to the trustee in this case lee says quote what transpired in this case was that the trustee rejected the lease between the debtor and the in november twenty third team which means under section three sixty five of the bankruptcy because that the tenet is entitle to remain in possession of the premises and this is how the quiet enjoyment pursued to applicable non bankruptcy law in january twenty fourth teen there was a cold spell in altoona pennsylvania and on january thirteenth there was a height that burst in the finish and restaurant in altoona the the nation when then to the restaurant after learning  i hired service master which is every disaster recovery company and proceeded to start cleaning up the damage including putting in drying equipment to dry it should some sort of cut you off but we are well versed in the facts so would you treat the legal argument for right your honor under my answer vs stero the trustee has an obligation to comply with the bankruptcy  the trustee who does not comply with the bankruptcy code is subject to liability in this particular instance the trustee became upset because the phoenician did not attend a meeting after the recovery efforts began you can see that trustee swope is entitled to absolute immunity for actions taken after the february seven twenty fourteen bankruptcy court order well to the extent that the court erred in affording her and needed the no let judge stellar to this judge stellar determined that the bankruptcy trustee had no obligation to comply with applicable pennsylvania that his trustee is absolutely immune and that because a pipe had burst and the phoenician had failed to attend the meeting he thought that was an exigent circumstance remember that the recovery the you're saying she's not entitled to immunity those actions were taken pursuant to a court order whereby the judge granted her possession of the premises saying that they were exigent circumstances i've easily she comply with a court order but the court erred in giving her that immunity now what happened was that under pennsylvania law which is the applicable law under section three sixty five a tenant can't be evicted without prior notice there has to be a thirty day written notice ok that's it suppose let's suppose you're right on but what i want to know is really what actions what actions of the trusts the are you challenging that reader outside the scope of her thorley who are ultra even if she did that though she would be entitled to qualified immunity unless her conduct was contrary to clearly established law correct ok and what's the clearly established law that says she couldn't do what she did in this case pennsylvania law applicable non bankruptcy law or you need to cite a case or statute you can't just say that's a landlord tenant that ok we're in the only award tenet act does it indicate without the required thirty day notice without the required lawsuit being filed with your so you're saying all of those all of those requirements of pennsylvania law regarding the one telling are are equally effective when there's a federal bankruptcy because section three sixty five age a one subsection double i says that when the to preserve the property and the press the here says i had to do this to preserve the property doesn't that from pennsylvania state law well the trustee has a duty to comply with the law according to the trustee handbook and according to section three sixty five the law requires the the trustee to pursue applicable when or tenant remedies before even a thing intended by self help but but if an emergency requires immediate action by the trustee to preserve the property isn't that the primary duty of the trustee and isn't that he then justified in this regarding pennsylvania law because to say the property he had immediately while there was a property was already being repaired there was a single pipe burst in a corner in the office in the back of the restaurant where there was no heat that flooded the office which was where the tenant had their tax papers and computers that went the floor which was a hardwood floor which is like a dac they were in there trying it out now the trustee already rejected that lease so there was no executive or e obligation between the tenant and the trustee and there was insurance coverage so it really was an exaggeration exigent remember that the trustee has their own umbrella policy that they put in on every single part of property so there was insurance coverage and it was just a pipe break so they were in there with trying equipment with service master and then service approach rang out what happened was a trustee was ok with that two or three days after the break the trustee wanted to have a meeting to go in and look at the property the principal of the tenant couldn't get there i couldn't get there she got mad she couldn't get the door she couldn't get the inner door open because there was it was sticking and and if we can ever get to trial there is evidence it's stuck on another occasion ahead and change the locks for her deliver the keys to his council who then gave them to the trustee there really wasn't anything exigent about it you know are there any federal cases with facts that are similar to this one that indicate that a trustee violated clearly was flawed by engaging in some sort of a landlord type self help now would be well i mean with regard to a tenant the case is only deal with secured creditors who had property in the premises you know i'm asking about bankruptcy trustees right are there any federal cases like this one where bankruptcy trustee where the trustee was in charge of liquidating a land development which