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decided: April 8, 1985.


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.

Author: Hutchinson

[ 507 Pa. Page 473]


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

[ 507 Pa. Page 474]

    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

[ 507 Pa. Page 475]

    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

[ 507 Pa. Page 476]

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 with the statutory requirement of

[ 507 Pa. Page 477]

    three affirmative votes impossible on the very face of the record. During the pendency of the present case, however, the Commission has always had at least three sitting members and now has four. Under these circumstances, the existence of a continuing impasse which threatens basic operations requires evidence*fn6 before a court may delegate the Commission's powers to its Chairman or Vice Chairman, even if we assume that those officials are the persons who should most appropriately exercise the implied powers of an enterprise's chief executive. Such evidence is entirely lacking on the present record.

The Commonwealth Court panel has misinterpreted the breadth of our order in Fidelity Bank, supra. It has also failed to grasp the plain implications of the restrictions contained in our order limiting the powers appellee's Vice Chairman had been exercising on the basis of Commonwealth Court's August 28th opinion.

The judiciary must restrain itself from interference with the more political branches of government in the absence of compelling evidence, and must be particularly wary of imposing broad solutions which remove responsibility from those to whom our statutes have entrusted it, no matter how desirable or efficient that solution may seem. We are, however, mindful of the difficulties and frustrations all the parties to this action have unfairly visited upon Commonwealth Court, as well as the impediments they have put in the path of developing a proper factual record.*fn7

[ 507 Pa. Page 478]

Since the record before us shows factual issues between the opposing parties which preclude final disposition at this time, we remand to Commonwealth Court. That court shall appoint a new panel to hold the further proceedings plainly required to permit a proper determination of whether there is a deadlock among the Commission's members that is likely to continue, and, whether that deadlock threatens the Commission's functions and existence to the extent that it will quickly become unable to meet its obligations to bondholders and the public.

If Commonwealth Court determines those conditions do exist and if that determination is based on substantial evidence on the whole record, judicial intervention to the minimum extent necessary to avoid the Commission's inability to carry out its fiduciary obligations to its bondholders and the general public would be warranted under the general principle that equity will not permit a trust to fail for want of a trustee, in accordance with the specifics of Fidelity Bank, supra, 498 Pa. at 94-95, 444 A.2d at 1162. In the meantime, our order first entered September 12, 1984 will be continued to provide insurance against those grave consequences with minimal judicial intrusion in the Commission's affairs.

The order of Commonwealth Court is reversed, this Court's order of September 12, 1984 is continued in force and effect and the record is remanded to Commonwealth Court for appointment of a new panel and further proceedings consistent with this opinion.


ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Order of the Commonwealth Court is reversed, this Court's Order of September 12, 1984 is continued in force and effect and the

[ 507 Pa. Page 479]

    record is remanded to Commonwealth Court for appointment of a new panel and further proceedings consistent with this opinion.

McDERMOTT, Justice, concurring.

I join the majority because I perceive there are intimations in the opinion that if this bottleneck is not resolved by the legislature that more direct action may be required of this Court.

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