                                 [J-132-2016]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


FRANK ZAMPOGNA,                              :   No. 40 EAP 2014
                                             :
                    Appellee                 :   Appeal from the Order of
                                             :   Commonwealth Court entered on
                                             :   11/27/2013 at No. 1322 CD 2012,
             v.                              :   vacating and remanding the Order
                                             :   entered on 01/24/2012 in the Court of
                                             :   Common Pleas, Civil Division,
LAW ENFORCEMENT HEALTH                       :   Philadelphia County at No. 03927
BENEFITS, INC.,                              :   September Term, 2010.
                                             :
                    Appellant                :   ARGUED: March 10, 2015
                                             :   REARGUED: March 8, 2016
                                             :   RESUBMITTED: October 20, 2016


                                       OPINION


JUSTICE BAER                                           DECIDED: November 22, 2016
      In this discretionary appeal, we are asked to determine the narrow issue of

whether Law Enforcement Health Benefits, Inc. (“LEHB”), a nonprofit corporation that

administers health and welfare benefits to Philadelphia police officers as part of the

union’s collective bargaining agreement, is authorized under the Pennsylvania Nonprofit

Corporation Law (“NCL”), 15 Pa.C.S. §§ 5101-6162, as well as its Articles of

Incorporation, to expend its corporate funds to pay for a postcard sent to its members

endorsing a candidate in a union election. For the reasons that follow, we find that

nothing in the NCL nor the corporation’s Articles prohibited the action at issue and that

LEHB’s action was sufficiently related to its corporate purpose to be permissible.
Accordingly, we reverse the decision of the Commonwealth Court and reinstate the trial

court’s order dismissing the declaratory judgment action against LEHB.

       The facts of this case are not in dispute. The Fraternal Order of Police, Lodge

No. 5 (“FOP”) is a union which represents the interests of Philadelphia police officers in

negotiating the terms and conditions of the officers’ employment with the City of

Philadelphia (“City”).   Relevant to the instant matter, the FOP secured a collective

bargaining agreement with the City, which provides health and welfare benefits to active

and retired FOP members and their families. The agreement, inter alia, created a Joint

Trust and established a Joint Trust Board, which is comprised of five individuals — four

appointed by the FOP president and one appointed by the City — who supervise and

manage the delivery of the FOP’s benefits. As a result of the negotiations between the

FOP and the City, the City is required to pay a specified amount per police officer per

year to the Joint Trust for benefits, and the Joint Trust Board selects the entity to

administer such benefits. At all relevant times, the Joint Trust Board selected LEHB to

administer the benefits. LEHB is a nonprofit corporation specifically incorporated for the

purpose of administering the benefits for the City’s police officers and is controlled by a

Board of Directors (“the Board”).

       As LEHB is a nonprofit corporation, it is governed by the NCL. The NCL requires

nonprofit corporations to be incorporated for a purpose, specified in its articles,

“including, but not limited to, any one or more of the following or similar purposes” listed

in Section 5301(a).1 15 Pa.C.S. § 5301(a); see also id. § 5306(a)(3) (providing that a




1
 Specifically, Section 5301(a) provides:
(…continued)


                                     [J-132-2016] - 2
nonprofit corporation’s articles of incorporation must contain “[a] brief statement of the

purpose or purposes for which the corporation is incorporated”). Consistent with that

mandate, LEHB’s Articles of Incorporation provide, in pertinent part, as follows:

                4. The purpose of the Corporation is:

                (a) to receive, hold, invest, administer, and distribute funds
                to provide health and welfare benefits for, and on behalf of,
                the Corporation’s members (and such members’ eligible
                spouses and dependents), who are the members of the
                Fraternal Order of Police, Lodge No. 5 (a Pennsylvania
                nonprofit corporation) who are eligible to participate in the
                Blue Cross/Blue Shield health insurance plan (or such other
                health insurance plan) that is to be maintained by the
                Corporation for the benefit of such members;
                (b) to engage in such other proper purposes incidental to the
                foregoing;
                (c) to engage in all other proper operations for which
                corporations may be formed and operated under the
                Pennsylvania Not-for-Profit Code.

Addendum to Articles of Incorporation at 1 (Reproduced Record “R.R.” at 232a)

(“Articles”).

(continued…)
                Except as provided in subsection (b) [pertaining to
                insurance], corporations may be incorporated under this
                article for any lawful purpose or purposes, including, but not
                limited to, any one or more of the following or similar
                purposes: athletic; any lawful business purpose to be
                conducted on a not-for-profit basis; beneficial; benevolent;
                cemetery; charitable; civic; control of fire; cultural;
                educational; encouragement of agriculture or horticulture;
                fraternal; health; literary; missionary; musical; mutual
                improvement; patriotic; political; prevention of cruelty to
                persons or animals; professional, commercial, industrial,
                trade, service or business associations; promotion of the
                arts; protection of natural resources; religious; research;
                scientific and social.
15 Pa.C.S. § 5301(a).



