The Common Law Rule Requiring a Vote of a Full Body to Be Valid
In Di Giacinto v. City of Allentown, 486 Pa. 436, 406 A.2d 520 (1979), our Supreme Court explained the common law rule and the policy reasons behind the common law rule (requiring a vote of a full body to be valid) as follows:
In determining the number of votes necessary for a deliberative body to take official action, Pennsylvania follows the common law rule. Stoltz v. McConnon, 473 Pa. 157, 373 A.2d 1096 (1977); Munce v. O'Hara, 340 Pa. 209, 16 A.2d 532 (1940); see also Commonwealth of Pennsylvania ex rel. Zimmerman v. Kleiman, 485 Pa. 421, 402 A.2d 1343 (1979); Federal Trade Commission v. Flotill Products, 389 U.S. 179, 88 S. Ct. 401, 19 L. Ed. 2d 398 (1967).
Under the common law rule so long as a quorum is present at a meeting, all that is required is that the highest vote be equal to a majority of the quorum number, even though the highest vote constitutes only a plurality of all the legal votes cast.
This is true even if more than the quorum number is present at the meeting.
For example, if there are seven members of a body and four of those members constitute a quorum and attend a meeting, a majority of the four, which would be three, is necessary to take official action of any kind.
Even if all seven members, more than the necessary quorum of four, attend the meeting, the same number of votes, namely three, is all that is necessary to take official action if that is the highest number of votes cast (plurality) in a given matter.
Thus, if the minimum quorum of four is present, and the vote on a particular proposal is 3 in favor and 1 against, the proposal is adopted.
If all seven members of the body attend and the vote on a particular proposal is 3 in favor, 1 against and 3 abstentions, the proposal is likewise adopted by the plurality vote. Cf. United States v. Ballin, 144 U.S. 1, 12 S. Ct. 507, 36 L. Ed. 321 (1892) (statute lawfully enacted where vote in House of Representatives was 138 yeas, 0 nays, and 189 not voting).
Under this common law rule, in a seven-person body, the highest number of votes necessary to take official action is not dependent upon the fortuity of whether 4, 5, 6, or 7 members choose to attend the meeting so long as the minimum quorum number is present.
If the rule were otherwise, a member could attend the meeting and abstain from voting and have a different effect than if that person were absent from the meeting.
The common law rule does not permit a member to attend and abstain from voting and yet demand that the highest number of votes required to take official action be more than if that member had been absent.
This Court has previously observed that a member who attends a meeting and abstains can have the same paralytic effect as one who is absent: "One or a relatively few persons could, by their intentional absence from, or by their presence at a meeting and their failure to vote, or their casting a blank or illegal ballot, block indefinitely an important election or important legislation and thus paralyze government with obviously great harm to the public interest." Meixell v. Borough Council of Borough of Hellertown, 370 Pa. 420, 425, 88 A.2d 594, 596.