1

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

__________________________________________

)

IN RE: ) Bankruptcy No. 05-31587-CMB

)

DESPINA SMALIS, ) Chapter 7

)

Debtor. )

__________________________________________)

)

ERNEST SMALIS, )

E. SMALIS PAINTING CO., INC., )

) Related to Doc. Nos. 203 & 215

Plaintiff, )

)

v. )

)

LIBERTY MUTUAL SURETY, US BC )

PENNSYLVANIA-WESTERN-PITTSBURGH, )

STANLEY MAKOROFF, FORMER )

TRUSTEE-PRINCIPA, JEFFREY J. )

SIKIRICA, TRUSTEE-PRINCIPAL, )

)

Defendants. )

__________________________________________)

MEMORANDUM OPINION

The matter before the Court is the Motion for Leave to File Civil Adversary Action 

Against Chapter 7 Trustees and It’s [sic] Surety, Including Violations of Due Process (“Motion

for Leave”)1 filed by Ernest Smalis (“Mr. Smalis”), pro se, ostensibly on behalf of himself and E. 

1 For clarification, the Court notes that the caption of this Memorandum Opinion reflects the 

parties as identified in the caption of the Motion for Leave. Said motion was filed on the docket of the 

bankruptcy case despite the use of the terms Plaintiff and Defendants. As clarified by Mr. Smalis at the 

June 9, 2015 hearing, he did not intend to name this Court as a party to his motion despite the inclusion of 

“US BC Pennsylvania-Western-Pittsburgh” within the caption. Also, the Motion for Leave was not filed 

in Adversary Proceedings 12-2140 and 14-2075, despite the reference in the caption of the Motion for 

Leave. In the former proceeding, Mr. Smalis recently filed a motion despite the adversary proceeding 

having been closed since November 19, 2012. The latter proceeding was commenced by E. Smalis 

painting Co., Inc., against the Debtor. Mr. Smalis was not named as a party in that proceeding and said 

proceeding has since been resolved and closed.

FILED

CLERK

U.S. BANKRUPTCY

COURT - :'3$

7/7/15 11:59 am

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 1 of 20
2

Smalis Painting Co., Inc. (“Painting Company”).2 Mr. Smalis subsequently clarified that he 

brought the motion only on his own behalf.3 Responses to the Motion for Leave were filed by 

Stanley Makoroff, the former trustee (“Trustee Makoroff”), and Jeffrey Sikirica, the current 

trustee (“Trustee Sikirica”, together the “Trustees”). In addition, Despina Smalis (“Debtor”) filed 

a motion to dismiss (“Motion to Dismiss”) in response to the Motion for Leave. Thereafter, Mr. 

Smalis filed a response to the Motion to Dismiss as well as “rebuttal answers” to the responses of 

the Trustees.4 Upon consideration of the Motion for Leave and related filings set forth herein, the 

arguments presented at the hearing held on June 9, 2015 (“June 9th Hearing”), the dockets of the 

bankruptcy case and related adversary proceedings, and based upon this Court’s familiarity with 

the record of this case and related proceedings, and for the reasons set forth herein, the Motion 

for Leave is denied. As a result, Debtor’s Motion to Dismiss is deemed moot.

2 This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§157 and 1334. This is a core 

matter pursuant to 28 U.S.C. §157(b)(2)(A). Further, based upon the record, this Court finds that the 

parties knowingly and voluntarily consented to adjudication by this Court. See Wellness Int’l Network, 

Ltd. v. Sharif, 135 S.Ct. 1932 (2015). In the event that the District Court concludes that this matter is not 

core and the parties did not consent to adjudication by this Court, then this Memorandum Opinion and 

Order entered shall constitute this Court’s recommendation to the District Court.

3 Mr. Smalis provided this clarification at the June 9, 2015 hearing. Mr. Smalis is well aware from 

his involvement in the bankruptcy case that he cannot represent the Painting Company. See Am.

Corporate Soc’y v. Valley Forge Ins. Co., 424 F. App’x 86, 87 n.1 (3d Cir. 2011). Although Mr. Smalis 

retained counsel, Donald Calaiaro, Esq., for the Painting Company in Adversary Proceeding 14-2075,

Attorney Calaiaro explicitly limited his representation of Painting Company to that proceeding. Notably, 

some of Mr. Smalis’ contentions within the Motion for Leave appear to duplicate matters resolved in 

Adversary Proceeding 14-2075 by Memorandum Opinion and Order entered on June 12, 2015.

4 Within his response to Debtor’s Motion to Dismiss and his rebuttal answers to Trustee Sikirica’s 

response, Mr. Smalis included what he identified as motions. Motions, however, are not to be included 

within responses pursuant to W.PA.LBR 9013-1(c). The Court treats the filings simply as responses for 

the purpose of resolving the matters before the Court. Mr. Smalis was, nonetheless, permitted great 

latitude in his oral argument to the Court on June 9, 2015. 

The Court also notes that on June 23, 2015, Mr. Smalis sought this Court’s permission to add

three additional pages to his previously submitted rebuttal answers. This Court granted the request and 

provided an opportunity for response to the additional submissions by Mr. Smalis. Both Trustees 

responded. On July 6, 2015, notwithstanding this Court’s Order dated June 24, 2015, Mr. Smalis filed a 

rebuttal response. All of these additional submissions have been reviewed and considered by the Court.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 2 of 20
3

Procedural History and Background

Much has occurred over the approximately ten-year period since this bankruptcy case 

was commenced. Over this time, the counsel involved, the appointed trustee, and the Judge

assigned to the case have changed. The background of the case is particularly relevant to 

understanding the various allegations contained within the Motion for Leave. The facts set forth 

herein as background are matters of record in this case.

