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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, )

) 

Plaintiff, ) Adversary No. 15-2182-CMB

)

v. )

)

CITY OF PITTSBURGH SCHOOL )

DISTRICT, CITY OF PITTSBURGH LAW ) Related to Doc. Nos. 38 & 41

DEPARTMENT, ALLEGHENY COUNTY )

LAW DEPARTMENT, COUNTY BOARD OF )

PROPERTY ASSESSMENT APPEAL )

AND REVIEW, )

)

Defendants. )

__________________________________________)

MEMORANDUM OPINION

The above-captioned adversary proceeding was commenced by Ernest Smalis, the former 

spouse of the Debtor, Despina Smalis. Shortly after the filing of Mr. Smalis’ Amended 

Complaint (“Complaint”), this Court issued an Order setting a hearing and advising that, at that 

time, the Court may dismiss the Complaint for the reasons set forth therein. Thereafter, two 

motions to dismiss, accompanied by briefs in support, were filed: Defendant Allegheny County 

Law Department’s Motion to Dismiss Plaintiff’s Amended Complaint and Defendant City of 

Pittsburgh Law Department’s Motion to Dismiss Plaintiff’s Amended Adversary Complaint

(collectively, “Motions to Dismiss”). A response to the Motions to Dismiss was filed by Mr. 

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Smalis, and a hearing was held on April 7, 2016. For the reasons stated herein, the Complaint 

will be dismissed.

Background and Procedural History

The above-captioned bankruptcy case was commenced by Despina Smalis on September 

2, 2005, by the filing of a voluntary petition for relief under Chapter 7 of the Bankruptcy Code.

Within Debtor’s Schedule A, she identified her interest in numerous properties, including 3224 

Boulevard of the Allies, Pittsburgh, Pennsylvania (“Boulevard of the Allies Property”) and 4073 

Liberty Avenue, Pittsburgh, Pennsylvania (“Liberty Avenue Property”). 

On November 23, 2005, the former Chapter 7 Trustee, Stanley G. Makoroff (“Trustee 

Makoroff”) commenced an adversary proceeding seeking to sell the Boulevard of the Allies

Property. See Adv. No. 05-3308. In that proceeding, Mr. Smalis, a co-owner, was named as a 

defendant. Mr. Smalis filed an answer and actively participated in the proceeding, which 

ultimately culminated in the sale of the Boulevard of the Allies Property for the amount of 

$1,350,000. See Adv. No. 05-3308, Doc. No. 19. On August 8, 2006, Trustee Makoroff filed a 

Report of Sale detailing, inter alia, the disbursements made at settlement for city, school, and 

county taxes as well as distributions to co-owners. See Adv. No. 05-3308, Doc. No. 23. The 

adversary proceeding has remained closed since 2006.

On March 6, 2006, an Order was entered granting Debtor a discharge under 11 U.S.C. 

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

the Administration of the Estate and Final Application for Compensation. See Case No. 05-

31587, Doc. No. 92. Therein, Trustee Makoroff designated property to be abandoned pursuant to 

11 U.S.C. §554(c), which included the Liberty Avenue Property. In the Notice of Filing of Final 

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

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Distribution Combined with Order Fixing Deadline for Filing Objections Thereto, notice was 

also provided that “[a]ny property not administered by the trustee will be deemed abandoned.” 

See Case No. 05-31587, Doc. Nos. 97 and 101 (showing service on Mr. Smalis). Thereafter, on 

November 2, 2006, Trustee Makoroff’s proposed distribution was approved by the Court, which 

resulted in a surplus being paid to the Debtor. The bankruptcy case was closed on March 28, 

2007. 

On the motion of the Commonwealth of Pennsylvania, Department of Environmental 

Protection (“DEP”), the case was reopened on October 30, 2008. Despite its reopening, the case 

remained inactive from that time until the filing of Mr. Smalis’ Complaint to Determine 

Dischargeability on April 2, 2012. See Adv. No. 12-2140. A settlement was reached between 

Mr. Smalis and the Debtor, and Mr. Smalis consented to the dismissal of the adversary 

proceeding. As part of the settlement, the Debtor released her interest in the Liberty Avenue

Property to Mr. Smalis.1 The adversary proceeding was closed following the settlement in 

November of 2012.

