[J-87-2016] [OAJC: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SOUTHEASTERN PENNSYLVANIA 

TRANSPORTATION AUTHORITY,

Appellee

v.

CITY OF PHILADELPHIA AND 

PHILADELPHIA COMMISSION ON 

HUMAN RELATIONS,

Appellants

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No. 10 EAP 2016

Appeal from the Order of the 

Commonwealth Court at No. 2445 CD 

2009 filed 8/7/2015 reversing and 

remanding the Order, dated 11/10/2009 

in the Court of Common Pleas, 

Philadelphia County, Civil Division at 

No. 03055, July Term, 2009.

ARGUED: September 13, 2016

CONCURRING OPINION

JUSTICE WECHT DECIDED: April 26, 2017

I concur in the result reached by the learned opinion announcing the judgment of 

the Court (“OAJC”). I write separately to endorse an alternative application of the 

Ogontz test. See Commonwealth, Dep’t of Gen. Servs. v. Ogontz Area Neighbors 

Ass’n, 483 A.2d 448 (Pa. 1984) (“Ogontz”).

In SEPTA v. City of Philadelphia, 101 A.3d 79, 88 (Pa. 2014) (“SEPTA III”), this

Court recognized that, where a Commonwealth agency challenges a municipality‟s 

exercise of authority, the Ogontz test applies to resolve the conflict between the two 

instrumentalities of the state. See Ogontz, 483 A.2d at 452 (holding that conflict 

between Commonwealth agency and municipality is “not a contest between superior 

and inferior government entities, but instead a contest between two instrumentalities of 

the state.”). We have explained the test as follows:
[J-87-2016] [OAJC: Mundy, J.] - 2

The first step requires the reviewing court to determine, through 

examination of the statutes, which governmental entity, if any, the General 

Assembly expressly intended to be preeminent . . . . In the event there is 

no such express legislative mandate, the second step requires the court 

“to determine legislative intent as to which agency is to prevail . . . turn[ing] 

to the statutory construction rule that legislative intent may be determined 

by a consideration, inter alia, of the consequences of a particular

interpretation.” 

Hazleton Area Sch. Dist. v. Zoning Hearing Bd., 778 A.2d 1205, 1210 (Pa. 2001) 

(quoting Ogontz, 483 A.2d at 455) (citations omitted). This two-part test embraces the 

process of statutory construction, with which this Court is deeply familiar. We look first 

to the legislation‟s plain language. If that language is ambiguous, we apply other 

principles embodied in our rules of statutory construction, which include a consideration 

of “[t]he consequences of a particular interpretation.” 1 Pa.C.S. § 1921. 

In my view, the first prong of the Ogontz test requires the Court to look to the 

language of the enabling statutes of both SEPTA and the City of Philadelphia in order to 

determine only whether the General Assembly included in either statute an express 

statement that one entity or the other has priority in the event of a conflict. In this case, 

we would review the Metropolitan Transportation Authorities Act (“MTAA”), 74 Pa.C.S. 

§§ 1701-85, and the First Class City Home Rule Act (“Home Rule Act”), 53 P.S. 

§§ 13101-157, for a statement such as “SEPTA is exempt from local regulations,” or 

“Philadelphia may exercise jurisdiction over entities created by an act of the 

Commonwealth.” Because the statutes offer no such language, the first prong of the 

Ogontz test is inconclusive.

I respectfully disagree with the OAJC‟s conclusion that the sovereign immunity 

provision contained in the MTAA, 74 Pa.C.S. § 1711(c)(3), represents an explicit 

statement that SEPTA has priority over Philadelphia in the area of anti-discrimination 

legislation under the first prong of Ogontz. The OAJC agrees that “neither enabling 

statute contain[s] an explicit provision directly addressing the issue,” but concludes that 
[J-87-2016] [OAJC: Mundy, J.] - 3

the lack of an express directive, “[does] not preclude the possibility that an examination 

of the statutes as a whole [can] reveal such a clear intent.” Maj. Op. at 14.1 I believe 

that the comparative assessment of the statutory scheme “as a whole” should occur at 

the second stage of the analysis. Otherwise, the inclusion of a sovereign immunity 

provision in an entity‟s enabling statute would always give the entity priority over a local 

authority as to any type of local regulation, an outcome this Court expressly rejected in 

SEPTA III. 101 A.3d at 89 n.13 (“[W]hen presented with two competing absolutes—

here sovereign immunity and the authority of Philadelphia to enforce its ordinance, we 

employ the tools of statutory construction and interpretation to resolve the conflict.”). As 

explained in greater detail below, I believe that SEPTA‟s priority in this particular 

scenario stems from the fact that the local regulation in question, the Philadelphia Fair 

Practices Ordinance (“FPO”), directly undermines the General Assembly‟s intention to 

shield SEPTA from the hazards of litigation.