Debtor’s bankruptcy case was commenced on September 2, 2005, by the filing of a 

voluntary petition for relief under Chapter 7 of the Bankruptcy Code. Debtor’s counsel, at that 

time, was Steven T. Shreve, Esq. Upon filing, the case was assigned to the Honorable Bernard 

Markovitz. Debtor completed her petition on September 27, 2005. Therein, neither Debtor’s 

former spouse, Mr. Smalis, nor any entity related to Mr. Smalis was identified as a creditor in 

Debtor’s schedules.

On September 28, 2005, the Court issued the Notice of Chapter 7 Bankruptcy Case, 

Meeting of Creditors, & Deadlines, advising, inter alia, of the deadline to file a complaint 

objecting to Debtor’s discharge and to challenge the dischargeability of certain debts. The 

deadline was established as January 3, 2006. On October 6, 2005, the Court issued the Notice of 

Need to File Proof of Claim Due to Recovery of Assets. Therein, creditors were advised to file a 

proof of claim on or before January 6, 2006, if they wished to share in any distribution of funds. 

As Mr. Smalis was not identified as a creditor by Debtor, he did not receive these notices;

however, Mr. Smalis did receive notice of the bankruptcy case very early on in the case due to 

the filing of an adversary proceeding by Trustee Makoroff. In Adversary Proceeding 05-3195, 

commenced on October 31, 2005, Trustee Makoroff sought to sell, and ultimately did sell, 

certain real estate co-owned by Debtor, Mr. Smalis, and others.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 3 of 20
4

Shortly after the commencement of the first adversary proceeding by Trustee Makoroff,

on November 8, 2005, a letter written to the Court by Mr. Smalis was docketed in the abovecaptioned case as a notice of appearance. Therein, Mr. Smalis identified himself as the former 

spouse of the Debtor and further indicated his intent to commence an adversary proceeding. He 

provided contact information to the Court as follows: Ernest Smalis FH5830, P.O. Box 1000, 

Houtzdale, PA 16698-1000 (hereinafter “Houtzdale Address”). Since that time, Mr. Smalis has 

participated extensively in the bankruptcy case and related proceedings, including by 

participating telephonically in at least one hearing while he was incarcerated and by commencing 

several adversary proceedings.5

On November 29, 2005, an adversary proceeding was commenced by Mr. Smalis, pro se, 

against a number of parties, in which he alleged that a certain mortgage had been paid in full. See

Adversary Proceeding 05-3325. Thereafter, on January 19, 2006, Robert O. Lampl, Esq. 

(“Attorney Lampl”) filed a Notice of Appearance on behalf of Mr. Smalis in that adversary 

proceeding and a Request for Notices and Service of Papers on the docket of the bankruptcy 

case. The adversary proceeding was resolved and closed following the entry of a Consent Order 

of Court dated May 19, 2006.

Ultimately, Debtor was granted a discharge by Order entered on March 6, 2006. Notice 

of Debtor’s discharge was provided to Mr. Smalis at the Houtzdale Address. See Doc. No. 61.6

5 According to the Motion for Leave, Mr. Smalis was incarcerated from 1999 until 2010. See 

Motion for Leave, at 2. Nonetheless, Mr. Smalis participated actively in the bankruptcy case and related 

adversary proceedings. For example, on November 23, 2005, Trustee Makoroff commenced a second 

adversary proceeding to sell additional real estate co-owned by Debtor, Mr. Smalis, and others. See 

Adversary Proceeding 05-3308. Mr. Smalis participated in said proceeding by filing an answer on

December 28, 2005, and a motion for writ of habeas corpus on January 4, 2006. Mr. Smalis also 

participated telephonically in the sale hearing on January 10, 2006. 

6 Unless otherwise specified, all citations to the docket are to documents filed in Case No. 05-

31587.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 4 of 20
5

On September 25, 2006, Trustee Makoroff filed Trustee’s Final Report and Account of the 

Administration of the Estate and Final Application for Compensation (“Final Report”) and a 

proposed order for distribution. See Doc. Nos. 92 and 94. The Notice of Filing of Final Account 

of Trustee Scheduling Hearing on Applications for Compensation, and Proposed Final 

Distribution Combined with Order Fixing Deadline for Filing Objections Thereto is docketed 

showing service to the Houtzdale Address. See Doc. No. 101.7 No timely objections were filed 

and an Order was entered on November 2, 2006 (“Distribution Order”), approving the Trustee’s 

Final Report and proposed distribution. Pursuant to said Order Mr. Smalis received a distribution 

from the estate in or around November of 2006.

Also on November 2, 2006, following the entry of the Distribution Order, a document 

was filed on the docket with the following description:

Letter regarding proof of claim for equitable division of martial [sic] property 

under 23 PA C.S.A. 3502 received by Stanley G. Makoroff Trustee from Ernest 

Smalis Filed by Creditor Ernest Smalis (Makoroff, Stanley) (Entered: 

11/02/2006).

See Doc. No. 103. As indicated by the description, the filing contained both a letter from Mr. 

