[ J

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- 2018 ] [MO: Wecht, J. ] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

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.

v.

CITY OF PITTSBURGH

v.

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 32BJ

APPEAL OF: SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 32BJ :

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: No. 57 WAP 2017

Appeal from the Order of the Commonwealth Court entered May 17, 2017 at No. 79 CD 2016, affirming the Order of the Court of Common Pleas of Allegheny County entered December 21, 2015 at No. GD 15

- 16442.

ARGUED: October 23, 2018

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. :

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: No. 58 WAP 2017

Appeal from the Order of the Commonwealth Court entered May 17, 2017 at No. 101 CD 2016, affirming the Order of the Court of Common Pleas of Allegheny County entered December 21, 2015 at No. GD 15

- 16442.

ARGUED: October 23, 2018[ J

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2018 and J

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- 2018 ] [MO: Wecht, J. ]

- 2 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 :

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BUILDING OWNERS AND MANAGERS ASSOCIATION OF PITTSBURGH

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 :

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: No. 59 WAP 2017

Appeal from the Order of the Commonwealth Court entered May 17, 2017 at No. 100 CD 2016, affirming the Order of the Court of Common Pleas of Allegheny County entered December 17, 2015 at No. GD 15

- 13329.

ARGUED: October 23, 2018

BUILDING OWNERS AND MANAGERS ASSOCIATION OF PITTSBURGH

v.

CITY OF PITTSBURGH, COUNCIL OF THE CITY OF PITTSBURGH, AND WILLIAM PEDUTO, AND SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 32BJ

APPEAL OF: SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 32BJ :

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: No. 60 WAP 2017

Appeal from the Order of the Commonwealth Court entered May 17, 2017 at No. 102 CD 2016, affirming the Order of the Court of Common Pleas of Allegheny County entered December 17, 2015 at No. GD 15

- 13329.

ARGUED: Oct ober 23, 2018[ J

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2018 and J

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- 2018 ] [MO: Wecht, J. ]

- 3 BUILDING OWNERS AND MANAGERS ASSOCIATION OF PITTSBURGH

v.

CITY OF PITTSBURGH, COUNCIL OF THE CITY OF PITTSBURGH, AND WILLIAM PEDUTO, AND SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 32BJ

APPEAL OF: CITY OF PITTSBURGH, COUNCIL OF THE CITY OF PITTSBURGH, AND WILLIAM PEDUTO :

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: No. 61 WAP 2017

Appeal from the Order of the Commonwealth Court entered May 17, 2017 at No. 100 CD 2016, affirming the Order of the Court of Common Pleas of Allegheny County entered December 17, 2015 at No. GD 15

- 13329.

ARGUED: October 23, 2018

BUILDING OWNERS AND MANAGERS ASSOCIATION OF PITTSBURGH

v.

CITY OF PITTSBURGH, COUNCIL OF THE CITY OF PITTSBURGH, AND WILLIAM PEDUTO, AND SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 32BJ

APPEAL OF: CITY OF PITTSBURGH, COUNCIL OF THE CITY OF PITTSBURGH, AND WILLIAM PEDUTO :

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: No. 62 WAP 2017

Appeal from the Order of the Commonwealth Court entered May 17, 2017 at No. 102 CD 2016, affirming the Order of the Court of Common Pleas of Allegheny County entered December 17, 2015 at No. GD 15

- 13329.

ARGUED: October 23, 2018

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 :

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: No. 63 WAP 2017

Appeal from the Order of the Commonwealth Court entered May 17, 2017 at No. 79 CD 2016, affirming the Order of the Court of Common Pleas of Allegheny County entered December 21, 2015 at No. GD 15

- 16442.[ J

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2018 and J

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- 2018 ] [MO: Wecht, J. ]

- 4 CLEANING SERVICE LLC, AND MODER N CAFE INC.

v.

CITY OF PITTSBURGH

v.

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 32BJ

APPEAL OF: CITY OF PITTSBURGH, COUNCIL OF THE CITY OF PITTSBURGH, AND WILLIAM PEDUTO :

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: ARGUED: October 23, 2018

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.

v.

CITY OF PITTSBURGH, COUNCIL OF THE CITY OF PITTSBURGH, AND WILLIAM PEDUTO, AND SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 32BJ

APPEAL OF: CITY OF PITTSBURGH, COUNCIL OF THE CITY OF PITTSBURGH, AND WILLIAM PEDUTO :

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: No. 64 WAP 2017

Appeal from the Order of the Commonwealth Court entered May 17, 2017 at No. 101 CD 2016, affirming the Order of the Court of Common Pleas of Allegheny County entered December 21, 2015 at No. GD 15

- 16442.