The second Ogontz prong requires the Court to assess the consequences of 

each party‟s proffered interpretation of the statutes. Although particular circumstances 

may require the development of a factual record in order to apply the second prong, this 

is not necessary in every case. For instance, in Ogontz itself, this Court considered the 

consequences of allowing the Commonwealth to build a mental health facility on 

Commonwealth property in contravention of a local zoning ordinance. The Court 

concluded as a matter of law that allowing the facility to be built in the proposed 

location, a residential zone, would frustrate the purpose of the local law, while upholding 

 

1

The OAJC explains that the first step in the Ogontz analysis “requires an 

examination of the overall language of the legislation to discern if the General Assembly 

expressly intended one [entity] or the other to be preeminent.” Maj. Op. at 14. The 

OAJC‟s review of the legislation‟s “overall language” under the first prong of Ogontz

could be interpreted as an attempt to ascertain the implied intent of the General 

Assembly rather than its expressed intent, as the first step of Ogontz requires.
[J-87-2016] [OAJC: Mundy, J.] - 4

the zoning ordinance would not prohibit the Commonwealth from constructing the facility

elsewhere. The Court did not need a developed factual record to assess these 

consequences and to reach the conclusion that enforcing the zoning ordinance caused 

less disruption to each statutory scheme.

Likewise, in the present case, we can apply the second prong of Ogontz without 

remanding the case for fact-finding. We can evaluate the purely legal consequences of 

each party‟s suggested interpretation of the MTAA and the Home Rule Act, which 

includes an appraisal of their overall statutory schemes. With regard to Philadelphia‟s 

argument that SEPTA‟s core transportation function will not be upset by requiring it to 

comply with the FPO, we need not consider how much it will cost SEPTA to comply with 

the ordinance and to defend itself from claims of discrimination. Rather, we can look to 

the MTAA‟s provisions and ascertain the extent to which those provisions would be 

upset by subjecting SEPTA to the FPO. Similarly, we can consider the effect that 

exempting SEPTA from the FPO will have on Philadelphia‟s Home Rule authority and 

the efficacy of the FPO.

By including Subsection 1711(c)(3) in the MTAA,2the General Assembly 

expressed its will to shield SEPTA from most types of lawsuits, absent a specific waiver,

 

2 Subsection 1711(c)(3) provides as follows:

It is hereby declared to be the intent of the General Assembly that an 

authority created or existing under this chapter, including any authority 

established under the former provisions of Article II2 of the Pennsylvania 

Urban Mass Transportation Law or the former provisions of Chapter 15, 

and the members, officers, officials and employees of any of them, shall 

continue to enjoy sovereign and official immunity, as provided in 1 Pa.C.S. 

§ 2310 (relating to sovereign immunity reaffirmed; specific waiver), and 

shall remain immune from suit except as provided by and subject to the 

provision of 42 Pa.C.S. §§ 8501 (relating to definitions) through 8528 

(relating to limitations on damages).

74 Pa.C.S. § 1711(c)(3)
[J-87-2016] [OAJC: Mundy, J.] - 5

ostensibly so that SEPTA could provide public transportation without enduring the 

financial and temporal costs of litigation. See Sci. Games Int’l, Inc., v. Commonwealth,

66 A.3d 740, 755 (Pa. 2013) (“The constitutionally-grounded, statutory doctrine of 

sovereign immunity obviously serves to protect government policymaking prerogatives 

and the public fisc.”); Mullin v. Commonwealth, Dep’t of Transp., 870 A.2d 773, 779 (Pa. 

2005) (“[I]mmunity provisions were enacted to insulate the Commonwealth and its 

agencies from liability except in certain specified circumstances, so that state 

governmental revenues are not subject to unnecessary depletion.”) (citation omitted); 

Stackhouse v. Commonwealth, Pa. State Police, 892 A.2d 54, 62 (Pa. Cmwlth. 2006)

(“The purpose of absolute sovereign immunity [is] to insulate state agencies and 

employees not only from judgments but also from being required to expend the time and 

funds necessary to defend suits.”). Were we to interpret the FPO to apply to SEPTA 

with full force, we would frustrate the General Assembly‟s intent that SEPTA be subject 

to only certain types of litigation, inasmuch as the FPO provides for an individual private 

right of action accompanied by damage awards. See Phila. Code § 9-1122. 