                                      [J-132-2016] - 3
         In 2010, Appellee Frank Zampogna, a Philadelphia police officer, campaigned for

FOP President, running against the incumbent FOP President, John McNesby. Leading

up to the election, McNesby informed LEHB that Zampogna had been making

pronouncements to FOP members regarding their medical benefits and the City’s

monthly contributions.2        These pronouncements were          viewed by LEHB as

misrepresentations designed to gain political advantage in the FOP election. 3 Given

this concern, a few weeks before the election, the Board unanimously voted to “respond

appropriately” if “any candidate misstates, misrepresents, or publishes misleading or

false information regarding LEHB or demeans its officers.” Active Directors Meeting

Minutes, 9/7/2010, at 1 (R.R. at 227a).

         Following the Board meeting, and in response to Zampogna’s allegedly false

statements, LEHB mailed postcards to FOP members which, inter alia, endorsed

McNesby in the election, accused “[o]ne of the FOP Presidential candidates” of making

“grossly misleading and deceptive statements” regarding LEHB, and opined that that

candidate “is not competent enough and too inexperienced to lead the FOP and its

14,000 members.” Postcard (R.R. at 222a).4 The cost to mail and print the postcards

totaled $3,840 and was paid out of LEHB’s general funds.            LEHB’s administrator,

Thomas Lamb, stated that McNesby was not involved in the decision to mail the

postcard, and Zampogna did not present any evidence to the contrary.           See N.T.,

1/10/2012, at 57.



2
    The record does not establish the specific content of these statements.
3
    The truthfulness and accuracy of the statements are beyond the scope of this Opinion.
4
    LEHB also included the same message in its newsletter, at no additional cost.



                                      [J-132-2016] - 4
       Six days before the election, in response to the mailing, Zampogna filed an

action seeking declaratory relief barring LEHB from further expending its funds to

endorse a candidate in an FOP election.5 In support of his position, Zampogna argued

that LEHB’s expenditure was in “direct violation” of LEHB’s Bylaws, Articles, and the

NCL.    Zampogna’s Amended Complaint at 7-8 (R.R. at 214-15a).                Additionally,

Zampogna claimed that LEHB’s actions were “unfair” and “an unlawful expenditure of

public funds given solely for medical benefit purposes.” Id. at 5, 8 (R.R. at 212a, 215a).

       While the case was pending, Zampogna lost the election.                  The case

subsequently proceeded to a nonjury trial, and, ultimately, the trial court denied

Zampogna’s request for declaratory relief. The trial court began its review with LEHB’s

Bylaws, which provided the Board with the power to take any action so long as it was

not inconsistent with the Bylaws, the Articles, or the law. The trial court concluded that

neither LEHB’s Bylaws, nor its Articles, prohibited LEHB from making endorsements in

FOP elections. Moreover, the trial court examined Section 5502 of the NCL, which

enumerates the general powers of nonprofit corporations, and determined that

“[n]owhere in [the] statute does it state that corporations are prohibited from engaging in

political activity.” Tr. Ct. Op., 5/22/2012, at 2 (citing 15 Pa.C.S. § 5502). Zampogna

filed post-trial motions, which the court denied, and he appealed, asserting, inter alia,




5
 Zampogna also sought injunctive relief. However, the election occurred while the case
was pending, rendering such relief moot.



                                     [J-132-2016] - 5
that the trial court erred in finding that LEHB’s actions in endorsing a candidate in the

FOP election did not violate LEHB’s Articles, Bylaws, or the NCL.6

       On appeal, a split en banc panel of the Commonwealth Court reversed.

Zampogna v. Law Enforcement Health Benefits, Inc., 81 A.3d 1043 (Pa. Cmwlth. 2013).

