Fight to halt move of Barnes Foundation ends

The court fight over moving the Barnes Foundation's $5 billion art collection from Lower Merion Township to Philadelphia has ended with a whimper in a Norristown courthouse office.

There, a Friends of the Barnes Foundation member had appeared shortly before closing time Monday with a check and appeals documents to prolong the fight. But after a last minute legal consultation on her cellphone, Evelyn Yaari of the Lower Merion-based group instead ended the years-long case.

"I had to go to the clerk and say, 'I'm very sorry I asked you to do that, but actually, I'm not going to file the appeal,' " Yaari said. "It was a sad moment."

Along with Montgomery County government, the citizens' group was fighting to keep one of the world's premier collections of Impressionist art from moving to Philadelphia despite what Albert C. Barnes ordered in his will before he died in 1951.

Montgomery County Judge Stanley R. Ott ruled in 2004 that the art could move, but the Friends of the Barnes only conceded defeat after the county said Monday it would not challenge Ott's May rejection of a request to reopen the case.

Barnes Foundation officials have not waited for this moment. Preliminary designs have been sketched out for the new Barnes facility near the Philadelphia Museum of Art, and work on a cost estimate is underway.

However, Barnes attorney Phyllis Beck said the foundation was glad to hear the legal struggles in Montgomery County Orphans' Court that began in 2002 are done.

"I'm an old-time lawyer, so I know you can never say never," Beck said when asked about the prospect of further litigation. "But I doubt it. I don't think there could be any other legal challenges."

Several Friends of the Barnes members expressed the same sentiment.

Attorneys had told them that once Montgomery County commissioners refused to appeal Judge Ott's finding that the county lacked standing to try and halt the move, the case was effectively over. The group glumly accepted the attorneys' view Monday that they could not mount a strong legal reason to stay in the case.

"We recognized very well that the issue of standing, narrow as they were, did not favor us at all," said Walter Herman. "I live across the street, but that's it."

The county's decision not to appeal had become the latest in a series of issues to polarize county commissioners.

Ott ruled that because the Pennsylvania Attorney General's Office had represented the public in arguing for the move - which involves state money and private donations - Montgomery County could not be in court trying to stop the move.

County Commission chairman James R. Matthews and vice chairman Joseph M. Hoeffel each said they feared costly sanctions for appealing a case without merit, and demurred on Commissioner Bruce Castor's offer to pay appeals costs himself.

Hoeffel called that bid "grandiose." In a statement, Castor replied that the decision to quit fighting was "disappointing and difficult to comprehend."

Administrative Office of Pennsylvania Courts spokesman Art Heinz said yesterday that he had not heard of an appeals court ordering a cash sanction against a party for filing an appeal.

Though their court fight is over, Friends of the Barnes members say they will not quit contesting the move until the art has been taken down from the Barnes Foundation.

Next up: efforts to sway public sentiment against the move, including asking some Barnes donors to rethink their support.

A previously discussed plan to seek historic-landmark designation for the Lower Merion site will probably be of little aid to keep the art there, experts on historic preservation said.

Kirk Wilson, spokesman for the Pennsylvania Historical and Museum Commission, said the agency "would certainly have no decision-making say" on the plan to move the Barnes artworks to Philadelphia.

And Preservation Alliance for Greater Philadelphia Director John Gallery said National Historic Landmark status would mainly apply to the structure of the Barnes property, not its contents.