Smalis and a proof of claim completed on his own behalf. Therein, Mr. Smalis asserted the 

following as the basis for an alleged secured claim: (1) goods sold, (2) money loaned, (3) 

equitable division of marital property pursuant to 23 Pa.C.S.A. §3502. The letter indicated that 

the documentation to verify his claim was in the possession of the United States Department of 

Justice and Internal Revenue Service. Subsequently, on November 3, 2006, a nearly identical 

7 The Court notes that the Houtzdale Address is that provided to the Court by Mr. Smalis in his 

original letter to the Court requesting notices in this case. The Court is unaware of any indication of a 

change of address for Mr. Smalis until November 2, 2006, when Mr. Smalis provided a different address 

on a proof of claim.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 5 of 20
6

proof of claim submitted by Mr. Smalis was entered on the Claims Register.8 No further action 

was taken with respect to the claim asserted by Mr. Smalis long after the bar date, after the 

Trustee’s Final Report, and after the Order approving the same.

Significantly, no appeal, belated objection, or request for reconsideration was filed with 

respect to the Distribution Order. Distributions were made pursuant thereto, including to Mr.

Smalis. A final decree was signed on March 28, 2007, discharging Trustee Makoroff, cancelling 

the bond, and closing the case. The bankruptcy case remained closed until 2008, when the 

Debtor, through Attorney Lampl as her counsel, sought to reopen the case as the result of a civil 

action filed against the Debtor by the Commonwealth of Pennsylvania, Department of 

Environmental Protection (the “Department”). Although Debtor withdrew her motion, the case 

was ultimately reopened upon a latter motion of the Department by Order entered October 30, 

2008. A trustee was not appointed in the reopened case at that time.

On January 3, 2012, the case was reassigned to the Undersigned. The case was inactive 

from its reopening until April 2, 2012, when Mr. Smalis filed a pro se Complaint to Determine 

Dischargeability (“Dischargeability Complaint”) commencing Adversary Proceeding 12-2140.

Shortly thereafter, Trustee Sikirica was appointed as trustee in the bankruptcy case.

Ultimately, the Dischargeability Complaint was resolved by the parties’ settlement 

agreement, containing broad releases. See Settlement Agreement and Release (“Settlement”), 

8 Notably, the proofs of claim filed by Mr. Smalis were submitted without sufficient facts to 

support the claim(s) alleged and appear to lack prima facie validity. The parties, however, have not 

addressed this issue nor does the Court need to make any determination with respect thereto.

Significantly, in both documents (which are dated the same) Mr. Smalis identified his claim as a 

secured claim, and he did not check the box indicating that he possessed an unsecured nonpriority claim. 

However, in the proof of claim on the Claims Register, Mr. Smalis checked the box identifying his claim 

as an unsecured priority claim as well. Notably, he did not choose any of the options provided to specify 

the alleged priority of his claim nor did he identify a statutory basis for the selection. 

In addition, the Court notes that both proofs of claim inexplicably provide for a claim incurred 

from 2001 to 2006, rendering the claim, in part, post-petition. No distribution of estate funds would be 

made with respect to the post-petition claim. 

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 6 of 20
7

Adversary Proceeding 13-2362, Exhibit C to Doc. No. 27. The stipulation filed in Adversary 

Proceeding 12-2140, advised the Court that the parties reached a settlement of the underlying 

dispute, which did not involve property of the estate, resulting in an agreement to dismiss the 

proceeding with prejudice. See Stipulation, Adversary Proceeding 12-2140, at Doc. No. 32.

Attached thereto was a handwritten consent to dismissal signed by Mr. Smalis. Accordingly, the 

adversary proceeding was closed on November 19, 2012.

While matters were proceeding in the reopened bankruptcy case, Mr. Smalis commenced 

another adversary proceeding by filing a Complaint alleging violations of the Racketeer 

Influenced and Corrupt Organizations Act (“RICO Complaint”) against the Debtor and others. 

See Adversary Proceeding 13-2362. Following the filing of several motions to dismiss by 

defendants in that proceeding, the RICO Complaint was dismissed with prejudice and the Court 

found as follows:

With respect to the Debtor, who is a named Defendant, Plaintiff previously filed a 

complaint challenging the dischargeability of debt and objecting to Debtor’s 

discharge (Adv. No. 12-2140). Upon stipulation of the parties to that proceeding, 

based upon a settlement agreement, the adversary proceeding was dismissed with 

prejudice. Now, despite the foregoing, Plaintiff restates in this proceeding his 

alleged bases for nondischargeability of debt and objection to discharge and 

further seeks to recharacterize his claims against Debtor as RICO claims. 

However, based upon the record of the case and related proceedings and the 

settlement agreement entered into by the parties, Plaintiff cannot pursue his 

alleged RICO claims against Debtor who received a discharge and with whom he 

settled his prior adversary proceeding objecting to her discharge. The stipulation 

was approved by Order of this Court, which was not appealed and of which 

reconsideration was not sought. 

See Order dated January 17, 2014, Adversary Proceeding 13-2362, Doc. No. 71. The Order dated 

January 17, 2014, was not appealed.