The majority acknowledged that the NCL grants a nonprofit corporation the power to

take several actions, including making “contributions and donations,” albeit “subject to

the limitations and restrictions contained in its articles.” Zampogna, 81 A.3d at 1047

(quoting 15 Pa.C.S. § 5502(a)).7 However, the majority disagreed with the trial court

that the action at issue was not restricted by LEHB’s Articles. Instead, the majority

viewed LEHB’s purpose statement as a restriction on its powers, reasoning that any

action taken by the corporation must be sufficiently related to its purpose “to receive,

hold, invest, administer, and distribute funds to provide health and welfare benefits for,

and on behalf of, the corporation’s members (and such members’ eligible spouses and

dependents).” Id. at 1048 (quoting Articles at 4(a)). In the majority’s view, endorsing

6
   Initially, Zampogna appealed to the Superior Court. However, as LEHB is a nonprofit
corporation subject to the NCL, the Superior Court transferred this matter to the
Commonwealth Court because the case fell within that court’s jurisdiction pursuant to
42 Pa.C.S. § 762(a)(5) (granting the Commonwealth Court exclusive jurisdiction over
appeals involving a nonprofit corporation subject to the NCL).
7
    Notably, Section 5502(a) speaks only in terms of limitations and/or restrictions
contained in the law or a corporation’s articles. See 15 Pa.C.S. § 5502(a) (providing
that a nonprofit corporation has broad powers “[s]ubject to the limitations and
restrictions imposed by statute . . . [or] contained in its articles”). However,
15 Pa.C.S. § 5503, the section immediately following Section 5502, refers to a
“limitation upon the business, purposes or powers of a nonprofit corporation, expressed
or implied in its articles or bylaws or implied by law,” indicating that a restriction on the
corporation could be contained in either the articles or the bylaws. Because there is no
purported restriction in LEHB’s Bylaws on the action taken here, and as our analysis
revolves around Section 5502 and not Section 5503, we will not discuss LEHB’s Bylaws
any further.



                                      [J-132-2016] - 6
McNesby was not a direct administration of benefits. To the contrary, the majority

concluded, McNesby was “an individual unrelated to [LEHB’s] purpose,” and, therefore,

mailing the postcard “f[ell] outside of both the Law, and [LEHB’s] Articles of

Incorporation.” Id. at 1049.

      The majority went on to address LEHB’s argument that the endorsement, while

not a direct administration of benefits, was nonetheless authorized pursuant to the

company’s incidental power. See Articles at 4(b) (providing LEHB with the power “to

engage in such other proper purposes incidental to the [administration of benefits].”). In

rejecting this argument, the majority relied on a case from 1916 which stated that a

corporation’s incidental power must be “directly and immediately appropriate to the

execution of the specific power granted, . . . not one that has merely some slight or

remote relation to it.” Id. (quoting Citizens’ Elec. Illuminating Co. v. Lackawanna &

W.V.R. Co., 99 A. 465, 467 (Pa. 1916)). Here, the majority reasoned, “campaigning for

a union presidential candidate is not directly and immediately appropriate to providing

healthcare benefits to the corporation’s Members,” and, thus, it concluded that such

activity cannot fall within the scope of LEHB’s incidental power. Id. at 1049-50.

      Seemingly in contradiction to its finding that McNesby’s election had nothing to

do with LEHB’s corporate functions, the majority noted its belief that the action here was

“suspect” and “egregious” because of the relationship between the FOP president and

LEHB, as the president appoints the members of the Joint Trust Board, which ultimately

selects the company to administer benefits. Id. at 1050. The majority viewed this

construct as creating a conflict of interest for the Board and opined that approving the




                                     [J-132-2016] - 7
endorsement constituted self-dealing, despite the fact that Zampogna’s complaint and

brief to the Commonwealth Court made no allegation of any conflict of interest.

       Finally, the majority summarily concluded that LEHB “would be irreparably

harmed if the Board’s approval of expenditures of public money for partisan activity was

allowed to continue unabated.” Id. at 1051-52. However, the majority did not cite any

authority to support its proposition that LEHB’s funds were public nor did it explain how

the public character of the funds factored into the court’s analysis.       Moreover, the

majority did not develop how an action taken in the context of a private, union election

constituted prohibited “partisan activity.” Nonetheless, the majority held that the trial

court erred in finding the endorsement was within the scope of the Board’s authority.

The Commonwealth Court thus vacated the trial court’s order and remanded for entry of

an order “declaring that the Board’s expenditure of public funds on partisan activity

violates the [NCL], and [LEHB’s] Articles of Incorporation.” Id. at 1052.

       Judge Leavitt filed a dissent, joined by Judge Simpson, contending that the

action taken fell within the broad powers granted to LEHB by the NCL and its Articles.

Zampogna, 81 A.3d at 1052 (Leavitt, J., dissenting). The dissent opined that, contrary

to the majority’s position, “it is a restriction that must be stated in the corporation’s

charter, not the authorization to conduct a specific activity,” and observed that, here,

LEHB’s Articles do not limit LEHB’s ability to endorse candidates in a union election. Id.

at 1055. Rather, the dissent concluded that, because the management of the FOP and

the outcome of the election would directly impact LEHB, endorsing a candidate whom it

determined would best manage the FOP was a permissible use of its incidental power

under its Articles.




