Lawyer for Interveners Say Agreement is Invalid

            Despite an apparent agreement between the Upper Perkiomen School District and Upper Hanover Township to build a new middle school, a lawyer representing three Montgomery Avenue residents claims the settlement is invalid.

            On April 20, the township's supervisors approved a stipulation settlement that requires school officials to install a sidewalk and bike path from Walt Road to Eighth Street on the southern side of Montgomery Avenue, as well as a sidewalk on the northern side of the street from Eight Street to Sixth Street. The settlement resolves conditional use issues for the district to proceed with constructing a new middle school.

            Montgomery County Senior Judge Bernard A. Moore approved the agreement on April 21, which appeared to the end the district's legal challenge against the township. The conditional use appeal also included four parties seeking to intervene in the process.

            However, on April 27 Moore revoked the settlement order. According to M. Joseph Clement, a lawyer with the Whitpain firm that represents the school district, Moore should not have been the judge to sign off on the agreement. The mistake was caused by a clerical error, Clement said.

            Rather than seek settlement approval from the correct judge – President Judge Thomas Del Ricci – the district's attorney filed paperwork to settle, discontinue and end the case on May 2. According to Joe Bresnan, the solicitor for Upper Hanover, a judge's signature on the final agreement would have only included contempt of court penalties if the parties did not comply.

            Legal representatives from the township and the district said that Moore's actions did not invalidate the stipulation settlement between the district and the township related to the proposed middle school on Montgomery Avenue.

            The stipulation has not been revoked, Clement said, adding, "My understanding is that the township feels the same way."

            Bresnan also said that the school district intends to abide by the stipulation settlement and that lawyers for both parties consider the settlement a binding agreement.

            "The stipulation sets forth the terms by which the case is settled," said Bresnan, a partner in the firm of Dischell Bartle Dooley based in Upper Gwynedd. "And when the case is marked settled by the court, this is the typical and accepted way of terminating the litigation after settlement terms have been reached."

            The district and the township had until May 2 to submit a stipulation agreement to settle the case; Del Ricci said he would rule May 3 on motions to intervene in the case filed by three Montgomery County residents and the Borough of Pennsburg.

            Despite some confusion created over Moore's actions, the settlement and discontinuation paperwork filed by the district effectively means there is no longer a court case.

            However, Ethan O'Shea – the Upper Gwynedd attorney representing three Montgomery Avenue residents who filed a motion to intervene – argued that the judge's motion revoked the agreement.

            "It is therefore my opinion that we are a back at square one, that there is no settlement agreement," Ethan O'Shea told the Upper Hanover planning commission during a May 3 public meeting. "That is not to say the township and the district could not come to terms by some other vehicle later."

            On Tuesday, O'Shea told Upper Hanover supervisors that he has prepared a motion to strike the settlement agreement.

            Earlier this month, O'Shea argued that Del Ricci revoked his approval of the settlement arrangement because the judge "should not and would not approve a settlement agreement while the settlement to intervene was still pending." According to court documents, Moore – not Del Ricci – revoked approval of the agreement as described above.

            "In my humble opinion, that leaves us with a mess," O'Shea said during the meeting.

            According to O'Shea, Del Ricci expressed his displeasure with the process during an April 26, conference call with lawyers for the district, township and the interveners. O'Shea said the judge announced he would not approve the settlement until the issue with the interveners had been settled.