Conceding that the MTAA‟s sovereign immunity provision bars individuals from 

bringing private suits against SEPTA, Philadelphia claims that it nonetheless may

selectively enforce the FPO against SEPTA by seeking only injunctive and collaborative 

remedies. However, even such selective enforcement involves administrative 

investigations and hearings, which may result in cease and desist orders, injunctive 

relief, attorneys‟ fees, and costs for expenses incurred by the Philadelphia Commission 

on Human Relations (“the Commission”). See Phila. Code § 9-1107. The FPO also 

establishes criminal penalties for non-compliance with orders of the Commission. Phila. 

Code § 9-1121(1)-(2). Although these latter proceedings and remedial orders may not 
[J-87-2016] [OAJC: Mundy, J.] - 6

result from a lawsuit or implicate damage awards,

3

they nonetheless present the 

burdens associated with litigation that the General Assembly sought to preclude by 

granting SEPTA sovereign immunity.4The inclusion of a sovereign immunity provision 

in SEPTA‟s enabling statute, in the absence of any other relevant statutory language, 

evinces the legislative will to minimize SEPTA‟s litigation-related burden. The question 

presented in this case is whether the General Assembly intended that Philadelphia 

exercise authority over SEPTA in the manner prescribed by the FPO. Selective 

enforcement or severability of the FPO is impossible because the General Assembly

has either given Philadelphia such authority or it has not.

Even if Philadelphia‟s enforcement of the FPO was limited to prohibitory 

injunctive relief, Philadelphia nonetheless constructively could usurp SEPTA‟s authority 

over its core transportation mission and burden SEPTA substantially. For example, 

SEPTA might plan to change its routing to severely diminish services to a particular 

neighborhood with an unusually high concentration of riders protected by the FPO but 

not protected by the Pennsylvania Human Relations Act (“PHRA”). Absent some legal 

bar, Philadelphia then could seek a prohibitory injunction alleging discrimination based 

upon the disparate provision of services. Under the FPO, Philadelphia, if it prevailed, 

 

3 Such proceedings may fall outside the scope of sovereign immunity. See

Wilkinsburg Police Officers Ass’n v. Commonwealth, 636 A.2d 134, 137 (Pa. 1993) 

(“[S]uits which simply seek to restrain state officials from performing affirmative acts are 

not within the rule of immunity.”).

4 Cf. Dissenting Op. at 8 (“SEPTA is obliged to participate in these processes 

including attendance at mediations and conciliations in furtherance of the relief sought, 

and compliance with investigative subpoenas . . . .”). I do not suggest that sovereign 

immunity extends beyond suits for damages, recovery of property, or mandatory 

injunctive relief. I do conclude, based upon the General Assembly‟s express will that

SEPTA not be subjected to litigation—as evinced by the inclusion of Subsection 

1711(c)(3)—that exempting SEPTA from the FPO is more consistent with the General 

Assembly‟s intent than subjecting SEPTA to the FPO.
[J-87-2016] [OAJC: Mundy, J.] - 7

could obtain an injunction preventing SEPTA from rerouting or rescheduling certain 

buses or trains away from that neighborhood, effectively telling SEPTA how to fulfill its 

mandate.5 Thus, subjecting SEPTA to the FPO would undermine the MTAA. The

MTAA, and particularly its sovereign immunity provision, evinces the General 

Assembly‟s intent to allow SEPTA to avoid litigation, an intent that would be frustrated if 

SEPTA is subjected to the jurisdiction of the Commission under the FPO.

6

The learned Dissent maintains that the PHRA reveals some policy on the part of 

the General Assembly to disfavor all types of discriminatory conduct, not just those 

enumerated in that statute, and that “SEPTA‟s core mission is to provide public 

transportation without engaging in discriminatory conduct.” Dissenting Op. at 9 

(emphasis removed). The Dissent goes on to argue that SEPTA impliedly is prohibited 

 

5

The Dissent notes that an order to correct existing underservice would require a 

mandatory injunction, which clearly would be defeated by SEPTA‟s sovereign immunity. 

Dissenting Op. at 10 n.6. By contrast, the remedy hypothesized above describes a 

prohibitory injunction issued to prevent a diminution in service, a remedy that falls 

outside the realm of sovereign immunity but that necessarily impinges upon SEPTA‟s 

ability to make transportation-related decisions. The same can be said of other FPO 

remedies such as conciliation agreements or cease-and-desist orders.