                                     [J-132-2016] - 8
         Additionally, the dissent differed with both the majority’s conclusion that the

Board engaged in self-dealing, and its characterization of the funds spent by LEHB as

public funds. With respect to the former, the dissent emphasized that “any act as the

board of directors . . . shall be presumed to be in the best interests of the corporation,”

id. at 1059 (quoting 15 Pa.C.S. § 5715(d)), and noted that Zampogna failed to provide

clear and convincing evidence to rebut the presumption. The dissent also opined that a

board’s action which it deems “will serve the continued existence of the corporation”

does not create a conflict of interest, and that the NCL specifically provides that a

director’s action to retain his position does not constitute self-dealing. Id. at 1060-61

(citing 15 Pa.C.S. § 5715(e)(2)(iv)).         As to the funds paid by LEHB, the dissent

suggested the funds were corporate funds rather than public funds because they had

been paid to LEHB for services rendered, became part of LEHB’s corporate account,

and, thus, had lost their public character.

         Following the Commonwealth Court’s decision, LEHB filed a petition for

allowance of appeal with this Court, which we granted to review whether the

Commonwealth Court erred in determining that LEHB’s action of endorsing McNesby

was not authorized.8



8
    Specifically, we granted to review the following issues:
                 (a) Whether Courts may disregard the vital function of
                 corporate self-governance by second-guessing the decisions
                 of corporate directors and failing to provide the required
                 deference to their decision simply because the court may not
                 agree with the decision?

            (b) Whether a court may simply usurp the role of corporate
            directors by negating the presumption of good-faith to the
            decisions of directors required by law by simply asserting,
(…continued)


                                      [J-132-2016] - 9
       LEHB begins by contending that the Commonwealth Court invalidated a

corporate action simply because the court disagreed with the action. In LEHB’s view,

the NCL grants nonprofit corporations broad powers, including: 1) the ability to make

donations and contributions; 2) “[t]o have and exercise all of the powers and means

appropriate to effect the purpose or purposes for which the corporation is incorporated;”

and 3) to exercise all other powers vested in the corporation by law. 15 Pa.C.S. §

5502(a)(9), (18), (19). Notwithstanding these provisions, LEHB acknowledges that a

nonprofit corporation’s powers are subject to any limitation or restriction imposed by

statute or the corporation’s articles. 15 Pa.C.S. § 5502(a). Accordingly, LEHB argues

that a nonprofit corporation’s action is authorized unless it is prohibited or restricted.

       However, LEHB’s argument does not end with searching for an explicit statement

within the corporation’s Articles or the law prohibiting the action at issue, which was the

view taken by the trial court here. Instead, like the Commonwealth Court majority,

LEHB views its corporate purpose as a restriction contained within its Articles that limits

its powers, conceding that any action it takes must be related to providing benefits for its

members. Notwithstanding its agreement on the relevance of its corporate purpose,

LEHB parts from the Commonwealth Court’s ultimate conclusion, contending that the

(continued…)
            without requiring any proof thereof, a conflict of interest by
            the directors?

              (c) Whether funds, whose original source was a public entity,
              retain their public character once the public entity distributes
              those funds to a private corporation in satisfaction of an
              obligation, and after the private corporation had retained
              those funds as corporate assets, and after that corporation
              utilized the corporate assets for a corporate purpose?

Zampogna v. Law Enforcement Health Benefits, Inc., 99 A.3d 531 (Pa. 2014) (order).



                                      [J-132-2016] - 10
court failed to consider the entire context of LEHB’s action when it determined the

conduct was not related to LEHB’s corporate purpose.

       To that end, LEHB argues that endorsing McNesby was related to enhancing

benefits for its members in two ways. First, LEHB asserts, the FOP President appoints

four of the five members of the Joint Trust Board, which has the capability of removing

LEHB as the selected vendor to administer benefits. Thus, when Zampogna made what

were perceived to be “intentional, material misrepresentations to members” concerning

LEHB’s administration of their benefits, LEHB directors became concerned that

Zampogna would negatively impact the organization if he were elected. LEHB’s Brief at

19. Second, and more importantly, LEHB directors believed that McNesby would be

more efficient than Zampogna in negotiating with the City, which in turn could improve

LEHB’s revenue stream and its ability to provide inexpensive benefits.         For these

reasons, LEHB believes the FOP President is “a matter of direct concern” to LEHB and

concludes that its action in endorsing McNesby was “at the very least, incidental to the

function of [LEHB],” if not directly related. Id. at 20-22. Accordingly, LEHB asserts its

action was sufficiently related to its corporate purpose so as to satisfy the limitation

contained within its Articles.

