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MURSAU CORP. v. FLORIDA PENN OIL & GAS INC.

June 30, 1986

MURSAU CORPORATION, Plaintiff,
v.
FLORIDA PENN OIL & GAS INC., a corporation, GOLDBERG & SNODGRASS, a law partnership, LEE H. GOLDBERG, STEWART R. SNODGRASS, CHRISTIAN E. CARLSEN & DAVID GRAHAM, individuals, Defendants, v. THOMAS H. MURRAY, Third-Party Defendant



The opinion of the court was delivered by: COHILL

 Presently before us are Motions for Summary Judgment filed on behalf of each Defendant. Having held oral argument and having reviewed the affidavits, depositions, briefs and other exhibits filed, we find no genuine issue as to any material fact. Consequently, we will grant these motions.

 Facts

 Plaintiff, Mursau Corporation ("Mursau"), through its President and majority stockholder, Thomas H. Murray, Esquire ("Murray"), purchased a limited partnership interest in Defendant Florida-Penn Oil & Gas, Inc.'s ("Fla-Penn") 1981-102 Drilling Program ("102 program"). Defendant Christian E. Carlsen ("Carlsen") is the President of Fla-Penn and Defendant David Graham ("Graham") is a stockholder of Fla-Penn. Defendant Goldberg & Snodgrass ("G & S"), a law firm in which individual Defendants Lee H. Goldberg ("Goldberg") and Stewart R. Snodgrass ("Snodgrass") are partners, was retained by Fla-Penn to structure the 102 program and prepare a tax opinion letter with regard to that program.

 Mursau's acquisition of the limited partnership interest in the 102 program came about as a result of Murray contacting Goldberg in early October, 1981. Murray was interested in the 102 program as a tax shelter for Mursau. Since Mursau's fiscal year ended on October 31, Murray wanted to close the deal on or before October 30, in order to secure tax advantages for Mursau in 1981.

 At his initial meeting with G & S, Murray was given a copy of a Private Placement Memorandum ("PPM") for an earlier Fla-Penn oil and gas partnership, the 101 program. He was told that the PPM for the 102 program would be materially similar but that the costs would be reduced proportionally according to the lesser number of wells to be drilled under the 102 program. The 101 program drilled 10 wells; the 102 program would drill only 4. Murray reviewed the PPM for the 101 program with independent counsel, Deposition of Thomas H. Murray, at P. 29, then signed a commitment letter for the 102 program. Supplemental Exhibit in Support of Motion for Summary Judgment, DX-3.

 On October 29, 1981, Murray received a copy of the PPM for the 102 program which was in fact materially similar to the PPM for the 101 program. Supplemental Exhibits DX-1 and DX-2.

 At the closing on October 30, 1981, Murray refused to tender a check on behalf of Mursau unless he was granted check-signing authority for the partnership, a demand clearly in conflict with the limited partnership agreement already signed by Murray. Supplemental Exhibit DX-2, at Exhibit I. Murray wanted that authority so that, after closing, he could dispute the payment of certain costs provided for in the PPM, including a finder's commission to the group securing the limited partners participation. Supplemental Exhibit DX-4, Transcript of proceedings at closing. As indicated by his notes comparing the costs under the 101 and 102 program, Murray was fully aware of the $49,600 finder's commission prior to the time set for closing. Supplemental Exhibit DX-6.

 Although Murray initially walked out of the closing because of the refusal of Fla-Penn to acquiesce in his demands, he returned after a conversation with Snodgrass outside on the sidewalk. Murray deposition, at 120-123. Fla-Penn never acceded to Murray's demands. After the closing, Fla-Penn paid G & S $20,000 for legal fees and $49,600 as a finder's commission. Murray became aware of these payments sometime in December of 1981.

 The Defendants maintain that the 102 PPM as well as the 101 PPM, on which the 102 was modeled, disclose all material information. Both PPMs disclose the payment of legal fees to G & S and the finder's commission, Supplemental Exhibit DX-1, at P. 31; DX-2, at P. 30; both disclose the potential conflict of interest of G & S as counsel for the partnership and the general partner, DX-1, at P. 20; DX-2, at P. 19; both advise prospective limited partners to consult independent counsel, DX-1, at PP. 14, 27 and Ex. I §§ 6.01 & 7.02; DX-2, at PP. 13, 26 and Ex. I §§ 6.01 & 7.02.

 Securities Act of 1933

 Plaintiff admits that the one-year statute of limitations prescribed under § 13 of the Act bars it from making a claim under § 12 or § 15 of the Act. However, Plaintiff argues that it still can maintain an action under § 17 of the Act. We need only address § 17(a) since the complaint fails to allege facts sufficient to raise a claim under § 17(b), in particular, use of interstate commerce.

 Although the Third Circuit has yet to address the issue, the clear trend among the district courts of this circuit has been against implying a private right of action under § 17(a) of the Act. See, e.g. Binkley v. Sheaffer, 609 F. Supp. 601, 602-603 (E.D. Pa. 1985); In Re Catanella and E.F. Hutton and Co., 583 F. Supp. 1388, 1419 (E.D. Pa. 1984); Warner Communications v. Murdoch, 581 F. Supp. 1482, 1496 (D. Del. 1984); Kimmel v. Peterson, 565 F. Supp. 476, 483 (E.D. Pa. 1983); Hill v. Equitable Trust Co., 562 F. Supp. 1324 (D. Del. 1983). In addition, we note that the Third Circuit Court of Appeals recently acknowledged that, with the exception of § 10(b), the trend generally has been "towards curtailing the scope of implied rights of action." Angelastro v. Prudential-Bach Securities, Inc., 764 F.2d 939, 948 (3d Cir. 1985), cert. denied, 474 U.S. 935, 106 S. Ct. 267, 88 L. Ed. 2d ...


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