Another day, another twist to the saga of who holds the majority in the Pennsylvania State House.

The Legislative Reference Bureau, a nonpartisan legislative state agency, offered a non-binding legal advisory opinion on Thursday stating that neither the Democrats nor Republicans have a majority of members in the chamber.

Republican House Leader Bryan Cutler (R-Lancaster) requested the opinion from the LRB, created in 1923 for use by the members of the General Assembly, the Governor, and the heads of State agencies.

Peter Klein, associate counsel for the LRB, responded to a question from Cutler’s office that asked “Does the Democratic Caucus hold a majority of seats in the House of Representatives for the 2022-2024 session?”

He answered by saying that “The House Democratic Caucus does not have a majority in the House. The limited case law on this topic suggests that the House Democratic Caucus may only count its 101 living members toward a majority, short of the 102 members necessary for a majority. The House is thereby left without a majority caucus.”

Two court decisions – Zemprelli v. Daniels (1981) and Perzel v. Cortes (2005) – contemplated a living member. The Zemprelli Court makes the point explicit: a member must be “elected, living, sworn, and seated.” The Perzel Court does so implicitly, stating “A deceased individual, regardless of his election victory, simply cannot cast a vote.”

The LRB opinion continued by stating that only a court could overrule the precedent set by the Zemprelli and Perzel decisions.

“Under current law, an individual must at least be elected and living to qualify as a member of a legislative caucus. The Democratic Party won 102 House elections at the November 2022 general election, but the House Democratic Caucus is able to seat only 101 members due to the death of member-elect Anthony DeLuca. The House Democratic Caucus falls short of the 102 members necessary for a majority.”