       Turning to the Commonwealth Court’s discussion regarding the alleged conflict of

interest, LEHB asserts the Commonwealth Court majority erred because it “simply

averr[ed] a conflict of interest” existed “absent any evidence whatsoever” to support

such an averment. Id. at 26. LEHB contends that, pursuant to the NCL, the acts of a

director are “presumed to be in the best interests of the corporation,” and a challenge to

such requires clear and convincing evidence to rebut the presumption.           Id. at 27




                                    [J-132-2016] - 11
(quoting 15 Pa.C.S. § 5715(d)).        LEHB contends that Zampogna “presented no

evidence . . ., let alone clear and convincing evidence” that a conflict of interest existed.

Id. at 27 (quoting Zampogna, 81 A.3d at 1059 (Leavitt, J., dissenting)). Indeed, as

noted previously, Zampogna did not assert a conflict of interest in his pleadings.

       Lastly, LEHB argues the Commonwealth Court majority erred by labeling the

assets used to print and mail the postcards at issue as “public funds.” While LEHB

acknowledges that the funds paid by the City to LEHB originally were public in nature, it

suggests that the funds lost their public character once the City transferred them to the

Joint Trust pursuant to the collective bargaining agreement. Specifically, LEHB opines

that, once the funds leave the City’s possession, the City has met its contractual

obligation of contributing a specified amount of money per FOP member. LEHB notes

that, thereafter, the funds are either received by the Joint Trust, which forwards the

money to LEHB to administer benefits, or the City may pay LEHB directly to reimburse it

for expenses which have already been incurred on behalf of an eligible member. LEHB

emphasizes that, once the funds are placed in the Joint Trust or forwarded directly to

LEHB, they become the private assets of the corporation and, thus, cease to retain their

public character.

       By contrast, Zampogna contends LEHB was not authorized to endorse a

candidate in the FOP election. Zampogna argues LEHB’s Articles do not authorize it to

endorse a candidate as they make clear that LEHB’s sole purpose is to administer

benefits for FOP members and their families.          While the Articles also give LEHB

incidental power, Zampogna maintains that endorsing a candidate in the FOP

presidential election is not incidental to effectuating the payment of benefits.




                                     [J-132-2016] - 12
       For the first time before this Court, Zampogna claims that LEHB’s action was a

conflict of interest because the candidate it endorsed was the then-current FOP

president, who appointed four members of the Joint Trust Board, and, thus, in his view,

the individual in control of the monies going to LEHB which ultimately funded the mailing

endorsing him. Notably, Zampogna does not cite to any evidence of record to support

the assertion that LEHB’s board acted under a conflict of interest, such as testimony

suggesting that McNesby requested LEHB to endorse him. Instead, taking his lead

from the Commonwealth Court’s majority opinion, Zampogna infers a conflict of interest

based on the FOP President’s ability to appoint members of the Joint Trust Board. To

Zampogna, the conflict of interest “is obvious,” and thus he dispenses with the need to

support it. Id. at 36.

       Lastly, Zampogna repeatedly notes his belief that LEHB’s action was a misuse of

public funds. In this vein, Zampogna argues LEHB’s funds have a “publicly designated

purpose” — namely, the payment of benefits for FOP members and their families. Id. at

40.   Consistent with his argument that LEHB’s actions here did not relate to its

corporate purpose, Zampogna also contends that LEHB improperly used public funds

for a non-public purpose. Again, however, Zampogna cites to no relevant corporate law

to support his position that the use of originally “public” funds somehow alters or

heightens our review of whether a nonprofit corporation’s action is authorized.9


9
  The Pennsylvania Public Utilities Commission filed an amicus curiae brief in this
matter, without indicating support for either party. Therein, it described that it is involved
in monitoring ratepayer funds which it deems to be “public funds” and which have been
deposited into four sustainable energy funds in order to ensure that such funds are
being used to promote: “(1) the development and use of renewable energy and clean
energy technologies; (2) energy conservation and efficiency; and (3) renewable
(…continued)


                                     [J-132-2016] - 13
       In this case, we are asked to determine whether a nonprofit corporation’s action

was permitted under the NCL, which is a question of law, for which our standard of

review is de novo and our scope of review is plenary. A.S. v. I.S., 130 A.3d 763, 768

(Pa. 2015). Before analyzing the specific action in question, it is worth reviewing a brief

history of Pennsylvania corporate law.        In the early years of our Commonwealth,

corporations were required to be incorporated for a specific purpose and were limited to

take only those actions that furthered the corporation’s purpose. Malone v. Lancaster

Gas Light & Fuel Co., 37 A. 932, 933 (Pa. 1897). Because of this narrow limitation on

early corporations’ powers, if a corporation’s action was not “fairly considered incidental

or auxiliary to” its corporate purpose, a court could deem the action unauthorized as

beyond the scope of the corporation’s authority (i.e., ultra vires). Id.

