                          [J-87-2016] [OAJC: Mundy, J.]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT


SOUTHEASTERN PENNSYLVANIA                   :   No. 10 EAP 2016
TRANSPORTATION AUTHORITY,                   :
                                            :   Appeal from the Order of the
                    Appellee                :   Commonwealth Court at No. 2445 CD
                                            :   2009 filed 8/7/2015 reversing and
                                            :   remanding the Order, dated 11/10/2009
             v.                             :   in the Court of Common Pleas,
                                            :   Philadelphia County, Civil Division at
                                            :   No. 03055, July Term, 2009
CITY OF PHILADELPHIA AND                    :
PHILADELPHIA COMMISSION ON                  :   ARGUED: September 13, 2016
HUMAN RELATIONS,                            :
                                            :
                    Appellants              :


                                 DISSENTING OPINION


JUSTICE DONOHUE                                             DECIDED: April 26, 2017

      In my view, proper application of the two-part test set forth in Commonwealth,

Dep’t of Gen. Servs. v. Ogontz Area Neighbors Ass’n, 483 A.2d 448 (Pa. 1984), reveals

the Legislature’s intent to subject SEPTA to the jurisdiction of the Philadelphia

Commission on Human Relations (“Philadelphia Commission”) and to the Philadelphia

Fair Practices Ordinance (“FPO”). The opinion announcing the judgment of the Court

(“OAJC”), pursuant to its interpretation and analysis of Ogontz’s first analytic prong,

reaches a contrary conclusion. Justice Wecht, based upon an analysis of Ogontz’s

second analytic prong, also finds that SEPTA is exempt from the anti-discrimination

provisions of the FPO. Both the OAJC and Justice Wecht’s Concurrence reach their

conclusions based upon SEPTA’s sovereign immunity, but in so doing overstate the
scope and breadth of the protections that sovereign immunity provides.            Properly

understood, sovereign immunity poses no obstacle to subjecting SEPTA to the

jurisdiction of the Philadelphia Commission in all cases not seeking monetary damages

or mandatory injunctive relief.1 Accordingly, I respectfully dissent.

       I join in Justice Wecht’s discussion of the analytic framework required by Ogontz.

Ogontz’s first analytic prong requires the Court in this case to look to the language of

the Metropolitan Transportation Authorities Act (“MTAA”) and the First Class City Home

Rule Act (“Home Rule Act”) – SEPTA’s and the Philadelphia Commission’s enabling

statutes, respectively – to determine whether either contains an express statement that

one entity or the other has priority in the event of a conflict. Concurring Op. (Wecht, J.)

at 3. As the Concurrence explains, no express statement exists in either act, making

the first prong of the Ogontz test inconclusive. Id.

       I likewise agree that the OAJC’s examination of the first prong erroneously

extended beyond consideration of the enabling legislation to the statutory language of

the Pennsylvania Human Relations Act (“PHRA”). 43 P.S. § 954(b). Moreover, and

more importantly, I disagree with the OAJC’s analysis of that statutory language.

Pursuant to the MTAA, SEPTA is a Commonwealth agency and has sovereign

immunity.   74 Pa.C.S.A. § 1711(a), (c)(3).      As a Commonwealth agency, however,

SEPTA has no sovereign immunity with respect to compliance with the PHRA. 43 P.S.

§ 954. SEPTA is thus within the jurisdiction of the Pennsylvania Human Relations

Commission (“PHRC”) and subject to the PHRA’s anti-discrimination provisions, which

1
   A mandatory injunction commands the performance of some positive act while a
prohibitory injunction enjoins the performance of an act. See generally Mazzie v.
Commonwealth, 432 A.2d 985, 988 (Pa. 1981).



                            [J-87-2016] [OAJC: Mundy, J.] - 2
forbid various forms of discrimination, including discrimination based upon race, color,

religious creed, ancestry, age, sex, national origin or non-job related handicap or

disability.   43 P.S. §§ 955, 956(a).     In contrast, the FPO provides additional anti-

discrimination protections, including, inter alia, discrimination based upon gender

identity, sexual orientation, ethnicity or marital status. Phila. Code § 9-1103(1).2

        According to the OAJC, “[s]ection 954 is an explicit expression of the legislature’s

intent to grant the State Commission exclusive jurisdiction over Commonwealth

agencies in anti-discrimination matters.” Id. I cannot agree, as in my view an “explicit

expression” of the legislature’s intent for the PHRC to have exclusive jurisdiction over

Commonwealth agencies in anti-discrimination matters would include some language to

that effect. The PHRA does not provide for the exclusive jurisdiction of the PHRC in

anti-discrimination matters involving Commonwealth agencies. If the legislature had so

intended, it could have said, simply, “the PHRC has exclusive jurisdiction over

Commonwealth agencies in anti-discrimination matters,” or words to that effect. It did

not do so. A directive that Commonwealth agencies are subject to the jurisdiction of the

PHRC does not imply that they are not subject to the jurisdiction of any other tribunals.

