[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

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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 the 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 OPINION

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 common 

law rule, ‘presence’ and ‘voting’ are synonymous . . . .” Maj. Op. at 21-22 (citing 

DiGiacinto v. City of Allentown, 406 A.2d 520, 523 (Pa. 1979)) (emphasis added). 

Today’s case is difficult because the statutory provision at issue here, 53 Pa.C.S. 

§ 5610(e), omits reference to “voting” and employs the following language: “[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). Nonetheless, the General Assembly having 

enacted 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 Accordingly, I join the Majority 

Opinion. 

I write separately to address two points.

First, it is noteworthy 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 might 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 control 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 

whether re-enacted language is “substantially the same” for the purposes of Section 

1962. In such instances, courts may be called upon to interpret the language 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 

(Pa. 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 principles 

had no application when interpreting their proper application”).2

The common law quorum rule is not a totemic command beyond legislative reach. 

The 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 encroach upon the 

Legislature’s ability to guide the development of the law if we invalidated legislation simply 

because the rule enacted by the Legislature rejects some cause of action currently 

preferred by the courts.”). Indeed, as addressed infra, the General Assembly has 

authorized municipal authorities themselves to do precisely that. And while “we 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 explicitly

intone, “this statute abrogates the common law,” when abrogation is its obvious intention. 

“Critically, 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 commence approximately three months later. In effect, the enactment 

embodied respect for the restrictive background against which 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, statutory 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 statutes enacted before September 1, 1937. By 

contrast, the General Assembly also chose to provide that statutes enacted after 

September 1, 1937 need not confront such weighting nor satisfy such an elevated 

standard. We should take care in future cases to honor that shift in the lawmakers’ 

approach. This legislative differentiation leads to the distinct possibility of divergent

results between today’s case and a case involving interpretation of the same statutory 

language for which Section 1928(b)(8) does not apply. Because 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, when 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), the plain text of that statute would not be 

impossible 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 

persuasive. 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), might require a different result.

Second, I agree with the Majority that we owe no deference to the JRA’s

interpretation of Section 5610(e). See Maj. Op. at 26-29. Were 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 interpretations 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 another municipal 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 reasonably and readily be resolved in favor of either the JRA or a municipal

authority adopting the contrary interpretation in the event that we did apply a deferential, 

rather than de novo, standard of review. But were we to defer to both bodies in separate 

challenges, Section 5610(e) would have two different, but still legally 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 that the legislature sought to 

govern. 

The General Assembly provided the JRA with the means to abrogate the common 

law quorum rule: the 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 deferring to an interpretation 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 interpretations is 

well-documented. See, 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). But I 

note that, even when this Court has 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). The 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 entitled 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 

delegated this decision to the IRS, which has no expertise in crafting health insurance 

policy of this sort”) (emphasis in original).