap Company First Mortoacre 4%
Boxpnotpers Com™irrer,
‘Appellant
(D.C. No. In Bankraptey No. B-70-347)
Ox Arran From tue Uxrrep States Deernicr Cornr
ron THE Easteas Disrnict or Pexxsytvaxis
Present: Vax Dvsex, Rosex, Circuit Judges and Layo.
District Ju ‘ae
Jvupement
This cause came on to be heard on the record from «he
United States District Court for the Eastern District of
Pennsylvania and was argued by counsel.
On consideration whereof, it is now here ordered » |
adjudged by this Court that the appeal from Order No.
of the said District Court, filed September 29, 1970, be. ood
the same is hereby dismissed. Costs are taxed agai) st
the appellant.
ATTEST:
M. Elizabeth Ferguse
Chief Deputy Clerk
January 27, 1972
SA eS ea etn se Ee”
15a
Order No. 63
Authorizing Trustees to a™rm a Memorandum of In-
tent emong Metrop»litan Transportation Author-
ity, Connecticut — i calnnnne Authority and
the Debtor.
IN THE
UNITED STATES DISTRICT COURT
_ For THe Eastern District or PENNSYLVANIA
[SAME TITLE]
Axp now, this 29th day of September, 1970, the petition
of the Trustees of the Debtor’s property in the above mat-
ter having come on for hearing, on notice duly given in ac-
cordance with the Order of notice, and the Court being
fully advised in the premises and having noted the consent
of all objecting participants therein to the form of order
hereinafter set forth, it is Orperep:
1. The Trustees are authorized to affirm the Memoran-
dum of Intent described in the Petition for this Order;
2. The Trustees are authorized-to negotiate and execute,
subject to the approval of this Court, any instruments and
contracts and to perform any acts necessary to implement
the aforesaid Memorandum of Intent;
3. Jurisdiction is reserved in this Court to determine
the valuation and disposition of the consideration received
by the Trustees in the aforesaid transactions and to deter-
mine the respective rights of the Trustees and the object-
ing participants making claims with respect thereto, Pend-
ing such determination, the Trustees are directed:
te -
l6a
Order Number 63 Authorizing Trustees to Affirm a Memo-
randum of Intent Among Metropolitan Transportation
Authority, Connecticut Transportation Authority and
the Debtor.
(a) to deposit with The Fidelity Bank and Joseph F.
McDonald, as Trustees under an indenture from the Debtor
dated as of December 31, 1968, securing 5% Divisional
First Mortgage Bonds due January 1, 1994 (the Divisional
Mortgage) all cash consideration received by the Debtor’s
Trustees specified to be with respect to land to be released
from the lien of the Divisional Mortgage, and
(b) to deposit in a special bank account designated as
pursuant to this Order consideration received for MU ears
as specified in the Petition and as rental for the properties
to be leased to CTA in Connecticut as specified in the
Petition.
4. The obligations, if any, to be discharged by the
Debtor’s Trustees hereunder with respect to the claims
of persons other than MTA and CTA are hereby limited
to an amount which shall not exceed the sum of cash re-
ceived from the sale of any property subject to the lien
of the Divisional Mortgage leased to CTA pursuant to said
lease plus annual rental payments as and when received
by the Debtor’s Trustees under said lease.
‘5. This Order is without prejudice to the rights of
Debtor’s Trustees and parties or persons having objected
to the Trustees’ Petition for this Order at the hearing
thereon to seek the adjudication contemplated by Para-
graph 3 hereof, provided however, that the liabilities and ob-
ligations of either MTA or CTA shall not be other than as
are stated in the documents implementing the petition.
Jonny P. Fviiam,
Joun P. Fviiam,
District Judge.
17a
Order No. 72 Amending Order No. 63.
IN THE UNITED STATES DISTRICT COURT
For THE Eastern District oF PENNSYLVANIA
[SAME TITLE]
Awxp sow, this 27th day of October, 1970, by agreement
of counsel, Order No. 63 heretofore entered in this matter
on September 29, 1970, is hereby amended to reflect the
fact that the New York, New Haven & Hartford Railroad
Co. First Mortgage 4% Bondholders Committee did not
consent, and has not consented, to the entry of Order No.
63.
By consenting to the entry of the foregoing amendment
to Order No. 63, neither the Trustees nor any other party
shall be deemed to have agreed that the said Bondholders
Committee has, or ever had, standing to object to the
entry of said Order No. 63.
Joun P. Futiam,
Justice.
LIBRARY
SUPREME CouRT, VU. 5.
IN THE “|
eae Court of the United!
OCTOBER TERM, 1971
No. 71-1384
In the Matter of
PENN CENTRAL TRANSPORTATION COMPANY.
Debtor.
THE NEW YORK, NEW HAVEN & HARTFORD
RAILROAD COMPANY FIRST MORTGAGE 4%
BONDHOLDERS COMMITTEE,
Petitioner,
‘ V. .
GEORGE P. BAKER. RICHARD C. BOND,
JERVIS LANGDON, JR., and WILLARD WIRTZ as
Trustees of the Property of the Penn Central
Transportation Company and METROPOLITAN
TRANSPORTATION AUTHORITY.
Respondents
BRIEF FOR THE METROPOLITAN TRANSPORTATION
AUTHORITY IN OPPOSITION
WALTER J. MYSKOWSKI
706 Ring Building
1200 18th Street. N.W.
Washington: D.C. 20036
a Attorney for Respondent
May 1972
IN THE
Seprene Court of the United States
OCTOBER TERM, 1971
No. 71-1384
In-the Matter of
PENN CENTRAL TRANSPORTATION COMPANY,
Debtor.
THE NEW YORK, NEW HAVEN & HARTFORD
RAILROAD COMPANY FIRST MORTGAGE 4%
BONDHOLDERS COMMITTEE,
Petitioner,
y.
GEORGE. P. BAKER, RICHARD C. BOND,
JERVIS LANGDON, JR., and WILLARD WIRTZ as
Trustees of the Property of the Penn Central
Transportation Company and METROPOLITAN
TRANSPORTATION AUTHORITY,
Respondents.
BRIEF FOR THE METROPOLITAN TRANSPORTATION
AUTHORITY IN OPPOSITION
OPINION BELOW
The opinion of the Court of Appeals (Pet. App.
la-] la) is reported at 455 F.2d 811.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.