Seda-Cog Joint Rail Auth v. Carload Express ( 2020 )

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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
SEDA-COG JOINT RAIL AUTHORITY, : No. 12 MAP 2019
:
Appellant : Appeal from the Order of the
: Commonwealth Court dated May 3,
: 2018, Reargument denied June 28,
v. : 2018, at No. 617 CD 2017 Reversing
: the Order of the Clinton County Court
: of Common Pleas, Civil Division,
CARLOAD EXPRESS, INC., : dated May 11, 2017 at No. 2015-CV-
SUSQUEHANNA UNION RAILROAD : 933 and Remanding for entry of
COMPANY, AND NORTHERN PLAINS : summary judgment
RAILROAD, INC., :
: ARGUED: March 11, 2020
Appellees :
OPINION
JUSTICE DONOHUE DECIDED: October 1, 2020
This case involves the interpretation of the majority vote standard set forth in
Section 5610(e) of the Pennsylvania Municipality Authorities Act, 53 Pa.C.S. §§ 5601-
5623 (“MAA”), and the interplay between the MAA and the common law rule that only a
majority of members present and voting is required to take action. Section 5610(e)
provides in relevant part as follows:
(e) Quorum.--A majority of the members shall constitute a
quorum of the board for the purpose of organizing and
conducting the business of the authority and for all other
purposes, and all action may be taken by vote of a majority of
the members present unless the bylaws shall require a larger
number. …
53 Pa.C.S. § 5610(e). Here, the question is whether Section 5610(e) mandates that six
present but recused Board members of a sixteen-member Board count in the calculation
of the total number of Board members required for a majority. Stated otherwise, are nine
votes (a majority of the sixteen members) required to take action, or conversely, are seven
of the ten votes actually cast sufficient for approval of the action. This Court granted
discretionary appeal to determine whether Section 5610(e) of the MAA’s use of the
phrase “members present” abrogates the common law rule that a simple majority (a
majority vote of the voting members who make up the quorum of a municipal authority)
carries a vote. Because we conclude, for the reasons that follow, that it does not, we
affirm the order of the Commonwealth Court.
I. Factual and Procedural Background
Appellant SEDA-COG Joint Rail Authority (the “JRA”) is a joint authority formed in
1983, pursuant to the MAA, to protect rail customers throughout central Pennsylvania and
to promote industrial and economic development throughout the region. The JRA is
governed by a sixteen member Board, with each of the eight member counties (Centre,
Clinton, Columbia, Lycoming, Mifflin, Montour, Northumberland, and Union) appointing
two members to the Board. In addition to the MAA, the Board’s operations are governed
by the JRA’s bylaws and a code of conduct. The JRA is the owner of approximately 200
miles of rail lines and various facilities, which are operated via its private-public
partnership with a third-party operator. The most recent third-party operator, acting
pursuant to an operating agreement dated January 1, 2007, was appellee Susquehanna
Union Railroad Company (“SURC”). Because its operating agreement with the JRA was
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set to expire on June 30, 2017, the JRA initiated the process to award a new operating
agreement.
The request for proposal process involved two phases. During Phase One, JRA
Board members were tasked with reviewing and scoring the qualifications of those
operators submitting proposals, with the top three candidates proceeding to Phase Two,
at which time the Board would vote to select which entity would be awarded the new
operating agreement. At the outset of this process, the Board accepted the voluntary
recusals of six Board members, each of whom indicated that they would not participate
in the selection process in order to avoid any appearance of bias and reduce the likelihood
of potential litigation.1 The remaining ten members of the Board were tasked with
reviewing, evaluating, and scoring the proposals submitted by the interested parties. At
the end of Phase One, the ten voting members, by a count of seven-to-three, voted to
invite the four highest scoring proposers to Phase Two.2 When this vote took place,
general counsel for the JRA questioned whether seven votes were sufficient to take
action, and it was agreed that the Board would consider the issue at a subsequent
meeting. Id. at 14.
At the October 8, 2014 Board meeting, the JRA’s counsel announced because the
Board had sixteen members, a nine-vote majority was required for the Board to act. The
1 Five of the six abstaining members had employment ties to shippers on JRA-owned
lines, and the sixth had a small ownership stake in a non-operating railroad that connected
to the lines. SEDA-COG JRA Meeting Minutes, 8/13/2014, at 13.
2 Due to a tie for third place, four proposers initially proceeded to Phase Two.
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ten voting members, in order to ratify the Phase One action, voted unanimously to do so.3
Moving on to Phase Two, the participating Board members evaluated detailed proposals
by the top four proposers. At the end of the analysis, Carload received twenty-four points,
SURC received twenty-three, and Northern Plains Railroad received thirteen.4 A roll call
vote was taken on the motion to award the contract to Carload and, of the ten voting
Board members, seven voted in favor and three against. When certain Board members
questioned the nine vote requirement for action, the Board voted unanimously to table
the decision to award the operating agreement to Carload pending further review of the
JRA’s bylaws and the applicable law.
After the meeting, Carload submitted its position in writing to the JRA, arguing that
it had been awarded the operating agreement based upon the seven-to-three vote. The
JRA responded on September 23, 2015 by filing an action for declaratory judgment
requesting a declaration upholding its use of the nine vote requirement.5 Carload filed an
3 At this point in time, none of the Phase Two proposers, including Carload, had
challenged the Board’s interpretation of the MAA as requiring nine votes for the Board to
act. The Commonwealth Court held that under the facts presented, this failure did not
constitute waiver. Seda-Cog Joint Rail Auth. v. Carload Express, Inc., 185 A.3d 1232,
1239 (Pa. Commw. 2018), appeal granted in part, 201 A.3d 143 (Pa. 2019). The
Commonwealth Court rejected the JRA’s assertion that Carload acquiesced to the
requirement of nine votes by failing to object to it when it was first announced and was
therefore estopped from challenging it on appeal. Id. at 1238-39. The Commonwealth
Court explained that “[e]stoppel requires not only misleading words or silence by the party
to be estopped, but reasonable reliance on such words or silence by the party asserting
the estoppel,” and that the JRA has “aver[red] no facts that genuinely support such
reliance or demonstrate any detriment suffered as a result.” Id. at 1240. This Court
declined to grant allocatur review on this issue.
4 The fourth proposer in Phase Two, Genesee & Wyoming Railroad Services, Inc., had
withdrawn from consideration.
5 The Authority named all three of the Phase Two proposers as defendants in its
complaint. Northern Plains Railroad, Inc., the third highest scoring candidate, withdrew
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answer denying the material allegations in the JRA’s complaint and asserting, inter alia,
a counterclaim in declaratory judgment seeking a ruling that the vote of the JRA on July
8, 2015 passed the motion to award the operating agreement to Carload Express and
that as a result Carload was entitled to the immediate execution of that agreement by the
JRA. On November 1, 2016, the JRA filed a motion for summary judgment on Carload’s
complaint and the JRA’s counterclaim and on December 6, 2016, Carload filed a cross-
motion for summary judgment (seeking judgment on its counterclaim for declaratory
judgment and also on the JRA's cause of action for declaratory judgment). On May 11,
2017, following briefing and argument on the motions, the trial court granted the JRA’s
motion and denied Carload’s cross-motion.
