Pa. Rest. & Lodging Ass'n v. City of PittsburghPa. Rest. & Lodging Ass'n v. City of Pittsburgh
Lead Opinion
*815Pennsylvania long has sought to balance carefully the time-honored prerogatives of local governance with the countervailing state interest in providing a hospitable environment for commercial activity. In its recent enactment of two ordinances that impose certain obligations upon local businesses, the City of Pittsburgh approached the fulcrum between these competing priorities. The Paid Sick Days Act ("PSDA"),
I. HISTORICAL AND LEGAL CONTEXT
Historically, "municipal corporations are creatures of the State and ... the authority of the Legislature over their powers is supreme.... Municipal corporations have no inherent powers and may do only those things which the Legislature has expressly or by necessary implication placed within their power to do." Denbow v. Borough of Leetsdale ,
Municipalities shall have the right and power to frame and adopt home rule charters. Adoption, amendment or repeal of a home rule charter shall be by referendum. The General Assembly shall provide the procedure by which a home rule charter may be framed and its adoption, amendment or repeal presented to the electors. If the General Assembly does not so provide, a home rule charter or a procedure for framing and presenting a home rule charter may be presented to the electors by initiative or by the governing body of the municipality. A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.
PA. CONST. art. IX, § 2. By virtue of this revision, any power that the General Assembly did not forbid was now extended to any municipality that-like the City of Pittsburgh-adopted home rule. See City of Phila. v. Schweiker ,
In 1996, the General Assembly enacted the Home Rule Charter and Optional Plans Law,
Home rule incorporates and reinforces local municipalities' traditional police powers. In Balent v. City of Wilkes-Barre ,
In explicating the police powers enjoyed by the State, which are broader than, and necessarily superior to, the police powers possessed by counties and municipalities, we have explained:
The "police power" is one of the "most essential powers of government ...." Hadacheck v. Sebastian ,, 239 U.S. 394 , 36 S.Ct. 143 (1915). It has been variously defined as the power "to promote the public health, morals or safety and the general well-being of the community," Commonwealth v. Harmar Coal Co. , 60 L.Ed. 348 , 452 Pa. 77 , 316 (1973) ; see DePaul v. Kauffman , 306 A.2d 308 , 441 Pa. 386 , 504 (1971), or as "the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare," Commonwealth v. Barnes & Tucker , 272 A.2d 500 , 472 Pa. 115 , 465 (1977), or as a power extending to "all the great public needs," Day-Brite Lighting, Inc. v. Missouri , 371 A.2d 461 , 424, 342 U.S. 421 , 72 S.Ct. 405 (1952). The police power is fundamental because it enables "civil society" to respond in an appropriate and effective fashion to changing political, economic, and social circumstances, and thus to maintain its vitality and order. See , e.g. , Mugler v. Kansas , 96 L.Ed. 469 , 668, 123 U.S. 623 , 8 S.Ct. 273 (1887). 31 L.Ed. 205
Nat'l Wood Preservers, Inc. v. Commonwealth, Dep't of Env't Res. ,
*818II. FACTUAL AND PROCEDURAL BACKGROUND
In 2015 the Pittsburgh City Council passed and Mayor William Peduto (collectively, "the City") signed the PSDA and the SSBA. In each Ordinance, the City provided prefatory recitations of the purported sources of its authority to enact the legislation. See PSDA § 626.01(c); SSBA § 410.02.
On the City's account, the PSDA seeks "to enhance the public health by ensuring that employees across the City of Pittsburgh are able to earn paid sick time." PSDA § 626.01(b). As statutory authority for that enactment, the City cites: the HRC itself; the Second Class Cities Code,
Subject to various qualifications and exclusions that do not affect our analysis, the PSDA provides that employees of employers with fifteen or more employees are entitled to accrue up to forty hours of paid sick leave per year at a rate of one hour of leave for every thirty-five hours worked. Employers with fewer than fifteen employees also must provide paid sick leave at the rate of one hour of leave per thirty-five hours worked. However, these employers may limit accrued leave to twenty-four hours per year. See PSDA § 626.03.
For its part, the SSBA seeks "to enhance the safety requirements and standards currently in the Emergency Management and Preparedness Chapter of the Fire Prevention Code for the benefit of the public by ensuring that buildings are staffed with workers who receive the training necessary to protect its occupants and property." SSBA § 410.02. As statutory authority for this enactment, the City cites: HRC
The SSBA's provisions apply to "covered properties," a term that encompasses commercial office buildings or complexes, retail buildings or complexes, health care facilities, museums, and "similar cultural institutions" occupying 100,000 or more square feet, as well as all colleges and universities, and all properties owned, managed, or occupied, wholly or in part, by the City. The SSBA's requirements apply variously to "[s]ecurity officers"
The above-captioned plaintiff-appellees (collectively, "Challengers")
Regulation of business and employment.- A municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers, including the duty to withhold, remit or report taxes or penalties levied or imposed upon them or upon persons in their employment, except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities ....
The Pittsburgh Restaurant and Lodging Association, among others (collectively, "PRLA"
First, the court rejected the City's invocation of the DPCL, which provides, in relevant part: "Municipalities which have boards or departments of health or county departments of health may enact ordinances or issue rules and regulations relating to disease prevention and control, which are not less strict than the provisions of this act or the rules and regulations issued thereunder by the board."
The court next rejected the City's resort to the SCCC,
*820Thus, the trial court determined that SCCC § 23145 could not confer the authority asserted because the City lost its status as a second-class city governed by the SCCC when it elected to enact its home rule charter. Tr. Ct. Op. PSDA at 3 (citing Danzilli v. Lomeo ,
The trial court concluded as well that its disposition was controlled by this Court's decision in Building Owners & Managers Association of Pittsburgh v. City of Pittsburgh ,
The trial court's analysis of the SSBA was more concise. Therein, the court did not expressly consider any of the City's cited sources of authority for the legislation. Instead, it repeated its brief discussion of BOMA-2009 , and it ruled accordingly.
