On May 15, 2008, the Orphans' Court Division, of the Montgomery County (PA) Court of Common Pleas, per Judge Stanley R. Ott, issued a Memorandum Opinion (8 pages) that denied "standing" to the Friends of the Barnes Foundation and the County of Montgomery in the litigation referenced as The Barnes Foundation -- Petitions to Reopen Proceedings.
And now, this 15th day of May, 2008, upon consideration of the preliminary objections and briefs and argument of counsel, the petitions filed by the Friends of the Barnes Foundation, et alii, and by the County of Montgomery are hereby DISMISSED for lack of standing. Each party to bear its own costs.The decision was reported in news articles, such as:
- "Judge denies new hearings in Barnes Foundation move", by JoAnn Loviglio, Associated Press, dated May 15, 2008, posted on AOL News.
- "Judge again rejects foes of Barnes move", by Derrick Nunnally, Philadelphia Inquirer, dated May 16, 2008.
- "Barnes Foundation Can Move, Judge Rules", New York Sun, dated May 16, 2008.
This was the setting for Judge Ott's ruling on preliminary objections filed by the Barnes Foundation, as stated in the Memorandum Opinion:
On August 27, 2007, a petition was filed on behalf of several individuals and the "Friends of the Barnes Foundation" (referred to collectively herein as "the Friends") seeking, inter alia, to reopen the proceedings which resulted in this Court's December 13, 2004 opinion granting permission to the trustees of The Barnes Foundation to relocate its art gallery at a new location in Philadelphia. See Barnes Foundation, 25 Fiduc. Rep, 2d 39.Judge Ott provided some further background about the controversy presented to that court:
On August 31, 2007, the Friends filed a petition to have citations issued to the individual trustees to show cause why the request to reopen the matter should not be granted.
The trustees filed preliminary objections to the petition, which were joined in by the Offlce of the Attorney General, as parens patriae for charities.
On September 12, 2007, Montgomery County filed its own petition to reopen the matter; and the trustees' and the Attorney General again filed preliminary objections.
Thereafter, the parties filed extensive briefs and the undersigned heard argument on the preliminary objections on March 24, 2008. * * *
Before addressing the preliminary objections to both of these petitions, we must summarize briefly certain developments in this saga.But the threshhold issues to be decided, stated Judge Ott, related to the "standing" of the petitioning parties to be in court, requesting reconsideration of the prior decision.
At some point after the December 2004 opinion was issued, it came to the Court's and the public's attention that a budget bill, passed by the state legislature and the Governor in 2002, contained a line item for approximately one hundred million dollars for the purpose of building a new facility in Philadelphia to house The Foundation's art collection. This revelation caused a flurry of speculation that The Foundation's trustees had knowledge of the budget item and had actively concealed its existence from the Court during the hearings on the petition for permission to move the gallery and art program from Merion. In the instant petitions, both the Friends and the County urge the Court to reopen the matter on the basis of this new information.
A second reason put forth for reconsidering our earlier decision is the proposal floated in June of 2007 by the Montgomery County Commissioners to purchase The Foundation's land and buildings for approximately $50 million, and to lease the property back to The Foundation. The County suggested that the influx of cash to The Foundation from the sale would permit the art collection to be preserved, an endowment to be established, and the gallery and art education program to remain in Merion. Shortly after receiving this proposal, The Foundation rejected it, stating the decision to move to Philadelphia was irreversible. * * *
With reference to the role of The Friends of the Barnes Foundation, guidance was offered in a decision rendered by the Pennsylvania Supreme Court in 2006.
The preliminary objections to both petitions now before us raise the question of standing. This Court has addressed this issue in proceedings that relate to The Foundation on several occasions. We conclude that, as many who have gone before, the Friends lack standing because they have no interest beyond that of the general public.See: PA EE&F Law Blog posting Milton Hershey School: Trustees Rule (01/02/07).
The Friends, in their brief, all but concede as much, however, they claim the question of standing is so "enmeshed" with the merits that the preliminary objections should be overruled and the situation vetted in depth. In support of this argument, the Friends
have cited several decisions from U.S. Circuit Courts of Appeal.
As tempting as the possibility of exploring the merits of these petitions might be, we are bound, not by these federal court decisions, but by the recent holding from our Supreme Court in the matter of Milton Hershey School, 590 Pa. 35, 911 A.2d 1258 (2006). There, the Court disavowed an attempt by the Commonwealth Court to rewrite the law on standing. * * *
As to the legal standing of The Friends of the Barnes Foundation to participate, Judge Ott ruled negatively:
In light of the Supreme Court's resounding ratification of these historical precepts, it is clear that the Friends lack standing in this matter. While the "intensity of concern" felt by these petitioners is, no doubt, as "real and commendable" as that of the alumni in the Hershey case, they, like the alumni, lack the requisite "actual interest" in the matter sub judice. * * *As to the legal standing of Montgomery County, Judge Ott ruled negatively also:
[B]inding precedent instructs us that a "special interest" is required to establish standing.Accordingly, Judge Ott dismissed both petitions.
As the Attorney General and the trustees point out, the County's "special interests" in protecting historical resources and nurturing economic welfare are matters within the purview of the Attorney General's office. That Office as parens patriae protects the general public, and there is no authority for a second sovereign to participate on behalf of a subset of the general public.
On this point, the Commonwealth Court issued a relevant opinion after its Hershey opinion and before the Supreme Court's reversal in Hershey, in the matter of Philadelphia Health Care Trusts, 872 A.2d 258 (Cmwlth. 2005). * * *
We find this holding to be dispositive of the issue before us, and determine that the County has no standing. * * *
Then he addressed the significant financial issue of counsel fees, as requested by The Barnes Foundation and the Attorney General's Office pursuant to 42 Pa. C.S.A. §2503. However, the Judge found that the petitions had been filed in good faith, on issues of importance, and therefore were not so "vexatious" as to merit the award of fees against the petitioners.
For the reaction by The Friends of the Barnes Foundation to the ruling, see: "Friends of the Barnes Foundation, undaunted by Judge's dismissal of case, decries inaction of Attorney General" (PDF, 5 page), dated May 16, 2008.
The Barnes Foundation expressed satisfaction with the ruling in a press release, dated May 15, 2008, entitled "The Barnes Foundation Statement on Montgomery County Orphans Court Decision".
The Barnes Foundation has stated that it is pleased with the ruling of Montgomery County Orphans Court Judge Stanley R. Ott to dismiss the petitions of the Friends of the Barnes Foundation and Montgomery County Commissioners to re-open his December 2004 decision permitting the Foundation to move its art collection to Philadelphia.
Derek Gillman, Executive Director and President of the Barnes Foundation said, "This very clear ruling ends the present distraction and we are forging ahead with plans for the new building." * * *