IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jessica Markham, Victoria Markham, : Jesse Charles, Pennsylvania Homecare : Association, United Cerebral Palsy of : Pennsylvania, : Petitioners :

: v. : No. 176 M.D. 2015
: Argued: June 8, 2016 Thomas W. Wolf, in his Official : Capacity as Governor of the : Commonwealth of Pennsylvania, : Department of Human Services, : Office of Long Term Living, : Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORAB LE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE SIMPSON FILED: September 22, 2016

In this case in our original jurisdiction, we are asked to determine the validity of an executive order which purports to create new arrangement s for direct care workers who provide personal services to certain aged and disabled participants in their homes. We are mindful of the respect and priva cy afforded to a person in his or her home, dating back at least to Elizabethan England, and expressed in the words of Sir Edward Coke: “For a man’s home is his castle, et domus cuique tutissimum refugium .” 1

1 Sir Edward Coke, T HIRD I NSTITUTE OF THE L AWS OF E NGLAND 162 (1644). The Latin means: “and his home his safest refuge.” See Semayne’s Case (1603) 77 Eng. Rep. 194 (K.B.) (Footnote cont inued on next page...)2 More particularly, b efore this Court are the parties’ cross

- applications for summary relief. Jessica Markham, Victoria Markham, Jesse Charles, Pennsylvania Homecare Association (PHA) , and United Cerebral Palsy of Pennsylvania (UCP) (collectively , Petitioners) filed a petition for declaratory and inj unctive relief seeking to invalidate an executive order issu ed by Governor
T homas W. Wolf (Governor Wolf ) pertaining to direct care workers (DCW) whose
services to eligible aged or disabled individual s are paid by the Department of Human Services, Office of Long Term Living (Department). The Department and
Governor Wolf (collectively, Respondents) also filed preliminary objections, which
are before us for disposition

.

Petitioners assert the executive order is an unauthorized exercise of power, is unconstitutional and is in conflict with existing labor and health laws. Respondents counter that Petitioners lack standing and their challenge lacks merit

. Upon review, we grant Petitioners’ applica tion fo r summary relief as to certain provisions of the Executive Order (Sections 3, 4, and related parts of Section s 1 and 5). Also, we deny Respondents’ ap p lica tio n for summ ary relief (as to Sections 3, 4 , and related parts of Section s 1 and 5 ), but allow other portions to remain. Further, we overrul e their preliminary objections to the extent they are not mooted by our
decision on the merits

.

(continued...)
(“[T]he house of everyone is to him as his castle and fortress , as well for his defence against injury and violence, as for his repose.”) (addressing “knock and announce” rule).3 I. Background A. Home Care Programs On February 27, 2015, Governor Wolf issued Executive Order No.
2015

- 05 (Executive Order), entitled “Participant

- Directed Home Care Services. ”
See 45 Pa. B. 1937 (April 18, 2015). The Executive Order focused on individuals
who receive , and the DCW s who provide , in

- home personal (non

- medical) care pursuant to the Attendant Ca re Services Act, 62 P.S. §§3051

- 3058 (Act 150) , 2 and
federal Medicaid waiver programs.

The Department administer s Act 150 3 and the Medicaid waiver programs, including the: Aging Waiver ; At tenda nt Care Waiver ; CommCare Waiver ; Independence Waiver ; and, OBRA Waiver Program (collectively, Home Care Programs). The Department oversees home care services and administers the funding for Home Care Programs. The Department also files the Medicaid waivers with the U.S. Department of Health and Human Services, representing that the elderly or disabled p articipant in the program employs DCWs eligible for payment

.

It is clear that we are addressing home

- based services rendered to some of our neediest citizens where they live. Individuals receiving home care

ser vices are “participants.” 55 Pa. Code §52.3. Under the Home Care Programs, DCWs provide personal care and domestic services to enable p articipants to live at home rather than in an institution. At times, a DCW is a participant’s relative , residing at th e same address.

2 Act of December 10, 1986, P.L. 1477.

3 Act 150 affords care to physically disabled persons ages 18

- 59.4 Home care services are directed either by participants, under the Participant Model, or by agencies under the Agency Model. Under the Participant Model, DCWs are recruited, hired, and managed by a participant who employs the
DCW. By cont rast, under the Agency Model, a home care agency recruits, hires and manages the DCW. As employers, participants have federal employer identification numbers, are subject to workers’ compensation and unemployment requirements , and pay relevant employer ta xes. Under Act 150 , participants have the “right to make decisions about, direct the provision of and control ... [home]
care services.” Section 2(3) of Act 150, 62 P.S. §3052(3). Thus, participants’
control over their care is unfettered other than compli ance with home care service regulations

.

