IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Restaurant and :

Lodging Association, Storms : No. 79 C.D. 2016

Restaurant and Catering, LLC : Argued: November 16, 2016

d/b/a Storms Restaurant, :

Lawrenceville Brewery, Inc., d/b/a :

The Church Brew Works, 1215 :

Incorporated, d/b/a Rita's Italian Ice, :

Dirt Doctors Cleaning Service LLC, :

and Modern Cafe Inc. :

:

v. :

:

City of Pittsburgh :

:

v. :

:

Service Employees International :

Union Local 32 BJ :

:

Appeal of: City of Pittsburgh :

Pennsylvania Restaurant and :

Lodging Association, Storms : No. 101 C.D. 2016

Restaurant and Catering LLC : Argued: November 16, 2016

d/b/a Storms Restaurant, :

Lawrenceville Brewery Inc. :

d/b/a The Church Brew Works, :

1215 Incorporated, d/b/a Rita's Italian :

Ice, Dirt Doctors Cleaning Service LLC, :

and Modern Cafe Inc. :

:

v. :

:

City of Pittsburgh, Council of the :

City of Pittsburgh, and William :

Peduto, and Service Employees :

International Union Local 32 BJ :

:

Appeal of: Service Employees :

International Union Local 32BJ :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: May 17, 2017

The City of Pittsburgh (City) and Service Employees International 

Union, Local 32BJ, (SEIU) appeal the December 21, 2015 order of the Court of 

Common Pleas of Allegheny County (trial court),

1 which granted the motion for 

judgment on the pleadings filed by the Pennsylvania Restaurant and Lodging 

Association; Storms Restaurant and Catering, LLC, d/b/a Storms Restaurant; 

Lawrenceville Brewery, Inc., d/b/a The Church Brew Works; 1215 Incorporated, 

d/b/a Rita's Italian Ice; Dirt Doctors Cleaning Service LLC, and Modern Cafe Inc. 

(collectively, Appellees), and held that the City lacked authority to adopt the Paid 

Sick Days Act, an ordinance mandating paid sick leave for employees. We affirm.

On August 3, 2015, Pittsburgh City Council enacted an ordinance, 

known as the Paid Sick Days Act, amending Title VI, Article 1 of the Pittsburgh 

Code. 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 

 

1

The appeals were consolidated by this Court’s order of February 29, 2016.
2

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.2 

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. 

Appellees challenged the ordinance by filing a declaratory judgment 

action on September 21, 2015, and a motion for preliminary injunctive relief on 

October 13, 2015. The trial court granted SEIU’s petition for permission to 

intervene. The parties agreed to a sixty-day stay of the application and 

enforcement of the ordinance, and after the City and SEIU filed answers to the 

complaint, all parties filed motions for judgment on the pleadings. 

The trial court first noted that the City is a home rule charter

municipality created pursuant to the Home Rule Charter and Optional Plans Law 

(Home Rule Charter Law).

3 The trial court concluded that, because Section 

2962(f) of the Home Rule Charter Law limits the City’s authority to regulate 

 

2

Section 2(F) of the Paid Sick Days Act defines an employer as “a person, partnership, 

limited partnership, association, or unincorporated or otherwise, corporation, institution, trust, 

government body or unit or agency, or any other entity situated or doing business in the City and 

that employs one (1) or more persons for a salary, wage, commission or other compensation.” 

Reproduced Record (R.R.) at 119a. The definition does not include the United States 

Government or the State of Pennsylvania. Id.

3

53 Pa. C.S. §§2901-2984.
3

business, “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,” 53 Pa.C.S. §2962(f), the City lacked authority to 

enact the Paid Sick Days Act. The trial court rejected the City’s assertions that the 

Disease Prevention and Control Law of 19554and/or provisions of the Second 

Class City Code5provide such authority, and granted Appellees’ motion for 

judgment on the pleadings.6

On appeal to this Court, the City argues that the trial court erred in 

concluding that the City lacked authority to enact the Paid Sick Days Act.7 The 

City first argues that: (1) the Paid Sick Days Act enjoys a presumption of validity; 

(2) the Pennsylvania Constitution provides the City a broad grant of authority; (3) 

the Home Rule Charter Law requires that the City’s authority be liberally 

construed in favor of the City; and (4) the City’s charter contains a broad statement 

of authority. However, the City’s assertions in this regard are followed by little 

analysis and do not address Section 2962(f) of the Home Rule Charter Law, upon 

which the trial court based its decision. 