The City and the Service Employees International Union Local 32BJ (hereinafter, "SEIU") both appealed the trial court's decisions to the Commonwealth Court, which considered the cases en banc and affirmed both rulings in separate non-precedential decisions. See Pa. Restaurant & Lodging Ass'n v. City of Pittsburgh , 79 C.D. 2016, 101 C.D. 2016,
With regard to the PSDA, the Commonwealth Court ruled that the provisions the City cited as express statutory authorizations for the PSDA were insufficient to except that enactment from the Business Exclusion. The court rejected the City's reliance upon HRC
The intermediate court also rejected the City's reliance upon the SCCC. The court did not endorse the trial court's conclusion that the SCCC could not grant the authority *821in question because the City had forfeited its second-class city status by electing home rule. However, the court concluded that the City's reliance upon SCCC §§ 23145 (authorizing cities to "make regulations to secure the general health of the inhabitants") and 23146 (permitting cities to "make all necessary orders and regulations to prevent the introduction of contagious or pestilential diseases into the city" and "to enact quarantine laws for that purpose") was unavailing because neither provision "expressly grant[s] the City authority to impose the affirmative duties" embodied in the PSDA. PRLA ,
With regard to the City's resort to the DPCL, the Commonwealth Court agreed with the trial court that the City's lack of a health board or health department precluded the DPCL's application. In this regard, the court summarily rejected the City's argument that the DPCL's authorization applies where a home-rule municipality is served by a county health department. Rather, on the Commonwealth Court's account, only if the City was served by a municipal board or department of health might it find the requisite authority to provide paid sick leave. As a consequence of this reasoning, the Court did not address whether, assuming the City had the legislative authority conferred by the DPCL, the DPCL's terms would qualify as express authority for purposes of the Business Exclusion.
Judge Cosgrove was the lone dissenter. Citing the "essential principle underlying home rule [to] transfer [ ] authority to control certain municipal affairs from the state to the local level," id. at *4 (Cosgrove, J., dissenting) (quoting Hartman v. City of Allentown ,
In its separate decision affirming the trial court's ruling that the SSBA violated the HRC, the Commonwealth Court rejected the City's resort to the SCCC and the Emergency Code as sources of express statutory authority for purposes of the Business Exclusion. The City contended that the SSBA was authorized by: SCCC § 23145, which empowers second-class cities "[t]o make regulations to secure the general health of the inhabitants, and to remove and prevent nuisances"; Section 25081, which authorizes second-class cities to provide for the inspection of all buildings and premises "to decrease and prevent fire, the spread of fire, and fire waste, loss of life from fire, and loss of life or damage to property from unsafe or improper construction or design"; and
The court also found that the Emergency Code did not confer express authority *822to enact the SSBA. The Emergency Code authorizes and directs political subdivisions "to establish a local emergency management organization in accordance with the plan and program of the Pennsylvania Emergency Management Agency" with "responsibility for emergency management, response and recovery within the ... political subdivision."
The City and SEIU sought our review of these decisions, which we granted in order to resolve the following question:
Did the Commonwealth Court err in holding that the State Emergency Management Services Code, the State Disease Prevention and Control Act Law [sic ], the Second Class City Code, and the Home Rule Charter and [Optional Plans] Law failed to satisfy the "expressly provided by statute" exception, and that the City of Pittsburgh therefore lacked the authority to pass the Paid Sick Days Act and the Safe and Secure Buildings Act?
Pa. Rest. & Lodging Ass'n v. City of Pittsburgh ,
III. THE GOVERNING LEGAL STANDARDS
The scope of the issue we granted for review is narrow. We consider only whether any "statute[ ] which [is] applicable in every part of this Commonwealth or which [is] applicable to all municipalities or to a class or classes of municipalities,"
Before taking up these two ordinances in detail, we note that resolving the question presented requires us to seek express statutory authority as conceived by the Business Exclusion. This principally constitutes an exercise in statutory construction involving a question of law, which we address de novo , subject to a plenary scope of review. Thomas Jefferson Univ. Hosp., Inc. v. Pa. Dep't of Labor & Indus. ,
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
It bears repeating that "[a]ll grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality."
IV. DISCUSSION
Disposition of these appeals turns upon the Business Exclusion and the limited exception which that provision contains. The Business Exclusion provides as follows:
Regulation of business and employment.- A municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers, including the duty to withhold, remit or report taxes or penalties levied or imposed upon them or upon persons in their employment, except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities ....
A. Resort to Municipal Codes Under the Business Exclusion
The trial court, Challengers, and certain amici curiae maintain that the City cannot rely in any way upon the SCCC as authority for its enactment of either the PSDA or the SSBA. They contend that the City surrendered its status as a second-class city, and thus any resort to the SCCC, upon the enactment of its home-rule charter. Those venturing this interpretation cite our decision in County of Delaware ,
It bears repeating that our Constitution grants a home-rule municipality all powers "not denied by this Constitution, by its home rule charter or by the General Assembly at any time." PA. CONST. art. IX, § 2. Furthermore, "a home-rule municipality's exercise of legislative power is presumed valid, absent a specific constitutional or statutory limitation." SEPTA ,
By its terms, the Business Exclusion allows municipal regulation of business when expressly provided "by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities."
The flaw in the Challengers' reasoning appears on the face of the HRC itself. The Business Exclusion-its prohibition as well as the exception thereto-applies only to home-rule municipalities. However, the scope of the exception to the Business Exclusion is defined, in part, by reference to "statutes ... which are applicable to all municipalities or to a class or classes of municipalities."
Neither Delaware County nor Danzilli are to the contrary. In Danzilli , the Commonwealth Court rejected resort to a municipal code as a stand-alone limitation on a home-rule municipality's authority, hence hewing to the bedrock proposition that a home-rule municipality enjoys all powers not denied it by the Constitution or state statute. Because Middletown Township was a home-rule municipality, the municipal code's limitations did not apply to it. See Danzilli ,
The Business Exclusion provides limited authority for certain actions, the scope of which it expands in plain language to include by reference all authority vested by any state statute pertaining to any class or all classes of municipality. This supports the City's argument that the legislature intended municipalities electing home rule to enjoy as much or more authority than municipalities that decline to do so. As worded, this exception to the broader preclusion of municipal authority to regulate business ensures that a home-rule municipality can invoke the authority that any municipality in the Commonwealth has been granted. Accordingly, Challengers' argument that the City can derive no authority under the SCCC is unavailing.