In sum, participants have three roles: they receive personal care and domestic services; they receive the services where they reside; and, they employ the persons who render the services in their homes.

B. Executive Order
The Executive Order governs the relationship between DCWs and the Department. 4 As such, it pertains only to the Participant Model. T he Executive

4 The Executive Order, in its entirety, provides: WHEREAS, the administration is committed to ensuring that Pennsylvania residents have access to quality home care services; and WHEREAS, [DCWs] are i ndividuals who provide vital home care services to Pennsylvania's seniors and people with disabilities who require assistance; and WHEREAS, without assistance from [DCWs] who are paid through various programs administered by the [ Department ] through i ts Office of Long Term Living, these residents otherwis e would require Institution al care, such as that provided i n a nursing home; and (Footnote cont inued on next page...)5

(continued...)

WHEREAS, residents who are consumers of in

- home personal care services must maintain the right to select and dire ct the dai ly work of [DCWs] who provide services through the p rograms administered by the [ Department ] ; and WHEREAS, the average cost of providing in

- home personal care services i s typically much less than the cost of care provided i n nursing homes or similar i nstitutional settings, and Pennsylvania's home care serv ices programs therefore save the Commonwealth millions of dollars per year; and
WHEREAS, the demand for direct home care services is expected to rise in the coming years in light of Pennsylvania's aging population; and WHEREAS, the quality of life for Pe nnsylvania's seniors and people with disabilities is significantly i mproved by the op tion of received self

- directed i n

- home care services; and WHEREAS, [DCWs] typically earn low wages and receive no benefits, paid time off, or standardized training; and WHEREAS, as a result, the pool of [DCWs] available for consumers of in

- home care

serv ices i n Pennsylvania suffers from high turnover and i nconsistent quality; and WHEREAS, reform of the Commonwealth's home care programs requires careful consideration of i ts economic i mpact and must ensure Pennsylvania's right to receive the maximum amount of Federal funds to which it is entitled and, therefore, should be i nformed by i nput from all interested stakeholders; and
WHEREAS, the administration believes there is a need to improve both the quality of home care and the working conditions of [DCWs] and that these two goals are related;
NOW, THEREFORE, I, [Governor Wolf] , by virtue of the authority vested in me by the Constitution and laws of the Commonwealth of Pen nsylvania, do hereby direct the following: 1. Definitions. As used in this Executive Order, the following definitions shall apply:
a. "Department" means the Department of Human Services.
b. "Deputy Secretary" means the Deputy Secretary of Human Services for Long Term Living.
c. "Direct Care Worker" means a person who provides Participant

- Directed Services in a Participant's home under a Home Care Service Program

. (Footnote cont inued on next page...)6

(continued...)
d. "Direct Care Worker List" means a monthly list compiled at the direction of and maintai ned by the Department of the names and addresses of all [DCWs] who have within the previous three (3) months been paid through a Home Care Service Program that provides Participant

- Directed services. The list shall specify the program through which each [D CW] is paid, but nothing that would identify the name of any participant.
e. "Direct Care Worker Representative" means the designated representative elected according to the procedure outlined in Paragraph 3.
f. "Home Care Service Programs" means the fol lowing programs administered by OLTL, and any successor program: (1) The Aging Waiver Program. (2) The Attendant Care Waiver Program. (3) The CommCare Waiver Program. (4) The Independence Waiver Program. (5) The OBRA Waiver Program. (6) The Act 150 Progra m. g. "OLTL" means the Department's Office of Long Term Living.
h. "Participant" means a person who receives services from a [DCW] under a Home Care Service Program.

i. " Participant

- Directed Services" means personal assistance services, respite, and Participant

- Directed community supports or similar types of services provided to a senior or a person with a disability who requires assistance and wishes to hire, terminate, direct and supervise the provision of such care pursuant to the Home Care Service Programs, provided now and in the future, to ( i ) meet such person's dai ly living needs, ( ii ) ensure such person may adequately function i n such person's home, and ( iii ) provide such person with safe access to the community. Participant

- Directed Services d oes not i nclude any care provided by a worker employed by an agency as defined by Section 802.1 of the Health Care Facilities Act [.] [Act of July 19, 1979, P.L. 130 , as amended ,] (35 P.S. §448.802a).
j. "Secretary" means the Secretary of Human Services.