Section 2962(f) of the Home Rule Charter Law expressly limits a 

home rule municipality’s regulation of businesses. It states:

 

4 Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S §§521.1-521.21.

5 Act of March 7, 1901, P.L. 20, as amended, 53 P.S. §§23101-23175.

6 A motion for judgment on the pleadings should be granted when the pleadings 

demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgment as a 

matter of law. Swartz v. Swartz, 689 A.2d 302, 303 (Pa. Super. 1997). 

7 Because this matter involves purely a question of law, our scope of review is plenary 

and the standard of review is de novo. Shields v. Council of Borough of Braddock, 111 A.3d 

1265, 1268 (Pa. Cmwlth. 2015). 
4

(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.

53 Pa. C.S. §2962(f) (emphasis added). 

In Smaller Manufacturers Council v. Council of City of Pittsburgh, 

485 A.2d 73 (Pa. Cmwlth. 1984), we considered a City ordinance that required

plant owners and operators to notify the Bureau of Business Security of any plans 

to close, relocate, or reduce operations if such actions would affect more than 15% 

of their employees. We held that the ordinance was invalid under former Section 

302(d) of the Home Rule Charter Law,8a substantially similar prior version of 

Section 2962(f), because it regulated the duties, responsibilities, and requirements 

of the businesses. We further held in Smaller that, based on the clear language of 

Section 302(d), the ordinance was prohibited unless the City was expressly 

authorized to enact such an ordinance by the legislature. 

 

8 Act of April 13, 1972, P.L. 184, formerly 53 P.S. §1-302(d), repealed by the Act of 

December 19, 1996, P.L. 1158, 53 Pa. C.S. §2962(f), which stated:

No municipality which adopts a home rule charter shall at any time 

thereunder determine the 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 the acts of the General Assembly which 

are applicable in every part of the Commonwealth or which are 

applicable to all municipalities or to a class or classes of 

municipalities. (Emphasis added.)
5

Thereafter, in Building Owners and Managers Association of

Pittsburgh v. City of Pittsburgh (BOMA), 985 A.2d 711 (Pa. 2009), our Supreme 

Court considered whether the City exceeded its authority as a home rule 

municipality when it passed “The Protection of Displaced Contract Workers 

Ordinance,” which required employers with new service contracts to retain the 

employees of the prior contractor for at least 180 days. In its analysis, the Supreme 

Court cited Smaller and affirmed this Court’s holding that the ordinance at issue in 

BOMA also was invalid. In doing so, the court noted that the ordinance in BOMA

was “far more invasive [than the reporting requirement in Smaller] because it 

forces contractors to retain certain employees for approximately half a year.” 985 

A.2d at 714-15. Additionally, the court rejected the argument that preemption is 

the only limitation on the City’s authority to regulate business. 

In this case, the Paid Sick Days Act imposes numerous affirmative 

duties upon employers. In addition to mandating that employers provide 

employees a minimum amount of paid sick leave, the ordinance: directs the 

manner of accruing sick leave; requires that unused paid sick leave be carried over 

to the following calendar year; states that sick leave time can be used for 

employees and family members; defines family members (as including 

grandparents and grandchildren and their spouses); and imposes notice and recordkeeping duties. In light of the express limitations in Section 2962(f) of the Home 

Rule Charter Law and following the decisions in BOMA and Smaller, we must 

conclude that the City was without authority to enact the Paid Sick Days Act. 

The City maintains that the limitations on municipal authority set 

forth in Section 2962(f) are inapplicable here for two reasons: (1) the Paid Sick 

Days Act is a public health regulation, and, as such, it is outside the scope of this 
6

limiting provision; (2) alternatively, the exception clause in Section 2962(f) applies 

because express authority is granted to the City by the Second Class City Code 

and/or the Disease Prevention and Control Law. We disagree.