On April 7, 2014, nearly nine years after the commencement of the bankruptcy case and 

eight years after the Debtor was granted a discharge, another adversary proceeding was filed.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 7 of 20
8

See Adversary Proceeding 14-2075. The new proceeding was commenced by the filing of the 

Complaint of E. Smalis Painting Co., Inc. for an Order Determining its Debt is not Discharged 

and an Order Allowing its Claim as a Timely Filed Late Proof of Claim. Therein, Painting 

Company asserted that it is a creditor of Debtor; Debtor failed to schedule Painting Company’s 

claim or list Painting Company on the mailing matrix; and Painting Company did not receive 

notice of the case, claims bar date, or notice of the deadline to object to discharge as a result of 

the foregoing. Further, Painting Company asserted that it did file a late proof of claim, citing to 

the proof of claim filed by Mr. Smalis on November 3, 2006. Painting Company, however, was 

far too late to file a claim and object to dischargeability of its alleged debt as Painting Company, 

through Mr. Smalis, had knowledge of the bankruptcy case in sufficient time to act. This lack of 

vigilance despite knowledge of the case foreclosed relief. Accordingly, by Memorandum 

Opinion and Order dated June 12, 2015, the relief requested in Painting Company’s complaint 

was denied.

While Painting Company’s adversary proceeding was pending, Mr. Smalis filed the 

Motion for Leave presently before the Court. Mr. Smalis has been extensively involved in this 

bankruptcy case, previously commencing actions naming numerous entities and individuals;

now, Mr. Smalis seeks relief against the Trustees, raising many of the same allegations he has 

previously raised in this Court. With this background in mind, the Court will address the Motion 

for Leave, responses thereto, request for dismissal, and related filings.

Analysis

Although the Motion for Leave contains a multitude of allegations against various 

individuals, the relief requested therein is leave to commence a civil action against the Trustees 

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 8 of 20
9

and surety.9 The Motion for Leave, citing to In re VistaCare Group, LLC, 678 F.3d 218 (3d Cir. 

2012), requests said relief pursuant to the Barton doctrine set forth in Barton v. Barbour, 104 

U.S. 126 (1881). See Motion for Leave, at 1. In VistaCare, the Third Circuit held that, under the 

Barton doctrine, prior to commencing an action in another forum against a trustee for acts done 

in the trustee’s official capacity, a party must first obtain leave of the bankruptcy court. See 678

F.3d at 224. The policy reasons in support of the doctrine were set forth as follows:

Because a judgment against the trustee, whether ultimately satisfied out of the 

assets of the estate or out of the trustee’s pockets, may affect the administration of 

the estate, “[t]he requirement of uniform application of bankruptcy law dictates 

that all legal proceedings that affect the administration of the bankruptcy estate” 

be either brought in the bankruptcy court or with the permission of the bankruptcy 

court. “If debtors, creditors, defendants in adversary proceedings, and other 

parties to a bankruptcy proceeding could sue the trustee in state court for damages 

arising out of the conduct of the proceeding, [the state] court would have the 

practical power to turn bankruptcy losers into bankruptcy winners, and vice 

versa.”

See id. at 228 (citations omitted). The Court notes, however, that Mr. Smalis seeks leave to 

commence the civil action in the Bankruptcy Court for the Western District of Pennsylvania as 

opposed to a different forum. See Motion for Leave, at 22-23. As Mr. Smalis is representing 

himself and to the extent he may seek to adjudicate such matters in another forum, this Court will 

proceed to address the Motion for Leave. 

As a preliminary matter, the Court notes that Mr. Smalis brings the instant Motion for

Leave asserting that he is a creditor and party-in-interest in the bankruptcy case. See Motion for 

Leave, at 1. Despite identifying himself as a creditor of Debtor, pursuant to the Settlement 

entered into by Debtor and Mr. Smalis, the parties resolved all claims between them. The 

9 Within the Motion for Leave, Mr. Smalis sets forth a multitude of allegations spanning from 

before the commencement of this case in 2005 to present. This Court has previously addressed many of 

these allegations, most of which do not appear to have any bearing on Mr. Smalis’ allegations with 

respect to the conduct of the Chapter 7 Trustees. For purposes of clarification and thoroughness, the Court 

will address some of these matters as well.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 9 of 20
10

Settlement resulted in the dismissal of Adversary Proceeding 12-2140, with prejudice, and the 

dismissal of Adversary Proceeding 13-2362, with prejudice. Thus, as an individual who failed to 

file a claim prior to the bar date and entry of the Distribution Order, did not appeal or object to 

said Order being entered, and subsequently settled his alleged claims with the Debtor, Mr. 

Smalis’ standing to bring an action against the Trustees appears questionable at best. Apparently 

mindful of this potential roadblock to his request for relief, Mr. Smalis seeks to invalidate the 

Settlement now, over two years later.

Within his response to the Debtor’s Motion to Dismiss, Mr. Smalis included what he 

identified as two motions: a motion to deem the Settlement defective and a motion to bar the 

debtor from proceeding based upon judicial estoppel.10 As the Court noted at the June 9th 

Hearing, “[a]ny affirmative request for relief shall be brought by motion and may not be included 

in any response to a motion.” W.PA.LBR 9013-1(c). The Court is treating the filing as a 

response. However, notwithstanding the improper inclusion of “motions” within the response,

the requests for relief are nonetheless deficient.11

With respect to Mr. Smalis’ request to apply judicial estoppel, it is unclear what 

inconsistent positions Debtor has allegedly taken or what impact this has on the Motion for 

Leave. As to Mr. Smalis’ attempt to invalidate the Settlement, this Court finds no merit. 

Although the Dischargeability Complaint commencing Adversary Proceeding 12-2140 does 

10 Similarly, Mr. Smalis included a motion to deem the Settlement to be defective within his 

rebuttal answers to Trustee Sikirica. Mr. Smalis also dedicated a portion of his Motion for Leave to the 

argument that the Settlement is defective. See Motion for Leave, at 19-20. To the extent Mr. Smalis 

makes allegations against Attorney Lampl relating to the Settlement, none of those allegations appear to 

be relevant to determining whether his claims against the Trustees have merit.