2

The instant proceeding was commenced by Mr. Smalis on September 10, 2015, seeking a 

determination of real estate tax liability and recoupment of funds resulting from alleged 

overpayment to the taxing bodies. Within his Complaint, Mr. Smalis specifically references two

 1 In this Court’s Memorandum Opinion dated September 15, 2015, the Court addressed the 

abandonment of property in the context of Mr. Smalis’ settlement with the Debtor in Adv. No. 12-2140. 

See Adv. No. 12-2140, Doc. No. 62, at 4, 5 n.9. 

2 Despite the resolution and closing of the proceeding in 2012, on June 8, 2015, Mr. Smalis filed 

Plaintiff Ernest Smalis Motion to Deem Settlement Agreement Defective and Void [and] Plaintiff Ernest 

Smalis Motion to Bar Debtor from Legal Proceedings in Bankruptcy Pursuant to the Doctrine of Judicial 

Estoppel. Said motion was denied by this Court’s Order dated July 7, 2015. See Adv. No. 12-2140, Doc. 

No. 43. Mr. Smalis subsequently sought reconsideration of the Order. Following the filing of a 

Memorandum Opinion, the Court entered its Order dated September 15, 2015, denying the request for 

reconsideration. See Adv. No. 12-2140, Doc. Nos. 62 and 63. Mr. Smalis appealed the decision, which 

was affirmed by the District Court on March 29, 2016. Mr. Smalis has appealed that decision to the Third 

Circuit Court of Appeals. 

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pieces of property, the Boulevard of the Allies Property and the Liberty Avenue Property. Based 

on this Court’s extensive familiarity with this case and the record, on September 22, 2015, this 

Court entered an Order setting a hearing and advising that the Complaint may be dismissed at 

that time for the reasons set forth therein. In particular, the Order directed as follows:

The parties shall be prepared to address the following issues at the Hearing: (1) 

whether this Court has subject matter jurisdiction over this dispute among nondebtors; (2) whether Mr. Smalis’ claims are, in whole or in part, the subject matter 

of an action proceeding in another forum; (3) whether orders may have been 

entered by other court(s) resolving any of Mr. Smalis’ claims raised in the 

Complaint; and (4) whether Mr. Smalis has standing to purs[u]e any claims on 

behalf of the estate to the extent he asserts that a refund should be made to the 

estate.

See Adv. No. 15-2182, Doc. No. 13. In addition to the foregoing, the Court advised that the 

imposition of sanctions may be appropriate in the form of a monetary fine and/or an injunction 

prohibiting Mr. Smalis from future filings in this case and its related adversary proceedings.3

Prior to the hearing, Mr. Smalis sought withdrawal of the reference. That request was 

ultimately denied by the District Court. In the interim, the Motions to Dismiss were filed. 

Following the decision of the District Court, this Court reset the previously scheduled hearing 

and provided that the Motions to Dismiss would be heard on the same date. A response to the 

Motions to Dismiss was filed by Mr. Smalis, and oral argument on the matters was heard on 

April 7, 2016. The matters were taken under advisement at that time and are ripe for decision.

 3 Mr. Smalis has been warned by this Court on numerous occasions of the potential for the 

imposition of sanctions where filings are made for an improper purpose. See, e.g., Memorandum Orders 

dated March 3, 2014 and April 10, 2014, Adv. No. 13-2362, Doc. Nos. 89 and 103; Memorandum 

Opinion dated July 7, 2015, Case No. 05-31587, Doc. No. 236; Memorandum Opinion dated September 

14, 2015, Case No. 05-31587, Doc. No. 272; Order dated September 16, 2015, Adv. No. 15-2174, Doc. 

No. 14.

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Analysis

Shortly after the filing of the Complaint, the Court first raised the issue of subject matter 

jurisdiction in the Order dated September 22, 2015. The subsequently filed Motions to Dismiss 

assert that this Court lacks subject matter jurisdiction. Accordingly, the Court begins with an 

analysis of its jurisdiction pursuant to 28 U.S.C. §1334, which provides as follows:

(a) Except as provided in subsection (b) of this section, the district courts shall

have original and exclusive jurisdiction of all cases under title 11.

(b) Except as provided in subsection (e)(2), and notwithstanding any Act of

Congress that confers exclusive jurisdiction on a court or courts other than the

district courts, the district courts shall have original but not exclusive jurisdiction

of all civil proceedings arising under title 11, or arising in or related to cases

under title 11.

