Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00611-GIVIS Document 13 Filed 04/07/2008 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHARLES ZANDFORD, Bankruptcy Case No. 05-13305
Debtor,
CHARLES ZANDFORD,
Appellant,
v. Civil Action No. 07-61 1GMS
TRUSTEE ALFRED THOMAS
GIULIANO, :
Appellee.
REPLY TO APPELLANTS RESPONSE TO APPLICATION FOR RELIEF
IN THE NATURE OF A MOTION TO QUASH
Appellee, Alfred Thomas Giuliano, the Chapter 7 Trustee ("Trustee"), by and through his
undersigned counsel, hereby replies to Appellant’s Response to Trustee’s Application for
Relief in the Nature of a Motion to Quash, and in support thereof, states as follows:
l. Appellant correctly states that pursuant to 28 U.S.C. Section l58(a)(3), it is the
District Court, not the Bankruptcy Court, which must, on application for leave to appeal from an
interlocutory order of the Bankruptcy Court, determine whether to allow an immediate appeal of
an interlocutory order.
2. However, it is clear from the record in this case that Appellant did not seek leave
of this Court to appeal from the order at issue. To the contrary, appellant stated in his Notice of
Appeal, that the basis for his appeal was that the order in question was a final order and therefore
immediately appealable as of right.

Case 1 :07-cv—0061 1-GI\/IS Document 13 Filed 04/07/2008 Page 2 of 3
3. Further, and quite notably, nowhere in his nearly 10 page opposition brief, does
Appellant acknowledge that he failed to seek permission from any court, let alone from this
Court, as was required.
4. Appellant’s citation to In re Bertoli, 812 F.2d 136 (3d Cir. 1987), and its clear
mandate that leave to appeal an interlocutory order must be granted by the District Court,
establishes that the Trustee’s motion to quash this appeal must be granted because Appellant
never sought such permission to appeal. Instead, Appellant believes the order in question to be a
final order immediately appealable.
5. Despite Appellant’s unsupported statement to the contrary, the Order from which
Debtor has appealed is not a final judgment, order or decree and, therefore, this Court does not
have jurisdiction to hear this appeal pursuant to 28 U.S.C. §l57(a)(1). Rather, this Court must
first grant permission if requested.
6. Trustee respectfully submits that this appeal should be dismissed because this
Court lacks jurisdiction to hear this appeal.

Case 1 :07-cv—0061 1-GI\/IS Document 13 Filed 04/07/2008 Page 3 of 3
7. As provided in the Motion to Quash, the Trustee respectfully submits that a
simple order compelling production of documentation, in the absence of some penalty for failure
to comply (which has not been requested here), may not immediately be appealed.
WHEREFORE, Appellee, Alfred Thomas Giuliano, respectfully requests that this
Court quash the instant appeal.
Respectfully Submitted,
WETR & PARTNERS LLP
/s/ Jeffrey S. Cianciulli, Esquire
Jeffrey S. Cianciulli, Esquire
Suite 500, The Widener Building
1339 Chestnut Street
Philadelphia, PA 19107
(215) 665-8181
Attorneys for Chapter 7 Trustee
Dated: April 7, 2008

Case 1:07-cv-00611-GIVIS Document 13-2 Filed O4/07/2008 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHARLES ZANDFORD, Bankruptcy Case No. 05-13305
Debtor,
CHARLES ZANDFORD,
Appellant,
v. Civil Action No. 07-6l lGMS
TRUSTEE ALFRED THOMAS
GIULIANO, :
Appellee.
CERTIFICATE OF SERVICE
I, Jeffrey S. Cianciulli, Esquire, certify that I caused the foregoing Reply to
Appellant’s Response to Application for Relief in the Nature of a Motion to Quash to be served
via first class mail on April 7, 2008 on the following:
Charles Zandford
l0 N.E. 4th St.
Milford, DE 19963
/s/ Jeffrey S. Cianciulli, Esguire
Jeffrey S. Cianciulli, Esquire

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