Three Montgomery Avenue residents seeking an emergency stay to halt the construction of a new middle school may not get the chance to make their case. A scheduling issue prevented a hearing Wednesday in Montgomery County Common Pleas Court, according to Ethan O'Shea, an Upper Gwynedd attorney.

            O'Shea requested a hearing before Senior Judge Emanuel A. Bertin in order to argue his case to pause the project to build a new school for sixth, seventh and eighth graders until December 4, when the school board reorganizes. However, the lawyer said it ended up on the judge's schedule as a conference.  The conference was scheduled for 30 minutes, according to Ken Roos, the solicitor for the Upper Upper Perkiomen School District.

            Following a 45-minute private discussion Wednesday between Bertin, O'Shea, as well as two lawyers representing the school district and Upper Hanover Solicitor Joe Bresnan, the judge ruled that the applicants could proceed with the case "if they desire."

            O'Shea conceded that the ruling, and the compressed schedule, could make the proposed stay irrelevant.

            "This issue could become moot," the lawyer said outside a fifth-floor court in Norristown. "I don't know what is going to happen."

             The emergency stay, filed November 14 by O'Shea on behalf of William Chrisman, Len Matthews and David Pico, challenges the validity of the preliminary and final land development plan approvals granted by Upper Hanover supervisors that allowed the construction of the school on Montgomery Avenue. The filing requests a delay in both applications until December 11.

            Bertin ruled that the two land use appeals will be consolidated, and that the issue would be revisited by the court when O'Shea files an application.

            The lawyer figured he needed at least an hour to lay out the facts in his case. He said board member elect Melanie Cunningham and current board member Raeann Hofkin, who oppose the project, along with Chrisman were in the court room prepared to testify in favor the stay.

            Steven Rothenberger, a supervisor from Upper Hanover Township, attended the legal proceedings.