6

The Dissent contends that I “insist[ ] that SEPTA‟s sovereign immunity makes 

[compliance with the FPO] functionally impossible.” Dissenting Op. at 4. I do not. It is 

entirely possible for SEPTA to be subjected to the FPO. But this is for the General 

Assembly to do by legislation rather than for this Court to do by judicial law-making. 

Nothing precludes the legislature from acting. The General Assembly‟s codification of 

SEPTA‟s sovereign immunity does not suggest any current legislative inclination to 

subject SEPTA to the quasi-litigation scheme imposed by the FPO. Nor do I “attempt[ ]

to expand the protections of sovereign immunity exponentially,” as the Dissent asserts. 

Id. Expansion and contraction are legislative functions. I interpret the law based upon 

the available evidence of the General Assembly‟s intent. I recognize and understand 

the limits of sovereign immunity as discussed by the Dissent. It is emphatically not my 

position that sovereign immunity, in and of itself, expressly prevents application of the 

FPO. Were that my belief, I would join the OAJC, and decide this appeal based upon

the MTAA‟s plain language. I conclude only that the General Assembly did not intend

here to subject SEPTA to the jurisdiction of a Philadelphia administrative body when it 

exempted SEPTA from litigation by conferring sovereign immunity upon it.
[J-87-2016] [OAJC: Mundy, J.] - 8

from discriminating against those classes protected by the FPO but not by the PHRA 

because “[n]o language in any of the relevant legislation suggests an intent by the 

General Assembly to permit SEPTA to engage” in such discrimination. Id. at 10. No 

legal authority supports this prohibition-by-implication approach to statutory 

interpretation. We are bound to glean the General Assembly‟s intent from its words 

when those words are clear. In unmistakable terms, the PHRA protects from 

discrimination only those classes enumerated therein. Expressio unius est exclusio 

alterius.

7

The Dissent correctly interprets my position as “amount[ing] to an assertion that 

the General Assembly intended to require SEPTA to comply with some antidiscrimination laws (i.e., those in the PHRA relating to discrimination based upon, inter 

alia, race, color, religious creed, ancestry, age or sex, 43 P.S. § 956(a)), but to be free 

from any obligation to comply with other anti-discrimination laws (i.e., those in the FPO 

relating to discrimination based upon, inter alia, gender identity or sexual orientation, 

Phila. Code § 9-1103(1)).” Id. at 9-10. I am compelled to draw that conclusion because 

I fail to see how we can take the liberty of inferring any other legislative intent. 

 

7 See Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1223 (Pa. 2002) 

(“[U]nder the doctrine of expressio unius est exclusio alterius, the inclusion of a specific 

matter in a statute implies the exclusion of other matters.”). As Justice Harlan observed 

in the federal context: 

[When] the question relates to matters of public policy . . . Congress alone 

can deal with the subject; [a] court would encroach upon the authority of 

Congress if, under the guise of construction, it should assume to 

determine a matter of public policy . . . . [The opponents of a statute] must 

go to Congress and obtain an amendment . . . if they think [it wrong] . . . . 

[T]his court cannot and will not judicially legislate, since its function is to 

declare the law, while it belongs to the legislative department to make the 

law.

Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 102 (1911).
[J-87-2016] [OAJC: Mundy, J.] - 9

Speaking generally, and relative to the instant context, state action that is not prohibited 

by the federal or state constitution, or by binding statute or precedent, necessarily is 

permitted.8In the PHRA, the General Assembly affirmatively chose to prohibit certain 

types of discrimination while affirmatively declining to prohibit others. 

The deliberation behind the General Assembly‟s conspicuous omission of 

protections for those discriminated against based upon gender identity and sexual 

orientation is thrown into stark and glaring relief when viewed in a national context. 

Numerous other states have enacted legislation that, in relevant part, differs from our 

own PHRA only in the particular that, like Philadelphia‟s FPO and markedly unlike 

Pennsylvania‟s PHRA, these states prohibit discrimination on the basis of gender 

identity and sexual orientation.9 This distinction cannot have been lost upon our 

legislature, which as recently as 2015 has considered and declined to pass proposed 

legislation that would bring Pennsylvania into step with those states that have added the 

 

8 No constitutional claim has been made in this case. Importantly, SEPTA would 

remain subject to federal and state anti-discrimination laws such as Title VII and the 

PHRA, as discussed herein.

