[ J
- 9
- 2020 ] [MO: Donohue, J. ] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SEDA

- COG JOINT RAIL AUTHORITY,

Appellant

v.

CARLOAD EXPRESS, INC., SUSQUEHANNA UNION RAILROAD COMPANY, AND NORTHERN PLAINS RAILROAD, INC., Appellees : : : : : : : : : : : : : : No. 12 MAP 2019 Appeal from the Order of the Commonwealth Court dated May 3, 2018, Reargument denied June 28, 2018, at No. 617 CD 2017 Reversing the Order of t he Clinton County Court of Common Pleas, Civil Division, dated May 11, 2017 at No. 2015

- CV

- 933 and Remanding for entry of summary judgment. ARGUED: March 11, 2020

CONCURRING O PINION

JUSTICE WECHT DECIDED: October 1, 2020 I agree with the Majority that, “for voting purposes, presence under the common
law [quorum rule] also presupposes voting in order to be counted for purposes of obtaining a majority vote

. . . . As such, for determination of a majority under the commo n law rule, ‘presence’ and ‘voting’ are synonymous

. . . .” Maj. Op. at 21

- 22 (citing DiGiacin t

o v. City of Allentown , 406 A.2d 520, 523 (Pa

. 1979) ) (emphasis added ). Today’s case is difficult because t he statutory provision at issue here , 53 Pa.C.S. § 561 0(e) , omits reference to “voting” and employs the following language: “[A] ll action may be taken by vote of a majority o f the members present unless the bylaws shall require a larger number

. ” (emphasis added). Nonetheless, t he General Assembly having

ena cted Section 5610(e) prior to September 1, 1937, we are not free to infer abrogation of common law, inasmuch as the legislature did not provide any compelling indication of[ J

- 9

- 2020 ] [MO: Donohue, J. ]

- 2

intent to abrogate . It is the General Assembly itself that has imposed this requirement of very clear intention , instructing us in the Statutory Construction Act that “[p]rovisions enacted finally prior to September 1, 1937 which are in derogation of the common law”

“ shall be strictly construed.” 1 Pa.C.S. § 1928(b)(8). 1 Accord ingly, I join the Majority Opinion. I write separately to address two points.
F irst , it is notewor thy that the General Assembly has not instructed this Court similarly to thumb the common law side of the scale for statutes enacted after September 1, 1937

. See 1 Pa.C.S. § 1928(a) (“ The rule that statutes in derogation of the common law are to be strictly construed, shall have no application to the statutes of this Commonwealth enacted finally after September 1, 1937. ”). The SEDA

- COG Joint Rail Authority ( the “JRA”) argues reasonably that “present” modifies “members,” and that “present under Section 5610(e) means ‘present at a meeting’ or in attendance” according
to its ordinary definition

. JRA’s Brief at 42

- 44. Without the Legislature’s directive in Section 1928(b)(8), JRA’s plain text argument might very well carry the day

. In other words, a provision that employed identical language but was finally enacted after September 1, 1937 m ight well require that members of a board who are physically present , but abstaining, be counted in determining a majority of the “members present .” Cf. Maj. Op. at 12 n.7 (noting that it was “unclear why the Court in” Commonwealth ex rel.

1 I agree with the Majority that, although the substance of Section 5610(e) has been re - enacted twice since 1935, because the provision “at the same time [was] reenacted in the same or substantially the same terms by the repealing statute,” 1 Pa.C.S. § 1962, the 1935 date should con trol for the purposes of Section 1928(b)(8). See Maj. Op. at 14

- 15. In this case, as the Majority highlights, the language in the three enactments of Section 5610(e) is very similar. See id. Yet there may be other statutes where it is less clear whethe r re - enacted language is “substantially the same” for the purposes of Section 1962. In such instances, courts may be called upon to interpret the lang uage used by the General Assembly in Section 1962 itself.[ J

- 9

- 2020 ] [MO: Donohue, J. ]