See 28 U.S.C. §1334(a), (b). District courts are authorized to refer said cases and proceedings to

bankruptcy courts pursuant to 28 U.S.C. §157(a). Pursuant to a general order, the District Court 

for the Western District of Pennsylvania refers these cases and proceedings to the bankruptcy 

judges in this district.

For the purpose of establishing subject matter jurisdiction, this Court must find that Mr. 

Smalis’ claims are at least “related to” the bankruptcy case, i.e., the broadest means of 

establishing bankruptcy jurisdiction. See Geruschat v. Ernst Young LLP (In re Seven Fields 

Development Corp.), 505 F.3d 237, 257 (3d Cir. 2007). The Third Circuit set forth the applicable 

test in Pacor, Inc. v. Higgins, which has been applied as follows:

The test of whether a bankruptcy court has “related to” jurisdiction over a matter 

is whether “the outcome of [the] proceeding could conceivably have any effect on 

the estate being administered in bankruptcy.” In re Resorts Int’l, Inc., 372 F.3d 

154, 164 (3d Cir.2004) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d 

Cir.1984), overruled on other grounds, Things Remembered, Inc. v. Petrarca, 516 

U.S. 124, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995)). The key word in the test is 

“conceivable” and “certainty, or even likelihood, is not a requirement.” Id. 

(quoting In re Marcus Hook Dev. Park, Inc., 943 F.2d 261, 264 (3d Cir.1991)). 

The “conceivable effects” test is broad and extends to any related lawsuit or 

proceeding, including third-party proceedings, that “would affect the bankruptcy 

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proceeding without the intervention of ... another lawsuit.” In re Federal-Mogul 

Global, Inc., 300 F.3d 368, 382 (3d Cir.2002). Thus, “related to” jurisdiction has 

been exercised where third-party actions involve assets that are under the 

bankruptcy court’s administration, see In re Wood, 825 F.2d 90, 93-94 (5th 

Cir.1987), as well as third-party actions where the outcome could have a direct 

effect on the assets of the estate, see Kaonohi Ohana, Ltd. v. Sutherland, 873 F.2d 

1302, 1306-07 (9th Cir.1989).

See Zinchiak v. CIT Small Business Lending Corp. (In re Zinchiak), 406 F.3d 214, 226 (3d Cir. 

2005). 

According to Mr. Smalis, because he and the Debtor were co-owners of the properties

when the bankruptcy case commenced, his request for a determination of tax liability and for 

recoupment of overpayment of taxes is related to the bankruptcy estate such that the bankruptcy 

court has subject matter jurisdiction. This Court disagrees. Notably, neither the estate nor the 

Debtor have retained any interest in either the Boulevard of the Allies Property, which was sold 

during the course of the bankruptcy case, or the Liberty Avenue Property, which was abandoned 

and subsequently transferred to Mr. Smalis as a part of a settlement. It is also telling that neither 

the Debtor nor the current trustee, Jeffrey Sikirica, has participated in this proceeding. Most 

significantly, the estate has been fully administered. There is simply no potential benefit to the 

estate if Mr. Smalis’ claims against the taxing bodies are pursued. This case resulted in a surplus 

to the Debtor after distribution to creditors. To the extent the case was reopened in 2008 to 

address the claim of the DEP, that matter was long ago resolved by this Court’s Order dated 

March 5, 2014, approving the settlement between the Debtor and the DEP. See Case No. 05-

31587, Doc. No. 193. This bankruptcy case remains open only due to the continuous and often 

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duplicative filings by Mr. Smalis.4

Furthermore, with respect to the sale of the Boulevard of the Allies Property, that sale

was approved by this Court approximately ten years ago. Notably, Mr. Smalis, despite his 

extensive involvement in that adversary proceeding, failed to challenge the tax assessments 

related to that property at the relevant time; accordingly, disbursements were made as required at 

settlement for city, school, and county taxes. Mr. Smalis previously alleged in separate 

proceedings before this Court that the same tax assessments were improper and that the former 

and current trustees failed to challenge the assessments for the benefit of the estate. The Court 

addressed these contentions in its Memorandum Opinion dated July 7, 2015, and denied the 

requested relief sought by Mr. Smalis against the trustees. See Case No. 05-31587, Doc. No. 236, 

at 16-17.5 Trustee Makoroff clearly set forth his reasoning for choosing not to pursue a challenge 

of the tax assessments, which this Court accepted. 