B. The Paid Sick Days Act
As potential sources of express statutory authority for the PSDA, the City cites the DPCL and the SCCC.
Municipalities which have boards or departments of health or county departments of health may enact ordinances or issue rules and regulations relating to disease prevention and control, which are not less strict than the provisions of this act or the rules and regulations issued thereunder by the board....
*826We first must consider the disputed threshold question regarding whether we should count the City as one among the "[m]unicipalities which have boards or departments of health or county departments of health," to whom this limited grant of authority applies. Undisputedly, Pittsburgh has no municipal board or department of health. However, Allegheny County, within which Pittsburgh lies, is served by the Allegheny County Health Department. The Commonwealth Court found, and Challengers argue, that because the City has no municipal board or department of health, our inquiry need go no farther, because the City fails to satisfy DPCL
Beyond simply arguing that the words describe municipalities that are served by any local department of health, whether city-specific or countywide, the City offers two additional arguments. First, it argues that its interpretation is "consistent with both the broad scope of home rule authority and municipalities' long-recognized authority to protect public health, safety, and welfare." Brief for the City at 23. Furthermore, the City argues that to read the inclusion of county boards of health in the DPCL
Mounting what they characterize as a plain-language argument, Challengers essentially argue that the City does not fall within the Act's scope not because of what it does say, but because of what it does not say:
The plain language of the statute does not authorize (as Appellants argue) municipalities which are located in a county which has a county department of health to promulgate health regulations. Rather, it only authorizes municipalities which themselves have boards or departments of health ... to promulgate health regulations and counties which have departments of health to issue county-wide health regulations.
Brief for PRLA at 24 (emphasis in original). PRLA also contends that the DPCL's definitional section supports their argument, in defining "local board or department of health" as "[t]he board of health or the department of public health of a city, borough, incorporated town or township of the first class, or a county department of health, or a joint county department of health."
One complication confounds Challengers' interpretive approach. Specifically, ostensibly in order to account for the presence of a county department of health in the statute at all, Challengers offer that DPCL
One may reason credibly that, because
That being said, Challengers' argument is not entirely untenable. While it would suggest imprecise draftsmanship, one might allocate the power to enact ordinances only to municipalities served by their own boards or departments of health, and recognize the presence of county departments of health to be concerned only with the rule-making authority the statute describes.
In light of these considerations, we find that the DPCL is ambiguous with regard to whether and when municipalities may enact ordinances relating to disease prevention and control. Accordingly, we must seek guidance in our rules of construction, presuming that the legislature did not intend an absurd or unreasonable result and that it intended to serve the public over private interests, and we must resolve ambiguities in favor of local regulation.
As suggested above, we find the City's account of the text more convincing than Challengers'. But that is not the only basis upon which we resolve this threshold question in the City's favor. Section 521.3 of the DPCL provides further support for the City's view of its authority. That section provides that "[l]ocal boards and departments of health shall be primarily responsible for the prevention and control of communicable and non-communicable disease, ... in accordance with the regulations of the [State Advisory Health Board] and subject to the supervision and guidance of the [State Department of Health]."
The DPCL defines a "[l]ocal board or department of health" as "[t]he board of health or the department of public health of a city, borough, incorporated town or township of the first class, or a county department of health , or joint county department of health."
We find in the DPCL a holistic scheme that, for purposes of disease prevention and control, favors local regulation as informed by the expertise of a dedicated local board or department of health over state-level regulation, and correspondingly allows local lawmakers to impose more stringent regulations than state law provides. Thus, in priority order, a municipality with a board or department of health may enact ordinances or promulgate rules and regulations in service of disease prevention and control. Where a municipality lacks its own board or department of health, but lies within the jurisdiction of a county department of health, the municipality may enact such ordinances, while the county board or department of health may issue rules and regulations. Absent a municipal or county board or department of health, a municipality falls within the jurisdiction of the state board.
With this account in mind, viewing DPCL
Having found that the City satisfies DPCL
*829Nor do Challengers dispute that encouraging sick workers to convalesce privately will have a salutary effect on public health generally.
This does not end our inquiry, though, because it does not conclusively establish that the DPCL's authorization is "express" with respect to the burden businesses will bear in facilitating the implementation of the PSDA, as that word is employed in the Business Exclusion. Challengers' position distills to the proposition that, to burden business, the "express" exception applies only where the General Assembly has anticipated, described, and explicitly authorized municipalities to burden businesses in the particular way proposed. Challengers would have us require that the DPCL or other related statute not only authorize a municipality to legislate generally for purposes of disease prevention and control, but also indicate with particularity that the municipality may do so even where it would burden employers, and perhaps, even more finely, that it may do so by dictating paid leave policies. In effect, the parties' respective positions depend on how specific the "express" authorization must be.
Here, we recall, the language at issue precludes such regulation "except as expressly provided by statutes ." Our research discloses no Pennsylvania statute that utilizes precisely that language, and we find little guidance in case law under the Business Exclusion or otherwise where the specificity necessary to establish express authority has been addressed.
The courts below and the parties have discussed a number of cases, and these warrant brief discussion. The parties chiefly address BOMA-2009 , supra (finding that an ordinance requiring contracting concerns newly retained by the City to retain the former contractors' employees for 180 days violated the Business Exclusion), but also refer to Hartman ,
Nonetheless, BOMA-2009 suggested a legal rubric, relied upon by the Commonwealth Court and Challengers, that we must address. BOMA-2009 distinguished Hartman , and held that "
Justice Todd dissented in BOMA-2009 , contending that the majority's approach effectively denied home-rule municipalities powers undisputedly enjoyed by non-home-rule municipalities, contradicting the legislature's intent to grant home-rule municipalities as much or more authority than their non-home-rule counterparts. BOMA-2009 ,
Measuring the BOMA-2009 Majority's distinction against the facts in that case and those in Taylor reveals that the line between what constitutes an affirmative obligation and a non-affirmative obligation is not as clear as one might suppose. After all, in denying logging companies the right to timber portions of land on which they had such rights seems to reflect the imposition of an affirmative burden-to avoid logging in the designated areas.