In granting the JRA’s motion for summary judgment, the trial court reviewed the
above undisputed facts and examined the MAA, determining that it applied to this case.
The trial court stated that the proper voting standard hinged upon the meaning given to
the word “present” in Section 5610(e), a term that is not defined in the MAA or in the
Pennsylvania Statutory Construction Act. Id. at 9. The trial court applied two rules of
statutory construction: that “[w]ords and phrases shall be construed according to rules of
grammar and according to their common and approved usage,” id. (quoting 1 Pa.C.S. §
1903(a)); and “[a]bsent a statutory definition, we construe statutory words according to
their ordinary usage.” Id. (quoting Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632, 637
n.6 (Pa. 2009)). The trial court decided that the proper method for identifying the number
its proposal and has not participated in the lawsuit. On December 1, 2016, SURC filed
an answer to the JRA’s motion for summary judgment, asking the trial court to grant it. In
the alternative, SURC also filed a counterclaim requesting (1) a declaration that the six
board members who recused themselves did so without any reasonable basis for doing
so, and (2) ethics violations by one board member of the Board.
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of votes needed for the JRA to act was “to determine how many members were ‘present’
and then determine what a majority of that number would be.” Id. at 10. Because all
sixteen members of the JRA were present at the relevant Board meeting, the trial court
ruled that that a nine vote majority was required for the JRA to take action. Id.
The trial court rejected Carload’s assertion that the trial court should apply the
common law quorum rule (the “common law rule”). According to the common law rule,
no more than a majority of the members present and voting is required to take action,
even if the result is a plurality vote potentially carrying a motion. That rule was
inapplicable, according to the trial court, because this Court has held that it “will construe
statutes dealing with the number of votes required for action by a municipal body without
any presumption in favor of the common law rule.” Id. at 9-10 (quoting Commonwealth
ex rel. Bagnoni v. Klemm, 454 A.2d 531, 532 (Pa. 1982)). The trial court explained that
the common law rule would require courts to read the words “and voting” into Section
5610(e) of the MAA. Such reading “would clearly change the meaning of the voting
language by adding another word,” and would, by extension, abrogate the intention of the
Legislature in drafting the statute.” Id.On appeal, a unanimous panel of the Commonwealth Court reversed, holding that
Section 5610(e) incorporates the common law rule into the MAA and that as a result the
seven-to-three vote constituted a majority sufficient to approve Board action. Seda-Cog
Joint Rail Auth. v. Carload Express, Inc., 185 A.3d 1232, 1240 (Pa. Commw. 2018),
appeal granted in part, 201 A.3d 143 (Pa. 2019). The Commonwealth Court explained
that when a post-1937 statute is substantially a reenactment of a pre-1937 statute, the
rule of strict construction will continue to apply.” Id. (citing Commonwealth v. Chiappini,
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782 A.2d 490 (Pa. 2001) and 1 Pa.C.S. § 1962). Because Section 5610(e) of the MAA
is a substantial reenactment of a pre-1937 statutory provision (Act of June 28, 1935, P.L.
463, No. 191), it is presumed to follow the common law and “must be strictly construed.”
Id. Under the common law rule, a majority of those present and voting may act on behalf
of the body “even if, because of abstentions, the majority of the affirmative votes
constitutes only a plurality of the members in attendance.” Id. at 1236-37 (citing, e.g.,
DiGiacinto v. Allentown, 406 A.2d 520 (Pa. 1979)).
Based upon its analysis, the Commonwealth Court identified the critical issue in
the case as whether the General Assembly’s inclusion of the word ‘present’ expressly
alters the [c]ommon [l]aw [r]ule.” Id. at 1237. The Commonwealth Court explained that
this Court in Bagnoni, and the Commonwealth Court in McAdoo Borough, 469 A.2d 693(Pa. Commw. 1983), rev'd on other grounds, 485 A.2d 761 (Pa. 1984), “concluded that
statutory language substantially the same as that at issue here did not abrogate the
common law regarding a determination of majority votes.” Id. at 1238 (citing Bagnoni,
454 A.2d at 534; McAdoo Borough, 469 A.2d at 696 n.8). The Commonwealth Court thus
concluded that because Section 5610(e) of the MAA required the application of common
law voting principles unless the entity’s bylaws required a different methodology, and
indicating that it had not identified any contrary provisions in the JRA’s bylaws, the seven-
to-three vote was effective to award the operating agreement to Carload. Id. at 1238-39.
In its written order, the Commonwealth Court reversed the decision of the trial court and
ordered the case to be remanded to the trial court with instructions to enter summary
judgment in favor of Carload.
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SURC subsequently filed a motion for reargument requesting, inter alia,
clarification with respect to its remand order since there were matters pending in the trial
court because the appeal was interlocutory as of right pursuant to Pa.R.A.P. 311(a)(8)
and Section 7532 of the Declaratory Judgments Act, 42 Pa.C.S. § 7532. In response, on
June 28, 2018, the Commonwealth Court granted the motion in part in a manner not
impacting its resolution of the issues now pending before this Court.
This Court granted appeal to address the following questions:
(1) Did the [p]anel err by disregarding the plain language of
the Municipality Authorities Act (“MAA”), 53 Pa.C.S. § 5610(e)
which expressly requires a vote by the majority of “members
present” for an authority to take action, instead applying a
common law quorum rule that has never applied to MAA
authorities or to discretionary contracting processes,
effectively superimposing the words “and voting” into the
statute?
(2) Did the [p]anel err by ignoring this Supreme Court's
elimination of any presumption in favor of the common law
voting rule for representative bodies of limited membership as
well as operative provisions of the Statutory Construction Act
(“SCA”), on the basis that the MAA was a pre-1937
enactment, where no applicable jurisprudence supports
applying the common law rule to MAA authorities or
discretionary procurement processes?
(3) Did the [p]anel apply an incorrect standard of review and
improperly subvert the discretion of [the] JRA and its individual
public official board members by superimposing a different
voting standard than that chosen by [the] JRA for its
discretionary procurement process, which tracks the
language of 53 Pa.C.S. § 5610(e)[,] and by ignoring the
affirmative provisions of the RFP and the voting standard
announcement?
SEDA-COG Joint Rail Auth. v. Carload Express, Inc., 201 A.3d 143, 143–144 (Pa. 2019).
Appellate review of summary judgment entails a question of law. Starling v. Lake Meade
Prop. Owners Ass'n, Inc., 162 A.3d 327, 340 (Pa. 2017). We review the Commonwealth
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Court's reversal of the trial court's order de novo, and we need not defer to either lower
tribunal's determinations. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa.
2010). In reviewing the lower courts' rulings, we apply the same legal standard as the
trial court, namely that summary judgment is appropriate only in those cases where there
is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Albright v. Abington Mem. Hosp., 696 A.2d 1159, 1165 (Pa. 1997). In the
present case, this determination requires statutory interpretation, which likewise presents
a question of law for which our standard of review is de novo and our scope of review is
plenary. Spahn v. Zoning Bd. of Adjustment, 977 A.2d 1132, 1142 (Pa. 2009).