11 The Court notes that Mr. Smalis has since filed motion(s) requesting the relief set forth in his 

response. See Doc. No. 223 and Adversary Proceeding 12-2140, Doc. No. 40. By Order entered June 15, 

2015, the new motion(s) have been held in abeyance pending the Court’s resolution of the Motion for 

Leave.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 10 of 20
11

include an objection to discharge pursuant to 11 U.S.C. §727(a)(4), as pointed out by the motion 

to dismiss filed in that proceeding, the objection was untimely and could not proceed pursuant to 

Fed.R.Bankr.P. 4004. By the time the objection to discharge was raised in 2012, the discharge 

had been entered for approximately six years by order entered March 6, 2006. Notice of the 

Discharge Order was provided to Mr. Smalis at the address he supplied to the Court. See Doc. 

No. 61. Further, the Trustee had long before made distribution resulting in payment to creditors 

and even a surplus to Debtor, and the Settlement of Mr. Smalis’ alleged personal claims against 

Debtor did not impact creditors or the bankruptcy estate. See Stipulation, Adversary Proceeding 

12-2140, at 32. It is clear that Mr. Smalis attempts to invalidate the Settlement to simply reinstate 

his own alleged claims as he is now dissatisfied with the Settlement he entered into years ago.12

Regardless of the validity of the Settlement and Mr. Smalis’ potential lack of standing, this Court 

will evaluate the Motion for Leave.13

Within the Motion for Leave, Mr. Smalis makes wide-ranging allegations against the 

Debtor and various entities and individuals. It is unclear how these allegations relate to the

alleged misconduct of the Trustees and the request to commence litigation against the Trustees

pursuant to the Barton doctrine. Under the Barton doctrine, “[a] party seeking leave of court to 

12 The Court notes that it is not uncommon for Mr. Smalis to act without regard to prior resolutions 

achieved by settlement or consent. In 2005, Mr. Smalis commenced Adversary Proceeding 05-3325,

which was resolved by a Consent Order of Court. Subsequently, in a motion for sanctions filed in 

Adversary Proceeding 13-2362, Mr. Smalis challenged the Consent Order, asserting that he did not 

authorize settlement. This Court denied Mr. Smalis’ motion for sanctions and a later motion for 

reconsideration, and Mr. Smalis appealed those Orders. See Adversary Proceeding 13-2362, Doc. Nos. 

89, 103, 105. On appeal, the District Court affirmed this Court’s Orders. See Adversary Proceeding 13-

2362, Doc. Nos. 147 and 148. Nonetheless, Mr. Smalis continues, to date, to raise these same allegations 

made in Adversary Proceeding 05-3325. It is evident that this is Mr. Smalis’ modus operandi in this case.

13 In these proceedings, Mr. Smalis references the alleged nondischargeability of his debt and makes

arguments regarding late filed claims pursuant to Pioneer Investment Services Company v. Brunswick 

Associates Limited Partnership, 507 U.S. 380 (1993). Although in deciding the instant Motion for Leave 

it is unnecessary to resolve these arguments, the Court notes that it addressed the applicable standards in 

its Memorandum Opinion dated June 12, 2015, in Adversary Proceeding 14-2075.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 11 of 20
12

sue a trustee ‘must make a prima facie case against the trustee, showing that its claim is not 

without foundation.’” See VistaCare, 678 F.3d at 232 (quoting In re Nat'l Molding Co., 230 F.2d 

69, 71 (3d Cir. 1956)). In sifting through the allegations contained within the Motion for Leave,

the Court focuses on those made against the Trustees. To the extent that the Barton doctrine is 

applicable, this Court must assess whether these claims have a foundation. This Court is uniquely 

suited to assess whether the claims against the Trustees have merit due to this Court’s familiarity 

with the record, underlying facts, and parties. See VistaCare, 678 F.3d at 233. Upon review, the 

Court finds Mr. Smalis’ claims to be utterly frivolous. 

With respect to alleged errors in foreclosure proceedings held in state court, Mr. Smalis

requests that this Court address his contention that he was denied due process and that the 

Rooker-Feldman doctrine is inapplicable. See Motion for Leave, at 10-12. Mr. Smalis cites to 

arguments made within Adversary Proceeding 05-3325, a proceeding which has been closed 

since May 19, 2006. Further, Mr. Smalis complains of the conduct of entities that are not named 

as respondents to this Motion for Leave. This request has no clear bearing on the instant motion 

alleging misconduct of the Trustees despite Mr. Smalis’ assertion that Trustee Makoroff

wrongfully paid a claim that Mr. Smalis contends was previously paid in full. The Adversary 

Proceeding referred to by Mr. Smalis was resolved by Consent Order of Court dated May 19, 

2006.14 Therein, the Trustee was directed to make payment. The Consent Order was not 

14 The Court notes that Adversary Proceeding 05-3325 was settled and discontinued with prejudice

by the Consent Order. The Consent Order was signed by Attorney Lampl for Mr. Smalis. In the Motion

for Leave, Mr. Smalis asserts that Attorney Lampl was without authorization to sign on his behalf. Mr. 

Smalis previously raised this argument, which was addressed by this Court in its Memorandum Order 

dated March 3, 2014, denying Mr. Smalis’ Motion for Sanctions, and Memorandum Order dated April 

10, 2014, denying Mr. Smalis’ Motion for Reconsideration. See Adversary Proceeding 13-2362, Doc. 