Furthermore, this Court questions Mr. Smalis’ standing to pursue this action to the extent 

he represents that he is doing so on behalf of the bankruptcy estate.6 Upon review of the record, 

Mr. Smalis appears to be pursuing these claims for his own benefit in this forum only because he 

has been unable to obtain relief elsewhere. Mr. Smalis previously challenged the tax assessments 

 4 Since the case was reopened, Mr. Smalis commenced several adversary proceedings. See Adv. 

Nos. 12-2140, 13-2362, 15-2174, and 15-2182. Another adversary proceeding was commenced by E. 

Smalis Painting Co., Inc., of which Mr. Smalis is the sole shareholder and president. See Adv. No. 14-

2075. Notably, Mr. Smalis also challenged the tax assessments as part of his complaint alleging violations 

of the Racketeer Influenced and Corrupt Organizations Act in Adv. No. 13-2362. That proceeding was 

dismissed with prejudice by the Order entered January 17, 2014.

5 This Court also denied reconsideration of the July 7, 2015 decision. See Memorandum Opinion 

and Order dated September 14, 2015, Case No. 05-31587, Doc. Nos. 272 and 273. Thereafter, Mr. Smalis 

appealed the Court’s ruling; however the decision was affirmed by the District Court on March 9, 2016.

6 As has been addressed previously by this Court, to the extent Mr. Smalis was a creditor, he 

reached a settlement with the Debtor. See Memorandum Opinion, Case No. 05-31587, Doc. No. 236, 9-

10. 

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with respect to the Liberty Avenue Property in state court proceedings; however, he was 

ultimately unsuccessful despite his appeal to the Commonwealth Court and subsequently to the 

Supreme Court of Pennsylvania. Thereafter, Mr. Smalis brought an action in the Western District 

of Pennsylvania alleging that his federal constitutional rights were violated due to the taxing 

bodies’ failure to send the tax assessment notices to his correct address. Notably, many of the 

allegations made in this adversary proceeding are duplicative of the action commenced in 

District Court, which was dismissed for lack of jurisdiction. See Exhibit 7 to Complaint. 

Following the dismissal, Mr. Smalis appealed to the Third Circuit. According to Mr. Smalis, that 

appeal was also unsuccessful. Significantly, there is no indication that the Debtor was a party to 

or a participant in these proceedings.

Upon review of the Complaint, Mr. Smalis’ claims lack the requisite relation to the 

bankruptcy case. As this Court has determined that the adversary proceeding must be dismissed 

for lack of subject matter jurisdiction, the other grounds raised in the Motions to Dismiss will not 

be addressed herein.7

Conclusion

Based upon the foregoing, Mr. Smalis’ Complaint will be dismissed as this Court lacks 

subject matter jurisdiction. The Court notes that an appropriate forum for Mr. Smalis’ claims was 

available to him. The fact that he may not have been vigilant in pursuing relief and/or 

unsuccessful in obtaining relief does not mean that he was denied due process. Mr. Smalis has 

raised substantially the same claims in the state court up to the Pennsylvania Supreme Court and 

 7 To the extent that Mr. Smalis referenced additional pieces of property in his response to the 

Motions to Dismiss and at the hearing on April 7, 2016, the outcome of this proceeding remains the same. 

Notably, according to Mr. Smalis’ response, the additional lots referenced are the subject of proceedings 

currently pending in the District Court related to a zoning issue. See Response, Adv. No. 15-2182, Doc. 

No. 63, at 15-16. The matters are unrelated to this bankruptcy case.

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in the District Court up to the Third Circuit. Having been unsuccessful, Mr. Smalis appears to 

seek relief in this Court as a last resort. As this Court lacks subject matter jurisdiction, Mr. 

Smalis cannot pursue his claims here. Accordingly the adversary proceeding will be closed.8 An 

Order will be entered consistent with this Memorandum Opinion. 

Date: April 25, 2016 __/s/ Carlota M. Böhm_______

Carlota M. Böhm 

United States Bankruptcy Judge

MAIL TO:

Adam Rosenthal, Esq.

Lee Mauro Dellecker, Esq.

Ernest Smalis 

6652 Northumberland Street 

Pittsburgh, PA 15217

 8 As a result, the Emergency Expedited Motion to Disqualify Counsel Pursuant to Rule 9013-2 

Procedure for Expidited [sic] Hearings will be denied as moot by separate order. 

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