Panic Street Lawyer: Failing in Philadelphia Part II

Sunday, 06 May 2012 06:00 AM Written by  Jay Hornack
20120506wap_scream_150x200BLast week I wrote about my trip this weekend to the other side of the commonwealth to see some 40 Vincent van Gogh paintings at the Philadelphia Museum of Art. None of that artwork was for sale -- not that anything famous from the late 19th century was in my price range this week.

Part 1 concluded with these two questions (which may make more sense to the reader if he or she looked at Part 1 and Part 2 of the pieces I wrote on the Barnes Foundation back in March 2011:

Why did the Philadelphia Museum of Art fail to borrow from the Barnes (or, why did the Barnes fail to lend) four van Goghs in its collection to this special exhibition?

The Barnes Museum's original Merion campus. Mouseover to artist's rendering of Philadelphia campus. Associated Press

The short answer to that question is that the terms of the trust established by Dr. Albert C. Barnes included a specific provision that prohibited the lending of any of his collection to any other museum.

As told in the Oscar-nominated film “The Art of the Steal,” Dr. Barnes feuded mightily, and often nastily, all his life with the Philadelphia Museum of Art. Perhaps the “no lending” clause in the Barnes Foundation trust was written with the PMA in mind.

But a June 2010 story suggests that the trustees running the Barnes today are not carrying out that same feud, at least with respect to jointly sponsored tours and lectures. As the article states: “Albert Barnes must be rolling over in his grave” (Dr. Barnes died in 1951).

This leads us naturally to the feud that has been going on since at least the 1990s over the location of the art collection -- estimated to be worth between $25 and $35 billion -- in a building situated in a Merion, Montgomery County residential neighborhood. As told in “The Art of the Steal,” some have tried to argue in court that the Barnes trust document also support the argument that the purpose of the trust was to operate the Merion property as an educational facility, not an art museum, and therefore the relocation of the art from the Merion property was illegal.

What was the ultimate result of that legal feud over the move of all of the Barnes artwork from Merion to Philadelphia?

Barnes site construction in Philadelphia in Feb. 2011. AP
Since my article last week mentioned that “the Philadelphia campus” of the Barnes Foundation was opening on May 19, the short answer to today’s second question is that those who argued against the art relocation -- primarily two Pennsylvania non-profit corporations, Friends of the Barnes and Barnes Watch -- were unsuccessful in court. But just how unsuccessful were they?

In October 2011 Montgomery County Orphans Court Judge Stanley Ott ruled that the two non-profits, as well as several individual petitioners, did not have legal standing to reopen the proceedings which had resulted in the court’s 2004 opinion permitting the Barnes Foundation to relocate its art collection. Judge Ott concluded in October 2011 that the newly discovered evidence presented by the petitioners in their February 2011 motion -- evidence consisting of statements made in “The Art of the Steal” by key government officials involved in the Barnes relocation saga -- did not form any basis for reversing his 2008 order that had denied the petitioners legal standing to sue.

However, Judge Ott was not finished. In his October 2011 Memorandum Opinion and Order he also assessed against the petitioners the “reasonable counsel fees [of the Barnes Foundation] as part of the taxable costs of the matter.” 42 Pa.C.S.A. § 2503. The judge found “sanctionable” the petitioners’ “resurrection of the budget appropriation item as a basis for standing” because he had rejected such a basis in 2008.

After conducted a hearing on the amount of counsel fees, Judge Ott awarded the Philadelphia law firm of Schnader Harrison Segal & Lewis LLP – the attorneys who represented the current trustees of the Foundation in preliminary objections -- $25,000.00 in a March 7, 2012 Order (they had asked for $64,269.41). As one observer wrote, “I guess Judge Ott … doesn’t like to be challenged.”

Ellsworth Kelly's sculpture 'The Barnes Totem' now stands in the garden of the Philadelphia campus. AP
Indeed, Judge Ott strongly suggested (in footnote 9) that he would have also awarded counsel fees to the Pennsylvania Office of the Attorney General, who had also filed preliminary objections to the petitioners’ petition in its capacity as parens patriae for charities, except that he was not aware of any authority to do so.

So what is to become of the property in Merion? According to the Barnes website, the “Merion campus” will be reopening late this summer as “the site of the Barnes's beautiful Arboretum and home to its horticulture program.”

It now looks like, following my “on assignment” visit to Philadelphia this weekend, there will have to be a Part 3.


The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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