Drinker, Biddle & Reath, Lewis H. Van Dusen, Jr., Edward M. Posner, Timothy C. Russell, Philadelphia, for appellants.
Kohn, Savett, Marion & Graf, Harold E. Kohn, Robert A. Swift, Philadelphia, for appellees.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., took no part in the consideration or decision of this case. Roberts, J., filed a concurring opinion. Pomeroy, J., filed a dissenting opinion.
The Southeastern Pennsylvania Transportation Authority [SEPTA] was created pursuant to the Metropolitan Transportation Authorities Act of 1963 [MTAA], Act of August 14, 1963, P.L. 984, § 1 et seq., 66 P.S. § 2001 et seq. (Supp.1976-77), in order to establish, develop, and maintain an integrated mass transportation system for the Philadelphia metropolitan area. The authority is governed and administered by a 11-member transportation board consisting of two appointed representatives of the City of Philadelphia, two appointed representatives of each of four suburban counties -- Bucks, Chester, Delaware, and Montgomery -- and one representative appointed by the Governor of Pennsylvania. See sections 15 and 16 of MTAA, 66 P.S. §§ 2015, 2016 (Supp.1976-77). These consolidated actions arose out of a continuing dispute among members of the SEPTA board and raise a single question, the number of affirmative votes necessary to enable the board to adopt resolutions and thus validly transact the business of the authority.
At issue is the construction of section 18(a) of MTAA, 66 P.S. § 2018(a) (Supp.1976-77), which provides in its entirety:
"Regular meetings of the board shall be held in the metropolitan area at least once in each calendar month except July or August, the time and place of such meetings to be fixed by the board. A majority of the board shall constitute a quorum for the transaction of business. All action of the board shall be by resolution Page 161} and the affirmative vote of a majority of all the members shall be necessary for the adoption of any resolution : Provided, however, That no action by the board to which an express objection has been made, pursuant to this section, 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. In case of disagreement between members representing the same county, each member shall be deemed to represent one-half of the population of that county." [Emphasis added.]
The underlying facts are undisputed.
During a meeting of the board held on November 27, 1974, two budgetary resolutions were moved, and the vote on each was five yes, four no, and one abstaining, with one absent. Over the objections of Harold E. Kohn, Esq., the Governor's appointee, the chairman, James C. McConnon, declared the resolutions carried. During a meeting of the board held on December 18, 1974, resolutions were moved which would have authorized the payment of certain legal fees, authorized an accounting firm to make certain audits, and authorized the general manager of SEPTA to submit applications for certain federal grants. The vote on each resolution was five yes and four no with two absent, having left the meeting earlier. Again, over Mr. Kohn's objections, the chairman declared the resolutions carried.
On December 30, 1974, Mr. Kohn, together with three other members of the board, filed a complaint in equity in the Court of Common Pleas of Philadelphia against chairman McConnon, the general manager, and the controller and treasurer of SEPTA asking that the ...