II. The Arguments of the Parties
The JRA argues that the Commonwealth Court disregarded the plain language of
Section 5610(e) by inserting the words “and voting,” when interpreting the provision. 6 It
notes that Section 5610(e) does not include any language that indicates that members
present but abstaining should be disregarded when applying the voting standard. JRA’s
Brief at 46. The JRA reads Section 5610(e) as providing that while a simple quorum may
organize and conduct a meeting, action may only be taken by the vote of a majority of the
members physically “present.’” Id.6 SURC filed a brief in support of the JRA which focuses on the same arguments as
those made by the JRA. Amicus Pennsylvania Municipal Authorities Association
submitted a brief arguing that the Commonwealth Court’s decision was contrary to the
plain language of Section 5610(e) of the MAA. Amicus Pennsylvania Municipal
Authorities Association’s Brief at 6. The eight counties that make up the JRA (“the
Counties”) also filed an amicus brief, echoing the JRA’s concerns about adequate
representation and argue that the Commonwealth Court’s decision “eviscerates the intent
of the [MAA] by permitting a decision to be taken by a minority of representatives present
at a given meeting.” Amicus Counties’ Brief at 2.
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Alternatively, the JRA contends that the Commonwealth Court failed to apply the
narrow scope of review – limited to reversing only where the authority engaged in “flagrant
and manifest abuses of discretion.” JRA’s Brief at 25-26. In this regard, the JRA contends
that a deferential standard of review is required when it exercises its proprietary, rather
than its governmental, functions. See id. at 32-39. It also asserts that the Commonwealth
Court erred by disregarding several operative provisions in the JRA’s written RFP
document, specifically those provisions that authorized JRA to employ a process requiring
nine votes. Id. at 27-30. Finally, the JRA argues that the panel’s decision substantially
undermines the goal of adequate representation of all member counties because it allows
a plurality of votes to be sufficient for the award of a contract. Id. at 65-66.
For its part, Carload’s analysis is largely devoted to supporting the Commonwealth
Court’s interpretative analysis. To this end, Carload proffers several reasons to affirm.
First, the Commonwealth Court correctly held that Section 5610(e) does not depart from
the common-law voting rules, as Section 5610(e) does not require anything more than a
simple majority. Carload’s Brief at 13. Second, Section 5610(e) is a reenactment of a
pre-1937 statute, and this Court has held that statutes reenacting pre-1937 statutes
should be strictly construed. Id. Third, the Commonwealth Court recognized that under
the MAA, the JRA has no discretion to impose a higher voting standard without amending
its bylaws. Id.
III. Analysis
A. The Common Law Voting Standard
Under the common law voting standard, once a quorum is achieved, a simple
majority of the votes cast may act on behalf of the body, including representative
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municipal bodies of limited membership of the type at issue here. As explained by this
Court in DiGiacinto v. City of Allentown, 406 A.2d 520 (Pa. 1979),
[u]nder the common law rule so long as a quorum is present
at a meeting, all that is required is that the highest vote be
equal to a majority of the quorum number, even though the
highest vote constitutes only a plurality of all the legal votes
cast. This is true even if more than the quorum number is
present at the meeting. For example, if there are seven
members of a body and four of those members constitute a
quorum and attend a meeting, a majority of the four, which
would be three, is necessary to take official action of any kind.
Even if all seven members, more than the necessary quorum
of four, attend the meeting, the same number of votes, namely
three, is all that is necessary to take official action if that is the
highest number of votes cast (plurality) in a given matter.
Thus, if the minimum quorum of four is present, and the vote
on a particular proposal is 3 in favor and 1 against, the
proposal is adopted. If all seven members of the body attend
and the vote on a particular proposal is 3 in favor, 1 against
and 3 abstentions, the proposal is likewise adopted by the
plurality vote.
Id. at 522 (emphasis added); Stoltz v. McConnon, 373 A.2d 1096, 1099 (Pa. 1977)
(“Pennsylvania courts have repeatedly applied the common-law rule to representative
municipal bodies of limited membership in the absence of [a]ny language to the contrary
in the relevant enabling statute.”); Raynovich v. Romanus, 299 A.2d 301, 304 (Pa. 1973);
Meixell v. Hellertown Borough Council, 88 A.2d 594, 596 (Pa. 1952); Commonwealth ex
rel. Fortney v. Wozney, 192 A. 648, 650 (Pa. 1937); Frackville Borough Council Case,
162 A. 835, 836-37 (Pa. 1932); Commonwealth v. Fleming, 23 Pa. Super. 404, 408-09
(1903).7
7 In Bagnoni, 454 A.2d 531 (Pa. 1982), the Court indicated that the application of the
common law standard may depend upon the type of body at issue, e.g., representative
bodies of limited membership (e.g. municipal boards) as opposed to e.g., general public
elections. Bagnoni, 454 A.2d at 532. In support of this proposition, the Court cited only
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The application of this common law rule is modified if the number of votes cast
exceeds the quorum number. In this circumstance, the majority of votes required for an
action is a majority of the votes cast. As we stated in DiGiacinto, “[e]ven if all seven
members, more than the necessary quorum of four, attend the meeting, the same number
of votes, namely three, is all that is necessary to take official action if that is the highest
number of votes cast (plurality) in a given matter.” DiGiacinto, 406 A.2d at 522
(emphasis added). In this regard, we made clear that that the majority may not be taken
from those members who are merely present, but rather those members who are both
present and voting. As the relevant example in DiGiacinto demonstrates, “[i]f all seven
members of the body attend and the vote on a particular proposal is 3 in favor, 1 against
and 3 abstentions, the proposal is likewise adopted by the plurality vote.” This is because
to Section 1928(a) of the Statutory Construction Act, which provides that statutes enacted
after September 1, 1937 are not strictly construed in favor of the common law. Section
1928(a) makes no distinction based on the subject matter of any post-1937 statute, and
it most obviously does not expressly speak to voting standards prescribed by statute.
The Court in Bagnoni cited to Stoltz for the proposition that statutes setting forth voting
standards for representational bodies are not as rigorously challenged for abrogations of
the common law. Stoltz, 373 A.2d at 1099-1100. However, the Stoltz court did not make
any principled distinction between representative bodies of limited membership and other
voting assemblies, noting that “Pennsylvania courts have repeatedly applied the
common-law rule to representative municipal bodies of limited membership in the
absence of Any language to the contrary in the relevant enabling statute,” and indicated
that whether the General Assembly intended to abrogate the common law in any
particular instance “depends on the statutory language itself.” Id. at 1099.
At bottom, it is unclear why the Court in Bagnoni and Stoltz was concerned with
abrogation of common law principles at all. The statutes at issue in those cases were
enacted well after 1937 and thus, pursuant to Rule 1928(a), the rule of strict construction
vis-à-vis common law voting principles had no application when interpreting their proper
application. Those statutes were to be interpreted based solely upon the language set
forth therein, with no presumption that the common law was intended to apply in contrast
with pre-1937 statutes, and repealed/reenacted pre-1937 statutes of the type at issue
here.
