OFFICIAL OPINION No. 10

OFFICIAL OPINION No. 10 Act 112 of June 9, 1972-Statutory Construction Act-Land exchange agree- ment-Department of Env ironmental Resources-Department of 'l'ranspor- tation. 1. Where Act 112 of June 9, 1972 used the ambiguous reference of "Secre- tary" in regards to a land exchange agreement between the Department of Environmental Resources and Department of Transportation, "Secre- tary" must be read as "Secretary of Transportation" in order to avoid an absurd result. 2. Where a statute is susceptible to two interpretations with one being ab- surd and the other complying with the obvious legislative intent, words necessary and proper for interpreting the statute can be added to insure a proper interpretation of the statute. Honorable Jacob G. Kassab Secretary Department of Transportation Harrisburg, Pennsylvania Dear Secretary Kassab: Harrisburg, Pa. January 22, 1973 In an attempt to authorize a land-exchange arrangement be- tween the Pennsylvania Department of Transportation (Penn- DOT) and the Department of Environmental Resources (DER), the Legislature passed Act 112 of June 9, 1972 which provided as follows: AN ACT "Authorizing the Secretary of Environmental Resources with the approval of the Governor, to transfer certain Project 70 lands in Bucks County to the Department of Transportation for a high- way project under certain conditions. "The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows: "Section 1. .... the General Assembly authorizes the Secretary of Environmental Resources with the approv- al of the Governor, to transfer the hereinafter describ- ed land in Newton Township in Bucks County to the Department of Transportation for a right-of-way for construction of Project L.R. 1141 Section AlO involving construction of Newton By-Pass. "Such land shall be free of the restrictions on use and alienation prescribed by section 20 of the act of June 22, 1964 (P.L. 131), known as the Project 70 Land Acquisi- tion and Borrowing Act upon: " ( 1) The Secretary may acquire from any state agency land which the state agency acquired with Pro- ject 70 funds: Provided, however; that (I) the state agency . . . by proper resolution . . . approves such acquisition and (II) suitable substitute land may be acquired by the Secretary and conveyed to the state 22 OPINIONS OF THE ATTORNEY GENERAL agency ... in exchange for the Proj_ect 70 land acquired or if no such suitable land is available, the Secretary sh~ll pay to the state agency ... the fair market value of the land so acquired." DER initially bought the land in ~uestion with federal subsidi- zation under Title VII of the Housmg Act of 1961, as amended, and thereby obligated itself to the federal requirements of Title VII. Such requirements permit a land exchange arrangement of comparable lands but prohibits an outright sale of the land by DER to PennDOT. Consequently, under the feder~ law, the only remaining alternative for PennDOT and DER is to exchange lands of comparable value as contemplated by Act 112. Act 112 of June 9 1972 presents a problem of statutory con- struction inasmuch a~ Section 1 ( 1) uses the designation of "Sec- retary." The statute, however, involves a transaction betwee_n two departments-PennDOT and DER-both headed by their respective Secretary so the usage of the label "Secretary" is am- biguous. The question, therefore, becomes whether the term "Secretary" in Section 1 ( 1) of Act 112 refers to the Secretary of PennDOT or the Secretary of DER. We conclude that the word "Secretary" in Section 1 ( 1) of Act 112 refers to the Sec- retary of Transportation and must be so constructed. If "Secretary" in Section 1 ( 1) refers to the Secretary of DER, the statute would, in essence, provide that DER is authorized to transfer certain delineated lands to PennDOT for highway con- struction upon DER land either 1) paying itself for the land, or 2) obtaining other suitable land and transferring it back to itself. If "Secretary" in Section 1 ( 1) refers to the Se<:retary of Penn- DOT, the statute would, in essence, provide that DER is author- ized to transfer certain delineated lands to PennDOT for high- way construction upon PennDOT either 1) paying DER for the land, or 2) obtaining other suitable land and transferring it to DER. The former interpretation is tautological and absurd; the latter conforms with the obvious legislative intent. Although the legislative intent in Act 112 is obvious, question is raised whether or not words which were inadvertantly omitted in a statute can be supplied under the ordinary rules of statu- tory construction. Both Legislature and the Pennsylvania Su- preme Court have answered this question in the affirmative. The recently enacted Statutory Construction Act provides as follows: "Words and phrases which may be necessary to the pro- per interpretation of a statute and which do not conflict with its obvious purpose and intent, nor in any way af- fect its scope and operation, may be added in the con- struction thereof." Section 1923 ( c) of the Statutory Construction Act This same principle was enunciated by Justice Drew more force- fully in Commonwealth v. Peoples, 345 Pa. 576 ( 1942) : OPINIONS OF THE ATTORNEY GENERAL "In construing a statute, it should receive the most rea- sonable and beneficial interpretation ... [A]nd when 'necessary ... to effectuate (a plain) Legislative intent ... additional ... words [may be] interpolated."" 345 Pa. at 580 23 The instant statute is susceptible to two interpretations: one having the Secretary of DER transferring land to PennDOT in return for the right to transact a land exchange with himself and the other having the Secretary of DER transferring land to Penn- DOT in exchange for PennDOT returning comparable land to DER. Given this situation the ordinary rules of statutory con- struction dictate that the missing words can be added and "Sec- retary" in Section 1 ( 1) of Act 112 of June 9, 1972 must be read as meaning "Secretary of Transportation." Very truly yours, RICHARD J. ORLOSKI Deputy Attorney General ISRAEL P ACKEL Attorney General