Nos. 89 and 103. Mr. Smalis appealed both Orders. The District Court affirmed this Court’s 

Memorandum Orders. See Adversary Proceeding 13-2362, Doc. Nos. 147 and 148. This Court will not 

entertain issues which have been fully resolved despite Mr. Smalis’ proclivity to repetitively plead the 

same matters without regard to final orders. 

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 12 of 20
13

appealed nor was reconsideration sought. This Court finds that this is yet another attempt by Mr. 

Smalis to raise matters that have been resolved. To the extent Mr. Smalis contends that Trustee 

Sikirica should now pursue Adversary Proceeding 05-3325 due to the alleged violations of due 

process in the state court proceedings, Trustee Sikirica is not Mr. Smalis’ counsel.15 These 

claims against the Trustees are without foundation. 

Mr. Smalis also alleges that the Trustees failed in a number of duties pursuant to 11

U.S.C. §704; however, Mr. Smalis fails to identify what provisions of the statute are applicable. 

Further, the Court notes that pursuant to §704(a)(1), trustees are directed to “collect and reduce 

to money the property of the estate for which such trustee serves, and close such estate as 

expeditiously as is compatible with the best interests of parties in interest[.]” Based upon the 

record in this case, Trustee Makoroff did an exemplary job in complying with this duty. 

Adversary proceedings were commenced early on in the case to sell co-owned real estate and 

ultimately distribution was made to creditors resulting in a surplus to the Debtor. 

Despite the foregoing, Mr. Smalis contends, without citing to authority, that Trustee 

Makoroff should have filed a claim on his behalf. First, it is not clear how Trustee Makoroff 

would have been aware of any potential claim by Mr. Smalis.16 As Trustee Makoroff has 

asserted, there is no indication that, prior to filing a late proof of claim, Mr. Smalis ever 

15 With respect to Adversary Proceeding 05-3325, Mr. Smalis asserts in his rebuttal answers that he 

“is asking this Court to determine whether the defendants’ actions and provisions violated his federal 

constitution rights.” See Doc. No. 221 at 5. It appears that Mr. Smalis, who is not a debtor, seeks to have 

this Court adjudicate alleged violations of his rights by other non-debtors. Mr. Smalis fails to provide any 

jurisdictional basis for this bankruptcy court to adjudicate any such claims.

16 Mr. Smalis contends that Trustee Makoroff should have had knowledge of him by virtue of a 

lawsuit between another entity and Painting Company due to Trustee Makoroff’s firm’s involvement in 

said proceeding. See Motion for Leave, at 4. First, it is not clear that Trustee Makoroff, individually, had 

any involvement in that litigation. Second, the Court notes that it is unclear how separate litigation in 

another forum, in which the Debtor was not a party, relates to this bankruptcy case or translates in some 

way to the Trustee’s knowledge of Mr. Smalis’ alleged claim or the alleged bad faith filing by the Debtor.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 13 of 20
14

attempted to inform Trustee Makoroff of his alleged claim against the Debtor. Mr. Smalis failed 

to contradict Trustee Makoroff’s assertion which is supported by the record. Second, to the 

extent Mr. Smalis asserts that the Trustee had a duty to file a claim on his behalf (assuming the 

Trustee was aware of a claim, which this Court does not find), 11 U.S.C. §501(c) provides, “[i]f 

a creditor does not timely file a proof of such creditor’s claim, the debtor or the trustee may file a 

proof of such claim.” (Emphasis added.) The language of §501(c) does not impose a duty on a 

trustee. This allegation against Trustee Makoroff is wholly without merit.

Mr. Smalis also contends that Trustee Makoroff failed to provide him with proper notice 

to file a claim and subsequently failed to acknowledge his proof of claim. First, Mr. Smalis was 

not identified by Debtor as a creditor such that he would have received notice to file a claim to 

participate in distribution. Second, Mr. Smalis’ proof of claim was filed long after the deadline 

passed and after the Distribution Order was entered.17 Nonetheless, Mr. Smalis did not check the 

box on the proof of claim form indicating that he never received any notices from the bankruptcy 

court in this case. Even assuming arguendo that Mr. Smalis filed a tardy claim seeking 

distribution pursuant to either 11 U.S.C. §726(a)(2)(C) or (3), distribution would only be made 

on an unsecured claim pursuant thereto. Mr. Smalis, however, identified his claim as secured by 

checking the box indicating that the claim is secured by collateral. Further, Mr. Smalis provided 

a description of the collateral as real estate and equipment, significantly, without indication that 

17 As previously noted, to the extent Mr. Smalis possessed a claim against Debtor, he subsequently 

entered into a Settlement with Debtor. Furthermore, the Court notes that, assuming Mr. Smalis was able 

to establish entitlement to a distribution in this case, whether he would have actually received funds is 

questionable. Although this Court makes no finding in this regard, Trustee Makoroff advised that, due to 

significant liens of record against Mr. Smalis, any proceeds received by Mr. Smalis would have been 

attached by the Internal Revenue Service and the United States Government. See Doc. No. 232. Mr. 

Smalis disputes this contention. See Doc. No. 235.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 14 of 20
15

any part of the claim was an unsecured nonpriority claim.18 Although Mr. Smalis also identified 

the claim (in the version of the proof of claim filed on the Claims Register) as an unsecured 

priority claim by checking a box on the applicable form, he failed to identify the statutory 

authority for asserting a priority. Mr. Smalis did not identify a claim entitled to priority; he 

simply wrote “goods sold.” There is no indication of entitlement to priority, and this Court finds 

none. Further, there has been no assertion by Mr. Smalis of a sale of collateral upon which he 

asserted a lien such that he would have received a distribution related thereto. Accordingly, Mr. 

