Pennsylvania Superior Court Rolls Over Again

    On July 2, 1996 the Pennsylvania Superior Court nullified a provision of the Barnes Foundation Indenture of Trust that the gallery be closed in July and August. This came while the Court was considering the Barnes trustees' appeal of the September 21, 1995 Orphans' Court ruling on their petition to set public viewing times as they wished. The lower court found this would turn the institution, which was founded as a school, into "a full time museum," and rejected their request for free reign but did allow one extra public day per week. All other Indenture terms were "to remain in full effect," including the July/August closing included in Indenture paragraph 30.

The trustees made no specific case for summer hours to the lower court. It appears that the Superior Court, which has not yet decided the appeal of the restriction on the number of days for public visiting per week, could not have made this ruling on the record of the case. There was nothing on record regarding a breach of the July and August closure. The decison seems based instead on the political desirability of keeping the gallery open as a summer tourist venue. A day before the decision the Philadelphia Inquirer reported that the Foundation had booked some 5000 reservations for these months. The Court also seems to have been swayed by facts inappropriately supplied in a letter from Barnes Attorney Bruce Kauffman.

An appellate court is bound by the facts as they were heard in the court with original jurisdiction. Yet this did not stop Kauffman from pushing new, unsubstantiated facts in front of the appeal judges. "The Barnes Foundation respectfully alerts this Court... to the confluence of the extremely popular Cezanne exhibition at the Philadelphia Museum of Art which is underway during the summer. The depth of the Barnes Foundation's Cezanne collection was a major factor in the selection of Philadelphia as the only United States venue on the Cezanne exhibition tour." [Letter to Superior Court, 6/7/96]

This statement has nothing whatsoever to do with the facts on record in the case on appeal. The Philadelphia Museum's exhibit was scheduled years ago, while the Foundation's July/August closing had been in effect for decades. If the Barnes Foundation felt the exhibit relavant, it should have been raised at the original trial. Even if it had been properly put in front of the Orphans' Court, its effect must be judged in light of Judge Stefan's comments several years ago: "I think that too often we forget that little indenture limitation and we talk in grandiose terms of what's good for other venues and the like." [N.T. 12/16/95 Stefan p. 118] In other words, such issues as what may or may not be popular with the public have no place in trust law.

Dr. Barnes established the Barnes Foundation as a school. The courts are bound to uphold the terms he set out to ensure that use. Fundamental trust law states that such terms may only be changed if they are illegal or impossible to fulfill. The Orphans' Court record established that neither was the case and yet the Superior Court discarded that Court's ruling without explanation, as it has done in other recent Barnes rulings. (See Barnes Case 34 and 37.) Such rulings are a clear case of how money and politics have eroded the rule of law in this state.

Text of the Superior Court's July 2, 1996 Order:

Appeal from the Decree September 21, 1995 in the Court of Common Pleas of Montgomery County, Orphans, No. 58-788



During the pendency of this appeal, appellants have the right to operate the school and its galleries in accordance with the access policies which were in effect at the time of oral argument. Thus, notwithstanding any contrary language in the indenture, the grant of public access three and one-half days per week shall remain in effect during the months of July and August and until final disposition of this appeal.