No. 82 M.D. Appeal Dkt. 1984, Appeal from Order of the Commonwealth Court Entered on December 5, 1984, at No. 652 C.D. 1984, Pa. Commonwealth Ct. ,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., files a concurring opinion.
In his capacity as Secretary of Transportation and ex officio member of appellee Commission, appellant, Thomas D. Larson, appeals a Commonwealth Court panel's order conferring substantially all the Commission's statutory powers*fn1 upon its Vice Chairman. The power conferred included power over policy matters subject only to veto of the policy decisions by affirmative vote of the Commission's other three sitting members.*fn2 The order would continue
these extraordinary unilateral powers until the Governor nominates and the Senate confirms a person to take the presently vacant fifth seat on the Commission. This broad order was entered by a Commonwealth Court panel on remand from us after we had modified and limited the powers that the lower court in its August 28th opinion had, by implication, previously granted the Commission's Chairman.
This case began on March 5, 1984, when appellant sought an injunction barring the Commission's Chairman from paying bills, hiring personnel or paying personnel hired on or after February 7, 1984, without the prior approval of all three Commissioners then serving. The Chairman*fn3 had unilaterally begun taking such action based on an opinion from the Commission's Chief Counsel advising the Chairman
that he held implied power, ex officio, to manage the day to day affairs of the Commission, including routine hiring and payment of bills. When appellees tried to discover facts and documents they felt were relevant to that issue by deposition and motions for production, appellant moved for a protective order against discovery, claiming his petition posed a pure legal question. After a delay of some months and without the taking of sworn testimony,*fn4 the Commonwealth Court entered an order on August 28, 1984 denying the preliminary mandatory injunction appellant had requested. An accompanying opinion confirmed the Chief Counsel's advice that the Chairman, as Chief Executive Officer under the regulations adopted by the Commission on January 3, 1978, has implied power to pay valid obligations and hire necessary personnel within the Commission's approved complement. Appellant Larson took his first appeal from this opinion and order, which this Court modified on September 12, 1984.*fn5
We then remanded the record to Commonwealth Court for an expedited final determination on the merits. Following remand, the order now before us was entered by the Commonwealth Court panel on cross-motions for summary judgment. In an accompanying opinion the lower court purports to base this latest order on the inherent powers of the Vice Chairman as "chief executive officer" of the Commission during the existence of a vacancy in the office of Chairman and on our decision in Fidelity Bank et al. v. Pa. Turnpike Commission, 498 Pa. 80, 444 A.2d 1154 (1982).
In Fidelity Bank we held, on suit of a trustee, that less than a majority of the Commission's full complement could act in routine matters to protect the Commission and its bondholders from the destructive consequences of a default on its bonds. The record in Fidelity Bank showed that the vacancies then existing on the Commission had reduced it below the three members required by statute for a quorum. Act of May 21, 1937, P.L. 744, No. 211, § 4, as amended July 3, 1974, P.L. 444, No. 154, § 1, 36 P.S. § 652d (Supp.1984-1985). By contrast, the affidavits and other materials available to the lower court on the motions for summary judgment in this record are plainly insufficient to resolve the factual issue of whether the Commission's very existence is threatened by a continuing impasse. We note, however, that the turnpike did not cease operations from March 5, 1984 to August 28, 1984, while Commonwealth Court held this case without action.
When we decided Fidelity Bank, supra, the existence of three vacancies on the Commission made continued functioning in accordance ...