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IN RE ASHE

No. 81-1629.

669 F.2d 105 (1982)

In re Charles E. ASHE and Susan J. Ashe t/a C & S Fuel Service, Debtors. The COMMONWEALTH NATIONAL BANK, Objector, v. UNITED STATES of America, Intervenor. Appeal of the COMMONWEALTH NATIONAL BANK, Creditor-Objector.

United States Court of Appeals, Third Circuit.

Decided January 6, 1982.

As Amended January 26, 1982.

Rehearing and Rehearing Denied February 3, 1982.

Attorney(s) appearing for the Case

Ralph W. Boyles, Jr., Jeannine Turgeon (argued), Nauman, Smith, Shissler & Hall, Harrisburg, Pa., for appellant, The Commonwealth Nat. Bank.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D. C., Carlon M. O'Malley, Jr., U. S. Atty., Scranton, Pa., David Epstein, John C. Morland (argued), Attys., Civil Division, Dept. of Justice, Washington, D. C., for intervenor/appellee, United States of America.

Howard Ulan, Jason W. Manne, Asst. Counsel, Dept. of Public Welfare, Harrisburg, Pa., for amicus curiae, Commonwealth of Pennsylvania Dept. of Public Welfare.

John J. Brennan, Gordon W. Gerber, Candace S. Cummings, Dechert, Price & Rhoads, Philadelphia, Pa., for amicus curiae, Pennsylvania Bankers Ass'n.

Before GIBBONS and HIGGINBOTHAM, Circuit Judges and MEANOR, District Judge.

Rehearing and Rehearing In Banc Denied February 3, 1982.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This appeal presents questions of first impression: the applicability to Pennsylvania cognovit notes of the exemption provision of Section 522(f) of the Bankruptcy Reform Act of 1978, 11 U.S.C. § 522(f) (Supp.III 1979); and if that section is applicable to cognovit notes, its constitutionality. The case is before us on appeal from a bankruptcy...

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