9 Unlike Pennsylvania, the following states and the District of Columbia have 

enacted laws that prohibit discrimination based upon sexual orientation and gender 

identity: California (Cal. E. Code § 1101; Cal. Civ. Code § 51 et. cet.), Colorado (C.R.S. 

24-34-402; 24-34-601), Connecticut (Conn. Gen. Stat. §§ 46a-60, 46a-64), Delaware 

(Del. S.B. 121 (2009); Del. S.B. 97 (2013)), District of Columbia (D.C. Code §§ 2-

1402.11, 2-1402.31), Hawaii (Haw. Rev. Stat. §§ 378-2, 489-3), Illinois (775 ILCS 5/2-

102 (2005)), Iowa (Iowa Code §§ 216.86, 216.6a, 216.7 (2007)), Maine (5 Me. Rev. 

Stat. §§ 4571, 4572, 4591, 4592 (2005)), Maryland (Md. S.B. 212 (2014)), 

Massachusetts (Mass. Gen. Laws, ch. 151B, § 4, ch. 272, § 92A (1989)), Minnesota 

(Minn. Stat. §§ 363A.08, 363A.11 (1993)), Nevada (Nev. A.B. 311 (1999); Nev. A.B. 211 

(2011); Nev. S.B. 207 (2009); Nev. S.B. 331 (2011)), New Hampshire (N.H. H.B. 421 

(1997)), New Jersey (N.J. Stat. §§ 10:5-4, 10:5-12), New Mexico (N.M. Stat. Ann. § 28-

1-7), New York (N.Y. S.B. 720 (2002)), Oregon (Or. S.B. 2 (2007)), Rhode Island (R.I. 

Gen. Laws. §§ 11-24-2 , 28-5-7), Utah (Utah S.B. 296 (2015)), Vermont (9 Vt. Stat. § 

4502; 21 Vt. Stat. § 495), Washington (Wash. Rev. Code §§ 49-60-180, 49-60-215 

(2006)), Wisconsin (Wis. Stat. §§ 106.52, 111.321, § 111.322, § 111.36 (1982)).
[J-87-2016] [OAJC: Mundy, J.] - 10

LGBT community to the classes protected against discrimination.10 This Court may not 

override that choice by seeking to improve upon or read into the PHRA what cannot 

fairly be inferred under our rules of statutory construction.11 Absent further 

developments in constitutional or federal law, only our General Assembly has the power 

to align Pennsylvania with Philadelphia and our numerous sister states that have 

chosen to provide legal protections to persons who suffer discrimination on the basis of 

their gender identity or sexual orientation.

Returning to the issue at bar, while subjecting SEPTA to the FPO is at odds with 

the MTAA‟s sovereign immunity provision, prohibiting Philadelphia from exercising 

jurisdiction over SEPTA under the FPO would not upset Philadelphia‟s local authority or 

the purposes of the FPO generally. Philadelphia‟s contention that SEPTA—as the city‟s

largest transportation provider—is a major public accommodation and target of the FPO

is well taken. However, it is hardly the only public accommodation in the city. Our

ruling does not prohibit Philadelphia from enforcing the FPO against any number of 

public and private entities that serve the public. As in Ogontz, where we explained that 

the Commonwealth could effectuate its goal by constructing the mental health facility in 

 

10 See House Bill 1510 (2015) (“Pennsylvania Fairness Act”) (referred to State 

Government Committee) (proposed amendment to PHRA to prohibit discrimination 

based on sexual orientation, gender identity or gender expression); see also Claire 

Sasko, Why Pennsylvania’s Hate Crime Laws Still Lack LGBT Protections, Phila. Mag., 

June 21, 2016, http://www.phillymag.com/news/2016/06/21/pennsylvania-hate-crimelaws/ (reporting that Pennsylvania Fairness Act stalled in the House State Government 

Committee because the majority chairman considered the bill “„dangerous‟ and that 

debate on the issue is „futile‟ because he believes the bill will not win [a legislative] 

majority”) (last reviewed Mar. 22, 2017). 

11 As Justice Oliver Wendell Holmes, Jr. wrote, “[I]f my fellow citizens want to go to 

Hell I will help them. It‟s my job.” Letter from Oliver Wendell Holmes, Jr., to Harold J. 