was essentially one of those coins he schemes and the trust see unlawfully collected mighty from the people who were involved in the rejected executor contrast but there is no specific case right on point where a tenant of the debtor was locked out by the trustee now there's a couple cases of room in case minor versus room and also out of the ninth circuit where the trustee winning and took property that did not belong to the estate but there is no cases right on point where a tenant was locked out by self help if there are no cases right on point it makes it hard did not grant qualified immunity well actually if the trustee violates clearly established law and also doesn't comply with the banks because the law and state law them they must call the federal walker they really there really isn't because the federal bankruptcy code says that applicable non bankruptcy law controls under section three sixty five age even if a federal law says entitled to remain in possession and quiet enjoyment percent apical one on bankruptcy law now we judge the other says he thought that in exigent circumstance would lot of case law and that the other circuits other than the one circuit in the second circuit where the trustee has to be grossly negligent and the trustee has to add with clear absence of all jurisdiction which and that gets back to my earlier question re judicial immunity she was acting in discretionary fashion she was performing a function that if she were a judge would be typical of what a judge would perform involving in a case involving two parties why isn't that quasar judicial immunity well the third circuit hasn't actually ruled on that that's why we're here that's why you're here what the question is this is a travesty like a judge in terms of immunity but haven't the cases said you have to look at how they function and where the right the supreme court in and turn versus buyers took a two step approach in looking at no on judicial immunity write it isn't that what we have here well that's why i say what did she do wrong  well i think the current point is a little different course and in that case the trust as a trustee get the same immunity as a judge that that's obviously the issue that you get to decide that even  trustee jurisdiction and judges there are thirty their discretion is determined by the bankruptcy code they will have the authority to vic tenants they have to go to the court to have the court if it the ten this trustee decided to evict a tenant on her own did she the thornhill do that or any kind of jurisdiction to do that now the answer is she has to go to a judge get that hearing to have the ten was simply are relevant that due process is irrelevant even then we have a situation we have complete insurance coverage there's really no danger to the state and the state in any event with minimal plas the only insecure creditors in the case case the issue in this case is not what pennsylvania landlord tenant war requires it's not whether pennsylvania lab work and it was followed in this case nor is it true that the bankruptcy court that's a separate issue from whether or not there was some aspect of landlord tenant law that applies and whether or not that was violated will are the two questions related because if the trustee violated clearly established landlord tenant law in did so without some sort of federal privilege through empowerment of the bankruptcy code or federal case law then she would have been acting in violation of clearly established law under under that hypothetical would she not so if i could take the opportunity at this point to highlight there there are two ways that we can get to munity in this case if you sarner prefers there's ways i judicial immunity which flo qualified immunity analysis if that were the only form of immunity that were available here if there was no quasar judicial immunity and if it were the case with which i think some of the court elected to remain in the property but again three sixty three sixty five the bankruptcy code nowhere provides that the trustee is to be held liable for any breach of a future covenant in fact section three sixty five does do just want to clarify two things about the facts first of all it was not interested in this case who changed the locks and i recognize there may be a dispute about this based upon what my colleague machine said in her opening circumstances but it was clear that there was property damage and to trust you to view to meeting for a very legitimate reason to assess the extent of that property damage and determine if anything else needed to be done india's just as judge roth pointed out the principal obligation of the trustee in this case is to secure and maintain the assets of of the estate had she not taken action at this point to try to evaluate the property she would be between a rock and a hard place anything here was was done wrong i maybe a better way to put it would be to subject to suit a trustee who acts in these circumstances when she's acting within the scope of her jurisdiction the scope of her responsibilities liability would nor does phoenician confessed that where a bankruptcy trustee is acting pursuant to a court order there is absolute immunity as the bankruptcy court reason that that principle is essentially undisputed here and it seems to be undisputed it that there can be no liability after that time because she was acting pursuant to express court order i would note also that even prior to the events of january two thousand and fourteen in november of two thousand thirteen and i believe this is in appendix page ninety nine the order providing for the rejection of the lease also provided