- 3

Bagnoni v. Klemm , 454 A.2d 531 (Pa

. 1982), and Stoltz v. McConnon , 373 A.2d 1096 (P a

. 1977), “was concerned with abrogation of common law principles at all,” as “[t]he
statutes at issue in those cases were enacted well after 1937 and thus, pursuant to [Section ] 1928(a), the rule of strict construction vis

- à

- vis common law voting principl es had no application when interpreting their proper application”). 2 The common law quorum rule is not a totemic command beyond legislative reach

. Th e rule is not akin to a constitution, subordinating all other law. The General Assembly
may supersede or abrogate the common law

. See generally Freezer Storage, Inc. v. Armstrong Cork Co. , 382 A.2d 715, 721 (Pa. 1978) (“ This Court would e ncroach upon the Legislature’ s ability to guide the development of the law if we invalidated legislation simply
because th e rule enacted by the Legislature rejects some cause of action currently preferred by the courts. ”). I ndeed, as addressed infra , the General Assembly has authorized municipal authorities themselves to do precisely that

. And while “w e should not infer that the legislature intended to supplant established common law without clear[] evidence,” Roverano v. John Crane, Inc. , 226 A.3d 526, 550 (Pa

. 2020) (Wecht, J., concurring), we also do not require the General Assembly to solemnly and e xplicitly
intone , “this statute abrogates the common law , ” when abrogation is its obvious intention

.

“ Criticall y, we rarely, if ever, require ‘ magic words ’ to be used in legal discourse. ” Temple v. Providence Care Ctr. , __ A.3d __, 2020 WL 4137977, slip op. at 9 (Pa

. 2020) (Todd,
J ., concurring and dissenting). There is no need for the General Assembly to use any particular phrase to abrogate common law, including the common law quorum rule.

2 It is perhaps worth noting that Section 1928 was enacted on May 28, 1937 (codified at 46 P.S. § 558 (repealed and recodified at 42 Pa.C.S. § 1928 )) , with its application to commenc e approximately three months later. In effect, the enactment embodied respect for the restrictive background against wh ich former legislatures had fashioned their laws, while shifting the balance for the 1937 and successive sessions of the General Assembly

.[ J

- 9

- 2020 ] [MO: Donohue, J. ]

- 4

Indeed , for statutes enacted after September 1, 1937, statutor y language that is “clear and free from all ambiguity,” 1 Pa.C.S. § 1921(b), i.e. , the plain text, can serve as the “clear[] evidence,” required to “supplant established common law , ” Roverano , 226 A.3d at 550 (Wecht, J., concurring)

. 3 Nonetheless, while magic words need not be employed, the General Assembly , in enacting Section 1928(b)(8), chose to weight the scales against displacement of common law rules for purposes of interpreting s tatute s enacted before September 1, 1937 . By contrast, the General As sembly also chose to provide that statutes enacted after September 1, 1937 need not confront such weighting nor satisfy such an elevated
standard . W e should take care in future cases to honor that shift in the lawmakers’ approach

. Th is legislative differ entiation leads to the distinct possibility of diverg ent results between today’s case and a case involving interpretation of the same statutory language for which Section 1928(b)(8) does not apply. B ecause the phrase “members present” is not in clear and obvious derogation of common law as required by Section 1928(b)(8) for statutes enacted before September 1, 1937, I join the Majority Opinion. I expressly reserve judgment on the effect of substantially similar statutory language

3 As the Court recently noted in Roverano , w hen we are deciding whether the General Assembly wanted to supplant common law, we should presume that the General Assembly did not intend a result that “is unreasonable and impossible of execution.” Roverano , 226 A.3d at 542 (citing 1 Pa.C.S. § 1922(1)); see also id. at 551

