NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 11

- 2469

_____________ In re: Split Vein Coal Company, Inc., Debtor Split V ein Coal Company, Inc.

v. Gilberton Coal Company, Inc.; Seedco NP, LLC, Gilberton Coal Company, Inc,

Appellant

_____________ Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 4

- 10

- cv - 01947 ) District Judge: Honorable Yvette Kane

_____________ Submitted Under Third Circuit LAR 34.1(a)

May 25, 2012 Before: RENDELL, FUENTES and HARDIMAN, Circuit Judges

(Opinion Filed: June 5, 2012 )

_____________ OPINION OF THE COURT

_____________2

RENDELL, Circuit Judge

. This case involves a Pennsylvania state

- law conversion claim that was prosecuted as an adversary proceeding in bankruptcy. After a two

- day trial, the Bankruptcy Court found, in a 29

- page opinion, that defendant Gilberton Coal Company had converted approximately 500,000 tons of culm, or coal refuse, that belonged to plaintiff

- debtor Split Vein Coal Company ( but was stored on land owned by Gilberton ) and ordered Gilberton to pay Split Vein the $639,685 in profits it earned on the sale of that culm. Gilberton moved the Bankruptcy Court to reconsider, and, when the Bankruptcy Court denied that motion, appealed to the District Court. In a detailed, 20

- page opinion, t he District Court affirmed the Bankruptcy Court’s judgment in all respects. Gilberton now appeals the judgment of the District Court. 1 Gilberton raises six issues on appeal: (1) whether the Bankruptcy and District
Court s erred in concluding it waived the argument that Split Vein rejected the parties’ contract, an unexpired lease, as a matter of law under 11 U.S.C. § 365(d)(4); (2) whether the Bankruptcy and District Courts in correctly interpreted Penns ylvania law regarding the abandonment of culm ; (3) whether the Bankruptcy Court erred in concluding that Split Vein did not abandon the culm; (4) whether the Bankruptcy Court erred in concluding that Split Vein did not abandon the parties’ contract; (5) wh ether Split Vein met its burden of proving conversion of the culm; and (6) whether Gilberton’s conversion was properly excusable as an act necessary to avoid a public disaster. The Bankruptcy and

1 The Bankruptcy Court and District Court exercised jurisdiction under 28 U.S.C. § 157(b) and § 158(a)(1), respectively, and under 28 U.S.C. § 1334. Our jurisdiction arises under 28 U.S.C. § 158(d)(1).3

District Court s appropriately and adequately addressed each of those issues , and w e have little to add to the ir thorough and thoughtful analyses in this very fact

- intensive case

. O nly one po int warrants further discussion. Gilberton argues in its reply brief, for the first time, that, assuming the parties’ agre ement was a license, rather than a lease, Split Vein failed to assume it in bankruptcy as required under 11 U.S.C. § 365 (b)(1)

. I n brief , i ts logic proceeds as follows: (1) if the parties’ contract was not a lease, it was an executory contract; (2) § 365 (b)(1) requires a party assuming an executory contract t o cure all defaults or breaches; (3) Split Vein had breached or defaulted under the contract in numerous ways; (4) Split Vein failed to cure those b reaches and defaults; (5 ) therefore , Split Vein fail ed to assume the contract under § 365 (b)(1) ; and (6) even if Split Vein did not reject the contract , it should be estopped from arguing it assumed the contract and precluded from obtaining any relief under it

. We will not consider this factually and lega lly complex question for the first time on appeal , especially when asserted so belatedly in a reply brief . Gilberton could have, and should have, raised this purportedly dispositive issue in the Bankruptcy Court before the case went to trial. Instead, it waited until the reply brief of its appeal from the appeal of the Bankruptcy Court’s decision, after Split Vein’s last opportunity to respond

. These circumstances do not warrant a departure from our ordinary practice of declining to review issues that ar e not timely raised

. See Gleason v. Norwest Mortg

. , Inc. , 243 F.3d 130, 142 (3d Cir. 2001) (“Generally, barring exceptional circumstances . . . this Court does not review issues raised for the first time at the appellate level. Although we have discretio n to review an argument not raised in the trial Court, we ordinarily refuse to do4

so.” (citations omitted)) ; Hoxworth v. Blinder, Robinson & Co. , 903 F.2d 186, 204 n.29 (3d Cir. 1990) (“As a general matter, the courts of appeals will not consider arguments raised on appeal for the first time in a reply brief.”)

. Accordingly , w e will affirm the judgment of the District Court

.