Laski, (Mar. 4, 1920), in Holmes-Laski Letters, at 249 (Mark DeWolfe Howe ed., vol. 1) 

(1953).
[J-87-2016] [OAJC: Mundy, J.] - 11

a different location, Philadelphia can carry out the purpose of the FPO by enforcing it 

against numerous other individuals and entities located within the city.12

Comparing the consequences of each party‟s proffered interpretation of the 

statutes, SEPTA‟s interpretation more effectively harmonizes the MTAA and 

Philadelphia‟s Home Rule Authority to enforce the FPO. As the OAJC emphasizes, the 

sovereign immunity provision expressly limits any entity from bringing suit against 

SEPTA. Maj. Op. at 17. Although sovereign immunity does not prohibit any and all 

local regulation of SEPTA, in purporting to subject SEPTA to an administrative scheme 

that mimics the rigors of litigation, the FPO contradicts the General Assembly‟s choice 

to immunize SEPTA from suit. 

Finally, like the OAJC, I reject Philadelphia‟s claim that the PHRA waives

SEPTA‟s sovereign immunity as to claims brought under the FPO. It is well-established 

and undisputed that sovereign immunity must be waived specifically by the General 

Assembly, 1 Pa.C.S. § 2310 (“[T]he Commonwealth . . . shall . . . remain immune from 

suit except as the General Assembly shall specifically waive the immunity . . . .”), and 

that we must construe exceptions to sovereign immunity narrowly. See Dean v. Dep’t of 

Transp., 751 A.2d 1130, 1132 (Pa. 2000) (“[T]he exceptions to immunity are to be 

strictly construed.”). Notably, the PHRA specifically waives sovereign immunity for 

claims brought before the Pennsylvania Human Relations Commission (“PHRC”). See 

 

12 I agree with the Dissent that “[t]he aim of the FPO is not to protect some, but 

rather all, Philadelphians from the types of discrimination identified in the ordinance.” 

Dissenting Op. at 10. I agree as well with the Dissent‟s conclusion that the General 

Assembly has “cede[d] local control over the extension of protections against 

discrimination for additional categories of citizens.” Dissenting Op. at 7. Our decision in 

this case will leave all Philadelphians protected by the FPO, including “additional 

categories of citizens”—except when SEPTA is the entity alleged to be discriminating,

because the General Assembly has not ceded local control over SEPTA. Elimination of 

this patent discrepancy is the prerogative of the legislature, not the judiciary.
[J-87-2016] [OAJC: Mundy, J.] - 12

43 P.S. § 954(a) (defining “person” to include “the Commonwealth of Pennsylvania, and 

all political subdivisions, authorities, boards and commissions thereof”); 43 P.S. 

§ 954(b) (defining “employer” to include “the Commonwealth or any political subdivision 

or board, department, commission or school district thereof”). The PHRA also provides 

that “[t]he legislative body of a political subdivision may, by ordinance or resolution, 

authorize the establishment of membership in and support of a Local Human Relations 

Commission,” 43 P.S. § 962.1(a), and that “legislative bodies of political subdivisions 

shall have the authority to grant to local commissions powers and duties similar to those 

now exercised by the [PHRC] under the provisions of [the PHRA].” 43 P.S. § 962.1(d). 

Philadelphia argues that, by granting local authorities “powers and duties similar to 

those” of the PHRC, the General Assembly effectively expanded the PHRA‟s waiver of 

sovereign immunity to the FPO and PHRC. However, the language of Section 962.1 

does not speak specifically to waiver of sovereign immunity. As I read and consider 

Section 962.1, I am unable to discern the specific and clear language required to allow 

for importing the PHRA‟s waiver to the jurisdiction of local authorities. Should the 

General Assembly wish to enact such language, it may do so. We may not engraft such 

language onto a statute that lacks it through an act of judicial fiat.

As I survey the statutory landscape, I do not find the lawmakers‟ express will that 

SEPTA be subject to Philadelphia‟s jurisdiction under the FPO or equivalent local 

regulations. Similarly, I cannot locate any legislative mandate to exempt SEPTA from 

all forms of local regulation. The statutes are ambiguous. Accordingly, to ascertain the 

General Assembly‟s intent, we are constrained to fall back upon our familiar rules of 

statutory construction. Relying upon Ogontz‟s formulation, I conclude that the intent of 

the General Assembly to shield SEPTA from litigation by granting it sovereign immunity

is incompatible with subjecting SEPTA to Philadelphia‟s FPO. On this basis, I would 
[J-87-2016] [OAJC: Mundy, J.] - 13

affirm the order of the Commonwealth Court prohibiting Philadelphia from enforcing the 

FPO against SEPTA.