2. Advisory Group on Participant

- Directed Home Care. There is hereby established an Advisory Group to ensure the quality of long

- term Participant Directed Home Care that shall be known as the Governor's Advisory Group on Participant

- Directed Home Care. The Advisory Group shall advise the Governor's Office and executive branch agencies and offices of the Commonwealth ( i ncluding the Department) on ways to improve the quality of care delivered through the Home Care Services Programs. (Footnote cont inued on next page...)7

(continued...)
a. The Advisory Group sh all be composed of seven (7) members, who shall serve at the pleasure of the Gov ernor. The seven members shall i nclude the Secretary, or a designee (who shall serve as chairperson of the Advisory Group), and the Deputy Secretary, or a designee. The remaini ng five (5) members of the Advisory Group shall be appointed by the Governor, and will include both participants or their surrogates and advocates for seniors and people with disabilities. b. Commencing no later than June 30, 2015, the Advisory Group shal l meet at least quarterly to study and discuss the experiences and best practices of other states that administer similar programs to provide Participant

- Directed Home Care Services. In particular, the Advisory Group shall review the following subjects: ( 1) Establishment and maintenance of policies, practices and procedures designed to ensure that the Commonwealth continues its efforts to reduce the numbers of Pennsylvania residents currently on waiting lists to receive services through the Home Care Servi ce Programs. (2) Evaluation of the work of OLTL so as to ensure that the program standards of the Home Care Service Programs are being met as they apply to the provision of Participant

- Directed Services. However, the Advisory Group shall not be allowed to review the activities of the Department per taining to pending reviews and i nvestigations that involve potential fraud o r criminal conduct, unless the i nformation is publicly available. (3) Establishment and maintenance of policies, practices and procedur es designed to ensure that the Commonwealth continues its efforts to rebalance resources fo r long term care services from i nstitutional care to home and community based services. (4) Establishment and maintenance of policies, practices and procedures desi gned to ensure that the Commonwealth continues to adhere to the principles of participant

- direction, i ndependent living and consumer choice. (5) Any other issues that the Governor may deem appropriate.

3. [DCW] Representative. The Secretary shall recognize a representative for the [DCWs] for the purpose of discussing issues of mutual concern through a meet and confer process.

a. Election Process. The Secretary shall designate the American Arbitration Association [AAA] to condu ct an election and certify the election outcome, pursuant to the following process: (1) An election shall be conducted to designate a representative when an organization seeking to be so designated presents signed authorization cards to the Governor, or h is designee, demonstrating that at least ten (10%) percent of the providers i dentified on the most recent [DCW] List (as described below) choose to be represented by such organization. (Footnote cont inued on next page...)8

(continued...)

(2) All [DCWs] i dentified on the most recent [DCW] List (at the time th e election is requested) shall be eligible to vote in an election. If the majority of votes cast in the election are for the petitioning organization, the American Arbitration Association shall certify the election results, and the Secretary shall recogniz e the organization as the [DCW] Representative. There shall only be one [DCW] Representative recognized at any time.
(3) The recognized [DCW] Representative shall continue to act as such for so long as such organization complies with its responsibilities concerning representation of [DCWs]. [DCWs] who wish to remove the [DCW] Represen tative shall seek such removal i n accordance with the election process set forth in this Order. [DCWs] may not seek such removal earlier than one (1) year after the organizati on is recognized as the [DCW] Representative.

b. Meet and Confer Process. The Secretary, the Deputy Secretary, and the [DCW] Representative shall meet and confer to address concerns of [DCWs] and ways to improve the quality of care provided under the Home Care Services Programs.
(1) The Secretary, the Deputy Secretary and the [DCW] Representative shall meet at least monthly, o n mutually agreeable dates and times.
(2) The Secretary, the Deputy Secretary and the [DCW] Representative shall discuss relevant i ssues, i ncluding the following:
(a) The quality and availability of Participant

- Directed Services in the Commonwealth, with in the framework of principles of participant direction, independent living and consumer choice. (b) The i mprovement of the recruitment and retention of qualified [DCWs]. (c) The development of a [DCW] registry or worker participant matching service to provide routine, emergency and respite referrals of qualified participants who are au thorized to receive long

- term, i n

- home care services under one of the Home Care Service Programs. (d) Standards for c ompensating [DCWs] , Including wage ranges, health care benefits, retirement benefits and paid time off. (e) Commonwealth payment procedures related to the Home Care Services Programs. (f) Development of an orientation program for [DCWs] working in a Home Care S ervices Program. (g) Training and professional development opportunities for [DCWs]

. (h) Voluntary payroll deductions for [DCWs]

. (Footnote cont inued on next page...)9

(continued...)

