          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Seda-Cog Joint Rail Authority        :
                                     :
             v.                      :       No. 617 C.D. 2017
                                     :       Argued: April 10, 2018
Carload Express, Inc., Susquehanna   :
Union Railroad Company, and Northern :
Plains Railroad, Inc.                :
                                     :
Appeal of: Carload Express, Inc.     :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION
BY JUDGE SIMPSON                         FILED: May 3, 2018

             Carload Express, Inc. (Carload), a private railroad operator, appeals
from an order of the Court of Common Pleas of Clinton County (trial court) granting
summary judgment in favor of Seda-Cog Joint Rail Authority (Authority) and
denying Carload’s summary judgment motion. The Authority is subject to the
Municipal Authorities Act (Act), 53 Pa. C.S. §§5601-5623. The trial court agreed
with the Authority that a vote of seven of its board members in favor, three against,
and six abstaining was insufficient to award an operating agreement to Carload. On
appeal, we reverse the trial court’s entry of summary judgment in favor of the
Authority, and we remand for entry of summary judgment in favor of Carload.


                                  I. Background
             The Authority owns and maintains rail lines in several Pennsylvania
counties. The Authority contracts with a private railroad operator to provide the
actual freight services on the rail lines. The current operator is Susquehanna Union
Railroad Company (Susquehanna).


              In 2014, the Authority issued a request for proposals (RFP) for a new
operating agreement. The RFP provided for a two-stage selection process. The first
stage was open to all operators desiring to submit proposals. From those initial
proposals, the Authority selected three operators to participate in the second phase.
In the second phase, the Authority evaluated those three operators and assigned point
scores for various criteria. The RFP contemplated that the highest scoring operator
would receive the new operating agreement.


              The Authority’s Board of Directors has 16 members appointed by the
various member counties. Based on their relationships with companies that deal
with Susquehanna in some capacity, six board members voluntarily decided not to
participate in the selection process. The parties disagree whether those members
actually recused themselves or merely abstained from voting.1 In either event, and
of significance, it was clear to all parties throughout the selection process that no
more than 10 votes would be cast in deciding which operator would be awarded the
new operating agreement.


              The Act provides that an authority may take any permitted action upon
the vote of a majority of the members “present” at a meeting, unless the authority’s
bylaws contain a different voting provision. 53 Pa. C.S. §5610(e). The Authority’s

        1
           The minutes of an Authority meeting in August 2014 reflect that the board voted to
accept an “offer of recusal” from the six abstaining members, all of whom abstained from that
vote. Reproduced Record (R.R.) at 1816a.


                                             2
bylaws do not vary from the voting provision of the Act, other than to state that a
majority of the members will constitute a quorum. Reproduced Record (R.R.) at
121a.


             During the selection process, the Authority informed the candidates it
would require the affirmative votes of at least nine board members before awarding
a new operating agreement to any candidate. Thus, knowing that only 10 board
members would be participating, the Authority essentially required nine of 10 votes
to be cast in favor of a new operating agreement. The Authority did not include this
purported requirement in the RFP; nor did it amend either the RFP or its bylaws to
provide specifically for a majority vote of all members of the board in order to award
an operating agreement. However, Carload did not protest this purported vote
requirement when the Authority announced it.


             At the conclusion of the evaluations, Carload had the highest point
score. Susquehanna was second, with just one point fewer than Carload. The
Authority held a meeting attended by all 16 board members. There were seven votes
in favor of awarding the new operating agreement to Carload, three opposed, and six
abstaining. Based on its prior announcement of the nine-vote requirement, the
Authority took the position that no new operating agreement was awarded.


             After Carload protested the Authority’s refusal to award it the new
operating agreement, the Authority filed a civil suit in the trial court, seeking a
declaration that the 7-3 vote was ineffective to award the new operating agreement.
Carload filed a counterclaim seeking declarations that the vote was effective and that



                                          3
the Authority was required to execute a contract awarding Carload the new operating
agreement.2


               Ultimately, the trial court granted summary judgment in favor of the
Authority. This appeal by Carload followed.


