IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: :

:

LEONARD JOSEPH LUCOTCH, JR., : Bankruptcy No. 05-34154-MBM

:

 Debtor. :

................................................................:...............................................................

Jesse Neil and Carmella Neil, :

his wife, :

Plaintiffs, : Chapter 7

:

v. :

: Adversary No. 06-2175-MBM

Leonard Joseph Lucotch, Jr., :

Defendant. :

MEMORANDUM

AND NOW, this 5th day of June, 2006, upon consideration of

(a) the adversary complaint filed by Jesse and Carmella Neil (hereafter

collectively “the Neils” or, respectively, “Mr. Neil” or “Mrs. Neil”), wherein

the Neils seek a determination that their unliquidated and disputed claim

against Leonard Lucotch, Jr., the above-captioned debtor (hereafter “the

Debtor”), is nondischargeable pursuant to 11 U.S.C. § 523(a)(6), which

unliquidated and disputed claim is (i) presently being pursued by the Neils

in the Pennsylvania Court of Common Pleas for Westmoreland County

(hereafter “the Common Pleas Court) at No. 6915 of 1999, and (ii) also

presently stayed by virtue of the Debtor’s commencement of the instant

bankruptcy case;

(b) the parties’ dueling motions for summary judgment in the instant

adversary proceeding;

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(c) the Neils’ complaint in the underlying action against the Debtor that is

presently pending in the Common Pleas Court, wherein each of the Neils

pleads one count – Mr. Neil pleads one count for assault, perhaps battery,

negligence, carelessness, and recklessness, while Mrs. Neil pleads a

count for deprivation of the attention, services, comfort, society, and

consortium of her husband, Mr. Neil, as a result of those actions alleged to

have been taken by the Debtor against Mr. Neil that comprise the basis for

Mr. Neil’s count against the Debtor; and

(d) the Neils’ oral request for relief from stay so that they may pursue to

judgment in the Common Pleas Court their underlying action against the

Debtor;

and subsequent to notice and a hearing on the dueling summary judgment

motions held on May 31, 2006,

it is hereby determined that the Court, for the reasons briefly set forth

below, shall issue an order that

(a) denies without prejudice each of the summary judgment motions,

(b) grants stay relief to the Neils so that they can pursue to judgment in

the Common Pleas Court their underlying action against the Debtor,

but only to the limited extent that (i) Mr. Neil pursues, with respect to

his count therein, a recovery for assault and/or battery, and (ii) Mrs.

Neil pursues, with respect to her count therein, a recovery based

upon assault and/or battery suffered by Mr. Neil, and

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(c) defers resolution of the instant adversary proceeding, that is that

defers resolution of the issue of whether the Neils’ unliquidated and

disputed claim against the Debtor is nondischargeable, until after the

conclusion of the Neils’ pending action against the Debtor in the

Common Pleas Court.

I.

The hallmark argument by the Debtor in support of his summary judgment

motion is that (a) Mr. Neil predicates his underlying cause of action against the

Debtor, that is his one count in the underlying Common Pleas Court action, upon

acts alleged to have been committed by the Debtor, which acts the Debtor

asserts Mr. Neil characterizes in his underlying state court complaint as only

negligent, careless, and/or reckless, (b) injury suffered by another as a result of

negligent, careless, and/or reckless acts committed by a debtor, as a matter of

law, cannot constitute “willful and malicious injury” such that a debt for such injury

may be excepted from discharge pursuant to § 523(a)(6), and (c) Mr. Neil’s

underlying cause of action, and thus Mrs. Neil’s as well, accordingly may not be

excepted from discharge pursuant to § 523(a)(6).

The Court must reject such argument by the Debtor and, thus, must also

deny the Debtor’s summary judgment motion, because (a) Mr. Neil, in his

underlying state court complaint, contends that the alleged acts by the Debtor

also constitute assault, (b) Mr. Neil, in such complaint, also frankly appears to

have pled what might constitute the tort of battery as well, (c) the torts of assault

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and battery each constitute intentional torts, (d) injury suffered by another as a

result of an intentional tort committed by a debtor constitutes, as a matter of law,

an injury that is both willful and potentially malicious such that a debt for such

injury may potentially be excepted from discharge pursuant to § 523(a)(6), see In

re Slomnicki, 243 B.R. 644, 649 n.2 (Bankr.W.D.Pa. 2000) (discussing the U.S.