The City first asserts that the Paid Sick Days Act 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, the 

City relies on words taken out of context; significantly, it does not explain how the 

Paid Sick Days Act “pertains to” building codes.

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 
7

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.9 We reject the City’s interpretation of this provision as applicable to 

“any municipality served by” a county department of health. 

In addition to the above arguments, SEIU asserts a public policy 

justification for the ordinance, alleging a relationship between paid sick leave and 

public health. However, neither the wisdom nor the purpose of the Paid Sick Days 

Act is material to the only issue before us, which is whether the City had authority 

to adopt this ordinance. While the City repeatedly asserts that broad powers to 

regulate are conferred by other statutory provisions, its arguments cannot 

overcome the plain language of Section 2962(f) of the Home Rule Charter Law, 

which is not a broad grant of authority, but instead, is an express limitation on the 

 

9 We do not consider, however, whether Section 16(c) of the Disease Prevention and 

Control Law would permit a municipality or county that has a health department to enact an 

ordinance mandating paid sick leave for employees.
8

City’s authority to impose obligations on business, occupations, and employers. 

53 Pa. C.S. §2962(f).

We recognize that paid sick leave for employees is a laudable goal. 

The power to achieve that goal rests with our General Assembly, however, through

statewide legislation addressing paid sick leave or, alternatively, through 

legislation vesting authority to do so in local municipalities. 

Accordingly, we affirm.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Restaurant and : 

Lodging Association, Storms : No. 79 C.D. 2016

Restaurant and Catering, LLC : 

d/b/a Storms Restaurant, :

Lawrenceville Brewery, Inc., d/b/a :

The Church Brew Works, 1215 :

Incorporated, d/b/a Rita's Italian Ice, :

Dirt Doctors Cleaning Service LLC, :

and Modern Cafe Inc. :

:

v. :

:

City of Pittsburgh :

:

v. :

:

Service Employees International :

Union Local 32 BJ :

:

Appeal of: City of Pittsburgh :

Pennsylvania Restaurant and :

Lodging Association, Storms : No. 101 C.D. 2016

Restaurant and Catering LLC : 

d/b/a Storms Restaurant, :

Lawrenceville Brewery Inc. :

d/b/a The Church Brew Works, :

1215 Incorporated, d/b/a Rita's Italian :

Ice, Dirt Doctors Cleaning Service LLC, :

and Modern Cafe Inc. :

:

v. :

:

City of Pittsburgh, Council of the :

City of Pittsburgh, and William :

Peduto, and Service Employees :

International Union Local 32 BJ :

:

Appeal of: Service Employees :

International Union Local 32BJ :
O R D E R

AND NOW, this 17th day of May, 2017, the December 21, 2015 order 

of the Court of Common Pleas of Allegheny County is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Restaurant and Lodging :

Association, Storms Restaurant and :

Catering, LLC, d/b/a Storms Restaurant, :

Lawrenceville Brewery, Inc., d/b/a :

The Church Brew Works, 1215 :

Incorporated, d/b/a Rita’s Italian Ice, :

Dirt Doctors Cleaning Service LLC, :

and Modern Café Inc. :

:

v. :

:

City of Pittsburgh :

:

v. :

:

Service Employees International :

Union Local 32 BJ :

: No. 79 C.D. 2016

Appeal of: City of Pittsburgh : Argued: November 16, 2016

Pennsylvania Restaurant and Lodging :

Association, Storms Restaurant and :

Catering LLC, d/b/a Storms Restaurant, :

Lawrenceville Brewery, Inc., d/b/a :

The Church Brew Works, 1215 :

Incorporated, d/b/a Rita’s Italian Ice, :

Dirt Doctors Cleaning Service LLC, :

and Modern Café Inc. :

:

v. :

:

City of Pittsburgh, Council of the :

City of Pittsburgh, and William :

Peduto, and Service Employees :

