Appeal, No. 21, Jan. T., 1960, from order of Orphans' Court of Montgomery County, No. 58,788, in case of Commonwealth of Pennsylvania v. The Barnes Foundation et al. Order reversed. Proceedings on petition for citation. Opinion filed sustaining defendants' preliminary objections and petition dismissed, opinion by TAXIS, JR., P.J. Commonwealth appealed.
Lois G. Forer, Deputy Attorney General, with her Anne X. Alpern, Attorney General, for appellant.
Victor J. Roberts, with him Benjamin O. Frick, and High, Swartz, Childs & Roberts, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The Barnes Foundation in Montgomery County owns and possesses one of the extremely valuable art collections in the country. The paintings, numbering more than a thousand, include works by Renoir, Cezanne, Manet, Degas, Seurat, Rousseau, Picasso, Matisse, Soutine, Modigliani, Pascin, Demuth, Glackens, Rouault and Afro. Among the old masters are works by Giorgione, Titian, Tintoretto, Paolo Veronese, El Greco, Claude le Lorrain, Chardin, Daumier, Delacroix, Courbet and Corot. The pecuniary value of this treasure ranges reputedly from twenty-five to one hundred million dollars.
Although the Barnes Foundation has been judicially recognized as an institution of public charity and, therefore, enjoys exemption from taxation, the public as such has been denied access to the gallery housing the canvases and other works of art. Because of that fact, the Attorney General of Pennsylvania filed on April 17, 1958, in the Court of Common Pleas of Montgomery County, a petition for citation calling upon the Barnes Foundation and its trustees to show cause why they should not unsheathe the canvases to the public in accordance with the terms of the indenture and agreement entered into between Albert C. Barnes, the donor, and the Barnes Foundation, the donee. The respondents filed preliminary objections averring that the petition failed to state a "cognizable cause of action," and that it did not specify "in what manner or to what extent or by what improper acts of the respondents any members of the public have been denied access."
The then Attorney General Thomas D. McBride filed a motion for discovery explaining that he did not include the information adverted to by the defendants because the information was in the exclusive possession
of the defendants and he accordingly requested the court to direct the defendants to produce the books and records of the Foundation with the data needed to pursue the Commonwealth-initiated proceedings. On June 23, 1958, Judge TAXIS of the Court of Common Pleas of Montgomery County signed an order allowing discovery by inspection. The defendants followed with a motion to vacate the order. The court allowed this motion but, on January 21, 1959, overruled the preliminary objections and required the respondents to file responsive answer in twenty days. The respondents petitioned for a reargument which was allowed and then, finally, on May 7, 1959, the court entered its definitive order rescinding its opinion of January 21, 1959, and sustaining the demurrer of the respondents. The Commonwealth, through now Attorney General Anne X. Alpern, who had succeeded Thomas D. McBride, appealed.
It is necessary here, with a few rapid strokes, to depict the background of this litigation. In 1922, Dr. Albert C. Barnes, a physician who had amassed a considerable fortune as the result of his compounding a chemical formula (argerol) which he kept secret and exploited by commercial manufacture and sale to the public, decided to offer to mankind a good portion of his riches, specifically his unique art collection and an arboretum as an "experiment to determine how much practical good to the public of all classes and stations of life, may be accomplished by means of the plans and principles learned by the Donor from a life-long study of the science of psychology as applied to education and aesthetics."
It was his expressed desire that, after the death of himself and his wife "the plain people, that is, men and women who gain their livelihood by daily toil in shops, factories, schools, stores and similar places, shall have free access to the art gallery and the arboretum upon
those days when the gallery and arboretum are to be ...