(3) The [DCW] Representative shall have the opportunity to meet with the Governor, or his designee, at least once an nually to discuss the outcome of the meet and confer sessions with the Secretary.

c

. Memorandum of Mutual Understanding. (1) Mutual understandings reached during the meet and confer process shall be reduced to writing. Where appropriate, and with the approval of the Governor, understandings reached through the meet and confer process wi ll be i mplemented in the policy of the Department related to [DCWs] providing Participant

- Directed Services. If any such mutual understanding requires legislation or rul emaking, the [DCW] Representative may make recommendations for legislation or rulemaking to the relevant body

. (2) Nothing in this Executive Order shall compel the parties to reach mutual understandings. (3) In the event the parties are unable to reach mutual understandings, the Governor or a designee will convene a meeting of the parties to understand their respective positions and attempt to resolve the issues of disagreement.

4. [DCW] List. a. The Secretary shall compile a list each month of the nam es and addresses of all [DCWs] ("DCW List") who, within the previous three (3) months, have been paid through a Home Care Service Program that provides Participant

- Directed Services. The DCW List shall specify every program through which each [DCW] was pai d. However, the DCW List shall not include the name of any participant, any designation that a [DCW] is a relative of a participant, or any designation that the [DCW] 's home address is the same as a participant's address. b. An employee organization that has as one of its primary purposes the representation of [DCWs] i n their relations with the Commo nwealth or other public entities may petition the Secretary to represent a particular unit of [DCWs]

. c. Upon a showing made to the Secretary by an employee o rganization described in Subparagraph 4.a. that at least 50 [DCWs] support the organization's petition to provide representation, the Secretary within seven (7) days shall provide to the organization the most recent DCW List, and, for an additional six (6) months thereafter, upon request shall supply subsequent monthly lists. d. Any vendor or contractor that provides financial management services for the Commonwealth in connection with any Home Care Service Program shall assist and cooperate with the Depar tment in compiling and maintaining the DCW List. The Secretary shall ensure that all existing and future contracts with vendors or contractors providing financial management services for the C ommonwealth require the fiscal i ntermediary to cooperate in the creation and maintenance of the DCW List. (Footnote cont inued on next page...)10

Order establishes a new policy

- making body regarding the provision of home care.

(continued...)

5. No Change to Existing Rights and Relationships. a. Nothing in this Executive Order shall be construed to limit communication between or among Commonwealth employees, representatives of employee associations, the heads of executive branch agencies, and the Governor. The provisions of this Executive Order shall not be construed or interpreted to diminish any rights, respons ibilities, powers or duties of i ndividual employees in their service to the Commonwealth. Further, the provisions of this Executive Order shall not diminish or infringe upon any rights, responsibilities, powers or duties conferred upon any officer or agency by the Constitution or laws of the Commonwealth of Pennsylvania. b. Nothing in this Exe cutive Order shall be interpreted to grant [DCWs] the status of Commonwealth employees. The provisions of this Executive Order shall not be construed or interpreted to create collective bargaining rights or a collective bargaining agreement under any feder al or state law. c. Nothing i n this Executive Order or in any [MOU] that may be reached hereunder shall alter the u nique relationship between the i ndividual participants and [DCWs]

. Participants shall retain the rights to select, hire, terminate and super vise a [DCW] . This Executive Order i s not i ntended to grant any right, or to imply that [DCWs] have any right, to engage i n a strike or other collective cessation of the delivery of services. d. Nothing i n this Executive Order, or i n any [MOU] that i s rea ched hereunder, shall alter the rights of [DCWs] , i ncluding the right to become a member of a labor organization or to refrain from becoming a member of labor organization. e. In accordance with all applicable federal and Commonwealth laws, all existing o r future vendors or contractors providing financial management services for the C ommonwealth shall refrain from i nterfering with a [DCW] 's decision to join or refrain from joining a labor organization. f. This Executive Order and any [MOU] reached hereund er shall not be interpreted to require a [DCW] to support a labor organization in any way. g. Nothing in this Executive Order, or in any [MOU] that is reached thereunde r, shall limit a DCW's ability i ndividually or in concert with others, to petition the Commonwealth regarding any issue of concern.
6

. Cooperation by Commonwealth Agencies. Agencies under the Governor's jurisdiction shall take all steps necessary to implement the provisions of this Executive Order.
7. Effect and Duration. This Executive Or der shall be effective immediately and remain in effect until amended or rescinded by the Governor.