The totality of legislative intent in this regard is that SEPTA, as a Commonwealth

agency, must comply with the PHRA. That point, however, is neither controversial nor

relevant to whether SEPTA is also subject to the jurisdiction of the Philadelphia

Commission.



2
   The Home Rule Act grants broad powers to Philadelphia to legislate with respect to its
municipal functions. See 53 P.S. §§ 13101-13157. It is not contested that Philadelphia
is permitted to legislate in the field of anti-discrimination law.



                             [J-87-2016] [OAJC: Mundy, J.] - 3
         Ogontz’s second analytic prong requires the Court to assess the consequences

of subjecting SEPTA to the FPO and, conversely, of prohibiting the Philadelphia

Commission from enforcing the FPO against SEPTA.            With respect to subjecting

SEPTA to compliance with the FPO, Justice Wecht’s Concurrence insists that SEPTA’s

sovereign immunity makes this functionally impossible. Concurring Op. (Wecht, J.) at 3.

The Concurrence bases this conclusion on an extremely broad view of the scope of the

protections afforded by sovereign immunity.      This Court has repeatedly held that

sovereign immunity acts as a shield against lawsuits in two discrete circumstances:

those seeking money damages or the recovery of property, and those requesting

mandatory injunctive relief to compel affirmative actions. See, e.g., Fawber v. Cohen,

532 A.2d 429, 433-34 (Pa. 1987). Conversely, sovereign immunity does not shield

Commonwealth agencies from lawsuits seeking declaratory relief or prohibitory

injunctive relief, Legal Capital, LLC, v. Medical Prof. Liab. Catastrophe Loss Fund, 750

A.2d 299, 302-03 (Pa. 2000), or bar actions in mandamus to require a state agency to

perform a ministerial or mandatory statutory duty. Finn v. Rendell, 990 A.2d 100, 105

(Pa. Commw. 2010); Kee v. Pa. Tpk. Comm’n, 685 A.2d 1054, 1059 (Pa. Commw.

1996).

         Justice Wecht, however, attempts to expand the protections of sovereign

immunity exponentially, contending (without citation to any statutory language) that the

General Assembly, in providing SEPTA with sovereign immunity, intended to shelter

SEPTA from having to incur “financial and temporal costs of litigation.” Concurring Op.

(Wecht, J.) at 5.    According to the Concurrence, the legislative intent in granting

sovereign immunity to SEPTA was to shield it from the rigors of discrimination litigation




                            [J-87-2016] [OAJC: Mundy, J.] - 4
generally, outside of the PHRC context. Id. at 7 n.3 (stating that the General Assembly

indicated its “express will that SEPTA not be subjected to litigation”). The Concurrence

thus claims that SEPTA’s protection from complaints brought before the Philadelphia

Commission for alleged violations of the FPO must be complete, and thus to effectuate

the “legislative will to preclude subjecting SEPTA to local administrative proceedings of

whatever nature,” Justice Wecht concludes that the Philadelphia Commission may not

be permitted to exercise jurisdiction over SEPTA at all – including jurisdiction over

claims for which SEPTA’s sovereign immunity offers it no protection. Id.

       The Concurrence’s legislative intent argument rests on an extremely broad view

of the protections afforded by sovereign immunity, and one not grounded in our prior

decisions defining the scope of the doctrine. Contrary to Justice Wecht’s contention, a

grant of sovereign immunity carries no concomitant privilege to be free of all costs of

litigation. It is true that in cases that fall within the protections of sovereign immunity,

litigation expenses may be kept to a minimum, as these claims may be dismissed at the

outset. Justice Wecht cites to two such cases: Games Int'l, Inc. v. Com., 66 A.3d 740

(Pa. 2013) and Mullin v. Commonwealth, Dept. of Trans., 870 A.2d 773 (Pa. 2005).3

The Concurrence cites to no Pennsylvania case, however, holding that sovereign

immunity protects its holder from the “financial and temporal costs of litigation” in cases

where the doctrine does not provide its holder with immunity from suit.


3
  The Concurrence also cites to a Commonwealth Court decision, Stackhouse v. Com.,
Pennsylvania State Police, 892 A.2d 54 (Pa. Commw. 2006), that involved a request for
declaratory relief. The trial court dismissed it on preliminary objections based upon
sovereign immunity. The Commonwealth Court affirmed, concluding that the request
for a declaration of rights was sought only to provide “the legal predicate for a damage
or other immunity-barred claim.” Id. at 62.