Supreme Court and Eighth Circuit decisions in Kawaauhau v. Geiger, 523 U.S.

57, 118 S.Ct. 974, 140 L.Ed.2d 90 (U.S. 1998), aff’g 113 F.3d 848 (8th Cir.

1997), and pointing out that in such case the Supreme Court affirmed the Eighth

Circuit, which latter court expressly held that judgment debts predicated upon an

intentional tort may be nondischargeable under § 523(a)(6)), and (e) Mr. Neil’s

underlying cause of action, and thus Mrs. Neil’s as well, accordingly may

potentially be excepted from discharge pursuant to § 523(a)(6).

The most that the Court can presently do in favor of the Debtor vis-a-vis

the Neils’ § 523(a)(6) action is to hold that the Neils’ underlying causes of action

are discharged to the extent that they are predicated upon negligence,

carelessness, and/or recklessness theories for relief. However, and once again,

the Court cannot presently hold that the Neils’ § 523(a)(6) action fails to the

extent that the Neils’ underlying causes of action are predicated upon an

intentional tort – i.e., assault and/or battery – theory for relief. Therefore, the

Court must deny the Debtor’s motion for summary judgment.

II.

As for the Neils’ summary judgment motion, the Court determines that the

most prudent course of action at this time is to deny such motion. The Court

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determines as much notwithstanding the Court’s conclusion that, if Mr. Neil is

successful in proving that the Debtor assaulted and/or battered him, then the

Neils’ underlying causes of action will necessarily be nondischargeable under

§ 523(a)(6).

The Court determines that a denial of the Neils’ summary judgment motion

is the most prudent course of action to take at this time for several reasons. 

First, the Debtor vigorously and genuinely disputes the assertion that he

assaulted and/or battered Mr. Neil, and the Court itself, without the benefit of a

trial, cannot possibly ascertain at this time whether the Debtor committed such

assault and/or battery. Second, the Court does not wish to simply rule at this

time that any future judgment that the Neils might obtain in the Common Pleas

Court is nondischargeable under § 523(a)(6) provided that such judgment is for,

or is based upon, assault and/or battery because, by doing so, the Court

relinquishes control over the process of reviewing for nondischargeability any

future judgment that might be obtained by the Neils. For instance, even if the

Court were to presently rule that a future judgment obtained by the Neils based

upon assault and/or battery is nondischargeable under § 523(a)(6), the potential

nevertheless remains for the Neils, albeit perhaps inadvertently, to then

subsequently obtain a judgment based not entirely upon assault and/or battery

but rather, at least in part, for negligence, carelessness, and/or recklessness by

the Debtor given that such theories for relief were also pled by the Neils in their

underlying state court complaint; with respect to such a judgment, the Court

would not wish to cede control over the determination as to whether the same is

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entirely or is only partially nondischargeable pursuant to § 523(a)(6). Therefore,

the Court will deny the instant summary judgment motion brought by the Neils.

Although the Court denies the Neils’ summary judgment motion, the Court

finds that stay relief is warranted, and thus the Court shall grant to the Neils stay

relief, so that they may pursue to judgment in the Common Pleas Court their

underlying action against the Debtor, but only to the limited extent that (i) Mr. Neil

pursues, with respect to his count therein, a recovery for assault and/or battery,

and (ii) Mrs. Neil pursues, with respect to her count therein, a recovery based

upon assault and/or battery suffered by Mr. Neil. At the same time, the Court will

defer resolution of the instant adversary proceeding, that is the Court will defer

resolution of the issue of whether the Neils’ unliquidated and disputed claim

against the Debtor is nondischargeable, until after the conclusion of the Neils’

pending action against the Debtor in the Common Pleas Court.