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the abstentions do not count towards the total number of votes from which a majority vote
must be obtained – if only four members vote, a majority (three) is determined from that
number.
At common law, the reason why a majority is determined from the votes actually
cast rather than from those merely present is because “[i]f the rule were otherwise, a
member could attend the meeting and abstain from voting and have a different effect than
if that person were absent from the meeting.” DiGiacinto, 406 A.2d at 522. Similarly, in
Meixell, we provided that a member who attends a meeting but fails to vote can have the
same “paralytic effect as one who is absent”:
[O]ne or a relatively few persons could, by their intentional
absence from, or by their presence at a meeting and their
failure to vote, or their casting a blank or illegal ballot, block
indefinitely an important election or important legislation and
thus paralyze government with obviously great harm to the
public interest.
Meixell, 88 A.2d at 596; see also Heuchert v. State Harness Racing Comm'n, 170 A.2d
332, 337 (Pa. 1961) (“[U]nder our form of government the majority prevails, and those
unable or unwilling to vote must be bound by the vote cast.”); Commonwealth ex rel.
Fortney v. Wozney, 192 A. 648, 649-50 (Pa. 1937); Ronald H. Brown Charter Sch. v.
Harrisburg City Sch. Dist., 928 A.2d 1145, 1148 (Pa. Commw. 2007) (under the common
law, an abstaining member cannot demand that majority vote requirement count that
member's presence); Cmty. Coll. of Beaver Cty. v. Aliquippa Sch. Dist., 287 A.2d 844(Pa. Commw. 1972) (“The rationale of this rule is that there is no way in which to compel
the vote of all competent electors and those who are unwilling or unable to vote must be
bound by the Majority vote of those who do cast a vote.“); see generally 59 Am.Jur.2d
Parliamentary Law § 15 (2019) ("The exercise of lawmaking power is not stopped by the
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abstention of some who are present. If members present desire to defeat a measure,
they must vote against it. Inaction will not accomplish their purpose. Their silence is
acquiescence rather than opposition.").
If these common law rules apply in the present case, the vote of the JRA Board by
seven to three in Carload’s favor must stand. In accordance with Section 5610(e), the
Board consists of sixteen members, and a majority of that number (nine) constitutes a
quorum. Because ten members of the Board actually voted, however, the required
number of votes for a majority was six. As seven Board members voted in Carload’s
favor, the action carried. We thus turn to the question as to whether Section 5610(e)
codified the common law rules.
B. The Presumption that Section 5610(e) Codifies the Common Law Voting Rules
The language regarding voting standards in Section 5610(e) discussed here has
existed since 1935. The original enabling legislation for municipal authorities was the
Municipality Authorities Act of 1935 (the “1935 MAA Act”),8 which provided that “Three
members shall constitute a quorum of the board for the purpose of organizing the
Authority and conducting the business of thereof and for all other purposes, and all action
shall be taken by a vote of a majority of the members present, unless in any case the
bylaws shall require a larger number.” The 1935 MAA Act was simultaneously repealed
and replaced by the Municipality Authorities Act of 1945 (the “1945 MAA Act”),9 which
similarly held that “A majority of the members shall constitute a quorum of the board for
the purpose of organizing the Authority and conducting the business thereof and for all
8 Act of June 28, 1935, P.L 463, No. 191.
9 Act of May 2, 1945, P.L 382, No. 164.
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other purposes, and all action may be taken by a vote of a majority of the members
present, unless in any case the bylaws shall require a larger number.” In 2001, the
relevant language in the 1945 MAA Act was codified at 53 Pa.C.S. § 5610(e), namely that
“A majority of the members shall constitute a quorum of the board and conducting the
business thereof and for all other purposes, and all action may be taken by a vote of a
majority of the members present, unless the bylaws shall require a larger number.” 53
Pa.C.S. § 5610(e).
Critical to the present appeal, three provisions of the Statutory Construction Act, 1
Pa.C.S. §§ 1501-1991, must be considered in this interpretative analysis. Section
1928(b)(8) provides that “[p]rovisions enacted finally prior to September 1, 1937 which
are in derogation of the common law[]” are to be “strictly construed.” 1 Pa.C.S. §
1928(b)(8); see Williams v. Meredith, 192 A.2d 924, 925 (Pa. 1937) (“[T]he long-
established principle of universal application is that statutes in derogation of the common
law must be strictly construed.”); Null v. Staiger, 4 A.2d 883, 884 (Pa. 1939) (“we have …
many times held that statutes in derogation of common law principles, … are subject to
strict construction.”). Section 1928(a), conversely, instructs that the rule that statutes in
derogation are to be strictly construed “shall have no application to the statutes of this
Commonwealth enacted finally after September 1, 1937.” 1 Pa.C.S. § 1928(a). Finally,
and relevant to the instant case, Section 1962 states that “[w]henever a statute is repealed
and its provisions are at the same time reenacted in the same or substantially the same
terms by the repealing statute, the earlier statute shall be construed as continued in active
operation.” 1 Pa.C.S. § 1962.
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These rules of construction, taken together, dictate that where a post-1937 statute
is a substantial reenactment of a pre-1937 statute, the earlier statute is viewed as
continuing in operation and the rule of strict construction applicable to pre-1937 statutes
continues to apply. In Commonwealth v. Chiappini, 782 A.2d 490 (Pa. 2001), abrogated
on other grounds by Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005), this Court
considered the scope of a statute regarding spousal privilege that was enacted in 1976
but was a substantial reenactment of a statute dating back to 1887. We explained the
interaction between the provisions of the Statutory Construction Act as follows:
At the outset, although [Section] 5914 was enacted in 1976
and made effective in June of 1978 as part of the Judicial
Code, it is substantially a reenactment of legislation dating
back to 1887, which itself had roots in the common law. At
the time this precept was first incorporated into the
Commonwealth's statutory law, the rules of construction held
that statutes in derogation of the common law were to be
strictly construed. Although this rule of construction has not
been generally applicable since 1937, see 1 Pa.C.S. §
1928(a), it continues to apply to “[p]rovisions enacted finally
prior to September 1, 1937 which are in derogation of the
common law.” 1 Pa.C.S. § 1928(b)(8). Another rule of
statutory construction, 1 Pa.C.S. § 1962, indicates that
“[w]henever a statute is repealed and its provisions are at the
same time reenacted in the same or substantially the same
terms by the repealing statute, the earlier statute shall be
construed as continuing in active operation.” Thus the rule of
strict construction continues to apply[.]