By itself, the concept of express authority, when measured against the potential complexity of acting upon it when it is broadly-stated, proves imprecise, and introducing a distinction between affirmative burdens (telling businesses what to do) and non-affirmative burdens (telling businesses what they may not do) only complicates the matter. Thus, once again, we must seek guidance in our rules of construction.
*832The object of the DPCL, plainly, is disease prevention and control. The object of the Business Exclusion is to avoid regulations that burden commercial interests absent express authorization, with attendant concern for the imposition of inconsistent requirements from one municipality to the next. However, were we to accept Challengers' definition of "express," we would hamstring home-rule municipalities from exercising their home-rule authority in any way that burdens businesses, even where such burdens are incidental or de minimis , and certainly in a case such as Taylor , which, as informed by BOMA-2009 , would be abrogated by such a broad account. It is unrealistic to expect the General Assembly to draft statutes providing the sort of surpassing specificity PRLA would demand, because it is impossible for any legislature to anticipate the innumerable ways in which any given ordinance might affect a given business's receipts or complicate its administration.
Conversely, it is not unreasonable to anticipate that, when the legislature authorizes municipalities to enact ordinances, rules, or regulations in furtherance of disease prevention and control, it recognizes that such an authorization is not self-executing, and may entail action that burdens businesses in any number of ways, both foreseeable and unforeseeable. Hence the ambiguity driving the instant controversy. Consequently, we must consider the fact that the General Assembly did not more precisely cabin the legislative and regulatory authority it expressly granted municipalities in the DPCL in light of our obligation to construe ambiguous statutes in favor of the public interest over private interests, and in favor of local authority over state authority.
The burden the PSDA presents to businesses is not insignificant. The ordinance nonetheless bears a direct nexus with public health, and, all things being equal, lies squarely within both the City's traditional police powers and the ambit of the DPCL. Consequently, the PSDA is more like a "health or safety ordinance[ ]" that affects business than a statute with its principal focus upon regulating business for its own sake, as we conceived that distinction in BOMA-2009 . For this reason, we find the DPCL's legislative authorization to municipalities to "enact ordinances ... relating to disease prevention and control" such as the PSDA sufficiently clear to satisfy the limited exception to the Business Exclusion. Accordingly, we hold that the City did not exceed its home-rule authority in enacting the PSDA. The Commonwealth Court erred in concluding otherwise.
C. The Safe and Secure Buildings Act
The SSBA imposes numerous complex and continuing obligations upon owners and employees of "covered properties,"
[T]o enhance the safety requirements and standards currently in the Emergency Management and Preparedness Chapter of the Fire Prevention Code for the benefit of the public by ensuring that buildings are staffed with workers who receive the training necessary to protect its occupants and property....
*833A prohibition on an untrained workforce ... will ensure that security officers and other building service workers are trained in a range of essential skills, including counterterrorism, crime prevention, fire and other building safety, disaster recovery, first aid, and coordination with police, fire, and emergency personnel during an emergency.
SSBA § 410.02.
Under the SSBA, within 180 days of its enactment for current employees, and within sixty days of hiring for new employees thereafter, covered security officers
a. The covered property's all hazard plan;
b. Role of the security officer: how to identify specific response methods to emergency situations which are consistent with the security officer role and function;
c. Legal powers and limitations of the security officer, such as:
1. Laws and liability;
2. Identifying the types of crimes that may be encountered on specific work sites;
3. Evidence preservation;
4. Explaining the justification of use of force, including deadly physical force, by a security officer/private citizen; and
5. Identifying the security officer's arrest authority and limitations in the workplace.
d. Emergency situations and response procedures: appropriate prevention and response methods to emergencies including fire, chemical spills, terrorist threats, workplace violence, medical emergencies, biohazards, and natural disasters, including evacuation and disaster recovery;
e. CPR protocol and how to use medical equipment, including defibrillators ;
f. Terrorism related topics: developing observation, detection and reporting skills, and improving skills in working with advanced security technology including surveillance and access control procedures;
g. Coordinating and communicating with local police, fire and emergency services;
h. Crime, including theft prevention;
i. Safeguarding information;
j. Ethics;
k. Access control: identifying proper forms of identification that are acceptable for gaining access at the location, identifying types of physical threats that may be encountered at the location, crowd control, electronic security systems, and access control procedures; and
l. Other miscellaneous topics as determined by the Fire Bureau to be relevant such as professional image, effective communication, including communicating with clients, and report writing.
SSBA § 410.04(a)(1). Employers are required by the SSBA to provide fifteen initial hours of training and a refresher *834course of unspecified duration on a triannual basis to building service employees
As statutory authority for the SSBA, the City cites HRC
This is problematic because these two sections appear in an Article of the SCCC covering "Fire Prevention" and by their terms apply only to fire-related concerns. However, fire-related concerns, even on a generous account, comprise only one small aspect of the disaster-preparedness matters embraced by the SSBA, and even that much is detectable primarily by inference. It is true that the SSBA purports to confer rule-making authority and oversight for SSBA compliance upon the Fire Bureau, but not necessarily in connection with its specific fire prevention function. Indeed, the very word "fire" does not appear until paragraph d. of SSBA § 410.04(a)(1), where it is but one in a long list of "emergencies" that includes everything from natural disasters to terrorist threats and workplace violence. The Fire Bureau is tasked with prescribing for education purposes "[o]ther miscellaneous topics as determined by the [b]ureau to be relevant," but the list of examples that follows has no direct relevance to fire prevention. Even if one could shoehorn in the proposition that extensive continuing education and training requirements covering mostly crime prevention and detection and disaster management qualify as "rules and regulations" as those terms are used in
The City also cites SCCC Sections 23145 (authorizing a second-class city "[t]o make regulations to secure the general health of the inhabitants, and to remove and prevent nuisances") and 23158 ("[t]o make all such ordinances, by-laws, rules and regulations ... as may be expedient or necessary ... for the proper management, care and control of the city and its finances, and the maintenance of the peace, good government and welfare of the city, and its trade, commerce and manufactures"). While we have rejected the proposition that the "express authorization" precludes any generality whatsoever, we certainly do not suggest that what amounts to a broad account of traditional police powers constitutes "express" authorization for purposes of the Business Exclusion exception. Were we to do so, the exception would devour the rule quite completely. Sections 23145 and 23158 amount to a general warrant to legislate in service of the general health and welfare, which lies within a home-rule municipality's powers absent any statutory prohibition. Here, however, the Business Exclusion furnishes such a prohibition. Consequently, the City's resort to the SCCC fails.
