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decided: February 24, 1981.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Max Weiner, Ralph Wynder, Jay Newman, Lee Frissell, John Brickhouse, Lloyd Ayres, T. Milton Street, Resident Advisory Board by Nellie Reynolds, Trustee Ad Litem, David Cohen, Mark Cohen, Hardy Williams, Joel Johnson, Ruth Harper, John Anderson, William Gray, III, Edgar Campbell, Joan Krajewski, Lucien Blackwell, Vincent Fumo, Anna Verna, Al Pearlman, John F. Street, David Richardson, James Tayoun, Alijia Dumas and Francis Lynch v. Southeastern Pennsylvania Transportation Authority, No. 4787 June Term, 1980.


Raymond K. Denworth, Jr., with him, Lewis H. Van Dusen, Jr., Nancy Sarah Cohen, and James C. Ingram, Drinker, Biddle & Reath, for appellant.

George D. Gould, with him, John F. Street, David Cohen and Max Weiner, for appellees.

President Judge Crumlish and Judges MacPhail and Williams, Jr., sitting as a panel of three. President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig, MacPhail, Williams, Jr. and Palladino. Opinion by Judge MacPhail. Dissenting Opinion by President Judge Crumlish. Judge Williams, Jr., joins in this dissent.

Author: Macphail

[ 56 Pa. Commw. Page 106]

On June 25, 1980, the Board of the Southeastern Pennsylvania Transportation Authority (SEPTA) adopted a resolution substantially increasing the fares on its commuter rail and transit divisions. On June 30, 1980, one day before the new tariffs were to go into effect, an action seeking to enjoin the implementation of the resolution was filed by twenty-six persons (Appellees herein) in the Court of Common Pleas of Philadelphia. At 6:00 p.m. on June 30, the Honorable Joseph P. Braig entered an order granting a supersedeas enjoining the collection of the proposed tariff increase. SEPTA appealed immediately to this Court where argument was heard by a specially convened panel on July 8, 1980. A majority of that panel affirmed the order of the Court of Common Pleas of Philadelphia and ordered SEPTA to convene a special meeting of its Board not later than 2:00 p.m. on July 11, 1980.*fn1 Appellees herein and SEPTA then petitioned the Pennsylvania Supreme Court for a supersedeas whereupon Justices Nix and Kauffman entered an order denying SEPTA's petition and granting a supersedeas to Appellees as to that part of the order of this Court which directed that a special meeting should be held concerning the fare increase.

At the next regular meeting of SEPTA on July 23, 1980, the Board again adopted the fares by a vote of three-fourths of the membership of the Board. By that action the fares became effective July 25, 1980. Notwithstanding the fact that the new fares have come into existence, SEPTA filed an application for reargument

[ 56 Pa. Commw. Page 107]

    with this Court. That application was granted and oral argument was heard by all judges of this Court sitting as a court en banc.

Although Appellees did not raise or argue the question of mootness, it is SEPTA's position that this case has not been rendered moot by the action of SEPTA's Board on July 23, 1980, which action has not been challenged in the courts. SEPTA urges that this is a case of great public importance, that there is a continuing controversy over the proper interpretation of the statute which governs SEPTA's operation*fn2 and that monetary demands may be made upon SEPTA by virtue of its action in selling transit passes at the higher rate before an injunction was granted. In the past, this Court has held that a technically moot issue may be decided on the merits where a question of important public interest is involved. Union Electric Contracting Co. Appeal, 39 Pa. Commonwealth Ct. 584, 396 A.2d 862 (1979) and Baker Nursing Home, Inc. Appeal, 28 Pa. Commonwealth Ct. 603, 369 A.2d 1336 (1977). We agree with SEPTA that the issue raised in this particular case is of great public importance and should be resolved to avoid future controversy.

The section of the Act which gives rise to the present controversy is Section 18(a) which reads as follows:*fn3

[ 56 Pa. Commw. Page 108]

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 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 ...

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