To complete the analysis, the Court now sets forth the rationale for its

conclusion that, if Mr. Neil were to succeed in obtaining a judgment in the

Common Pleas Court for assault and/or battery, then such judgment, as well as

one for Mrs. Neil on her count to the extent that the same is predicated upon

such assault and/or battery, would necessarily be nondischargeable under

§ 523(a)(6). As an initial matter, and as the Court has already held in Part I.

above, injury suffered by another as a result of an intentional tort committed by a

debtor (such as an assault or battery) constitutes, as a matter of law, an injury

that is willful within the meaning of § 523(a)(6). Therefore, any judgment

obtained by Mr. Neil for an intentional tort committed by the Debtor would, by

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virtue of collateral estoppel, constitute a debt for an injury that, within the

meaning of § 523(a)(6), was willfully caused by the Debtor. An injury is malicious

within the meaning of § 523(a)(6) if “‘the tortious act of a debtor which resulted in

said injury ... was wrongful and without just cause or excuse, even in the

absence of personal hatred, spite or ill-will.’” Slomnicki, 243 B.R. at 649. If the

Debtor were to succeed in proving in the Common Pleas Court that he acted with

just cause or excuse, and that such actions were not wrongful (in which event

malice under § 523(a)(6) would be lacking), then such justification would

constitute a complete defense to Mr. Neil’s action for assault and/or battery, in

which event the Neils would not then even obtain a judgment against the Debtor

which could be declared nondischargeable. However, if Mr. Neil were to succeed

in obtaining a judgment for assault and/or battery, then that would necessarily

mean that the Common Pleas Court had determined that the Debtor did not have

a defense to such claim for assault and/or battery, which, in turn, would

necessarily mean that (a) his actions were both wrongful and without just cause

or excuse, and (b) such judgment would, by virtue of collateral estoppel,

constitute a debt for an injury that, within the meaning of § 523(a)(6), was

maliciously caused by the Debtor. Therefore, if Mr. Neil were to succeed in

obtaining a judgment for assault and/or battery, then such judgment would, by

virtue of collateral estoppel, constitute a debt for willful and malicious injury by

the Debtor to Mr. Neil, which debt would be nondischargeable pursuant to

§ 523(a)(6). Of course, if Mrs. Neil were to also obtain a judgment in her favor on

her count as a result of a finding by the Common Pleas Court that Mr. Neil was

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assaulted and/or battered, then such judgment in her favor would, by virtue of

collateral estoppel, also constitute a debt for willful and malicious injury by the

Debtor to another entity, namely Mr. Neil, which debt would be nondischargeable

pursuant to § 523(a)(6).

III.

For all of the foregoing reasons, the Court shall issue the order described

at the outset of the instant Memorandum.

BY THE COURT

 /s/ 

M. BRUCE McCULLOUGH,

U.S. Bankruptcy Judge

DATED: June 5, 2006

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: :

:

LEONARD JOSEPH LUCOTCH, JR., : Bankruptcy No. 05-34154-MBM

:

 Debtor. :

................................................................:...............................................................

Jesse Neil and Carmella Neil, :

his wife, :

Plaintiffs, : Chapter 7

:

v. :

: Adversary No. 06-2175-MBM

Leonard Joseph Lucotch, Jr., :

Defendant. :

ORDER OF COURT

AND NOW, this 5th day of June, 2006, for the reasons set forth in the

accompanying Memorandum of the same date, it is hereby ORDERED,

ADJUDGED, AND DECREED that

(a) the summary judgment motions of each of the above-named parties are

DENIED WITHOUT PREJUDICE,

(b) the plaintiffs – i.e., Jesse and Carmella Neil – are GRANTED STAY

RELIEF so that they can pursue to judgment in the Pennsylvania Court of

Common Pleas for Westmoreland County their underlying action against

the Debtor, but only to the limited extent that (i) Mr. Neil pursues, with

respect to his count therein, a recovery for assault and/or battery, and (ii)

Mrs. Neil pursues, with respect to her count therein, a recovery based

upon assault and/or battery suffered by Mr. Neil, and

(c) the instant adversary proceeding is CONTINUED until after the conclusion

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of the Neils’ pending action against the Debtor in the Common Pleas

Court.

BY THE COURT

 /s/ 

M. BRUCE McCULLOUGH,

U.S. Bankruptcy Judge

cm: Terence O’Halloran, Esq.

Mary E. Baloh, Esq.

(To be served by case administrator)

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