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 Pitts burgh, 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 De cember 21, 2015 order of the Court of

Common Pleas of Allegheny County (trial court)

, 1 which grant ed the motion for

judgment on the pleadings filed by the Pennsylvania Restaurant and Lodging

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

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 t he City lacked authority to adopt the Paid

Si ck Days Act, an ordinance mandating paid sick leave for employees

. We affirm.

O n 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 th e 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 mu st 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.

A ppellees 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 t o 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, t rust,

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 expr essly 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. T he trial court rejected the City’s assertions that the

Disease Prevention and Control Law of 1955 4 and/or provisions of the Second

Class City Code 5 provide such authority, and granted A ppellees’ motion for

judgment on the pleadings. 6

On appeal to this Cou rt, 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 provid es 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, t he City’s assertions in thi s 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 o f 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 , 19 01 , P.L. 20

, as amended , 53 P.S. §§2 3 101

- 2 3175

.

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 Bec ause 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 withh old, 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 requir ed

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 em

ployees. W e held that the ordinance was invalid under former Section

302(d) of the Home Rule Charter Law, 8 a 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, i n 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 empl oyers with new service contracts to retain the

employees of the prior contractor for at least 180 days. In its analysis, t he 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 emp loyers 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

employe es and family members; defines family members (as including

grandparents and grandchildren and their spouses); and imposes notice and record

keeping 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 this6

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

because express authority is granted to the City by the Second Cl ass 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 promulgat e 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 a ll respects with the

Commonwealth statutes and regulations thereunder. This

paragraph does not affect the power of any municipality

to enact and enforce ordinances r elating to building

co d e s 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, i t 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 XXXII I and XXXIV of the Act of

March 7, 1901, P.L. 20, 53 P.S. §§23145, 23146. However, as noted above, the7

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). T he

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, the se provisions do not compel application

of th e exception in Section 296 2(f) of the Home Rule Ch arter Law.

Finally, t he City argues that it has authority under Section 16 (c) of the

Disease Prevention and Control L aw, 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, t he City does not have a health

department. 9 We reject t he 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 t he

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

Control Law would permit a mun icipality 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 municipalit i es.

Accordingly, w e affirm.

MICHAEL H. WOJCIK, JudgeIN 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 I ncorporated, 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 17 th day of May , 2017

, the December 21, 2015 order

of the Court of Common Pleas of Allegheny County is AFFIRMED

.

__________________________________ MICHAEL H. WOJCIK, JudgeIN 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 o f 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, 2016BEFORE: HONORABLE MARY HANNAH LEAVITT

, President Judge

HONORABLE REN É E COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. M c CULLOUGH, Judge

HONORABLE MIC H AEL H. WOJCIK Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE COSGROVE FILED: May 17, 2017

The ordinance at i ssue 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 Law 1 restrictions 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 thei r 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 pri nciple 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 municipaliti es.”)(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 u pheld the right of municipalities to regulate business operations

impinging o n the health of its citizens.”) ( http://dced.pa.gov/download/home

- rule

governance

- in

- p ennsylvania/?wpdmdl=5679 2&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 Manag ers

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 desi gned 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 (emphasi s 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 i n 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

- 19 th Century, the Supreme

Court recognized a uthority 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 respe ctfully, dissent.

___________________________ JOSEPH M. COSGROVE , Judge