Turning to the HRC provisions that the City invokes,
[A municipality shall not e]nact or promulgate any ordinance or regulation with respect to definitions, sanitation, safety, health, standards of identity or labeling pertaining to the manufacture, processing, storage, distribution and sale of any foods, goods or services subject to any Commonwealth statutes and regulations unless the municipal ordinance or regulation is uniform in all respects with the Commonwealth statutes and regulations thereunder. This paragraph does not affect the power of any municipality to enact and enforce ordinances relating to building codes or any other safety, sanitation or health regulation pertaining thereto.
Notably, as set forth above, it is the Fire Bureau that is vested with rule-making and oversight authority over SSBA compliance, not the Department of Permits, Licenses, and Inspections, which oversees building code compliance. The City fails *836even to identify an attenuated connection between the SSBA and building codes. Consequently,
Finally, the City argues broadly that the Emergency Code authorizes the SSBA. The Emergency Code directs political subdivisions to establish "a local emergency management organization in accordance with the plan and program of the Pennsylvania Emergency Management Agency," which will take responsibility for "emergency management, response and recovery within the territorial limits of the political subdivision."
"Pursuant to this express statutory grant," the City asserts, it "has the authority to ensure that security officers and others responsible for the operations of large buildings are trained to effectively respond during emergencies," noting that these workers "are often on the front lines during emergencies, ... and any effective emergency management plan must integrate private security and other office building staff with government first responders." Brief for the City at 26. The City maintains that the SSBA is in service of the City's statutory obligation to adopt an Intergovernmental Cooperation agreement that enables the parties to the agreement to "[p]repare, maintain and keep a current emergency management plan."
The City's argument here is heavy on quotation but comparatively light on analysis.
It is one thing to say that the Commonwealth intends that local municipalities have an obligation to respond effectively to disasters and should plan for same. It is quite another to establish a grant of authority that is in derogation of the Business Exclusion. We find nothing express or implicit in the Emergency Code to sustain the SSBA. Accordingly, we affirm the Commonwealth Court's determination that the SSBA is barred by the Business Exclusion.
V. CONCLUSION
What constitutes an express grant of authority to "determine duties, responsibilities or requirements placed upon businesses, occupations and employers" is a vexing question. If we interpret the word "express" too stringently, virtually any incidental burden upon employers arising from a local ordinance will be barred. If we interpret it too broadly, we subvert the General Assembly's manifest intent to limit the burdens that a home-rule municipality can impose upon businesses. Thus, we must find a middle ground.
Even if this case does not pronounce the ever-elusive bright-line rule, it enables us to bracket the gray area between what is and is not allowed by the limitations upon business regulation imposed by the Business Exclusion. While the PSDA certainly burdens Pittsburgh employers, it clearly falls within the ambit of the City's express statutory authority to legislate in furtherance of disease control and prevention.
Conversely, the City fails to identify any statutory authority sufficient to sustain the SSBA. While the training that the SSBA mandates may well have a salutary public effect in disaster management, the measure's multifarious provisions simply want *838for any statutory authority, express or otherwise. For owners and operators of qualifying facilities, maintaining and securing those facilities is a major, if not principal, function, and the definitions of "security officer" and "building service employee," see supra nn. 23, 24, are sufficiently broad to capture, at least as to some properties, virtually every individual employed by the building's management. For the foregoing reasons, we must conclude that no statutory provision cited by the City comes close to authorizing such requirements. Accordingly, we affirm the Commonwealth Court's ruling that the SSBA is invalid for want of express authority under the Business Exclusion.
For the foregoing reasons, we affirm in part, reverse in part, and remand for proceedings consistent with this Opinion.
Justices Todd and Donohue join the opinion in full, and Chief Justice Saylor and Justices Baer, Dougherty and Mundy join Parts I, II, and III. With regard to Part IV, each subsection enjoys majority support. In addition to the joinders of Justices Todd and Donohue, Justice Dougherty joins Parts IV(A) and (B), and Chief Justice Saylor and Justices Baer and Mundy join Part IV(C). In terms of the mandate, the disposition as concerns the PSDA is joined by Justices Todd, Donohue, and Dougherty, and the disposition as concerns the SSBA is joined by Chief Justice Saylor and Justices Baer, Todd, Donohue and Mundy.
Chief Justice Saylor files a concurring and dissenting opinion in which Justices Baer and Mundy join.
Justice Baer files a concurring and dissenting opinion in which Chief Justice Saylor and Justice Mundy join.
Justice Dougherty files a concurring and dissenting opinion.
CHIEF JUSTICE SAYLOR, Concurring and Dissenting
I join Parts I, II, III, and IV(c) of the majority opinion and respectfully dissent as to the remainder. I also join Justice Baer's concurring and dissenting opinion, and write separately to explain further why I do not believe the General Assembly has given express authorization for the Paid Sick Days Act.
As the majority aptly explains, see Majority Opinion, at 829-30, the central question involves how specific such authorization must be to satisfy the requirement that it be "express" for purposes of the following restriction:
(f) Regulation of Business and Employment. --A municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers, ... except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities....
The majority observes that the concept of express statutory authorization is not entirely precise, see Majority Opinion, at 831-32, and ultimately finds such authority in the Disease Prevention and Control Law (the "DPCL"), which permits qualifying municipalities to enact legislation "relating to disease prevention and control[.]"