International Union Local 32 BJ :

:

:

Appeal of: Service Employees : No. 101 C.D. 2016

International Union Local 32 BJ : Argued: November 16, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE COSGROVE FILED: May 17, 2017

The ordinance at issue in this matter was enacted by the City of 

Pittsburgh, a home rule municipality, pursuant to its power to protect the health 

and safety of the people within its borders. The majority, however, severely limits 

this power not only for Pittsburgh but for all home rule municipalities by reading 

into the Home Rule Charter and Optional Plans Law1restrictions which are not 

there. As I cannot agree that this is consistent with the law, I must dissent.

Home rule municipalities are not somehow divested of their discrete 

police powers to protect health and safety. On the contrary – if anything, these 

entities have even greater powers than their non-home rule counterparts. See 

Hartman v. City of Allentown, 880 A.2d 737, 742 (Pa. Cmwlth. 2005)(“The 

essential principle underlying home rule is the transfer of authority to control 

certain municipal affairs from the state to the local level... This transference 

results in home rule municipalities having broader powers of self government than 

non-home rule municipalities.”)(emphasis in the original).

Where the majority seems to veer from this basic understanding is in 

its failure to recognize the inherent power of municipalities when specifically 

 

1

53 Pa.C.S. §§ 2901-2984.
JMC - 2

acting to protect health and safety, even if that action impacts business. See Home

Rule in Pennsylvania, Governor’s Center for Local Government Services, Ninth 

Edition January 2017 at page 66 (“Another of the basic police powers of 

municipalities is the protection of the health and welfare of its citizens. Courts 

have long upheld the right of municipalities to regulate business operations 

impinging on the health of its citizens.”) (http://dced.pa.gov/download/home-rulegovernance-in-pennsylvania/?wpdmdl=56792&ind=Nm6XYNO35U_RldKo8slDV1q7x8- 

5zPAAxQGEfWwg_hr-wqMBPKb2ZZF1cCFcdsRM) (last visited April 13, 2017)

(citing Western Pennsylvania Restaurant Association v. Pittsburgh, 77 A.2d 616, 

621 (Pa. 1951)).

2

Although the majority cites Building Owners and Managers 

Association of Pittsburgh v. City of Pittsburgh (BOMA), 985 A.2d 711 (Pa. 2009) 

in support of its position, even that case recognizes the distinction between an 

ordinance which arises out of the power to protect health and safety, and one which 

is designed in the first place to regulate business. In response to the dissent, the 

Court added a footnote, stating: “Respectfully, the dissent confuses regulating

business with health or safety ordinances that may affect a business.” Id. at 715, 

n.12 (emphasis added). It is clear that the Supreme Court understands this 

important distinction; it is equally clear the present majority does not.

 

2 Not unlike the present case, Western Pennsylvania Restaurant Association addressed 

the validity of a Pittsburgh public health ordinance. In upholding the ordinance, the Supreme 

Court noted that while the city’s Charter Act “vests in it the power ‘To make regulations to 

secure the general health of the inhabitants ***, - [this is] a power which, indeed, [the city] 

would probably possess even in the absence of such a specific grant. Wartman v. City of 

Philadelphia, 33 Pa. 202, 209 (1859) ...” Western Pennsylvania Restaurant Association, 77 

A.2d at 618 (emphasis added). In Wartman, a case from the mid-19th Century, the Supreme 

Court recognized authority at “common law [in] Pennsylvania, that every municipal corporation 

which has power to make by-laws and establish ordinances to promote the general welfare and 

preserve the peace of a town or city, may ... make such [] regulations concerning them as may 

conduce to the public interest.” Wartman, 33 Pa. at 209.
JMC - 3

This case involves an effort to protect health and safety. That indeed 

is what municipalities are for. In exercise of the political power to do so, the 

present ordinance was enacted. If the people of Pittsburgh disagree with this 

action, they will address their dissatisfaction through the political process. It is not 

for this court to interfere. I therefore, and respectfully, dissent. 

___________________________

JOSEPH M. COSGROVE, Judge