Villella v. Katzen

55 Pa. D. & C.4th 9, 2001 Pa. Dist. & Cnty. Dec. LEXIS 196
CourtPennsylvania Court of Common Pleas, Clearfield County
DecidedDecember 20, 2001
Docketno. 1993-760-C.D.
StatusPublished

This text of 55 Pa. D. & C.4th 9 (Villella v. Katzen) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Clearfield County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Villella v. Katzen, 55 Pa. D. & C.4th 9, 2001 Pa. Dist. & Cnty. Dec. LEXIS 196 (Pa. Super. Ct. 2001).

Opinion

AMMERMAN, J.,

In 1986, plaintiff Francis A. Villella requested that the Clearfield County Industrial Development Authority finance a certain commercial development warehouse project (C warehouse project) for plaintiff. In order to provide financing to plaintiff, First Mortgage Revenue Bonds Series of 1986 were issued by the authority to finance the acquisition and construction of C warehouse project, located in Sandy Township, Clearfield County. Bonds in the total amount of $1,100,000 were issued to Deposit Bank, Marcus Katzen, Marshall Katzen, Bari Boyer, Harry Kellar as [11]*11trastee for Brit Katzen and Harry Kellar as trustee for Brook Katzen. The bonds issued to Deposit Bank contained different terms from the bonds issued to the individual bondholders, and the underlying issue in this litigation concerns the validity of the bonds which are owned by the individual bondholders.

On May 21, 1993, plaintiff instituted this action by filing a complaint in the Court of Common Pleas of Clearfield County. Thereafter, defendants removed the case to the United States District Court for the Western District of Pennsylvania. The federal court dismissed Counts I and III of plaintiff’s complaint with prejudice for failure to state a claim upon which relief could be granted. Thereafter, the federal court determined sua sponte that it lacked jurisdiction and remanded the case to this court on February 17, 1995. Defendants filed preliminary objections to plaintiff’s complaint in this court, and Counts I and HI were dismissed by this court. In the interim, plaintiff filed a complaint in equity seeking to reform the bonds issued to the individual bondholders. Defendant again filed preliminary objections, whereupon this court dismissed most of the counts in plaintiff’s equity action.

After dismissal of most of plaintiff’s claims in this matter, the counts of plaintiff’s complaint which remained for consideration by this court are Count II of plaintiff’s action at law and Count IV of plaintiff’s equity action. Count II of plaintiff’s action at law alleges a conflict of interest based upon the alleged attomey/client relationship between defendant Marcus Katzen and plaintiff. Count IV of plaintiff’s complaint in equity is an effort [12]*12by plaintiff to rewrite the terms of the transaction by reducing the reserve required pursuant to the bond documents from the $350,000 contained in the loan documents to $130,000 and $260,000 at the end of the third and sixth years respectively.

A civil non-jury trial was held in this matter on November 8 and 9, 2000 and July 17 and 18, 2001.1 Following a period of delay caused by the parties’ desire to have the trial transcribed, briefs have been received and the matter is set for decision.

The events giving rise to plaintiff’s claims began in 1986, when plaintiff requested that the authority finance the C warehouse project for him. The C warehouse project involved the purchase of 5.01 acres of land originally owned by General Warehousing, a corporation owned by various members of the Katzen family, (Tr. I, 25), and the development of a warehouse thereon. (Joint exhibit 1.) In order to provide financing to plaintiff, the bonds were issued by the authority. Pursuant to the industrial development loan financing arrangement, the land was conveyed to the authority, who in turn executed and delivered a first mortgage to Deposit Bank in the amount of $ 1,100,000 secured by a mortgage loan agreement. The mortgage from the authority was executed and delivered to secure $1,100,000 of tax-exempt commercial development bonds issued by the authority to the following:

(a) Deposit Bank — $800,000;
[13]*13(b) Marcus Katzen — $160,000;
(c) Marshall Katzen — $50,000;
(d) Bari Boyer — $50,000;
(e) Harry Kellar as trustee for Brit Katzen — $20,000;
(f) Harry Kellar as trustee for Brook Katzen — $20,000;
Total: $1,100,000. (Joint exhibit 1.)

Closing on the C warehouse project occurred in late December 1986, as it was necessary to complete the transaction prior to a change in the tax law effective January 1, 1987, after which time the project would no longer be tax-exempt. (Tr. I, 59.)

Defendant Marcus Katzen had begun in January or February of 1986 to put together the deal that became the C warehouse project, prior to plaintiff’s involvement. He began by searching for at least two investors, originally intending to structure a joint venture similar to prior deals in which he had been involved. Plaintiff, upon hearing about the C warehouse project from Marcus Katzen, was interested in participating and wanted to be the sole investor. He testified that he was interested in a $200,000 investment rather than a $100,000 investment. (Tr. III, 107.)

Marcus Katzen did much of the initial work to put the deal together, including designing the initial structure and elements of the transaction. He patterned the transaction after a prior project in which he was involved, B warehouse, and the C warehouse project contains many of the same features. The project originally was to have General Warehousing, a company partly owned by [14]*14Marcus Katzen, in the place of the plaintiff, but plaintiff was offered the opportunity to be investor-developer due to a change in the tax laws. (Tr. IV, 27-29.) In any event, Marcus Katzen’s role in the project was to coordinate among the various parties to the transaction, for which he was paid a $25,000 supervision fee by plaintiff. The fee was paid by plaintiff as investor-developer, the only party in the transaction with access to the proceeds directly to Deposit Bank, which issued bonds to Marcus Katzen, who paid an additional $15,000 in cash to receive $40,000 worth of bonds. According to Victor Lynch, Esquire, bond counsel for the transaction who was certified as an expert during trial and provided credible testimony, supervision fees of this type are “very usual” for bond transactions. He further testified that Marcus Katzen’s $25,000 supervision fee was reasonable and that he did not question it. (Tr. I, 118-19.)

Defendant Marcus Katzen received a law degree and practiced law from 1965 until 1975. However, in 1975 he sold his practice and became a full-time real estate investor, as well as for a time being a Jefferson County commissioner. After he sold his practice, he retained a few existing clients until approximately 1980, when he moved to Florida. He did not meet plaintiff until 1984, some years after he stopped practicing law. At the time of closing in 1986, clearly Mr. Katzen was not a practicing attorney and all parties agreed at trial that his company is not a law office. (Tr. III, 52.) He never solicited any legal work from plaintiff and never entered into any legal fee agreement with plaintiff.

Legal work was handled by attorneys Anthony Guido (real estate counsel) and Victor Lynch (bond counsel). [15]*15In fact, while practicing law Marcus Katzen never served as bond counsel for any transaction and was not qualified to do so. Victor Lynch, Esquire, as bond counsel, had participated in several projects with Marcus Katzen prior to the C warehouse project. (Tr. 1,19-30.) Anthony Guido, Esquire, as real estate counsel, rendered an opinion of counsel concerning title to the land which was a necessary pre-condition for closing. (Tr.

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Bluebook (online)
55 Pa. D. & C.4th 9, 2001 Pa. Dist. & Cnty. Dec. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/villella-v-katzen-pactcomplclearf-2001.