In re Penn Central Transportation Co.
In re Penn Central Transportation Co.
Opinion of the Court
OPINION OF THE COURT
These appeals have been taken by bondholders and indenture trustees from Order No. 180, as amended by Order 196, entered by the District Court for the Eastern District of Pennsylvania in the course of the pending proceeding for the reorganization of Penn Central Transportation Company, a railroad, under section 77 of the Bankruptcy Act, 11 U.S.C. § 205.
By Order No. 179 the reorganization court authorized the conveyance of certain mortgaged real property of the debtor to the City of Boston in exchange for the release of certain obligations of the debtor to the city. The property was conveyed free of encumbrances and the court reserved jurisdiction to determine what substituted security the debt- or would be required to provide for creditors who had held liens on the property. Thereafter, the order now in controversy required the debtor’s trustees to provide substituted security in the
Before the district court Penn Central claimed that at most the aggregate market value of the five parcels constituting the tract in question was $111,964, from which $85,800 should be subtracted as the amount it, as prospective seller, would necessarily have spent in clearing the land of its tracks and other facilities in order to make the tract salable. On the other hand, the appellants contended that the tract was worth $206,254 and that costs of land clearance would be offset by the very substantial salvage value of track and other removed structures.
The debtor’s claims concerning the value of the property were supported only by affidavits of Francis Gasparini, its “Assistant Vice President-Real Estate,” and Charles Defendorf, its “Chief Engineer.” These affidavits had been duly filed in this proceeding but were not formally offered or introduced in evidence at the hearing on the contested question of valuation. However, we think it was clear to all parties and to the court that Penn Central was relying on these affidavits. And the appellants interposed no objection to this method of proof until after decision.
On the other hand, the appellants presented and relied upon the testimony of Frank Mason, an experienced Boston real estate appraiser who had valued the tract at $206,254
In support of its conclusions, the district court reasoned that “Mr. Mason’s appraisal is flawed by his failure to take into account the cost of removal and relocation of existing facilities; which would be necessary in order to make the property salable at all. Thus, his figure is at least $85,800 too high.” But the record shows Mason did take removal costs into account, though there was a major conflict between his testimony in this regard and Gasparini’s affidavit. The Gasparini affidavit supplied merely a eonclusory statement that the removal cost would be $85,000, and both he and the court deducted that amount from the value of the land itself in estimating the net yield of the tract to the seller. Mason did not say how much these removals would cost but did testify that the salvage value of the removed structures would be as great as the cost of removal. Treating these items as offsetting, he made no deduction of removal costs from the estimated selling price. The testimony of Mason as to substantial offsetting salvage value was uncontradicted. Therefore, we think the court erred in deducting removal costs as estimated by Gasparini without taking some salvage value into account. We add the observation that, for both sides, proof of removal cost and salvage value was eonclusory and lacking in any detail that would aid judgment as to credibility. A new hearing will provide an opportunity for a more illuminating presentation of facts relevant to both cost of removal and salvage value of structures.
The court also characterized Mason’s evaluations as apparently “somewhat inflated” because he based them on sales of “comparable” properties which “were in more favorable locations.” In his
Parcel 1 was encumbered by an easement of the city for bridging to carry a street above and across the land.
Beyond the considerations already mentioned, these conflicts in the evidence and their resolution exemplify an aspect of this case that disturbs us. Mason was an experienced independent appraiser, albeit one employed for the purpose of this case by the appellants. Gasparini was an officer of Penn Central, properly interested as such in minimizing the debtor's obligation to deplete its inadequate operating funds by surrendering any substantial sum to be held as security for a creditor. Moreover, though the appellants did not make any objection to the use of Gasparini’s affidavit as evidence, the fact remains that this was a conclusory statement of an interested person, the accuracy of which was not tested by cross-examination. In these circumstances we find it very difficult to find a rational basis for concluding that Gasparini was right in estimating an 80 percent loss of value attributable to the bridge easement when Mason testified under cross-examination that in his expert judgment the loss of value was only 50 percent.
In brief, we think the district court erred in its disposition of the related issues of removal cost and salvage value and in stating an inadequate basis for its conclusion that Mason’s evaluations were inflated. The court also incorrectly understood Mason’s evaluation of Parcel 1 unencumbered to be his evaluation of that parcel as encumbered by the bridge easement. And since this misunderstanding caused the court to believe that Mason’s evaluation was twice the amount actually stated, it may well have influenced the court to discredit Mason’s expertize generally. Finally, the method of proof, opposing affidavits to
Order 180, as amended by Order 196, will be vacated and the cause remanded to the district court for further proceedings consistent with this opinion.
. This value took into account a claimed encumbrance upon the largest parcel in the form of an easement for bridging. But for the easement, Mason said that the entire tract would be worth $294,648. Both Mason’s detailed written appraisal and his testimony are in evidence.
. The Gasparini affidavit estimated the total land value at about $112,000 minus removal costs and, for reasons rejected by the district court, argued that the property even “has a negative value in the estate of Penn Central.”
. The city bridge over Parcel 1 was destroyed by fire in 1968 and has not been rebuilt.
Reference
- Full Case Name
- In the Matter of PENN CENTRAL TRANSPORTATION COMPANY, Debtor. Appeal of Richard Joyce SMITH, Trustee of the New York, New Haven & Hartford Railroad. Appeal of The FIDELITY BANK, and Joseph F. McDonald, as trustees
- Cited By
- 1 case
- Status
- Published