See Ex. A to Pet’rs’ Pet. for Review.11

The Execut ive Order also allows DCWs to elect an employee organization with which the Department must meet and discuss c ertain issues. In so doing, the
Executive Order empowers non

- Commonwealth employees to negotiate with the Commonwealth through a new ly created po sition of a DCW representative

.

To aid the election process , on a monthly basis, the Department is required to compile a list of the names a nd addresses of all DCW workers (DCW List), who , within the three previous months, were paid through a Home Care Program that provides services under the Participant Model.

Section 2 of t he Executive Order establishes an advisory group to advise the Governor and the Department “on ways to improve the quality of care delivered” through Home Care Program s (Advisory Group)

. Executive Order ( E.O. ) at 3

. The Advisory Group is comp ri sed of the Secretary of the Department (Secretary) and five members appointed by the Governor, including participants
and ad vocates for seniors and persons with disabilities. The Advisory Group shall meet at least quarterly and discuss: (1) reducing the waiting list to receive services through Home Care Programs; (2) evaluating the Department to ensure program
standards are me t; (3) rebalancing Commonwealth resources from institutional care to home and community based services; (4) ensuring the Commonwealth adheres to the principles of participant direction, independent living and consumer choice; and, (5) “[o]ther issues that the Governor may deem appropriate.” Id. at 4.

Section 3 of t he Executive Order creates a process for organizing the
DCWs under an employee organization authorized to represent DCWs in their12

relations with the Commonwealth. An y employee organization may petition the Department to represent DCWs once it demonstrates that 50 DCWs support its representation. The employee organization is then entitled to obtain the DCW List, which it may use to solicit membership in the organizatio n.

The Executive Order require s the Secretary to designate the American Arbitration Association (AAA) to conduct an election for a representative of the
DCWs , and to certify the election outcome pursuant to the process in the Executive
Order. The Executive Order provides AAA shall conduct an election when an employee organization demonstrates support from at least 10% of the DCWs on the DCW List. All DCWs are eligible to vote in the election. Provided the organiz ation meets the 10% threshold, a majority of votes cast determines which organization serves as the DCW representative (Designated Representative)

. Only

one D esignated R epresentative may be recognized at any time.

The Executive Order mandates the Secretary, the Deputy Secretary

an d the Designated Representative meet and confer , at least monthly, regarding concerns of DCWs and ways to improve the quality of care. Specifically, the
Executive Order requires the Secretary and Deputy Secretary to discuss DCWs’
terms and conditions of e mployment with the Designated Representative.

In S ection 3(c) entitled, “Memorandum of Mutual Understanding” (MOU), t he Executive Order further provides the “[m]utual understandings reached during the meet and confer process shall be reduced to writing [ ,] [and] [ w ] here appropriate ... understandings reached through the meet and confer13

process will be implemented as the policy of the Department

... .” E.O. at 5 (emphasis added). The n, the Designated Representative may make recommendations for legislation or rulemaking as needed. Although the Executive Order does not compel the Department and the Designated Representative to reach a MOU, in the event they do not, the Governor sha ll meet with the Department and Designated Representative “and attempt to resolve the issues of disagreement.” Id.
While the Executive Order allows the DCW Representative to meet with the Governor, it does not afford participants an opportunity to meet with the Governor.

Section 4 of the Executive Order addr e sses the DCW List, to be used by a prospective employee organization in contacting DCWs.

Section 5 of the Executive Order is entitled “No Change to Existing Rights and Relationships.” Some of the provisions, however, refer to new relationships that may arise during the operation of the Section 3(a) election process, the 3(b) meet and confer process, and the 3(c) memorandum of mutual understanding process. See Sections 5(c) through 5(g). Section 6 of the Executive Order is entitled “Cooperation with Co mmonwealth Agencies.” Section 7 of the
Executive Order is entitled “Effect and Duration.”