While I agree that the term "express" lacks complete precision, I respectfully disagree with the majority's conclusion that the DPCL constitutes express authority in the present context. As a general matter, and as the majority recognizes, home-rule municipalities are ordinarily permitted to "legislate concerning municipal governance without express statutory warrant for each new ordinance[.]" City of Phila. v. Schweiker ,
As for the DPCL, while that statute, at best, impliedly confers authority to Pittsburgh to enact the Paid Sick Days Act, I find it tenuous to couch such authority as "express" - which I take to mean specific, clear, unmistakable, and not left to inference or implication. In this regard, "express authorization" as understood in other contexts, while not controlling, is nonetheless relevant. See, e.g. , Key Tronic Corp. v. United States ,
Further, given that the Business Exclusion prevents home-rule cities from "determin[ing]
*840duties, responsibilities or requirements placed upon businesses, occupations and employers," its reference to express statutory authority should, in my view, be understood as contemplating authorization which specifically enables some form of business regulation as such. More to the point, I would not conclude that a generalized mandate to promote health and suppress disease reflects a legislative purpose to grant "express" statutory authority to regulate businesses in the manner of the Paid Sick Days Act.
Nor am I persuaded by the majority's description that the Paid Sick Days Act is "more like a 'health or safety ordinance' that affects business than a statute with its principal focus upon regulating business for its own sake[.]" Majority Opinion, at -832 (brackets omitted). To the contrary, the ordinance mandates that certain benefits be included in the compensation package which businesses afford to their employees, with the underlying premise that such benefit will indirectly curtail the spread of disease through its incentive structure . As such, it is, in the first instance, an ordinance which regulates the compensation given to employees by business entities. Accord Brief for Appellees at 21 (describing the Paid Sick Days Act as a "labor and employment ordinance"). The concept that its expected indirect effects can transform the DPCL into express authority to regulate businesses in the face of the very specific and directed language used in the Business Exclusion is, to my mind at least, highly attenuated.
I do agree with the majority that the Business Exclusion is designed to prevent a patchwork of inconsistent business regulations, many of which may apply to a single business with locations in several municipalities. See Majority Opinion, at 832 (referencing the Legislature's "concern for the imposition of inconsistent requirements from one municipality to the next"). The exclusion evidently reflects the General Assembly's determination that - again, unless expressly stated otherwise - such regulations are a matter of statewide concern to be governed by the Commonwealth's legislative body. That being the case, I would clarify that, to qualify as an exception to the Business Exclusion, the challenged ordinance must be supported by more than a generalized mandate to suppress disease (as reflected in the DPCL), as salutary a goal as that may be. Because the Paid Sick Days Act fails to satisfy that standard, I respectfully dissent from the majority's conclusion that it falls within the narrow exception to the Business Exclusion.
Justices Baer and Mundy join this concurring and dissenting opinion.
Notes
Pittsburgh Code §§ 626.01-626.13.
Pittsburgh Code §§ 410.01-410.09.
This bedrock legal principle sometimes is referred to as "Dillon's Rule," after Judge John F. Dillon, who explained:
Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on this right so far as the corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature.
City of Clinton v. Cedar Rapids & M.R.R. Co. ,
The Second Class City Code, which would govern the City of Pittsburgh absent its home-rule election, grants authority to "make regulations to secure the general health of the inhabitants, and to remove and prevent nuisances."
Act of April 24, 1905, P.L. 307, as amended .
Act of April 23, 1956, P.L. (1955) 1510, as amended .
See Act of Nov. 26, 1978, P.L. 1332, No. 323, as amended ,
"[A] person employed principally to perform one (1) or more of the following functions: protection of individuals or property from harm or unlawful or unauthorized activity; and deterrence, observation, detection and/or reporting of incidents in order to prevent or abate any harmful, unlawful or unauthorized activity," excluding all city, county, state, and federal law enforcement officers, as well as officers appointed by non-profit corporations as authorized by
"[A] person performing work in connection with the care and maintenance of property, such as a concierge, doorperson, cleaner, janitor, custodian, superintendent, porter, maintenance person, handyperson, ... who regularly works at such property a minimum of sixteen (16) hours per week," excluding students employed by their educational institution. SSBA § 410.03(a).
Except where citing briefs, for simplicity's sake we refer to all plaintiffs below as "Challengers."
All Challengers to the PSDA filed a joint brief before this Court.
Notably, in that case this Court did not address any proposed statutory sources of express authority to impose the requirement, such as are contemplated by HRC § 2962(f).
Once again, Judge Cosgrove dissented. In this case, he merely cited his dissent in the PSDA decision as expressing his reservations with regard to the court's rejection of the SSBA.
The following amici curiae have filed or joined others in filing briefs in support of the City and SEIU: American Civil Liberties Union of Pennsylvania; A Better Balance and Local Government Labor Law Professors; Fifty-One Organizations Committed to Women's Health and Safety; International Association of Fire Fighters, Local 1; Pennsylvania Municipal League and Pennsylvania State Association of Township Commissioners; and Pennsylvania State Association of Township Supervisors.
Supporting Challengers are amici curiae the Restaurant Law Center, the National Federation of Independent Business Small Business Legal Center, the Pennsylvania Food Merchants Association, and the Pennsylvania Chamber of Business and Industry.
Act of Aug. 24, 1951, P.L. 1304, as amended ,
Notably, in Title 16 Chapter 4 of the Pennsylvania Statutes, which provides an exhaustive account of the existence, composition, and authority of county boards and departments of health, we find that a county's department or board of health upon its inception takes jurisdiction over "all municipalities which do not have departments or boards of health at the time of the establishment of the county department of health," including those that, until that time, had been under the jurisdiction of the State Department of Health.
