You can't fire me - I am the Philly Pops.
That's the legal ballast of Peter Nero's response Monday in U.S. Bankruptcy Court to a proposed rejection of his contract. After negotiations failed to reach an agreement on a revamped deal for Nero, Encore Series Inc. (ESI), which operates the Pops, filed a motion June 11 to oust the group's founding musical leader.
Nero, 78, is defending his position with a battery of lawyers, pointing out that he owns the name rights to the group founded in 1979 by impresario Moe Septee.
"ESI was organized and created to provide the resources for Peter Nero to create, present, and perform concerts under the name 'Peter Nero and the Philly Pops®,' and 'The Philly Pops®,' which are both registered service marks owned by Finger Prince Inc., Maestro Nero's wholly owned corporation," states Monday's filing, which urges that the attempted rejection of Nero's contract be denied by the court.
Pops president and chief executive officer Frank Giordano had proposed a 40 percent pay cut for the two-time Grammy-winning pianist and conductor.
ESI has solicited grants, contributions, ticket sales, and subscriptions by using Nero's name, and if it doesn't have Nero, ESI may not keep those funds, the filing contends.
The clash between Nero and the ESI board - whose membership has been largely remade by Giordano in recent months - is scheduled to be heard by Judge Eric L. Frank of U.S. Bankruptcy Court, Eastern District of Pennsylvania, on July 19 and 20.
Nero's legal response points out that even as ESI says it can no longer afford his fee, the group has begun paying Giordano and proposes to pay another board member - and has done so without seeking the necessary approval of the court. Those new salaries are roughly equal to the amount of the proposed cut to Nero's compensation.
Paying Giordano, a board member, is an "extraordinary circumstance without precedent in the history of this nonprofit board . . . ," the motion states. "It is not the board member's role to enrich himself by a salary; it is a board member's role to raise money and otherwise support the nonprofit's mission."
Giordano, president of Atlantic Trailer Leasing Corp., who has no record running a performing arts organization such as the Pops, has hired artistic and marketing consultants to help him develop artistic and organizational plans.
The Pops began paying Giordano $1,000 a week in January and proposes to boost his compensation to $91,000 a year, he acknowledged. Permission for Giordano's pay was neither sought nor received from Bankruptcy Court, and monthly operating reports for the last several months were not filed until recently, after Pops officials were questioned by a reporter about the omission.
Stephen M. Packman, ESI's lawyer, said that the filings of monthly operating reports were delayed by information late in coming from the Philadelphia Orchestra, and that case law supported his position that the court's permission was not required to begin payments to Giordano.
"ESI believes Peter's position is incorrect that court approval was required for ESI to compensate Frank as an officer of the company," Packman said. He pointed out that the new salary was approved by ESI's board.
Nero's current contract calls for him to remain on the podium through June 30, 2014. The 2012-13 season of Peter Nero and the Philly Pops has already been announced with Nero billed as conductor. The Pops has not shown that it can find a replacement for him without "substantial loss of ticket sales and revenues, and at any savings in costs," Monday's filing contends.