                                           II. Issues
               The Act requires a majority vote of the members “present” at a meeting
in order for the Authority to act. 53 Pa. C.S. §5610(e). On appeal,3 Carload contends
the members “present” at a meeting, as that term is used in the Act, include only
those members who actually vote. A quorum of the Authority was 9 members. As
10 members actually voted, and seven votes constituted more than a majority of the
quorum, Carload argues the vote was valid.4 Thus, Carload asserts the 7-3 vote was
effective to award the operating agreement, where all 16 members were in
attendance, but six abstained.

         2
            The Authority named all three of the second phase candidates as defendants in its
complaint. Northern Plains Railroad, Inc., the third place candidate, withdrew its proposal and did
not participate in the lawsuit. Susquehanna concurred with the Authority’s position. Susquehanna
also asserted an alleged ethics violation by one of the voting board members, which is not at issue
in this appeal.

         3
            On appeal from a trial court’s order granting or denying summary judgment, our
standard of review is de novo and our scope of review is plenary. Brewington v. City of Phila.,
149 A.3d 901 (Pa. Cmwlth. 2016). Summary judgment is properly entered only when, “after
examining the record in the light most favorable to the non-moving party, and resolving all doubts
as to the existence of a genuine issue of material fact against the moving party, the moving party
is clearly entitled to judgment as a matter of law.” Pyeritz v. Commonwealth, 32 A.3d 687, 692
(Pa. 2011).

         4
           In a later vote, the Authority voted 5-4 to award the contract to Carload, with the same
six members abstaining. That vote is not at issue in this appeal. Notably, however, five votes also
constituted a majority of the quorum.


                                                4
             The Authority contends Carload is bound by the Authority’s advance
announcement that nine affirmative votes would be required to award the operating
agreement. The Authority did not amend its RFP or its bylaws regarding voting.
However, the RFP contained a general reservation of rights, on which the Authority
relies as empowering it to depart from the normal voting requirements.            The
Authority further asserts Carload is estopped from protesting the nine-vote
requirement because it did not do so at the time the Authority announced it.


             Without regard to whether the challenged vote was valid or invalid,
Carload argues that as the high scorer in the evaluation process, it is entitled to be
awarded the operating agreement in accordance with the criteria and award process
provided by the Authority in its RFP. The Authority, again in reliance on its general
reservation of rights in the RFP, insists it has no obligation to award the operating
agreement.


                                   III. Discussion
                      A. Majority Vote of Those “Present”
                                 1. Common Law
             Under the common law, once a quorum of a body is present, a majority
of those present and voting, also described as a majority of the quorum, may act on
behalf of the body. See, e.g., Dougherty v. Heller, 138 A.3d 611 (Pa. 2016) (the
principle is almost universal that the majority of a quorum may act for the body);
Raynovich v. Romanus, 299 A.2d 301 (Pa. 1973) (the majority of a quorum can
validly act, at common law); Meixell v. Borough Council of Hellertown, 88 A.2d
594 (Pa. 1952) (the majority of a quorum could conduct business).



                                          5
             Importantly, this is true even if, because of abstentions, the majority of
the affirmative votes constitutes only a plurality of the members in attendance.
DiGiacinto v. Allentown, 406 A.2d 520 (Pa. 1979) (number of votes necessary to
take official action does not depend on whether abstaining members choose to attend
meeting, provided a quorum is present; otherwise, member’s choice to attend and
abstain could cause a different result from member’s absence); Meixell (abstaining
members do not count in computing number of votes required to constitute
majority); Ronald H. Brown Charter Sch. v. Harrisburg City Sch. Dist., 928 A.2d
1145 (Pa. Cmwlth. 2007) (under common law, abstaining member cannot demand
that majority vote requirement count that member’s presence); see also McAdoo
Borough v. Pa. Labor Relations Bd., 469 A.2d 693 (Pa. Cmwlth. 1983) (citing
Meixell and Raynovich) (where member of municipal body has personal or
pecuniary interest in matter, neither his vote nor his presence can count toward either
quorum or majority); Cmty. Coll. of Beaver Cty. v. Aliquippa Sch. Dist., 287 A.2d
844 (Pa. Cmwlth. 1972) (those who are unwilling or unable to vote are bound by
majority vote of those who do vote); Commonwealth v. Fleming, 23 Pa. Super. 404
(1903) (members’ presence makes vote decisive and binding whether they actually
vote or not; object of vote cannot be defeated by refusal of any members to vote
when present).