The closest that Challengers come to doing so is in observing that Pittsburgh does not have "a public health code," and that the PSDA, instead, appears in Title VI of the Code, governing "Conduct," which "contains ordinances concerning diverse matters such as panhandling, curfew, boating, firearms, youth offender work corps, weeds and grass, alarm systems, ... Marcellus shale drilling, . . , and other topics." Brief for PRLA at 21-22. Thus, in Challengers' view, it is improper to treat the PSDA as a "health regulation," because it is, in fact, a "labor and employment ordinance." But how the ordinance is classified, and what motives one might impute to the City in enacting it, do not amount to a direct challenge to the proposition that paid sick leave discourages what one amicus curiae identifies as "presenteeism," reporting to the workplace while ill, and that presenteeism for want of paid sick leave exacerbates the spread of contagious disease. See generally Brief for Amici Curiae Fifty-One Organizations Committed to Women's Health and Safety.
Amici Curiae provide detailed accounts of the research sustaining the proposition that paid leave policies have a salutary effect on public health. See Brief Amici Curiae Fifty-One Organizations Committed to Women's Health and Safety at 4-14; Brief Amici Curiae Pa. Mun. League and Pa. State Ass'n of Twp. Comm'rs at 20-22. However, we do not need to consult with experts to find that the City's expectation that allowing paid sick leave will reduce the greater community's exposure to contagion is a reasonable basis, in itself, for the PSDA.
In an effort to fill this void, Chief Justice Saylor cites only one binding authority, arguing that, in Commonwealth v. Beam ,
Moreover, the Chief Justice's view excludes the possibility that a grant of authority can be express in its general terms while nonetheless ambiguous regarding the particular incidents that the authority might permissibly encompass. To use the Chief Justice's own terminology, it cannot seriously be disputed that the DPCL "specifically, clearly, and unmistakably" authorizes municipalities to regulate to prevent and control disease. But what, precisely, qualifies as such a regulation and what such a regulation may require of any given party or class of parties is unspecified. Notably, even in Beam we recognized the necessity of "implied [administrative] powers" precisely because, "as a practical matter, the legislature cannot foresee all the problems incidental to carrying out the duties and responsibilities of the agency." Beam ,
This do/not-do distinction putatively accounts for the Commonwealth Court's decision in Hartman , wherein the Commonwealth Court upheld an anti-discrimination ordinance against a Business Exclusion challenge on the basis that the ordinance did not require covered parties to do anything, only to refrain from discrimination in prescribed contexts.
Because we find authority to enact the PSDA in the DPCL, we need not consider or further discuss the City's proposed reliance upon other statutory grants of authority.
"Covered properties" are defined as: commercial office buildings or complexes; retail buildings or complexes; health care facilities; and museums and "similar cultural institutions" occupying more than 100,000 square feet. Additional covered properties include colleges and universities, as well as "[p]roperties owned, managed or occupied, at least in part, by the City." SSBA § 410.03(d).
"Security officer" is defined as: "a person employed principally to perform one (1) or more of the following functions: protection of individuals or property from harm or unlawful or unauthorized activity; and deterrence, observation, detection and/or reporting of incidents in order to prevent or abate any harmful, unlawful or unauthorized activity, but shall exclude City, County, State and Federal law enforcement officers, or any law enforcement officer pursuant to 22 Pa.C.S.A. section 501." SSBA § 410.03(e).
"Building service employee" is defined as: "a person performing work in connection with the care and maintenance of property, such as a concierge, doorperson, cleaner, janitor, custodian, superintendent, porter, maintenance person, handyperson, and who regularly works at such property a minimum of sixteen (16) hours per week. Except it should not include students at a college or university that are also employed directly by that college or university." SSBA § 410.03(a).
Reinforcing our analysis somewhat, we find it telling that, in its reply brief, the City proposes an alternative interpretation of the Business Exclusion to support its authority under the PSDA. The City suggests that, in generally prohibiting the determination of "duties, responsibilities or requirements placed upon business, occupations and employers," the General Assembly intended to preclude only local ordinances and regulations that so determine on subjects that are already subject to state regulation. The City makes much of the past-tense "placed upon," contending that it necessarily refers to "pre-existing duties" that "have already been imposed from somewhere other than local government." Reply Brief for City at 7. The City proceeds to suggest that its reading of this language squares with the "exception to the exception," allowing regulation where expressly authorized by statute. This is so, according to the City, because "[i]f the General Assembly has 'placed upon' businesses, occupations, and employers 'duties, responsibilities, and requirements,' the municipality cannot 'determine' those same issues unless it has express authority from the General Assembly through some other means." Id. at 8. In effect, the City posits, the Business Exclusion operates as a non-interference provision: Where the Commonwealth has not legislated, home-rule municipalities may do so. According to this view, because the General Assembly has yet to legislate on the subject of mandatory paid leave, it follows that home-rule municipalities like the City are free to do so.
Notably, the City does not suggest that this interpretation provides support for its authority to enact the SSBA. As our analysis of the SSBA's validity makes clear, however, the General Assembly has legislated on the subject of disaster preparedness, including provisions regarding staffing and education of first responders and individuals retained to staff emergency response facilities. Thus, the City's own proposed "alternative" interpretation of the Business Exclusion in support of the PSDA somewhat undermines its arguments in support of the SSBA.
The City asserts its power to enact the SSBA can be found in: (1) the Emergency Management Services Code at
The majority disagrees that Beam supports my present view, observing that the Court's holding arose in the context of administrative agency powers, where the presumption to be applied in cases of uncertainty is against delegation. I might be aligned with the majority's view in this respect if, when crafting the Business Exception, the Legislature had not chosen to include the modifier, "expressly."
As well, Beam 's ultimate recognition of agencies' "textually unspecified powers," Majority Opinion, at 829-30 n.19, proceeded from the premise that statutory grants consist, "not only of that which is expressly granted, but also of authority which is necessarily implied." Beam ,
Finally, to the extent the majority criticizes the concept that "express" authority does not include authority which is left to inference or implication, see Majority Opinion, at 829-30 n.19 (describing this as a "new requirement [I would] add onto Beam 's formulation"), it seems to me that such limitation follows from the plain English meaning of "expressly." See, e.g. , Webster's New College Dictionary 404 (3d ed. 2008) (indicating "expressly" means "explicitly").