Properly understood, this rule of strict construction presumes
that common law rules, as developed and refined by the
courts, are to continue as before, and are altered or abrogated
by a statute only to the extent that the legislation
specifically requires such a result. If a circumstance does
not plainly fall within the language of such a statute, the courts
do not attempt to “interpret” or “discern legislative intent” in
order to apply the statute. Rather, the statute does not come
[J-9-2020] - 16
into play at all and the courts are to apply the common law
rule.[10]
Chiappini, 782 A.2d at 492-93.11
10 While overall our Chiappini decision was a plurality opinion, a majority of the members
of the Court joined in the above-quoted discussion of statutory construction, i.e., that it
must be presumed that a statute that is a substantial reenactment of a pre-1937 statute
intends to effect no change on the common law beyond that which is expressly stated.
See Chiappini, 782 A.2d at 507 (Saylor, J., concurring and dissenting) (“only such
modification of the common law will be recognized as the statute clearly and definitely
prescribes”); id. at 502 (Cappy, J., concurring and dissenting) (stating that he would adopt
the statutory interpretation analysis of then-Justice Saylor). Id. at 503 (Castille, J.,
concurring and dissenting) (expressly “join[ing] in the majority opinion as to this holding”).
11 The JRA cites to Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott
Development Co., 41 A.3d 16 (Pa. Super. 2012), rev’d on other grounds, 90 A.3d 682(Pa. 2014), for the proposition that repealed and reenacted statutes should not be strictly
construed in accordance with the common law because Section 1928(a) provides that
strict construction is not required for statutes “enacted finally” after 1937 – and reenacted
statutes are “enacted finally” at the time of reenactment (not at the time of the original
enactment). JRA’s Brief at 59 (citing Bricklayers, 16 A.3d at 27) (“Because the
Mechanics' Lien Law of 1963 was ‘enacted finally’ in 1963, the statute must be liberally
interpreted to effectuate its objects and promote justice. This proposition holds true
irrespective of any conflicting affect that 1 Pa.C.S. § 1961 and 1 Pa.C.S. § 1962 may
have on 1 Pa.C.S. § 1928(a) and (c), by permitting a repealed statute and its
accompanying judicial interpretations to continue in active operation.”)).
The aspect of Bricklayers relied upon by the JRA both is dicta and a misstatement of the
law. First, the point on which the JRA relies is clearly dicta, as the intermediate appellate
court recognized that the strict construction requirement had no application in that case
because the “overarching provision at issue in this case, Section 1303(a) of the
Mechanics' Lien Law of 1963, was not present in the Mechanics' Lien Law of 1901.
Rather, Section 1303(a) of the Mechanics' Lien Law of 1963 was a first-time declaration
of “existing decisional law,” as opposed to a ‘reenactment’ of a previous statutory
provision in the Mechanics' Lien Law of 1901.” Id. at 26.
Second, to the extent to which the lower court otherwise indicated that the repealed and
simultaneously reenacted statutes originally enacted prior to 1937 are not to be presumed
to incorporate the common law, it is an incorrect statement of the law in that it is directly
contrary to our holding in Chiappini, 782 A.2d at 492 (“Another rule of statutory
construction, 1 Pa.C.S. § 1962, indicates that ‘[w]henever a statute is repealed and its
provisions are at the same time reenacted in the same or substantially the same terms
by the repealing statute, the earlier statute shall be construed as continuing in active
operation.’ Thus the rule of strict construction continues to apply[.]”) (emphasis
added).
[J-9-2020] - 17
As the overwhelming similarity of the language of the three statutes attests,
Section 5610(e) of the present MAA is a codification of the voting standard in the 1945
MAA Act, which was in turn a reenactment of the voting standard in the 1935 MAA Act.
As a result, Section 5610(e) must be strictly construed and thus presumed to follow the
common law voting standard, unless its statutory language compels a contrary result.
Before continuing to this final stage of our interpretative analysis, we acknowledge
that the three provisions of the Statutory Construction Act in play here incorporate some
anachronisms that are in tension with the more commonly used general rule of statutory
construction that in ascertaining the intent of the General Assembly, ”[w]hen the words of
a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(a), (b). In addition to enacting this
more intuitive construction principle, however, the General Assembly also simultaneously
promulgated specific provisions to address a unique circumstance, namely how to
properly construct pre-1937 statutes that were repealed and simultaneously reenacted
after 1937. In view of these rules this Court has held that when a statute is simultaneously
repealed and reenacted, the effect is that the earlier statute was not in fact repealed, but
rather that its provisions continue in active operation and must be interpreted based upon
the legislative intent at the time of its original passage (i.e., pre-1937). See, e.g., Bell v.
Abraham, 22 A.2d 753, 755 (Pa. 1941). Moreover, when enacting legislation the General
Assembly is presumed to know the state of the law at that time. Commonwealth v.
McClintic, 909 A.2d 1241, 1251–52 (Pa. 2006). Thus, when the General Assembly
codified Section 5610(e) in 2001, we must presume that it knew that this provision was a
reenactment (in substantially identical form) of a statute originally passed in 1935 and,
[J-9-2020] - 18
accordingly, that it would be interpreted by reference to Sections 1928(a), 1928(b)(8) and
1962 of the Statutory Construction Act.
In contravention of the rules of statutory construction that focus on the date of
enactment of a law, the JRA contends that these three provisions have no application
here because the language of Section 5610(e) is “facially clear and explicit” and thus
does not require any resort to the Statutory Construction Act. JRA’s Brief at 40-42 (citing
inter alia, Williams v. City of Philadelphia, 188 A.3d 421, 428 (Pa. 2018) (“The analysis
encompasses close adherence to terms of a statute that are plain and clear and resort to
other approaches of discernment only in the presence of ambiguity or inexplicitness.”)).
According to the JRA, based upon dictionary definitions, the words “members present” in
Section 5610(e) unquestionably refers to those members physically present at the Board
meeting. Id. at 43-44. As such, the JRA contends that the Commonwealth Court’s
holding impermissibly added the words “and voting” to the description of which members
should be counted when determining the number of votes needed to carry an action. Id.
at 45. The JRA contends that because all sixteen members of the Board were in physical
attendance at the meeting, nine votes were required to carry the vote.
We disagree with the JRA’s assertion that the apparent facial clarity of the word
“present,” when divorced from the context in which it appears, precludes the application
of Rules 1928(a), 1928(b)(8) and 1962, or, more precisely, that we must ignore the more
focused and specific rules of statutory construction. 1 Pa.C.S. § 1933; Commonwealth.,
Dept. of Transp., Bureau of Driver Licensing v. Campbell, 588 A.2d 75, 79 (Pa. Commw.
1991) (“Where a general provision conflicts with a specific provision in the same or
another statute, the specific provision shall prevail.”). Moreover, Section 1901 of the
[J-9-2020] - 19
Statutory Construction Act provides no indication that any of its rules of construction are
not to be applied in appropriate circumstances. 1 Pa.C.S. § 1901 (“In the construction of
the statutes of this Commonwealth, the rules set forth in this chapter shall be observed,
unless the application of such rules would result in a construction inconsistent with the
manifest intent of the General Assembly.”). The JRA cites to no authority in support of its
position, including no case involving a simultaneous repeal/reenactment in which the
rules of construction relating to the common law presumption were ignored based upon
the alleged clarity of the reenacted statute. We note, for instance, that our recent decision
in Williams did not involve a reenacted pre-1937 statute and made no reference to
Sections 1928(a), 1928(b)(8) or 1962. In addition, we made clear that the use of the
phrase “other approaches of discernment” was in reference to Section 1921(c), which
sets forth eight types of external factors (e.g., the object to be obtained, legislative history)
to be used when a statute is ambiguous. Williams, 188 A.3d at 428.