       Malone involved the Lancaster Gas Company, chartered for the specific purpose

of “manufacturing and supplying illuminating and heating gas.” Id. When the company

sought to sell gas-consuming appliances, one of the company’s stockholders

challenged the action as outside the company’s authority. This Court determined that

the action was authorized, holding that a corporation may take any action that is not

within the literal terms of the corporate grant so long as it is “at least very convenient” to

the corporation’s purpose.     Id. at 933.    Because selling gas-consuming appliances

would increase the demand for Lancaster’s gas supply, this Court concluded that the

action was sufficiently related to the corporation’s chartered purpose of selling gas.


(continued…)
business initiatives and projects that improve the environment in the companies’ electric
service territories.” Amicus brief at 5-6. Amicus urges this Court not to issue a decision
which would adversely affect its continued audit authority over the funds and its ability to
compel compliance with the foregoing public purposes.



                                     [J-132-2016] - 14
Compare with Citizens’ Electric Illuminating Co. v. Lackawanna & W.V.R. Co., 99 A.

465, 467 (Pa. 1916) (holding that a railroad company was unauthorized to sell excess

electricity the company generated because such action was not “directly and

immediately appropriate” to functioning as a railroad).

      However, around the end of the 19th century and the beginning of the 20th

century, states began to “replace the restrictive set-pattern acts of the 1880s with the

liberal and flexible ‘enabling’ corporation statutes that characterized the twentieth

century.” Harwell Wells, The Modernization of Corporation Law, 1920-1940, 11 U. Pa.

J. Bus. L. 573, 585 (2009). As part of this movement, Pennsylvania enacted its more

liberal Business Corporation Law in 1933. See Act of May 5, 1933 (P.L. 364, No. 106)

(known as the Business Corporation Law of 1933).10 The current language of the BCL,

as amended in 1988, provides that a “business corporation shall have the legal capacity

of natural persons to act,” 15 Pa.C.S. § 1501, and sets forth a broad, non-exhaustive list

of permissible corporate powers. 15 Pa.C.S. § 1502(a) (granting a business corporation

broad corporate powers “[s]ubject to the limitations and restrictions imposed by statute

or contained in its articles”); 15 Pa.C.S. § 1502 Committee Comment--1988 (“The

provisions of subsection (a) are intended to be broad enabling provisions.”).



10
  Our overview begins with the BCL, which in its current form governs only for-profit
corporations. However, at the time of its original enactment in 1933, there was no
separate statute governing nonprofit corporations.         It was not until 1972 that
Pennsylvania enacted the NCL, which provides specific provisions for nonprofit
corporations. Accordingly, we find the history underlying the BCL is relevant to framing
our discussion of the NCL. More importantly, the section of the NCL governing
nonprofit corporate powers indicates it was patterned after the BCL, as discussed in
more detail infra. See 15 Pa.C.S. § 5502, Source Note--1990 (“Patterned after 15
Pa.C.S. § 1502,” which grants statutory powers to for-profit corporations).



                                    [J-132-2016] - 15
       One of the effects of Pennsylvania’s modernized corporate statute is to remove

the requirement that for-profit corporations be incorporated for a specific, limited

purpose; in fact, a business corporation today need not include any purpose statement

in its articles of incorporation. 15 Pa.C.S. § 1301, Committee Comment--1988 (“Under

this section if the articles of a business corporation contain no purpose clause, the

corporation has in effect an all-purpose charter.”). Instead, corporations are permitted

to be incorporated for “any lawful purpose,” id., and, accordingly, can take any type of

corporate action, regardless of its relationship to a corporation’s purpose. 15 Pa.C.S. §

1502, Committee Comment--1988 (“It is intended . . . that the corporate purposes of the

[for-profit] corporation shall be irrelevant.”).

       Because for-profit corporations are no longer limited to taking actions related to

their corporate purposes, the ultra vires doctrine is, in effect, no longer viable to

challenge a for-profit corporate action.           See Kent Greenfield, Ultra Vires Lives! A

Stakeholder Analysis of Corporate Illegality (with Notes on How Corporate Law Could

Reinforce International Law Norms), 87 Va. L. Rev. 1279, 1280 (2001) (explaining that,

today, “the doctrine of ‘ultra vires,’ which limited corporations to certain purposes and

powers, is dead or at least deathly ill”). Rather, a challenge to a corporate action

proceeds in modern jurisprudence under what is known as the business judgment rule,

which embodies the “policy of judicial noninterference with business decisions of

corporate managers,” and insulates corporate directors from “second-guessing or

liability for their business decisions in the absence of fraud or self-dealing or other

misconduct or malfeasance.” Cuker v. Mikalauskas, 692 A.2d 1042, 1046 (Pa. 1997);

see also 15 Pa.C.S. § 1502 Committee Comment--1988 (“Regulation of the exercise of




                                       [J-132-2016] - 16
the powers granted is accordingly intended to come through application of the business

judgment rule under 15 Pa.C.S. § 1721 rather than through the doctrine of ultra vires.