             Carload urges application of the common law rule in this case.


                           2. Municipal Authorities Act
             The Act provides that an authority may act upon the vote of a majority
of the members “present” at a meeting. 53 Pa. C.S. §5610(e). Carload argues



                                          6
abstaining members are not “present” for purposes of determining a majority.
Carload is correct, if the common law applies.


                Prior to 1937, statutes in derogation of the common law were strictly
construed, under the presumption that no change in the common law was intended
beyond what the statute clearly and definitely prescribed. Heaney v. Mauch Chunk,
185 A. 732 (Pa. 1936); Boles’s Estate, 173 A. 664 (Pa. 1934). Under 1 Pa. C.S.
§1928, post-1937 statutes in derogation of the common law are no longer construed
with a presumption in favor of the common law. However, where a post-1937 statute
in derogation of the common law is substantially a reenactment of a pre-1937 statute,
the rule of strict construction will continue to apply. Commonwealth v. Chiappini,
782 A.2d 490 (Pa. 2001); see 1 Pa. C.S. §1962 (“Whenever a statute is repealed and
its provisions are at the same time reenacted in the same or substantially the same
terms by the repealing statute, the earlier statute shall be construed as continued in
active operation …”).


                Here, the Act is a substantial reenactment of a prior statute first enacted
in 1935,5 repealed and substantially reenacted in 1945.6 The current Act is a 2001
codification of the 1945 statute. To the extent the Act’s requirement, in 53 Pa. C.S.
§5610(e), of a majority vote of those “present” is deemed to be in derogation of the
common law, Carload is correct in asserting the statute must be strictly construed
(presumed to follow common law).



        5
            Act of June 28, 1935, P.L. 463, No. 191.

        6
            Act of May 2, 1945, P.L. 382, No. 164.


                                                7
             The critical issue is whether the inclusion of the word “present”
expressly alters the common law rule.


                           3. Similar Statutory Language
             There is a dearth of authority in Pennsylvania addressing the
construction of statutory language like that at issue here. The limited authority that
is available is in apparent conflict.


             In an archaic decision, Commonwealth ex rel. Swartz v. Wickersham,
66 Pa. 134, 136 (Pa. 1870), a statute authorized election of a county superintendent
by a majority of the directors “present.” There were 112 directors in attendance at a
meeting to elect the county superintendent. One candidate obtained 56 votes, the
other obtained 55 votes, and 1 director abstained. Our Supreme Court found the vote
ineffective, despite the fact that one candidate received a majority of the votes cast.
The Court refused to deem the abstaining director “virtually absent,” concluding:
“It would be dangerous to fritter away the express provision of the statute by
construing an actual presence into a virtual absence.” Id. However, in Swartz, the
Court did not discuss the common law; nor did it consider whether statutory
language requiring affirmative votes of a majority of those “present” was sufficiently
specific to supplant the common law. There was also no indication whether the
Court considered or applied any rules of construction in its interpretation of the
statute.


             More than a century later, in Commonwealth ex rel. Bagnoni v. Klemm,
454 A.2d 531 (Pa. 1982), our Supreme Court seemed to take the opposite position,



                                          8
albeit in a discussion not essential to its decision. Under Section 3(b) of the
Pennsylvania Higher Education Assistance Act of 1963,7 “the act of a majority of
the directors present at any meeting shall be deemed the act of the [b]oard .…” Id.
at 534. The Court pointed to this provision as an example of legislative language
“codifying the Common Law Rule, thus requiring only a majority of a quorum ….”
Id. (citing Stoltz v. McConnon, 373 A.2d 1096 (Pa. 1977)). Although Bagnoni did
not specifically address whether “present” should be construed as “present and
voting” under the quoted statute, the common law rule does contemplate that
meaning. Therefore, under Bagnoni, a statute that codifies the common law also
includes that meaning.