We thus move on to the final step in our construction analysis, determining whether
the General Assembly intended to abrogate the common law presumption through its use
of statutory language that “clearly and definitely prescribes” a different result. See
Chiappini, 782 A.2d at 507 (Saylor, J., concurring and dissenting). Specifically, we must
determine whether the General Assembly’s direction that action may be taken by a
majority of the “members present” was intended to abrogate the common law rule. Under
the common law, a majority vote is a majority of the quorum unless more votes are cast.
Further, under the common law, members who are present but do not vote are not
included in determining how many votes are required for a majority but are instead
[J-9-2020] - 20
considered as acquiescing in the result declared by a majority of those who actually voted.
See, e.g., Munce v. O’Hara, 16 A.2d 532, 533 (Pa. 1940).
To begin, we consider it significant that Section 5610(e) permits a municipal
authority to amend its bylaws to require a larger number of votes to carry an action. The
1935 MAA Act, the 1945 MAA Act, and Section 5610(e) all contain language indicating
that an action may be taken by a majority of members present “unless the bylaws shall
require a larger number.” 53 Pa.C.S. 5610(e) (emphasis added). This legislative
authorization is an acknowledgement of the codification of the common law, which allows
for a plurality to carry a vote but authorizes a municipal authority to modify its bylaws to
establish a larger voting requirement if it so choses. If the JRA had intended that nine
votes be required to carry any action (including in circumstances involving abstaining or
recused members), it could have amended its bylaws to compel this change from the
common law rule’s simple majority standard. It did not do so.
As discussed, it is critical that the current MAA’s voting standard was first enacted
in 1935, and we have been instructed by the General Assembly in such circumstances to
presume its intent for such statutes was to codify common law principles unless the
language plainly reflected a result to the contrary. 1 Pa.C.S. § 1928(b)(8); Chiappini, 782
A.2d at 492-93; In re Boles' Estate, 173 A. 664, 665 (Pa. 1934) (the law presumes "that
no change in the common law was intended beyond what is expressly stated," and "only
such modification of the law will be recognized as the statute clearly and definitely
prescribes."). At common law, as explained in detail above, mere presence at the time
and location of the vote was insufficient as a matter of law to be counted as part of the
total number from which a majority of the vote carried. In other words, for voting purposes,
[J-9-2020] - 21
presence under the common law also presupposes voting in order to be counted for
purposes of obtaining a majority vote. DiGiacinto, 406 A.2d at 523. As such, for
determination of a majority under the common law rule, “presence” and “voting” are
synonymous with each other.12 In setting forth the common law rule in the 1935 MAA,
requiring a vote of a majority of those “present and voting” would have been an
unnecessary redundancy; the General Assembly’s use of “present” alone conveyed the
incorporation of the common law rule for computation of a majority, rather than any
intention of abrogating it.
The rationale for this rule is important for putting its application into context. At
common law, actual voting was required to participate in a majority vote count because
“if the rule were otherwise, a member could attend the meeting and abstain from voting
and have a different effect than if that person were absent from the meeting.” Id. at 522.
In this case, it would mean that the outcome of the vote would depend upon the mere
presence of six board members who had recused themselves from any participation in
the operating contract award process (including all voting and discussions) based upon
their own decision that they had conflicts of interest based upon business relationships
with the JRA’s current operator. R. 1797a-1807a. If a member cannot vote because of
a conflict of interest, the same conflict of interest prevents including the disqualified
members in the head count when tallying the outcome of the vote. Under the common
12 The Pennsylvania Legislator's Municipal Deskbook provides that in the absence of
statutory language to the contrary, Pennsylvania follows the common law rules that
"action may be taken by a majority of the members of the governing body present and
voting as long as a quorum is present" and "with regard to the effect of abstaining from
voting, unless otherwise specified in statute, a majority of the votes actually cast is all that
is required for official action, so long as there is a quorum present." Local Government
Commission, Pennsylvania Legislator's Municipal Deskbook at 43-45 (5th ed. 2017).
[J-9-2020] - 22
law, their non-participation in the vote precludes their mere presence when the vote was
taken from being considered in the outcome.
The interpretation of the voting standard in Section 5610(e) in the MAA is an issue
of first impression. The Commonwealth Court looked to this Court’s decision in Bagnoni,
454 A.2d at 532, and its own decision in McAdoo Borough, 469 A.2d at 696, for the best
available guidance on the construction of the MAA.
In Bagnoni, this Court evaluated the votes needed to override a veto under the
Optional Third Class City Charter Law, which required a “two-thirds vote of the members”
to override a mayor’s veto. The question was whether the language meant two-thirds of
the entire body or two-thirds of the members present. Bagnoni, 454 A.2d at 533. To aid
in the construction, the Court first considered three related statutes, the First Class City
Code, Second Class City Code, and the Borough Code. All three statues required a form
of majority of all of the members entitled to vote, e.g., a "vote of three-fifths of all the
members elected thereto" (First Class City Code), "a two-thirds vote of all the members
thereof" (Second Class City Code), and a vote of "two-thirds of all the members elected
to said council" (Borough Code). Id. at 533. The Court found that each of these statutes
abrogated the common law rule, i.e., a majority of the members present, by including “an
adjective to modify the word 'members' which expressly states the intention that a
proportion of the whole number of members is required." Id. at 534. Consistent with
these examples, the Court ultimately concluded that the optional Third Class City Charter
Law required a vote of two-thirds of all of the member of city council. Id. at 37.
In significant contrast, the Bagnoni court examined a statute with language in
keeping with that used in the MAA that did not constitute an abrogation of the common
[J-9-2020] - 23
law. It cited to the Higher Education Assistance Agency Act, which provides that “unless
a greater number is required by the by-laws of the agency, the act of a majority of the
directors present at any meeting shall be deemed the act of the Board. Id. (emphasis
in original). According to Bagnoni, this statute did not abrogate the common law rule that
a “majority of those voting in the presence of a quorum can act for a board or other body
in the absence of any language to the contrary in the relevant enabling statute.’” Id. at
532 (emphasis modified). The use of this language demonstrated that the “legislature
also has the ability to use clear language codifying the [c]ommon [l]aw [r]ule, thus
requiring only a majority of a quorum... ." Id. at 533 (emphasis added).13
The JRA instead refers us to Commonwealth ex rel. Swartz v. Wickersham, 66 Pa.