                            [J-87-2016] [OAJC: Mundy, J.] - 5
      The Concurrence likewise directs us to no statutory language in the MTAA

stating, or even suggesting, that by granting sovereign immunity, the legislature also

intended to preclude local administrative bodies from exercising jurisdiction over

SEPTA. Section 1171(c)(3) of the MTAA, the provision granting sovereign immunity to

SEPTA, provides no exclusions from the jurisdiction of any tribunal, including but not

limited to no exclusions from the jurisdiction of local administrative bodies like the

Philadelphia Commission. Without any mention of any jurisdictional exceptions, section

1171(c)(3) merely states that authorities created under the MTAA and their members,

officials, officers and employees “shall continue to enjoy sovereign and official

immunity.”   74 Pa.C.S. § 1171(c)(3).      The grant of sovereign immunity is entirely

irrelevant to the issue of whether the PHRC has exclusive jurisdiction over

Commonwealth agencies like SEPTA.4

      Justice Wecht also contends that the General Assembly’s decision not to amend

the PHRA to include anti-discrimination protections for, inter alia, gender identity and

sexual orientation, at the state-wide level evinces a legislative intent not to require

Commonwealth agencies to comply with local regulations that do contain these

4
   Sovereign immunity is an affirmative defense to liability, and by rule it must be raised
in new matter. Pa.R.C.P. 1030; Brimmeier v. Pennsylvania Tpk. Comm'n, 147 A.3d
954, 960 (Pa. Commw. 2016). Importantly, the availability of sovereign immunity as a
defense does not go to the jurisdiction of the tribunal. Chem. Nat. Res., Inc. v. Republic
of Venezuela, 215 A.2d 864, 867 (Pa. 1966) (“Sovereign immunity is in the nature of an
affirmative defense; (a) it does not go to jurisdiction and (b) it can be waived.”). When a
plaintiff asserts a cause of action that falls within a defendant’s sovereign immunity
defense, the tribunal does not lack personal jurisdiction over the defendant or subject
matter jurisdiction over the defendant’s claim. Instead, the tribunal must dismiss the
claim because, as a matter of law, the defendant is immune from liability for the cause
of action in question. Justice Wecht’s conclusion that the availability of the sovereign
immunity defense implicates a tribunal’s jurisdiction is contrary to these well-established
principles.



                            [J-87-2016] [OAJC: Mundy, J.] - 6
protections. This reliance on the General Assembly’s silence, however, is misguided,

as it reflects nothing more than the legislature’s intention to cede to local control over

the extension of protections against discrimination for additional categories of citizens.

In declining to amend the PHRA, the legislators were well aware that local ordinances

providing   additional   anti-discrimination   protections   existed   in   various   political

subdivisions throughout Pennsylvania, including in Philadelphia.             If the General

Assembly had any intention to preclude Commonwealth agencies from abiding by such

protections in local ordinances, or to confer to the PHRC exclusive jurisdiction over

Commonwealth agencies with respect to anti-discrimination matters, it certainly could

have amended the PHRA to do so.5 Instead, the General Assembly has not passed

any legislation usurping the power of political subdivisions to enact and enforce anti-

discrimination provisions beyond those set forth in the PHRA.

       The only legislative intent that may be properly gleaned from SEPTA’s grant of

sovereign immunity is that the legislature intended for SEPTA to enjoy the recognized

legal protections associated with a grant of sovereign immunity. Contrary to Justice

Wecht’s concerns about SEPTA’s ability to provide transportation services if it is

compelled to submit on occasion to the jurisdiction of the Philadelphia Commission, no

serious conflict exists. The FPO provides that actions are instituted by the filing of a

5
   Other states have done so. See, e.g., Ark. Code Ann. § 14-1-403 or A.C.A. § 14-1-
403 (“A county, municipality, or other political subdivision of the state shall not adopt or
enforce an ordinance, resolution, rule, or policy that creates a protected classification or
prohibits discrimination on a basis not contained in state law.”); Tenn. Code Ann. § 7-
51-1802 or T.C.A. § 7-51-1802 (“No local government shall by ordinance, resolution, or
any other means impose on or make applicable to any person an anti-discrimination
practice, standard, definition, or provision that shall deviate from, modify, supplement,
add to, change, or vary in any manner from … types of discrimination recognized by
state law but only to the extent recognized by the state.”).



                            [J-87-2016] [OAJC: Mundy, J.] - 7
complaint, to which the respondent files a written answer. Phila. Code § 9-1112-13.