                In McAdoo, this Court reached a similar conclusion. Section 1001 of
the former Borough Code8 provided that the borough could act “‘by vote of the
majority of council present at a meeting ….’” Id. at 696 (quoting former 53 P.S.
§46001). This Court found that statutory provision contained no language limiting
the application of the common law. Therefore, we concluded “the common law
maxim that a majority of a quorum may act for a body has not been abrogated by the
General Assembly in The Borough Code.” Id. Like Bagnoni, McAdoo did not
address whether members attending but abstaining were “present” for purposes of
determining a majority of the votes. Nevertheless, this Court, citing Bagnoni,
described the common law as providing “that a majority of those voting in the
presence of a quorum can act for the body.” Id. at 696 n.8 (emphasis added).


        7
            Act of August 7, 1963, P.L. 549, §3(b), as amended, 24 P.S. §5103(b) (Supp. 1982-83).

        8
          Act of February 1, 1966, P.L. (1965) 1656, No. 581, 53 P.S. §46001, repealed by the
Act of April 18, 2014, P.L. 432, No. 37, §3(2).


                                                9
              Thus, both our Supreme Court in Bagnoni and this Court in McAdoo
concluded that statutory language substantially the same as that at issue here did not
abrogate the common law regarding a determination of majority votes.


                         4. Result of Statutory Construction
              There is logic to this conclusion as applied to this case. Here, the six
abstaining members left an Authority meeting on a prior occasion before a vote
relating to the RFP. R.R. at 1824a. On that occasion, the Authority acted based on
a 7-3 vote after the six abstaining members left the room. R.R. at 1827a. However,
based on uncertainty whether that vote was effective, a new vote was taken at a
subsequent meeting. The six abstaining members again left the room, but the
Authority’s solicitor advised it would be “appropriate” to require nine votes to pass
the motion at issue, thus treating the absent members as though they were present
and voting against the motion. R.R. at 1833a-34a.9


              If the Act’s language supplanted the common law, it would ironically
allow the abstaining members to control the outcome of the vote by choosing to
abstain. Such a result is absurd. See DiGiacinto. Assuming the Act’s language was
in derogation of the common law, such an outcome would also be inconsistent with
the requisite strict construction of the statutory language (presumed to follow the
common law).




        9
         When the Authority voted on awarding the new operating agreement, the six abstaining
members elected to remain in the room.


                                             10
                                     5. Holding
             For the foregoing reasons, we conclude that common law voting
principles apply.   Accordingly, this Court finds the Authority’s 7-3 vote was
effective to award the operating agreement to Carload notwithstanding the physical
presence of the six abstaining members.


          B. The Authority’s Pre-Announced Nine-Vote Requirement
             Carload argues the Authority’s announcement that it would require nine
votes to award the operating agreement was ineffective. The Authority counters that
the requirement was within its power. Further, the Authority asserts Carload
acquiesced in the nine-vote requirement and is therefore estopped from challenging
it.


             As discussed above, the Act provides that an authority may take action
based on the vote of a majority of the members present, unless the authority’s bylaws
provide otherwise. Here, the Authority’s bylaws contain no contrary provision.
Therefore, the bylaws as presently constituted do not empower the Authority to
require more than a majority of the votes cast before awarding a new operating
agreement.


             Article VIII of the Authority’s bylaws requires a majority vote of the
members, at a regular or special meeting, in order to amend the bylaws. R.R. at
118a. The bylaws do not contemplate exceptions to the bylaw provisions in the
absence of formal amendments. The Authority has not amended its bylaws. Further,
it has not pointed to any statutory authority for its departure from the normal voting



                                          11
requirements in this one instance. Alteration of voting requirements in the absence
of a formal amendment to the bylaws is not authorized. Accord Beh v. Scranton,
560 A.2d 276 (Pa. Cmwlth. 1989) (overriding a voting provision not consistent with
agency’s enabling statute).