134, 136 (1870) where a statute authorized the election of a county superintendent by "a
majority of the whole number of directors present." There were 112 directors in
attendance, but one director abstained from voting. One candidate obtained fifty-six
votes, but this Court concluded that this did not constitute a majority under the applicable
statute, as fifty-six votes did not constitute a majority of the “whole number of directors
present.” The Court indicated that because the abstaining director remained, and thus
13 In its decision, the Commonwealth Court observed that although in Bagnoni we did not
expressly state that the word "present" should be construed as "present and voting," our
indication that the “clear language” of quoted statute “codif[ied] the [c]ommon [l]aw [r]ule,”
dictates that conclusion may fairly be inferred. Seda-Cog, 185 A.3d at 1238.
In McAdoo, the former Borough Code (Act of February 1, 1966, P.L. (1965) 1656, No.
581, 53 P.S. § 46001, repealed by the Act of April 18, 2014, P.L. 432, No. 37, § 3(2)),
provided that “the borough could act 'by vote of the majority of council present at a
meeting... .’" Id. at 696. The Commonwealth Court ruled that this statutory provision in
no respect abrogated the common law. Id. Citing Bagnoni, the court further held that the
common law provides "that a majority of those voting in the presence of a quorum can
act for the body." Id. at 696 n.8.
[J-9-2020] - 24
“being present, was entitled to be counted.” The Court refused to deem the abstaining
director "virtually absent," concluding that “[i]t would be dangerous to fritter away the
express provision of the statute by construing an actual presence into a virtual absence."
Id. at 136.
We do not find that Swartz constitutes persuasive authority to conclude that the
reference to “present” in Section 5610(e) abrogates the common law rule, for two
reasons. First, the statute in Swartz indicated that the majority had to be achieved from
the “whole number” of directors present. This reference to the “whole number” itself
constituted an abrogation of the common law rule that abstaining members are not
counted when determining what number of members’ votes constitutes a majority.
Bagnoni, 454 A.2d at 534. Second, as the Commonwealth Court correctly acknowledged,
the Court in Swartz did not consider whether language requiring affirmative votes of a
majority of those "present" was sufficiently specific to supplant the common law. Seda-
Cog, 185 A.3d at 1238. Specific consideration of the word “present” was not necessary
because without more, the requirement of the “whole number” of members was a clear
modification of the common law rule.
In conclusion, pursuant to the interpretive instructions in Section 1962 of the
Statutory Construction Act, there is a presumption that Section 5610(e) constitutes a
codification of the common law voting rules, and we further find no firm basis to conclude
that the language of the statute clearly and definitely abrogates the common law voting
standard. Under the common law, the phrase “members present” means voting
members, as a non-voting member is not present for purposes of calculating a majority.
Section 5610(e) incorporates the common law rule that when a quorum is present, action
[J-9-2020] - 25
may be taken by a simple majority of the quorum unless more votes are cast than the
quorum number (in which case a majority of the votes cast carries the action.) Section
5610(e) also does not expressly override the common law rule that those failing to vote
are considered to have acquiesced in the action of the majority of those voting. Given
the equating of a present member with a voting member under the common law, use of
the phrase “members present” does not “specifically require an abrogation of the common
law.” Chiappini, 782 A.2d at 493. For the reasons set forth herein, we thus conclude that
the Commonwealth Court was correct in its interpretation of Section 5610(e) and in its
application of the presumption that reenactments of pre-1937 statutes are to be strictly
construed in accordance with common law rules.
C. The Appropriate Standard of Review
The JRA contends that the scope of judicial review for discretionary action by
municipal authorities is limited to situations involving flagrant and manifest abuses of
discretion, and the standard of review is deferential. JRA’s Brief at 25 (citing, e.g., Bucks
Cnty. Servs. v. Phila. Parking Auth., 195 A.3d 218 (Pa. 2018)). According to the JRA,
judicial discretion should not be substituted for an authority's administrative discretion. Id.(quoting Flaherty v. Port Auth. of Allegheny Cnty., 299 A.2d 613 (Pa. 1973) ("[J]udicial
interference with the actions of municipal authorities should not be undertaken in the
absence of proof of an abuse of power, bad faith, fraud or arbitrary and capricious action;
the courts should be loath to review the details of the effectuation of actions of municipal
authorities.")). The JRA argues that the Commonwealth Court should have deferred to
its (the JRA’s) interpretation of Section 5610(e) requiring nine votes to effectuate any
action with respect to a new operating agreement.
[J-9-2020] - 26
We cannot agree. First, the issue presented is one of statutory interpretation, a
function entrusted to the judiciary. HSP Gaming, L.P. v. City of Philadelphia, 954 A.2d
1156, 1181 (Pa. 2008). To the extent that the JRA argues that this Court must defer to
its interpretation of its governing statute, the argument is baseless. Moreover, none of
the cases cited by the JRA provide a municipal authority with the discretion to ignore the
requirements of a statutory provision to achieve an outcome that it prefers (in this case,
a nine-vote majority). The clear language of Section 5610(e) provides that if a municipal
authority wants to alter voting standards to require a larger number of votes to approve
an action, it may do so by and through an amendment to its bylaws. 53 Pa.C.S. § 5610(e)
(“all action may be taken by vote of a majority of the members present unless the bylaws
shall require a larger number”) (emphasis added). In its brief filed with this Court, the
JRA does not contend that it has ever amended its bylaws to require a larger number of
votes for approval of any action,14 and in the absence of doing so it may not require a
higher number of votes than that provided in Section 5610(e).
Finally, as Carload properly notes, the JRA filed a motion for summary judgment
seeking to end the litigation in its favor. Carload’s Brief at 35. In reviewing the trial court’s
grant of this motion for summary judgment, the Commonwealth Court applied the well-
14 The trial court identified two bylaws that it considered significant. Section III.4 states
that, “a majority of the Board shall constitute a quorum for purposes of transacting
business,” and Section VI.1 provides that in the event of a “conflict of interest[,]” “where
approval by a majority of disinterested members constitutes less than a quorum, the
member or members interested in the contract may be counted in determining the
presence of a quorum, may briefly state a position on the contract or transaction, but such
member or members may not vote on the matter.” Trial Court Opinion, at 11-12. In their
briefs filed with this Court, neither party argues that these provisions have any relevance
to the issues presently before us, and we agree that they have no application here
because the disinterested members constituted a quorum.
[J-9-2020] - 27
established standard of review with respect to summary judgment motions, namely that
summary judgment is appropriate only where there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. As such, we do not
conclude that the Commonwealth Court applied the wrong standard of review in
assessing whether the JRA was entitled to the relief that it sought in this case.
D. The RFP Process as a Proprietary Function
The JRA next argues that its RFP process to award a new operating agreement
was a proprietary function, rather than a governmental function, and that as a result the
Commonwealth Court should have deferred to its (the JRA’s) preferred interpretation of
Section 5610(e). JRA’s Brief at 36-38. The JRA also notes that the MAA expressly
authorizes the JRA to engage in contracting for the purpose of carrying on its business,
53 Pa.C.S. § 5607(d)(13), and that the new operating agreement will generate revenue,
which will then be re-invested into capital projects throughout the eight-county region.