Cf. 15 Pa.C.S. § 1503.”)11

       With these principles of corporate law in mind, we turn to the NCL, as LEHB is a

nonprofit corporation.    Just as the BCL grants to for-profit corporations, the NCL

provides nonprofit corporations with “the legal capacity of natural persons to act.” 15

Pa.C.S. § 5501.     Similarly, the NCL gives nonprofit corporations the same general

powers as the BCL gives for-profit corporations, using nearly identical language. See

15 Pa.C.S. § 5502, Source Note--1990 (“Patterned after 15 Pa.C.S. § 1502,” which

grants statutory powers to for-profit corporations).12 For example, nonprofit corporations

have the authority to “exercise all of the powers and means appropriate to effect the

purpose or purposes for which the corporation is incorporated.”            15 Pa.C.S. §

5502(a)(18). This language is expansive, not restrictive. Additionally, the NCL gives a

nonprofit corporation broad powers, such as the powers “[t]o conduct its business, carry

on its operations,” and “[t]o have and exercise all other powers” otherwise vested in the

corporation by law, “[s]ubject to the limitations and restrictions imposed by statute . . .

[or] contained in its articles.” 15 Pa.C.S. § 5502(a)(15), (19). Accordingly, the NCL

authorizes all nonprofit corporate actions that are not prohibited by the NCL or the

corporation’s articles.

11
   Whether the business judgment rule would apply in this case is irrelevant to our
holding, as we ultimately conclude that the action here was sufficiently related without
giving deference to the Board’s decision. Thus, we discuss this rule merely to establish
generally the level of appropriate court involvement in corporate decisions, which
informs our view of how the NCL should be interpreted.
12
   The only difference is that for-profit corporations have an additional power relating to
acquisitions and take-overs, which are not relevant to nonprofits.



                                    [J-132-2016] - 17
       Although the NCL is similar to the BCL in many ways, notably, nonprofit

corporations are required by the NCL and its regulations to be incorporated for a

specified purpose, as opposed to for-profit corporations, which may be incorporated for

“any lawful purpose.” Compare 19 Pa. Code § 41.4(b) (providing that “[t]he stated

purposes of a nonprofit corporation may not consist of solely a statement to the effect

that its corporate purpose is to engage in all lawful business”), with 15 Pa.C.S. § 1502,

Committee Comment--1988 (“It is intended further that the corporate purposes of the

[for-profit] corporation shall be irrelevant.”).   Accordingly, we find that a nonprofit

corporation’s actions must be related to its corporate purpose. To hold otherwise would

render the requirement that a nonprofit corporation state a corporate purpose other than

“any lawful purpose” meaningless.

       However, the fact that nonprofit corporations have an additional requirement

compared to for-profit corporations does not necessarily mean that we must construe

this requirement narrowly.     In other words, we do not view this requirement as

relegating nonprofit corporations back to the early twentieth century, when every

corporation was limited to taking actions which were directly in furtherance of its

corporate purpose, which, as set forth above, is a limitation that has since been

abandoned. Wells, supra at 585. Instead, we find that this limitation should be broadly

interpreted considering the legal principles expounded above. Additionally, the NCL

itself indicates that this purpose requirement is not meant to be overly restrictive, as it

requires nonprofit corporations to include only a “brief” statement of purpose in their

articles of incorporation.   15 Pa.C.S. § 5306(a)(3).      The applicable statutory and

regulatory provisions contain a non-exhaustive list of broad permissible purposes such




                                     [J-132-2016] - 18
as “athletic,” “charitable,” and “educational.” See 15 Pa.C.S. § 5301(a); 19 Pa. Code §

41.4(a). Moreover, we are guided by the fact that the NCL is patterned after the BCL,

and nothing in the NCL or its regulations place an emphasis on the corporate purpose

distinction between nonprofit and for-profit corporations. Accordingly, we determine that

the purpose statement requirement was not intended to create a marked difference in

how nonprofit corporations are to be governed, as opposed to for-profit corporations.

