Philly Pops and Philadelphia Orchestra still feuding

The 2005 merger of Peter Nero and the Philly Pops with the Philadelphia Orchestra Association has yielded some notable music-making - and simmering backstage discontent.

In essence, Pops leaders contend that since the trial five-year consolidation of the two groups, the Pops has not received the kind of support it needs to flourish. Attendance has suffered, they say, because the association has not invested in adequate marketing and advertising.

Saturday night's Pops concert, "Springtime in Paris," for instance, was a part of the Philadelphia International Festival of the Arts but was not listed on the Philly Pops website, where Pops fans might logically look for it. The site is maintained by the association.

On Friday afternoon, after a reporter asked an orchestra spokeswoman about the omission, a section featuring the concert was added to the website (which, as of Saturday, was still touting 2010's holiday concerts).

Nothing seemed amiss at the concert, though Verizon Hall was more sparsely populated than usual. The Pops musicians gave their maestro a standing ovation as he walked onstage. Nero presented the audience with an elaborately improvised take on "Autumn Leaves" - rhythmically embedded with patterns within patterns and carefully crafted references to Bach - and it rewarded him with a round of applause midpiece.

The dispute between Nero and the association grew more dissonant last week. Lawyers for Nero, the Pops' artistic director, filed an objection in bankruptcy court to the Dilworth Paxson law firm's representing the association in matters relating to Nero or the Pops in the bankruptcy case.

In a motion filed Thursday by Paul Rosen, Nero's lawyers objected to "the retention of Dilworth because there is an actual, or at least potential, conflict between the interests of ESI [Pops presenter Encore Series Inc.] and the interests of" the association.

The motion buttresses that argument by saying the orchestra association was "on record . . . as seeking to reject its contract with Peter Nero and ESI."

ESI's board decided to follow the orchestra into U.S. Bankruptcy Court April 16, along with the Academy of Music, and the cases have been consolidated - represented by Dilworth.

Rosen contends that Dilworth cannot independently serve the interests of the association and the Pops while representing an entity - the orchestra - that seeks to sever its ties with the Pops. "Dilworth cannot properly represent the debtors - and certainly cannot properly represent ESI," the motion says.

The judge in the case separately questioned whether Dilworth could represent the association, because the firm's chairman, Joseph Jacovini, is a member of the orchestra's board. After raising doubts in court Wednesday, however, Judge Eric L. Frank said he was inclined to allow it, pending the filing of any objections.

Lawrence G. McMichael, the lead lawyer from Dilworth handling the case, said Friday that he had not looked at the details of Rosen's motion, but that the ESI board had agreed to be represented by Dilworth and should be allowed to choose representation.

The contractual relationships among the parties are complex. Rosen represents Nero, who has his own contract with the Philadelphia Orchestra Association. ESI's five-year merger agreement with the association - brokered with help from former State Sen. Vincent J. Fumo, who steered state and corporate money to the Pops - ended in June without the association's dismissing ESI's board, as was its option.

McMichael called Rosen's motion "a distraction."

"If there is an issue on disqualification, the judge will deal with it," he said.

Nero, a respected pops conductor and revered jazz pianist, contends the orchestra has committed about two dozen contract violations; most recently, lawyers say, the orchestra refused to announce a 2011-12 season for the Pops.

The matter moved to mediation and arbitration, and in an April 14 decision by JAMS Arbitration, Judge Diane M. Welsh ordered the association to commit itself to concerts and to "publicly announce same and issue notice to the Philly Pops subscribers within 15 days of the date hereof."

The Chapter 11 bankruptcy filing superseded that order.

"We can't afford what the injunction requires us to do," McMichael told Frank at Wednesday's hearing.

Orchestra leaders say they seek a solution in which Peter Nero and the Philly Pops perform next season - but with fewer concerts, and with the ESI board raising money to help underwrite those performances. McMichael confirmed that was the association's goal.

"That would be the heart of the program," he said.