JRA’s Brief at 35. As a result, the JRA insists that its RFP process was a “voluntarily-
undertaken procurement process for professional rail services and that reservation of
rights provisions in the RFP document gave it “the right to impose conditions upon any
contract award” and “’the final word on questions of interpretation in the RFP process.”
Id. at 30-31.
The Commonwealth Court properly rejected these contentions, indicating that the
JRA could not rely on a “boilerplate reservation of rights provision to disclaim” its
obligation to adhere to the process set forth in the RFA document. Seda-Cog, 185 A.3d
at 1239. The JRA does not cite to any authority for the proposition that municipal
agencies do not have to follow the voting standards in Section 5610(e) when engaging in
[J-9-2020] - 28
proprietary (as opposed to governmental) functions. We note that Section 5610(e)
expressly provides that “… all action may be taken by a majority of the members present.”
The JRA likewise cites to no authority providing that when engaging in proprietary
functions, it has any discretion to interpret provisions of the MAA. The Commonwealth
Court correctly held that the JRA could not impose a different voting standard through its
own interpretation of its RFP. Neither the RFP nor the JRA’s bylaws provided any
indication to candidates that nine votes would be required for actions related to the award
of the operating agreement. Id. at 1239. Again, Section 5610(e) gave the JRA the ability
to amend its bylaws to adopt a different voting requirement (including, if it so chose, in
connection with proprietary RFP processes), but the JRA did not do so. In the absence
of a bylaw so providing, the JRA had no discretion to implement a voting standard contrary
to that set forth in Section 5610(e). See, e.g., Lasday v. Allegheny Cnty., 453 A.2d 949(Pa. 1982).
E. Undermining Support for the Member Counties
Finally, the JRA contends that the Commonwealth Court’s interpretation of Section
5610(e) would have the effect of permitting a plurality of the members of the Board to
award the operating agreement, a result that would “disenfranchise much of the region’s
representation on the JRA.” JRA’s Brief at 65. The JRA notes that some of its Board
members testified at depositions that they desired to avoid this scenario of plurality
approval of an action that would “determine the fate of an eight-county authority.” Id. at
66. According to the JRA, the Commonwealth Court’s interpretation “undermines the
broad representation built into the JRA's repeatedly-announced [nine vote] voting
standard.” Id. (“As long as the Board members showed up at meetings, all of the
[J-9-2020] - 29
appointing counties were assured that the region was protected from a mere plurality vote
on a significant contract, impacting rail service throughout Central Pennsylvania and all
eight member Counties.”).
The MAA contains provisions to provide for equal representation on the boards of
multi-member authorities.15 Section 5610(a)(2) provides that for authorities incorporated
by two or more municipalities, each of its members shall have equal representation on
the board, 53 Pa.C.S. § 5610(a)(2). Section 5610(e) gives an authority’s board the power
to “prescribe, amend and repeal bylaws, rules and regulations governing the manner in
which the business of the authority may be conducted” and to amend its bylaws to require
a greater number of votes to constitute a majority, thereby preventing action by a plurality
of its members. As such, if a multiple-member authority (like the JRA) desires to institute
more “representational fairness” than equal Board representation provides, it may change
its bylaws to do so. Often repeating that there is a nine member majority requirement is
meaningless where the bylaws were never amended to effectuate it.
In support of its contention that the MAA reflects a “goal of adequate
representation,” the JRA cites to Stoltz, a case decided pursuant to the Metropolitan
Transportation Authorities Act of 1963 (MTAA),16 the enabling act for the Southeastern
Pennsylvania Transportation Authority (“SEPTA”). Stoltz, 373 A.2d at 1100-01. SEPTA
15 Municipal authorities created and organized under the MAA may consist of only a
single member or may have multiple members. Section 5603, which sets forth the
requirements for incorporation of a municipal authority, provides that “[w]henever the
municipal authorities of any municipality singly or of two or more municipalities jointly
desire to organize an authority under this chapter, they shall adopt a resolution or
ordinance signifying their intention to do so.” 53 Pa.C.S. § 5603(a).
16 Act of August 14, 1963, P.L. 984, § 1.
[J-9-2020] - 30
is governed by a board consisting of representatives of eleven southeastern counties with
widely disparate populations. Section 18(a) of the MTAA differs in at least two significant
regards from Section 5610(e) of the MAA. First, its voting standard requires that “[a]ll
action of the board shall be by resolution and the affirmative vote of a majority of all the
members shall be necessary for the adoption of any resolution.” Id. at 1100. Second,
Section 18(a) contains significant safeguards to ensure that votes are representational
for all of the counties represented on the board, including that no action by the board to
which an express objection has been made by a board member or members representing
a county or counties having one-third or more of the population of the metropolitan area,
as determined by the most recent decennial census, shall be carried unless supported at
a subsequent regular meeting of the board by the votes of at least three-quarters of the
membership of the board. Id. at 1097.
The JRA does not explain how these expansive and detailed provisions of the
MTAA have any bearing on a need to guarantee additional “representational fairness”
under the MAA. Unlike the MAA, the MTAA’s voting standard (requiring a “majority of all
the members”) is clearly an abrogation of the common law rule that a majority of those
members “present and voting” are necessary to effectuate board actions, as this Court so
held. Id. at 1100. Section 18(a) contains no provision permitting SEPTA to change its
bylaws to adopt a different voting standard, and Section 5610(e) contains no provisions
that reflect any intention on the part of the General Assembly to require the extent of
representational voting contemplated under the MTAA. Again, the members of the JRA
Board, who now claim to have a clear opposition to passage of any action based upon a
vote of a mere plurality of the Board, could have, in accordance with the express language
[J-9-2020] - 31
of Section 5610(e), amended its bylaws to require nine votes. It could also have amended
its bylaws to provide for the types of additional representational fairness as the General
Assembly set forth in the MTAA.
We further note that the circumstances of the present case do not demonstrate a
lack of representation of the majority of the counties comprising the JRA. While two of
the abstaining Board members were from Columbia County, the other seven counties
had at least one Board member who voted on the award of the operating agreement, and
a Board member from six of those seven counties voted in affirmance of awarding the
operating agreement to Carload. The JRA offers no explanation as to why the present
circumstances reflect a lack of representation, other than that the seven affirmative votes
constituted a plurality of the sixteen member Board.17 Under the common law voting
standard, however, all that is required is that the vote is a majority of the votes cast, even
if the number of votes cast only constitutes a plurality. See, e.g., DiGiacinto, 406 A.2d at
522.
The Commonwealth Court’s decision is affirmed.
Justices Baer, Todd, Dougherty and Wecht join the opinion.
Justice Wecht files a concurring opinion.
Chief Justice Saylor files a dissenting opinion in which Justice Mundy joins.
17 To the extent that the JRA is suggesting that no vote can carry unless each of the
counties has at least one of its representative members taking part in the vote, merely
precluding an action to pass by a plurality vote does not rectify the problem. In this regard,
we note that even the requirement of a nine vote majority does not guarantee this type of
“representational fairness” among the counties. On a sixteen member Board with each
of the eight counties having two votes, the affirmative votes of as few as five counties
could meet the nine vote requirement.
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