During the litigation, Governor Wolf and the Department took steps to implement the Executive Order. T o date , AAA certified United Home Care Workers of Pennsylvan ia, LLC (UHCWP) as the Designated Representative. See June Stipulation, dated 6/3/15. UHCWP won the election based on 2,663 votes out of 20,000 DCWs. UHCWP is comprised of two employee organizations, Service14

Employees International Union (SEIU) and the American Federation of State, County and Municipal Employees. UHCWP then requested and received a copy of the DCW List, to which it distributed brochures encouraging membership

. 5

C . Procedural History Petitioners filed a petition for review challenging the validity of the
Executive Order. They seek declaratory and injunctive relief from its terms, asserting Governor Wolf exceeded his authority in issuing it

. Petitioners also argue the Executive Order conflicts with both the Pennsylvania Labor Relations
Act 6 (PLRA) and the Public Employe Relations Act 7 (PERA)

.

Petitioners also sought preliminary injunctive relief before an election of a DCW representative, and to prevent implementation of the Execut ive Order.

Petitioners claim the Executive Order interferes with the unique relationship between DCWs and participants that occur in participants’ homes

. Jesse Charles and Victoria Markham are participants as defined in the Executive
Order. Jessica Mar kham is a DCW who provides home care services to her mother, Victoria Markham. PHA and UCP are nonprofit membership corporations ( collectively, Associations) comprised of provider members who employ DCWs under the Agency Model

.

5 The title of one such brochure was “20,000 Pennsylvania Home Care Attendants Are Joining Together.” The mailings referred to the selection of UHCWP as a union election.

6 Act of June 1, 1937, P.L. 1168, as amended , 43 P.S. §§211.1

- .13.

7 Act of July 23 , 1970, P.L. 563, as amended , 43 P.S. §§1101.101

- .2301.15 Respondents filed prelimin ary objections in the nature of a demurrer , also asserting Petitioners’ claims are not ripe, and the Associations lack standing.

Petitioners filed an application to expedite their petition in the nature of preliminary relief, which this Court granted. The parties e ntered stipulations in April 201 5 (April Stipulation) prior to the preliminary injunction hearing. After granting their application to expedite, t hen President Judge Dan Pellegrini heard Petitioners’ req uest for preliminary injunction

. H e issued an order enjoining Respondents from entering a MOU pending disposition of the merits. He also ordered the parties to file applications for summary relief.

Prior to filing their applications for summary relief, t he p arties entered
a second st ipulation in June 2015 ( June Stipulation).

The Senate Republican Caucus 8 filed an application to intervene aligned with Petitioners’ interests , which this Court denied in a single judge opinion

. Our Supreme Court affirmed the denial of intervention on interlocutory appeal

. Markham v. Wolf , 136 A.3d 134 (Pa. 2016) (addressing application s to intervene in 176 M.D. 2015 and 177 M.D. 2015). The Senate Republican Caucus and the Senate Democratic Caucus, as well as a number of other entities and individual s , filed friend

- of

- the court briefs.

8 On April 20, 2015, Senate President Pro Tempore Joseph Scarnati, III, Senate Majority Leader Jake Corman, Senate Majority Whip John Gordner, and Senate Majority Appropriations Chairman Pat Browne, f

iled the application on behalf of the Senate Republican Caucus.16 Petitioners and Respondents both filed application s for summary relief pursuant to Pa. R. A .P. 1532 (b)

. After briefing and oral argument, the parties’

cross

- applications for summary relief are ready for disposition.

II. Discussion
A. Legal Standard s Applications for summary relief are governed by Pa. R.A.P. 1532(b)

. It provides: “ [a] t any time after the filing of a petition for review in an

... original jurisdiction matter the court may on application enter judgment i f the right of the applicant thereto is clear.” Id. “An application for summary relief may be granted if a party’s right to judgment is clear and no material issues of fact are in dispute.”
Leach v. Turzai , et al. , 118 A.3d 1271, 1277 n.5 (Pa. Cmwlth. 2 015) ( en banc ) , aff’d
, 141 A.3d 426 (Pa. 2016) (citing Hosp. & Healthsystem Ass’n of Pa. v. Com.
, 77 A.3d 587 (Pa. 2013)). “In ruling on application [s] for summary relief, we must view the evidence of record in the light most favorable to the non

- moving party and enter judgment only if there is no genuine issue as to any material facts and the right to judgment is clear as a matter of law.” Cent. Dauphi n Sch. Dist. v. Dep’t of Educ.
, 598 A.2d 1364, 1366

- 67 (Pa. Cmwlth. 1991) ; see Leach

.

