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SCHREIBER v. KELLOGG

November 19, 1993

PALMER K. SCHREIBER
v.
CHRISTOPHER G. KELLOGG



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III

 November 19, 1993

 Bartle, J.

 Plaintiff, Palmer Schreiber ("Schreiber"), instituted this diversity action to collect fees for his legal representation of defendant, Christopher Kellogg ("Kellogg"), in matters concerning the John Wanamaker stores and a trust under the will of Rodman Wanamaker.

 This case was tried without a jury between July 19 and July 23, 1993. On August 3, 1993, the court announced its findings of fact and conclusions of law from the bench and entered a judgment in favor of the plaintiff and against the defendant in the total amount of $ 512,863.76, including certain costs and prejudgment interest. Before the court is the defendant's consolidated motion for amendment of the findings of fact and conclusions of law pursuant to Rule 52(b) of the Federal Rules of Civil Procedure, for a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, and for amendment of this court's judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.

 All the legal and factual issues involved here are set forth in detail in this court's August 3, 1993 findings of fact and conclusions of law. Suffice it to say that in the late 1970's, when the relevant events in this case began, defendant Kellogg was a contingent income beneficiary of the sizeable Rodman Wanamaker Trust (the "trust"), the principal asset of which was the stock of the John Wanamaker department stores. Under the terms of the trust, Kellogg, a Wanamaker descendant, would become an income beneficiary only if he survived his mother. At that time and up until his mother's death in 1989, Kellogg was without significant financial resources.

 In March of 1978, an offer was made to purchase the John Wanamaker stores. Kellogg engaged Schreiber as his lawyer to oppose the offer as too low. A better price was later obtained and the stores were sold. In addition to performing legal work in connection with this sale, Schreiber represented Kellogg in a surcharge action against the trustees of the Rodman Wanamaker trust in the Orphans' Court Division of the Court of Common Pleas of Montgomery County. Schreiber also filed and litigated in the Common Pleas Court, with the full knowledge and consent of Kellogg, a fee petition for services rendered in connection with the sale of the John Wanamaker stores.

 On or about May 13, 1981, Kellogg signed a fee agreement ("the agreement") which became the subject of this suit. The agreement, which the court found to be a valid written contract, stated in relevant part:

 
In addition to the Counsel Fee, you shall pay me all costs incurred by me in representing you in connection with both the sale of JWP [John Wanamaker, Philadelphia Stores] and the Surcharge Action, but not those incurred by me in connection with my Fee Petition.

 The letter also contained three payment options:

 
Any time within six months from the date hereof I [Schreiber] will accept in lieu of the Counsel Fee obligation your [Kellogg's] promissory note to my order in the amount of $ 80,000 with interest at a commercially competitive rate of interest considering risk and terms of payment with principal and interest due and payable commencing on the death of your mother . . . The note shall be secured by a life insurance policy on your [Kellogg's] life naming me [Schreiber] and my assigns as beneficiary thereof in an amount at all times equal to the then outstanding balance under the Note until paid in full . . .
 
In the event you [Kellogg] are unable to obtain the court approved Charging Lien described ... above, you and I [Schreiber] will use our best effort to attempt to reach an agreement . . . for deferred payment of the Counsel Fee . . . which does not cripple you financially and yet still ...

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