Dissenting Opinion
I agree with the general legal conclusion underlying the Majority's decision: Subsection 2962(f) of the Home Rule Charter and Optional Plans Law precludes home-rule municipalities, like the City of Pittsburgh ("City"), from regulating businesses and employers, "except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities[.]"
I, however, respectfully dissent from the remainder of the Majority Opinion, particularly its conclusion that Subsection 2962(f) does not invalidate the City's Paid Sick Days Act ("PSDA"). As noted, Subsection 2962(f) prohibits the City from placing "duties, responsibilities or requirements" upon "businesses, occupations and employers." It seems beyond serious controversy that the PSDA regulates businesses and employers by requiring them to provide sick leave to their employees. Indeed, the Majority appears to agree. See Majority Opinion at 818 (explaining that the PSDA requires employers in the City to provide sick leave to employees). Thus, Subsection 2962(f) precludes the City from placing this requirement upon businesses and employers, unless the City can identify express statutory language that permits it to legislate in this manner.
The City has failed to highlight any express statutory authority allowing it to mandate that businesses and employers provide employees with sick leave, and I find the Majority's contrary conclusion to be unpersuasive. As to this latter statement, in finding that the Disease Prevention and Control Law of 1955 ("DPCL"),
In my view, the need for a circuitous, 11-page construction of the DPCL demonstrates the contrary result, i.e. , the DPCL does not contain express statutory language allowing the City to mandate that businesses and employers provide their employees with sick days. I further note that, because the Majority finds that the DPCL provides the City with sufficient authority to pass the PSDA, it understandably declines to address whether the other statutory authority cited by the City can substantiate the validity of the PSDA. However, to determine if I am in concurrence with or dissent from the Majority's ultimate conclusion, it is necessary for me to consider the only other statutory sections upon which the City relies to assert express authority for the PSDA. These *842sections can be found in the Second Class Cities Code ("SCCC"),
According to the City, Section 22145 of the SCCC grants it the power to "make regulations to secure the general health of the inhabitants, and to remove and prevent nuisances." City's Brief at 17 (quoting
To the extent that the City can rely on provisions of the SCCC for purposes of validating its authority to pass the PSDA, I believe these statutes suffer from short-comings similar to those of the DPCL. While the above-stated provisions of the SCCC may imply that second class cities have some authority to regulate businesses and employers in a manner to protect the general welfare of their citizens, the statutes simply do not provide express statutory authority allowing home-rule municipalities to mandate that businesses and employers provide sick leave to their employees.
For these reasons, I conclude that the Commonwealth Court correctly determined that Subsection 2962(f) invalidates both the SSBA and the PSDA. In closing, I note my agreement with the expressions of the Chief Justice in his cogent Concurring and Dissenting Opinion, which I join in full. Accordingly, I would affirm the Commonwealth Court's order, which affirmed that trial court's order granting Appellees' motion for judgment on the pleadings.
Chief Justice Saylor and Justice Mundy join this opinion.
JUSTICE DOUGHERTY, Concurring and Dissenting
I agree with and fully support the Majority's discussion of the historical and legal background of the Home Rule Charter and Optional Plans Law (the Home Rule Law), as well as the Majority's legal analysis and interpretation regarding the powers and limitations granted to home rule municipalities. I further support the Majority's evaluation of the Business Exclusion limitation placed on home rule municipalities at
*843As a threshold matter, I note we must exercise great care in discerning limits on the power of home rule municipalities to enact ordinances. The General Assembly specifically granted home rule municipalities expansive authority by providing:
A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality.
Keeping the above principles in mind, this Court's responsibility in interpreting ordinances passed by a home rule municipality is to protect the ability of an electorate - that constitutionally chose to be governed under the Home Rule Law - to govern itself by liberally construing home rule municipal powers in favor of the municipality. Accordingly, I agree with the Majority that an overly strict definition of express authority in this context would improperly "hamstring home-rule municipalities from exercising their home-rule authority in any way that burdens businesses[.]" Majority Op. at 832. An interpretation requiring specific, express authority is contrary to the intent of the General Assembly to give home rule municipalities greater power than if they had opted for other forms of government. As recognized by Justice Todd in her dissent in Bldg. Owners & Managers Ass'n of Pittsburgh v. City of Pittsburgh ,
Based on these same principles, however, I must depart from the Majority's conclusion regarding the SSBA. In my respectful view, the Majority's determination that the SSBA does not overcome the Business Exclusion is the result of an imbalanced and inconsistent analysis, which I cannot endorse. While the Majority embraces a liberal construction of the City's home rule municipality powers in interpreting the DPCL and resolves all ambiguities in favor of local regulation, thus finding the requisite authority for the PSDA to *844overcome the Business Exclusion, Majority Op. at 827, the Majority fails to engage in an equally liberal construction when analyzing the City's proffered authority for the SSBA.
The Majority justifies its disparate treatment of the PSDA and SSBA as an effort to find a "middle ground" between interpreting the word "express" too stringently or too broadly.
In my respectful opinion, judicial review should only be concerned with determining if the particular ordinance that imposes requirements on businesses is authorized by existing statutory authority. Further, the analysis must always be conducted by liberally construing any ambiguities in the enabling legislation in favor of the home rule municipality's constitutional right to control its municipal affairs at the local level, and ensure it maintains broader powers of self-government than non-home rule municipalities. See Hartman v. City of Allentown ,
Under a uniform application, I would hold both the SSBA and the PSDA are supported by the requisite statutory authority to overcome the Business Exclusion. I would thus reverse the Commonwealth Court's entry of judgment on the pleadings.
Non-home-rule municipalities are limited by the separate principle that they are "creatures of the state" with no inherent powers, and can only legislate as expressly enabled by the General Assembly. Schweiker ,
Subsection 2962(f) states, in full, as follows:
(f) Regulation of business and employment.-- A municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers, including the duty to withhold, remit or report taxes or penalties levied or imposed upon them or upon persons in their employment, except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities. This subsection shall not be construed as a limitation in fixing rates of taxation on permissible subjects of taxation.