- 52 (Wecht, J., concurring) ( observing that it is impossible “to apportion relative liability in asbestos cases,” and, thus, the General Assembly did not intend such a result). If we were to adopt the JRA’s interpretation of Section 5610(e), t he plain text of that statute would not be imposs ib le to execute. To the contrary, counting physically present, but abstaining, members of a municipal authority board easily could be executed. Thus, the JRA’s argument that the plain text of Section 5610(e) requires such an interpretation would be persuas ive. However, as noted above, because the General Assembly enacted Section 5610(e) before September 1, 1937, and because the General Assembly’s language can be interpreted harmoniously with the common law quorum rule, I agree that the General Assembly did not clearly intend to abrogate common law in that particular statute.[ J

- 9

- 2020 ] [MO: Donohue, J. ]

- 5

enacted after September 1 , 1937 , for which the plain text of the statute, without the common law presumption of Section 1928(b)(8), m ight require a different result. Second, I agree with the Majority that we owe no defer ence to the JRA ’s interpretation of Section 5610(e). See Maj. Op. at 26

- 29. W ere our courts to defer to the views of each and every municipal authority governed by the Municipal Authorities Act (“MAA”), 53 Pa.C.S. §§ 5601

- 23, we would end up with a hopeless patchwork of municipal authority

- specific interpretati ons of the MAA

. Even if the JRA’s interpretation in this case is not a “manifest or flagrant abuse of discretion,” Bucks Cty. Servs., Inc. v. Phila

. Parking
Auth. , 195 A.3d 218, 237 (Pa. 2018), the same might be said of a contrary interpretation by anothe r mun icipal authority , i.e. , one that reads Section 5610(e) in conformity with the common law quorum rule. Indeed, this case presents a very close interpretive question ,
one that might reasonabl y and readily be resolved in favor of either the JRA or a mun icipal authority adopting the contrary interpretation in the even t that we did apply a deferential,
rather than de novo , standard of review

. But w ere we to defer to both bodies in separate challenges, Section 5610 (e) would have two different , but still legal ly sound , interpretations

. Surely the General Assembly did not enact a unitary statute to govern municipal authorities only to see us break it into irreconcilable pieces by acceding to the disparate interpretation ventured by the very authorities tha t the legislature sought to
govern

. T he General Assembly provided the JRA with the means to abrogate the common law quorum rule: t he JRA “may change its bylaws to do so.” Maj. Op. at 30; see also 53 Pa.C.S. § 5610(e) ( “[A]ll action may be taken by vote of a majority of the members present unless the bylaws shall require a larger number .”) (emphasis added). But allowing a municipal authority to act affirmatively and in an accountable fashion to modify the[ J

- 9

- 2020 ] [MO: Donohue, J. ]

- 6

common law standard is quite distinct from defer ring to an interpret ation of a statute that might not necessarily reflect the will of a majority of its members

. My own reluctance to defer to administrative agencies ’ statutory int erpretations is
well

- documented. S ee, e.g. , Crown Castle NG East LLC v. Pa. Pub. Util. Comm’n , __ A.3d __, 2020 WL 4154767 (Pa. 2020) (Wecht, J. concurring); Harmon v. Unemployment Comp. Bd. of Review

, 207 A.3d 292, 310

- 12 (Pa . 2019) (Wecht, J., concurring). B ut I
note that , even when this Court ha s chosen in the past to defer to an agency, it has done

so where that agency is “ charged with the administration of a particular law” by an express legislative grant of authority. Harkness v. Unemployment Comp. Bd. of Review , 920 A.2d 162, 171 (Pa. 2007). T he MAA confers no such authority upon the JRA . Thus, even if I
were to imagine for a moment that I had no principled objection to the perpetuation of administrative agency deference jurisprudence, JRA’s interpretation of the MAA is in any
event entitle d to no deference. Cf. King v. Burwell , __ U.S. __, 135 S. Ct. 2480, 2489 (2015) (declining to defer to an interpretation of the Affordable Care Act by the Internal Revenue Service (“IRS”) because “[i] t is especially unlikely that Congress would have
dele gated this decision to the IRS , which has no expertise in crafting healt h insurance policy of this sort”) (emphasis in original)

.