       For these reasons, we hold that the interplay between a nonprofit corporation’s

corporate purpose and that corporation’s authority to take corporate action must be

construed in the least restrictive way possible, limiting the amount of court interference

and second-guessing, which is reflective of both modern for-profit and not-for-profit

corporations, and the modern corporate business laws that govern them. Thus, we find

that a nonprofit corporation’s action is authorized when: 1) the action is not prohibited by

the NCL or the corporation’s articles; and 2) the action is not clearly unrelated to the

corporation’s stated purpose. See 15 Pa.C.S. § 5502(a)(18) (providing that a nonprofit

corporation may “exercise all of the powers and means appropriate to effect the

purpose or purposes for which the corporation is incorporated” unless restricted by

statute or its articles); 15 Pa.C.S. § 5306(a)(3) (requiring a nonprofit corporation to list a

brief purpose statement in its articles).

       Turning to the facts of the instant case, Zampogna has not pointed us to any

language in the NCL or LEHB’s Articles that prohibited LEHB’s action here. As such,

LEHB’s action is authorized so long as it is not clearly unrelated to its corporate purpose

of administering benefits to its members as set forth in its Articles. Ultimately, we agree




                                      [J-132-2016] - 19
with LEHB that its action was sufficiently related to administering benefits to its

members and, therefore, it was authorized.

       The facts of the instant case exemplify why courts should not act as super-

boards second guessing decisions of corporate directors, as courts are “ill-equipped” to

become “enmeshed in complex corporate decision-making.” Cuker, 692 A.2d at 1046.

At first blush, endorsing a candidate in a union election seems unrelated to the

administration of medical benefits. However, such a simplistic view of the action at

issue here ignores the structure of the CBA between the City and the union and the

effect the union president has over LEHB’s revenue source and its very existence.

Because the union president has a direct impact on LEHB’s ability to function

effectively, endorsing a candidate the corporation believes will better serve its members

is not unrelated to its corporate purpose of administering benefits for its members.

Accordingly, we conclude that LEHB’s action was sufficiently related to the corporate

purpose as set forth in its Articles, rendering the action authorized.

       As we find that LEHB’s action here was authorized, we need not address the

Commonwealth Court’s discussion of LEHB’s alleged conflict of interest, which the court

advanced to justify further its decision to reject the LEHB Board’s action. Moreover, we

recognize that Zampogna did not present any evidence of a conflict of interest nor did

he argue one existed before the trial court or the Commonwealth Court. We agree with

LEHB that by failing to introduce any evidence of a conflict of interest, Zampogna failed

to meet his burden. Accordingly, the record does not support the Commonwealth Court

majority’s determination that the Board’s action here constituted an improper conflict of

interest or self-dealing, and we decline to discuss this issue any further.




                                     [J-132-2016] - 20
       Turning to the “public funds” issue, we note that Zampogna cites to no authority

to support the proposition that the funds at issue here were indeed public funds. To the

contrary, we conclude that the originally public funds lost their public character once the

City paid them to LEHB in fulfillment of its contractual obligation. Specifically, the City

agreed to pay a specific amount of money per police officer to the Joint Trust, not only

to pay for the ultimate healthcare benefit that each police officer receives, but also to

pay for the administration of those benefits. Once the City paid the specified amount to

the Joint Trust pursuant to the collective bargaining agreement, it had fulfilled its

healthcare benefit obligation, rendering the funds no longer within the City’s control. At

that point, the funds were converted from public funds to private moneys in the sole

control of LEHB. As such, there was no legal impediment to LEHB’s use of its own

private moneys under these circumstances.13

       We note that Zampogna’s challenge to LEHB’s endorsement focused on the

mere fact of endorsement, as he did not present any evidence to suggest that the cost

of the endorsement was excessive or resulted in any diminution in benefits to LEHB’s

members. In other words, Zampogna’s complaint is not one asserting corporate waste.

Instead,   Zampogna simply argued         that   the    endorsement was unauthorized.

Accordingly, our inquiry is limited to whether the endorsement itself was authorized and

does not take into consideration the cost of such. Thus, we caution that this decision

does not stand for the proposition that LEHB could spend on endorsements unabated,

as that issue is not before us.


13
  Because we conclude that the funds at issue were private, we do not speak to
whether public funds may be used to endorse candidates in a private, union election.



                                    [J-132-2016] - 21
      For the reasons set forth above, the order of the Commonwealth Court is

reversed, and the matter is remanded for reinstatement of the trial court’s order

dismissing Zampogna’s complaint.

Chief Justice Saylor and Justices Donohue, Dougherty and Mundy join the opinion.

Justices Todd and Wecht file concurring opinions.




                                   [J-132-2016] - 22