that the tenant is prohibited from entering the wogan bovver property in for and from removing any assets of the estate now of course that order does not say that the tenant if given the keys by the debtors principal shall retain the keys because there's no way that could have been foreseen but i would submit first of all the trustee swope was arguably acting in accordance with with that order secondly to the extent that the order wasn't specific enough to encompass these events that only underscores again why immunity is so important sometimes as as the immediate in this case have argued as well on our behalf it's not uncommon the prestes have to make decisions in a short amount of time and that on the question of qualified immunity did you properly raise the question of the defense of qualified immunity in the back room so you are you me and by qualified immunity just to make sure i understand your question you mean pursuant to harlow v fitz yes you are right i believe that was greased in connection with the second motion to dismiss there were two motions to dismiss in this case the first was on the pardon doctrine the second was on the issue of immunity extent that it wasn't because i don't have that that before me i would submit that that is an alternative grounds for affirmative the bankruptcy courts decision i think that the the best i don't want to say the best  is extended to a lot of different actors and bankruptcy trustees are among them the second issue is whether or not the individual was performing a function that requires discretionary judgment similar deciding how to how to deal with this situation and it's similar to the type of judicial function that would be be performed those are those are the elements that have to be empowering them to go in just engaging self help repossession of the leasehold any time mom says rejected well there there are two limitations i think two important limitations on what t trustee can do it's not as though the trustee has her parched at that point why not that's what i'm asking if they've creates a judicial immunity they're all there bulletproof so so first of all if the trustee acts in a way that is ultra at the tenants option b you're saying any time a bankruptcy court enters an order like that it doesn't really mean much because the trustee can go in and change the locks repossessed the property and claim  the asset was was not part of the bankruptcy estate and in this case the asset that was being secured which he has the obligation to secure is part of the bankruptcy estate and indeed if it bankruptcy trustee has been hesitant before putting locks to secure the principal asset of the estate that will put the trustee and a possible if you don't have to be has it he just have to not violate clearly established law and as long as you don't do that you'll you'll be protected by qualified immun immunity you know there are many many bankruptcy cases that involved in hartmann pilings that involve shopping centers that involve other commercial properties that have many tenants in their sin and we have a tenant the case into a disagreement with the trustee in the trustee locks him out on the authority of this case without notice that a prior hearing you know even and even now under pennsylvania you know that's that's what this pennsylvania supreme court said she thinks that if the local authorities think that i'm violating a zoning law and they go in and remove my trailer from where it's sitting they still have to give it dance notice and i get to have a hearing before they do that that's what pennsylvania law says that's what the berman case says that's really the most recent pennsylvania scream court we all take it for granted here we're dealing with weather problems  by you know there may be an argument about whether whether adequate care was being taken but the trustee is saying it was an exigent situation to to to protect this property i needed to  bankruptcy judge and get a court order that allows her to do that just to go in for injunctive relief just as way a landlord would any landlord she sees in the shoes of the landlord that's what the monster cases this supreme court said that that trustee should have gone into court and gotten approval and then he would have been protected and here the same thing she should have gone in and asked for injunctive relief either from the bankruptcy judge or from the state court depending on how she wanted to approach it but by making her own decision to be the judge and the cherry so to speak who decides that she's going to lock out the tenant without a prior court order i think she is liable under the case well the masa case was where the trustee had hired a couple people who were selling for profit essentially he was the supervising wasn't he was in accounting he wasn't complying with the code to him had he gone into court and gotten prior approval to employ those people and have them do what they did then he would have been insulated from it from liability that's a supreme court that if he was going to let them do that he should still that case which really is the only well case that speaks to it says a trustee needs to cus he can't function is the judge in that situation the trustee has to go to the bankruptcy court to get authority that's what the difference she thinks there's rats in there or that tennis i'm keeping it clean or maybe they have candles burning or maybe there they've had the electric turned author concerned about something like that which is one of the things that this trustee was concerned me the break of a pipe in the corner of the restaurant can they really just invade the place isn't that really