Bldg. Owners & Managers Assoc. v. City of Pittsburgh

Municipality’s Authority under Home Rule Charter Law; Exception by Statute

Building Owners & Managers Assoc. v. City of Pittsburgh, 2017 WL 2153216 (Pa. Cmwlth); Pa. Restaurant & Lodging Assoc. v. City of Pittsburgh, 2017 WL 2153813 (Pa. Cmwlth.), allocatur granted Nov. 29, 2017, appeal dockets 57-64 WAP 2017 (consolidated for briefing and oral argument)

Spanning across eight dockets and two Commonwealth Court opinions, this case, consolidated for briefing and oral argument on the issue before the Supreme Court, involves similar challenges to the City of Pittsburgh’s authority under the Home Rule Charter and Optional Plans Law to pass the Paid Sick Days Act and the Safe and Secure Buildings Act (collectively, the “Ordinances”).

In Pennsylvania Rest. & Lodging Ass’n v. City of Pittsburgh, 2017 WL 2153813 (Pa. Cmwlth.) (PRLA), Plaintiffs challenge the City of Pittsburgh’s authority to pass the Paid Sick Days Act, summarized by the court as follows:

The stated purpose of the ordinance is to enhance the public health by ensuring that employees across the City are able to earn paid sick time. The Paid Sick Days Act was signed into law by Mayor Peduto on August 13, 2015, and it applies to almost all employers doing business in the City.

The ordinance provides that all employees have a right to sick time, and it requires employers to provide employees a minimum of one hour of paid sick leave for every thirty-five hours they work. Employers of fewer than fifteen employees must permit the accrual of up to twenty-four hours of paid sick leave per calendar year (unpaid during the first year), and employers of fifteen or more employees must allow the accrual of up to forty hours of paid sick leave per calendar year.

PRLA, Slip Op., at 2.

In Bldg. Owners & Managers Ass’n of Pittsburgh v. City of Pittsburgh, 2017 WL 2153216 (Pa. Cmwlth.) (Bldg. Owners), Plaintiffs similarly challenge the Safe and Secure Buildings Act, which imposes numerous affirmative duties upon employers. Specifically, the court noted:

Sections 410.4(A), (B), and (C)(2) affirmatively require “Security Officers” and “Building Service Employees” who work in commercial office buildings, retail buildings of at least 100,000 square feet, museums and cultural institutions of at least 100,000 square feet, to receive training by a school certified by the City’s Fire Bureau to identify, prevent, and respond to emergency situations, and for a “Covered Owner” to certify compliance therewith.

Bldg. Owners, Slip Op., at 5.

The PLRA and Bldg. Owners trial courts determined that that the City of Pittsburgh lacked authority to pass the Paid Sick Leave and Safe and Secure Buildings pursuant to the limitations of Section 2962(f) of the Home Rule Charter Law:

(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.

The trial courts held that the City did not have authority to pass the Ordinances when the City failed to show such authority was “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” as required by 2962(f). PLRA, Slip Op., at 2-3; see Bldg. Owners, Slip Op., at 2. The City appealed.

On appeal in PLRA, the City arguments that the Second Class City Code and/or the Disease Prevention and Control Law conferred authority on the City to pass the Paid Sick Days Act were summarily rejected by the court:

The City also argues that the Second Class City Code specifically authorizes the City to “make regulations to secure the general health of the inhabitants” and “to prevent the introduction of contagious or pestilential diseases into the city.” Article XIX, Section 3, Clauses XXXIII and XXXIV of the Act of March 7, 1901, P.L. 20, 53 P.S. §§ 23145, 23146. However, as noted above, the exception in Section 2962(f) of the Home Rule Charter law only applies to authority “as expressly provided by statutes ….” 53 Pa.C.S. § 2962(f). The provisions of the Second Class City Code on which the City relies do not expressly grant the City authority to impose the affirmative duties upon employers set forth in the Paid Sick Days Act. Therefore, these provisions do not compel application of the exception in Section 2962(f) of the Home Rule Charter Law.

Finally, the City argues that it has authority under Section 16(c) of the Disease Prevention and Control Law, which states in part that “[m]unicipalities 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 ….” 35 P.S. § 521.16(c). However, the City does not have a health department. We reject the City’s interpretation of this provision as applicable to “any municipality served by” a county department of health.

PLRA, Slip Op., at 6-7.

Rejecting the City’s Second Class City argument for the same reasons as set forth in PLRA, the Bldg. Owners Court additionally rejected arguments that the Home Rule Law, and/or State Emergency Management Services Code conferred authority on the City to pass the Safe and Secure Buildings Act:

The City and [Intervenor] SEIU also argue that the City has authority under Sections 7501(a) and 7503 of the Emergency Management Services Code to enact Sections 410.4(A), (B), and (C)(2) of the Ordinance.11 However, the Emergency Management Services Code does not expressly empower the City to enact these Ordinance provisions because it does not apply to the regulation and training of “Security Officers” or “Building Service Employees” of private employers. Rather, Sections 7501 and 7503 merely authorize the City to establish its own “local emergency management organization” and to enter into intergovernmental cooperation agreements with other government entities with respect to emergency management, response and recovery. At most, Section 7503(7) authorizes the City to “[c]ooperate and coordinate” with private employers and does not empower the City to compel the regulation and training of their private employees.

Finally, SEIU argues that the Ordinance is a health regulation authorized by Section 2962(c)(4) of the Home Rule Charter Law, which allows the City “to enact and enforce ordinances related to building codes or any other safety, sanitation or health regulation pertaining thereto.” 53 Pa. C.S. § 2962(c)(4) (emphasis added). Section 2962(c)(4) states:

(c) Prohibited Powers- A municipality shall not:

(4) Enact or promulgate any ordinance or regulation with respect to definitions, sanitation, 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 regulations pertaining thereto.

53 Pa. C.S. § 2962(c)(4) (emphasis added). However, in making this argument, SEIU relies on words taken out of context; significantly, it does not explain how the Ordinance “pertains to” building codes.

Bldg. Owners, Slip Op., at 7-9 (footnotes omitted).

Therefore, because the City was not expressly conferred power to pass the Ordinances by statute, the Commonwealth Court affirmed the trial courts’ decisions that the City did not have authority to pass the Ordinances pursuant to the exception set forth in Section 2962(f) of the Home Rule Charter Law.

Judge Cosgrove authored a dissent in PRLA, adopted and incorporated by reference in Bldg. Owners, finding the City’s authority to pass the Ordinances as an “inherent power of municipalities when specifically acting to protect health and safety, even if that action impacts business” and criticizing the majority’s decision as “severely limit[ing] this power not only for Pittsburgh but for all home rule municipalities by reading into the Home Rule Charter and Optional Plans Law restrictions which are not there. PLRA, Slip Op., at JMC-1 – JMC-2.

The Supreme Court granted allocatur to determine:

Did the Commonwealth Court err in holding that the State Emergency Management Services Code, the State Disease Prevention and Control Act Law, the Second Class City Code, and the Home Rule Charter and Options Law fail[] 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?

For more information, contact Kevin McKeon or Dennis Whitaker.