When a complaint is filed against SEPTA that includes claims for money damages or

mandatory injunctive relief, SEPTA may assert its sovereign immunity in its answer – at

which time all such claims must be immediately dismissed. For claims that do not seek

money damages or mandatory injunctive relief, however, SEPTA’s sovereign immunity

provides no protection.    With respect to these claims, the FPO provides that the

Philadelphia Commission may perform an investigation, hold hearings, conduct

mediations or conciliations, and order non-monetary relief, including the issuance of

cease and desist orders to prohibit SEPTA from engaging in conduct that is unlawful

under the FPO. Phila. Code §§ 9-1105-1118. In this regard, SEPTA is obliged to

participate in these processes, including attendance at mediations and conciliations in

furtherance of the relief sought, and compliance with investigative subpoenas issued by

the Philadelphia Commission.      Phila. Code §§ 9-1113-1116.       Sovereign immunity

provides no bar against SEPTA’s involvement in these FPO proceedings, including no

shield against cease and desist orders, administrative investigations, or mediations and

conciliations. SEPTA likewise has no sovereign immunity protection against the costs

and expenses of participation in such litigation, including its attorneys’ fees and costs

associated therewith.

      Having concluded that SEPTA is not immune from all FPO litigation, the

comparison of consequences resulting from subjecting SEPTA to the jurisdiction of the

Philadelphia Commission, or, conversely, of exempting it from compliance with the

FPO, weighs strongly in favor of allowing the Philadelphia Commission to exercise

jurisdiction over SEPTA. The only consequence of subjecting SEPTA to the jurisdiction




                           [J-87-2016] [OAJC: Mundy, J.] - 8
of the Philadelphia Commission is that it places SEPTA and the Philadelphia

Commission on equal footing in lawsuits seeking available relief. SEPTA has the right

to due process in proceedings before the Philadelphia Commission, including the right

to present a defense to all allegations of wrongdoing. SEPTA also has the right to seek

judicial review from orders of the Philadelphia Commission to any court of competent

jurisdiction within thirty days of their entry. Phila. Code §§ 9-1105-1119.

       Moreover, subjecting SEPTA to the jurisdiction of the Philadelphia Commission

does not interfere with its core transportation mission. SEPTA’s core mission is not

merely to provide public transportation. As explained hereinabove, while the General

Assembly granted SEPTA sovereign immunity, it also waived that grant of immunity with

respect to compliance with the anti-discrimination provisions of the PHRA. See supra at

2-3. Accordingly, legislative intent reflects that SEPTA’s core mission is to provide

public transportation without engaging in discriminatory conduct.                Requiring

SEPTA to comply with the FPO is thus entirely consistent with its core mission. In this

regard, I cannot agree with the Concurrence’s contention that it was the General

Assembly’s intent to preclude SEPTA from any participation in litigation of the type

envisioned by the FPO. Such a contention amounts to an assertion that the General

Assembly intended to require SEPTA to comply with some anti-discrimination laws (i.e.,

those in the PHRA relating to discrimination based upon, inter alia, race, color, religious

creed, ancestry, age or sex, 43 P.S. § 956(a)), but to be free from any obligation to

comply with other anti-discrimination laws (i.e., those in the FPO relating to

discrimination based upon, inter alia, gender identity or sexual orientation, Phila. Code §

9-1103(1)). No language in any of the relevant legislation suggests any intent by the




                            [J-87-2016] [OAJC: Mundy, J.] - 9
General Assembly to permit SEPTA either to engage in the types of discrimination

specified in the FPO or to avoid litigation in connection therewith. SEPTA has offered

no basis on which to conclude that while it can fulfill its core public transportation

mission in compliance with the PHRA (and incurring associated litigation costs), it would

be unable to do so if required to comply with the incremental additional anti-

discrimination provisions of the FPO.6

      On the other hand, serious consequences result from holding that SEPTA is

exempt from the FPO, as the interests of entire classes of individuals otherwise

protected by the FPO will have no protection from various forms of discrimination by

Philadelphia’s largest transportation provider.   The Concurrence’s position that this

consequence is substantially mitigated because Philadelphia can carry out the purpose

of the FPO by “enforcing it against other individuals and entities,” Concurring Op.

(Wecht, J.) at 7, misses the mark. The aim of the FPO is not to protect some, but rather

all, Philadelphians from the types of discrimination identified in the ordinance.

Exempting SEPTA from the jurisdiction of the Philadelphia Commission and compliance

with the FPO will interfere with the accomplishment of this purpose.

      For these reasons, I dissent.

      Justices Todd and Dougherty join this Dissenting Opinion.

6
   I likewise find unpersuasive the Concurrence’s assertion that compliance with the
FPO would interfere with SEPTA’s core mission because the Philadelphia Commission
could, hypothetically, assert a claim alleging discrimination on the basis that a
neighborhood with a population of members of a protected class is underserved and
then issue, as a remedy, a prohibitory injunction preventing SEPTA from re-routing
buses or trains to or from that neighborhood. Concurring Op. (Wecht, J.) at 7-8. An
order as hypothesized by the Concurrence, i.e., to correct existing underservice to a
particular neighborhood by re-routing service would require a mandatory injunction and
would be defeated by SEPTA’s sovereign immunity, if asserted.



                          [J-87-2016] [OAJC: Mundy, J.] - 10