ARGUED: October 2 3, 2018[ J

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- 2018 ] [MO: Wecht, J. ]

- 5 CONCURRING AND DISSENTING OPINION

JUSTICE BAER DECIDED: JULY 17, 2019

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 express ly 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). 1 I also agree with the Majority that Subsection

2962(f) bar s the City’s Safe and Secure Buildings Act (“SSBA”) because the SSBA

regulates business es and employers by imposing “a complex and burdensome set of

continuing obligations upon owners and employees of ‘covered properties,’” Majority

Opinion at 36

, and the City has failed to identify a statute of this Commonwealth that

expressly provides a home

- rule municipality with the authority to pass such an ordinance.

Consequently, I join the following part s of the Majority Opinion: I., II.

, III., and IV.C.

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

1 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 emp loyment, 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 fi xing rates of taxation on permissible subjects of taxation.

53 Pa.C.S. § 2962

.[ J

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- 2018 ] [MO: Wecht, J. ]

- 6 Days Act (“PSDA”). As noted, Subsection 2962(f) prohibits the City from placing “duti es,
responsibilities or requirements” upon “businesses, occupations and employers.” It

seems beyond serious controversy that the PSDA regulates business es and employers

by requiring them to provide sick leave to their employees. Indeed, the Majority appe ar s

to agree. See Majority Opinion at 9 (explaining that the PSDA requires employers in the

City to provide sick leave to employees). Thus, Subsection 2962(f) precludes the City

from placing thi s requirement upon businesses and employers, unless the City can
identify express statutory language that permits it to legislate in this manner.

T he City has failed to highlight any e xpress statutory authority allowing it to

mandate that businesses and employers pr ovide employees with sick leave, and I find

th e Majority’s contrary conclusion to be unpersuasive

. As to this la t ter statement, in

finding that the Disease Prevention and Control Law of 1955 (“DPCL”), 35 P.S. §§ 521.1

- 521.21, contains sufficient authority to allow the City to p ass the PSDA, the Majorit y first

finds “that the DPCL is ambiguous with regard to whether and when municipalities may

enact ordinances related to disease prevention and control. ” Majority Opinion at 26.

Next, the Majority utilizes principles of statutory construction to conclude that, because

the City is within “the jurisdiction of the Allegheny County Health Department, [it] qualifies

as a municipality which has a department of heal th for purposes of [the] DPCL[.] ” I d. at

29. Lastly, the Majority apparently conclude s that , be cause the general object of the

DPCL is disease prevention and control, it necessarily follows that the DPCL expressly

provides home

- rule municipalities with the authority to require businesses and employers

to provide sick days to their employees. Id. at 29

- 36

. 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[ J

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- 2018 ] [MO: Wecht, J. ]

- 7 employees with sick days. I further note that, because the Majority finds that the DPCL

provides the City with suffi cient authority to pass the PSDA , it understandably declines to

address whether the other statutory authority cited by the City can substan tiate 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 authori ty for the PSDA. These

sections can be found in the Second Class Cities Code (“SCCC”), 53 P.S. §§ 22101

-

28707.

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 53 P.S. § 23145). The City further states that: (1)

Section 23146 of SCCC permits it to “make all necessary orders and regulations to

prevent the introduction of contagious or pestilential d iseases into the city; to enact

quarantine laws for that purpose, and to enforce the same within five miles of the city

limits[,]” id. (quoting 53 P.S. § 23146); and (2) Section 23158 grants the City with authority

to “make all such ordinances, by

- laws, ru les and regulations, no t inconsistent with the

Constitution and laws of this Commonwealth, as may be expedient or necessary . . . for

the . . . maintenance of the peace, good government and welfare of the city, and its trade,

commerce and manufacturers[,]” id. (quoting 53 P.S. § 23158). In sum, the City suggests

that these statutory provision s expressly provide it with authority to enact the PSDA.

To the extent that the City can rely on provision s of the SCCC for purposes of

validating its authority to pas s 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 t he general welfare of their citizens , the statutes simply[ J

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- 8 do not provide express statutory authority allowing home

- rule municipalities to mandate

that businesses and employers prov ide sick leave to their employee s.

For these reasons , I conclude that the Co mmonwealth Court correctly determined

that Subsection 2962(f) invalidates both the S S BA 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. Accordi ngly, I would affirm th e Commonwealth

C ourt’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

.