             The RFP likewise contains no provision authorizing a change in the
vote requirement to award the operating agreement. The Authority’s reliance on its
boilerplate reservations of rights in the RFP is unavailing. Where a municipal entity
voluntarily undertakes to follow a specified procedure in awarding a contract, it must
adhere to that process. Lasday v. Allegheny Cty., 453 A.2d 949 (Pa. 1982) (citing
Am. Totalisator Co. v. Seligman, 414 A.2d 1037 (Pa. 1980)). The contract award
process must also be in accord with basic standards of fairness; a municipal entity
cannot disclaim that obligation by a purported reservation of rights to reject any or
all proposals. Id.


             The Authority argues Carload’s failure to object at the time the
Authority announced its intention to apply the nine-vote requirement constituted a
misleading silence that estopped Carload from later asserting the sufficiency of the
seven-vote plurality to award the operating agreement. Contrary to the Authority’s
argument, estoppel offers no basis to prevent Carload from challenging the
unauthorized nine-vote requirement. Estoppel requires not only misleading words
or silence by the party to be estopped, but reasonable reliance on such words or
silence by the party asserting the estoppel. Makoroff v. Pa. Dep’t of Transp., 938
A.2d 470 (Pa. Cmwlth. 2007). Although the Authority asserts it relied on Carload’s
silence, it avers no facts that genuinely support such reliance or demonstrate any



                                         12
detriment suffered as a result. The Authority does not aver it would have scored
Carload’s proposal any differently had Carload questioned the vote requirement in
advance; nor would such an averment have any merit, as principles of fairness would
preclude use of such a criterion as part of the evaluation process. Further, the
Authority does not contend that the 6 members who abstained would have done
otherwise had Carload complained about the purported 9-of-10 vote requirement in
advance. Nor does the Authority suggest that had those members voted, Carload
would not have been awarded the operating agreement.


             Accordingly, this Court concludes that Carload was not estopped from
asserting a challenge to the Authority’s requirement of nine affirmative votes before
awarding the operating agreement.


                    C. Execution of an Operating Agreement
             In its counterclaim, Carload requested a declaration that it is entitled to
an award and immediate execution of an operating agreement with the Authority as
described in the RFP.      The Authority again errs by relying on its purported
reservation of rights in the RFP. As explained above, the Authority, in the RFP,
voluntarily undertook to follow a particular procedure in awarding the operating
agreement. By doing so, the Authority obligated itself to adhere to that procedure
throughout the selection process. Lasday (citing Am. Totalisator). It could not rely
on a boilerplate reservation of rights provision to disclaim that obligation. Id.


             The Authority provided a detailed description in the RFP of the
selection process it would use to award the new operating agreement. The RFP



                                          13
plainly contemplated that the highest scoring proposal would be awarded the
contract. The Authority offered no substantive reason for declining to award the
operating agreement to Carload, which received the highest score under the
Authority’s own scoring process. Notably, the Authority is not permitted to award
the operating agreement to another entity by ignoring its own selection procedure as
mandated by the RFP. See Am. Totalisator (where the Commonwealth failed to
abide by the terms of its own RFP, it lacked discretion to award a contract contrary
to those terms, thus warranting judicial intervention).


             Therefore, we conclude Carload has a legal right to be awarded the
operating agreement.


                                   IV. Conclusion
             The 7-3 vote of the Authority was effective to award the operating
agreement to Carload. Therefore, Carload is entitled to immediate execution of an
operating agreement consistent with the terms contemplated in the RFP.              We
therefore reverse the entry of judgment in favor of the Authority and remand this
matter with a direction to the trial court to enter judgment in favor of Carload.




                                        ROBERT SIMPSON, Judge




                                          14
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Seda-Cog Joint Rail Authority        :
                                     :
             v.                      :      No. 617 C.D. 2017
                                     :
Carload Express, Inc., Susquehanna   :
Union Railroad Company, and Northern :
Plains Railroad, Inc.                :
                                     :
Appeal of: Carload Express, Inc.     :



                                    ORDER

            AND NOW, this 3rd day of May, 2018, the Court of Common Pleas of
Clinton County’s entry of summary judgment in favor of Appellee, Seda-Cog Joint
Rail Authority, is REVERSED. This matter is remanded to the trial court for entry
of summary judgment in favor of Appellant, Carload Express, Inc.


            Jurisdiction is relinquished.




                                       ROBERT SIMPSON, Judge