Smalis’ proof of claim identified only an alleged secured claim, which would not have been 

entitled to distribution.19 No action was taken to challenge the Distribution Order prior to the 

Trustee’s commencement of distribution pursuant thereto. The Court finds no foundation for 

challenging the Trustee’s conduct in this regard.

In addition, Mr. Smalis alleges that Trustee Makoroff sold contaminated real estate, 

without disclosure of the contamination, that should have been abandoned pursuant to 11 U.S.C. 

§554(a). As to the allegations of nondisclosure, Trustee Makoroff asserted that he made every 

potential bidder aware of the contamination. There is no basis to conclude to the contrary as Mr. 

Smalis has done nothing more than make bare allegations regarding the alleged nondisclosure of 

contamination; nor could Mr. Smalis provide any foundation for such allegations as there is no 

18 The form provides a space to fill in the amount of any unsecured nonpriority claim and describes 

such a claim as arising in three circumstances: “a) there is no collateral or lien securing your claim, or b) 

your claim exceeds the value of the property securing it, or if c) none or only part of your claim is entitled 

to priority.” 

19 Notably, in Mr. Smalis’ rebuttal answers to Trustee Makoroff, he contends that “. . . the claim 

asserted claims of E. Smalis Painting Co., Inc[.] with the amounts to equipment, money loaned and total 

amount due to creditor E. Smalis Painting Co., Inc[.] and Ernest Smalis is over $500[,]000. Ernest Smalis 

filed the claim as an agent of the corporation.” See Doc. No. 221, at 2. With respect to the Painting 

Company, these matters have been fully addressed in the Memorandum Opinion and Order entered June 

12, 2015, in Adversary Proceeding 14-2075. Mr. Smalis has never clarified for the Court the distinction 

between the claim allegedly asserted on behalf of the Painting Company and that asserted on his own 

behalf.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 15 of 20
16

reason Mr. Smalis would have been made a party to conversations between Trustee Makoroff 

and potential bidders. Furthermore, pursuant to §554(a), abandonment is appropriate where said 

property is “burdensome to the estate or . . . of inconsequential value and benefit to the estate.” 

This was certainly not the case as sales of property resulted in funds for distribution to creditors 

for the benefit of the estate. This Court finds no misconduct by Trustee Makoroff in this regard,

and significantly, no injury to Mr. Smalis. Trustee Makoroff’s efforts to sell property were, in 

fact, of great value to the bankruptcy estate in fulfillment of his duties as trustee. Any objections 

to the sale should have been raised in a timely manner, and this Court notes that Mr. Smalis 

participated telephonically at the sale hearing. This is nothing more than a belated attempt to 

challenge a sale which was approved by this Court in 2006. The claim against Trustee Makoroff 

is without foundation.

Also related to the sale of contaminated property, Mr. Smalis appears to contend that 

Trustee Makoroff failed to challenge tax assessments related thereto extending as far in the past

as 2002. To the extent Mr. Smalis contends that he personally failed to receive notices of 

assessments from the relevant taxing bodies, that is not a determination for this Court and, more 

importantly, not a failure on the part of the Trustees in this case. It seems that it is Mr. Smalis’ 

contention that Trustee Makoroff should have challenged tax assessments on the basis that 

certain property was worthless. However, as Trustee Makoroff sold such property for a 

significant value to the benefit of the estate, it can hardly be argued that the property was 

worthless. Trustee Makoroff thoroughly explained the matter on the record at the June 9th 

Hearing, and this Court finds that he acted appropriately. Accordingly, to the extent Mr. Smalis 

alleges that Trustee Sikirica also failed in this regard as he has not attempted to recoup said 

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 16 of 20
17

funds, Mr. Smalis’ allegations are without foundation. Despite Mr. Smalis’ apparent 

understanding to the contrary, the Trustees are not appointed to act as his personal counsel.

Mr. Smalis also asserts that Trustee Sikirica failed to take action with respect to Debtor’s 

alleged violation of this Court’s Order directing that she not dispose of surplus funds distributed 

to her. Mr. Smalis references two orders of this Court, one dated October 30, 2008, and the other 

dated November 6, 2012. The October 30, 2008 Order was entered by Judge Markovitz on the 

Department’s motion to reopen the bankruptcy case. The November 6, 2012 Order, entered by 

the Undersigned, provides as follows: 

. . . [U]pon consideration of the Motion for Status Conference filed by the Chapter 

7 Trustee, Jeffrey J. Sikirica, it is hereby ORDERED and DECREED that a Status 

Conference regarding the Order of Court dated October 30, 2008 directing 

Debtor, Despina Smalis, not to dispose of any surplus funds distributed to her 

until further order of Court shall be held on December 4, 2012 . . . .

See Doc. No. 142. First, the status conference was scheduled due to Trustee Sikirica’s diligent 

monitoring of this case. Second, neither the Order entered on October 30, 2008, nor the Order 

entered on November 6, 2012, was entered on the request of or for the benefit of Mr. Smalis.

Accordingly, it is not apparent on what basis Mr. Smalis believes he is entitled to relief. The 

Court finds the claims against Trustee Sikirica in this regard to be without foundation.

