                           [J-65-2013] [MO:McCaffery, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


SOUTHEASTERN PENNSYLVANIA                     :   No. 20 EAP 2013
TRANSPORTATION AUTHORITY,                     :
                                              :   Appeal from the Order of Commonwealth
                      Appellee                :   Court entered on April 13, 2011 at No. 2445
                                              :   CD 2009, reversing the Order entered on
                                              :   November 10, 2009 in the Court of
              v.                              :   Common Pleas, Philadelphia County, Civil
                                              :   Division at No. 3055 July Term, 2009.
                                              :
CITY OF PHILADELPHIA AND                      :   ARGUED: September 11, 2013
PHILADELPHIA COMMISSION ON                    :
HUMAN RELATIONS,                              :
                                              :
                      Appellants              :


                      CONCURRING AND DISSENTING OPINION


MR. JUSTICE EAKIN                                   DECIDED: September 24, 2014
       I agree with the majority’s holding that SEPTA was not required to exhaust

administrative remedies prior to seeking declaratory and injunctive relief. However, I

would hold it is not subject to the provisions of the Philadelphia Fair Practices Ordinance

or the jurisdiction of the Philadelphia Commission on Human Relations, and I do not

believe the appropriate way to resolve similar conflicts between state agencies and

municipalities is through a test this Court developed, and utilized exclusively, for resolving

competing interests in land use. Accordingly, I dissent as to that aspect of the majority

opinion.

       The majority contends “nothing in the Ogontz[] line of cases, or the reasoning

behind those decisions, suggests that [the Ogontz] analysis is restricted to conflicts over
the applicability of zoning laws.”    Majority Slip Op., at 12.     While Ogontz 1 and its

progeny may not have expressly limited their application to zoning disputes, in each of

those cases, the conflict centered on land-use powers.          See id., at 450; see also

Hazleton Area School District v. Zoning Hearing Board, 778 A.2d 1205 (Pa. 2001);

County of Venango v. Borough of Sugarcreek, Zoning Hearing Board, 626 A.2d 489 (Pa.

1993). To be sure, the test has been couched in broad terms by this Court and others.

However, in the three decades following Ogontz, only one court in this Commonwealth

appears to have actually applied the test outside the context of zoning. See Saucon

Valley School District v. Robert O., 785 A.2d 1069, 1076 (Pa. Cmwlth. 2001).

       In Southeastern Pennsylvania Transportation Authority v. Board of Revision of

Taxes, 833 A.2d 710 (Pa. 2003), we could have — and under the majority’s expansive

reading of the case, should have — invoked Ogontz to resolve whether property SEPTA

leased to private businesses was subject to local property taxes, but we did not. Instead,

we left Ogontz where it began: in the realm of zoning. While the majority claims Board of

Revision of Taxes “is consistent with [its] application of the Ogontz[] test here” because

“[i]n both instances, we have sought to enforce the legislature’s allocation of authority[,]”

Majority Slip Op., at 14, it fails to explain why Ogontz was not discussed, or even

mentioned, in Board of Revision of Taxes if it was not limited to disputes over zoning

ordinances.

       Today, the majority creates the possibility that SEPTA, a multi-state transportation

authority operating in over 100 municipalities across southeastern Pennsylvania, will be

forced to ensure compliance with every anti-discrimination ordinance enacted by a

municipality in which it operates. However, I believe, given the legislature’s decision to

1 Department of General Services v. Ogontz Area Neighbors Association, 483 A.2d 448
(Pa. 1984).




                            [J-65-2013] [MO: McCaffery, J.] - 2
confer upon SEPTA “the public powers of the Commonwealth as an agency and

instrumentality thereof[,]” 74 Pa.C.S. § 1711(a), SEPTA’s role in “performing essential

governmental functions[,]” 2 and the absence of any indication local ordinances

promulgated under the Pennsylvania Human Relations Act were meant to apply to the

Commonwealth, we must assume the legislature intended to foreclose such an absurd

result. Therefore, I see no need to extend the scope of the Ogontz test, and would

instead affirm the judgment of the Commonwealth Court in full.




2 In § 1781, when clarifying SEPTA would not be subject to taxation, the General
Assembly provided:

       The effectuation of the authorized purposes of an authority created or
       continued under this chapter shall and will be in all respects for the benefit
       of the people of this Commonwealth, for the increase of their commerce and
       prosperity and for the improvements of their health and living conditions,
       and, since an authority will, as a public instrumentality of the
       Commonwealth, be performing essential governmental functions in
       effectuating such purposes, such an authority shall not be required to pay
       any taxes or assessments of any kind or nature whatsoever[.]

Id., § 1781.




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