As to preliminary objections in the nature of a demurrer, we may sustain preliminary objections only when, based on the facts pled, it is clear and free
from doubt th at the complainant will be unable to prove facts legally sufficient to establish a right to relief. Mazur v. Trinity Area Sch. Dist. , 961 A.2d 96 (Pa. 2008). For the purpose of evaluating the legal sufficiency of the challenged pleading, this17

C ourt must accept as true all well

- pled, material, and relevant facts alleged in the complaint and every inference that is fairly deducible from those facts. Leach

.

The purpose of the Declaratory Judg ments Act “ is to settle and to afford relief from uncertainty an d insecurity with respect to rights, status, and other legal relations, and is to be liberally construed and administered.” 42 Pa. C.S. §7541. Declaratory judgment as to the rights, status or legal relationships is appropriate only where there exists an a ctual controversy. McCord v. Pennsylvanians for Union Reform , 136 A.3d 1055 (Pa. Cmwlth. 2016). “An actual controversy exists when litigation is both imminent and inevitable and the declaration sought will practically help to end the controversy between the parties.” Id. at 1061 (quot ation omitted ) . “Granting or denying a petition for a declaratory judgment is committed to the sound discretion of a court of original jurisdiction.” GTECH Corp. v. Dep’ t of Revenue , 965 A.2d 1276, 1285 (Pa.
Cmwlth. 2009).

“To prevail on a claim for a permanent injunction, the plaintiff must establish a clear right to relief, that there is an urgent necessity to avoid an injury which cannot be compensated for by damages, and that greater injury will result from refusing ra ther than granting the relief requested.” Watts v. Manheim T w p. Sch

. Dist. , 84 A.3d 378, 390 (Pa. Cmwlth. 2014). A violation of statute constitutes irreparable harm. Pa. Pub. Util. Comm’n v. Israel , 52 A.2d 317 (Pa. 1947).18 B. Contentions Petitioners allege the Executive Order interferes with the participant

DCW employment relationship under Act 150, and establishes organizational labor rights for DCWs. They also contend Governor Wolf exceeded his authority in issuing the Executive Order b ecause it does not implement or enforce existing law. Rather, the Executive Order creates rights t hat are inconsistent with existing law.

Respondents counter “the Executive Order is merely a tool for the [Department] and the Governor to efficiently get information from those who provide important services to some of our most vulnerable Pennsylvanians with the ultimate goal of providing better services.” Resp’ ts’ Br. at 3. Respondents thus identify information gathering as its primar y purpose. Respondents a l so all eg e the
Executive Order is a valid exercise of Governor Wolf’s executive power “to communicate with subordinate officials in the nature of request o r suggested directions for the execution of the duties of the Executive Branch of government.” Resp’ts’ Answer with New Matter , at ¶2. Yet, Respondents do not cite any statute or specify any executive power the Executive Order is designed to implement or
enforce.

C. Analysis

1. Preliminary Objections : Standing and Ripeness At the outset, we evaluate Respondents’ challenge to Petitioners’ standing and the ripeness of their claims . Contrary to Respondents’ view, we find Petitioners are directly impacted by the Executive Order.19 In denying legislative standing to Senators of the Majority Caucus, our Supreme Court reasoned, “challengers exist who are, fr o m a standing perspective, sufficiently impacted by the Governor’s issuance of [Executive Order], as amp ly demonstrated by the parties in this matter who include patients, [ DCWs] and institutional health care providers.” Markham , 136 A.3d at 146. We agree with our Supreme Court that participants in the Home Care Programs and providers of home care services have standing.