In addition, Mr. Smalis generally alleges additional failures by the Trustees. He asserts 

that the Trustee(s) failed to ask the appropriate questions at the meeting of creditors, investigate 

Debtor’s financial affairs, and detect Debtor’s bad faith filings, untruthfulness, and prepetition 

misconduct. Mr. Smalis makes strong allegations without any foundation to support them. In 

fact, the alleged misconduct by Debtor has not been established, and Mr. Smalis previously 

settled and released all potential claims against Debtor. Contrary to the alleged failures, Trustee 

Makoroff actually liquidated more than sufficient assets to pay creditors pursuant to the 

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 17 of 20
18

Distribution Order. Further, to the extent that Mr. Smalis asserts that the Trustees failed to object 

to Debtor’s discharge, it has not been established that the Trustees possessed any information 

(assuming arguendo that such information exists) in time to object to Debtor’s discharge. In fact, 

even Mr. Smalis only belatedly challenged the Debtor’s discharge. To the extent Mr. Smalis 

provided any information to Trustee Sikirica in support of an objection to Debtor’s discharge, he 

fails to recognize the deadlines to object to discharge passed long ago. Although Mr. Smalis 

asserts that Trustee Sikirica has not taken action to recover and/or recoup assets, Trustee Sikirica 

is under no duty to do so unless there are claims to be paid. Much of Mr. Smalis’ criticism of the 

Trustees is for failure to take certain action for the benefit of Mr. Smalis, personally, without any 

apparent benefit to the estate. It appears that Mr. Smalis seeks to recover from the Trustees and 

the bond for the consequences of his own lack of vigilance and entry into settlements which he 

now regrets. The Court finds Mr. Smalis’ allegations to be without foundation. 

Although the Court finds the Motion for Leave to be entirely without merit, as a final 

matter, this Court noted on the record the limitation set by 11 U.S.C. §322(d): “A proceeding on 

a trustee’s bond may not be commenced after two years after the date on which such trustee was 

discharged.” Many of the allegations made by Mr. Smalis relate to the period of time when 

Trustee Makoroff was appointed as trustee. However, Trustee Makoroff was discharged on 

March 28, 2007. The Motion for Leave was filed approximately eight years later. Thus, to the 

extent Mr. Smalis seeks to commence a proceeding on Trustee Makoroff’s bond, the time to do 

so passed.

Mr. Smalis’ Motion for Leave contains serious, disparaging accusations regarding the 

conduct of the Trustees in this case. There is simply no foundation for these accusations. Based 

upon an overall review of the record in the bankruptcy case and related proceedings, the Trustees 

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 18 of 20
19

have honestly and diligently carried out their duties under the Bankruptcy Code. The Motion for 

Leave is nothing more than yet another attempt by Mr. Smalis to undo settlements approved by 

this Court, challenge orders entered long ago, and raise arguments previously addressed.20

Despite Mr. Smalis’ insistence that he has been denied due process, the record of this case and 

related adversary proceedings clearly demonstrates to the contrary. Mr. Smalis has been granted 

a great deal of leeway as a pro se litigant to bring numerous matters before this Court; however,

on at least two occasions, this Court warned Mr. Smalis that baseless filings may result in 

sanctions. See Memorandum Orders, Adversary Proceeding 13-2362, Doc. Nos. 89 and 103. 

Notwithstanding the foregoing, Mr. Smalis filed the instant Motion for Leave. This Court has 

repeatedly provided Mr. Smalis with a full and fair opportunity to present requests for relief to 

this Court; however, where a filing is presented for an improper purpose, such as to harass, or 

where a filing contains allegations lacking evidentiary support, sanctions will be considered. 

Should Mr. Smalis choose to file yet another baseless motion before this Court, the Court will 

immediately enter an order directing Mr. Smalis to show cause why Fed.R.Bankr.P. 9011 has not 

been violated and why sanctions should not be imposed. 

Conclusion

Therefore, based upon the foregoing, this Court finds the Motion for Leave is without 

foundation, and, pursuant to the Barton doctrine, Mr. Smalis cannot proceed against the Trustees 

in another forum to the extent he seeks to do so. For the same reasons, Mr. Smalis cannot 

proceed against the Trustees in this forum. Accordingly, the Motion for Leave is denied with 

20 In fact, many of Mr. Smalis’ allegations are entirely unrelated to the conduct of the Trustees and 

the relief sought in the Motion for Leave. Mr. Smalis uses the Motion for Leave as a vehicle to raise every 

complaint he has voiced throughout this bankruptcy case regardless of final orders. This pattern of

behavior has been observed by the District Court in its Memorandum Order dated February 13, 2015, 

affirming this Court’s Orders denying Mr. Smalis’ motion for sanctions and motion for reconsideration. 

See Adversary Proceeding 13-2362, Doc. No. 147, at 4, 6.

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 19 of 20
20

prejudice. The Motion to Dismiss is deemed moot. An appropriate Order will be entered 

consistent with this Memorandum Opinion. 

Date: July 7, 2015 __/s/ Carlota M. Böhm_______

Carlota M. Böhm 

United States Bankruptcy Judge

MAIL TO:

Office of the United States Trustee

Jeffrey J. Sikirica, Esq.

Stanley G. Makoroff, Esq.

John P. Lacher, Esq., and Robert O. Lampl, Esq.

Ernest Smalis

6652 Northumberland Street

Pittsburgh, PA 15217

Case 05-31587-CMB Doc 236 Filed 07/07/15 Entered 07/07/15 12:08:39 Desc Main

Document Page 20 of 20