Here, individual Petitioners have an interest in the litigation that is substantial, direct and immediate , and not a remote consequence of the challenged
action. 9 Pa. Acad. of Chiro

. Physicians v. Dep’t o f State, Bureau of Prof’l & Occ

. Affairs , 564 A.2d 551 (Pa. Cmwlth. 1989). Petitioners allege the Executive Order
interferes in the unique employment relationship between DCWs and participants, undermining participants’ ability to control their care

. As participants, Jesse
Charles and Victoria Markham employ DCWs. The Commonwealth has no employer

- employee relationship with DCWs. April Stip. ¶7. However, Section 3
of the Executive Order includes the Commonwealth, but excludes the actual employer p articipants from the meet and confer p rocess, which is designed to result in decisions impact ing terms and conditions of employment. Jessica

9 Our Supreme Court explains the criteria for standing as follows:
[A] ‘ substantial ’ interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law. A ‘ direct ’ interest requires a showing that the matter complained of caused harm to the party’s interest. An ‘ immediate ’ interest involves the nature of the causal connection between the action complained of and the injury to the party challenging it

... . S. Whitehall Twp. Police Serv. v. S. Whitehall Twp. , 555 A.2d 793, 795 (Pa. 1989).20

Markham , as a DCW whose interests are to be served by a Designated Representative , has a direct interest in protecting herself from an invasion of priva cy in her home through mailings for the purpose of solicitation, and from selection of a representative based on a bare majority vote. These interests are greater than that of the general public. Therefore, individual Petitioners, Jessica
and Victoria Ma rkham a nd Jesse Charles establish standing.

So long as one of the petitioners has standing, an action may continue. Pennsylvanians Against Gambling Expansion Fund, Inc. v. Com. , 877 A.2d 383 (Pa. 2005). Because the individual Petitioners have standing, it is unnecessary to address whether the Associations have standing. Id.

As t o Respondents ’ objection that Petitioners anticipate a harm that

may never occur , we emphasize th is is an a ction for a declaratory judgment. T he Declaratory Jud gments Act is “remedial[;] [i]ts purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed and administered.” 42 Pa. C.S. §7541(a).
Th us , lack of a present harm is not fatal to a declaratory judgment claim. Pa. Social Servs. Union, Local No. 668, SEIU v. Com. , 530 A.2d 962 (Pa. Cmwlth. 1987).

Regardless, Petitioners allege non

- speculative harm in that the
Executive Order interferes with the relationship between a DCW and a participant in the participant’s home

. Section 3 of t he Executive Order excludes partici pants
from the meet and confer process designed to negotiate terms and conditions of employment. The Executive Order further disturbs the employment relationship by21

introducing the Designated Representative to purportedly represent the interests of DCWs regarding terms and conditions, and discuss these issues with the Department. The Executive Order also fosters collectivizat ion by cre ating a process for electing a representative, and e ncouraging employee organizations to s olicit DCWs for membership. An election occurred , and UHC W P was selected

. C ontrary to Respondents’ characterization, Petitioners ’ injury is not confined to entering a MOU that may never occur.

These are concrete events that may be a d d ressed through the courts , and do not call for an advisory opinion. Rendell v. State Ethics Comm’n , 983 A.2d 708 (Pa. 2009). For these reasons, we overrule Respondents’ preliminary objection s related to standing and ripeness.

Turning to the merits, we examine the validity of the Executive Order.

2. Substantive Claims

a . Executive Power Article IV, Section 2 , of the Pennsylvania Constitution vests “[t]he supreme executive power” in the Governor, who “shall take care that the laws be faithfully executed.” P A

. C ONST

. art. IV, §2. S eparation of powers into the legislative, executive, and judicial branches is the foundation underlyi ng our Constitution. Commonwealth v. Mockaitis , 834 A.2d 488 ( Pa. 2003). Pursuant to the separation of powers doctrine, the executive branch is prohibited from exercising the functions exclusively committed to another branch

. Id.22 “The Governor ’ s power is to execute the laws [,] and not to create or interpret them.” Arneson v. Wolf , 117 A.3d 374, 391 (Pa. Cmwlth. ) ( en banc ) , aff’d , 124 A.3d 1225 (Pa. 2015) (quotation omitted). “The Legislative Branch of government creates laws, and the Judicial Br anch interprets them.” Shapp v. Butera , 348 A.2d 910, 914 (Pa. Cmwlth. 1975) ( en banc ). The Governor has that power which is delegated to him by law, or which may be necessarily implied from his
executive duties. Id. As such, the Governor may issue exe cutive orders in accordance with that power. Id. “In no event, however, may any e xecutive order be contrary to any constitutional or statutory provision, nor may it reverse, countermand, interfere with, or be contrary to any final decision or order of any court .” Schuylkill Prods., Inc. v. Dep’t of Transp. , 962 A.2d 1249, 1254 (Pa. Cmwlth. 2008) (quoting
Cutler v. State Civil Serv. Comm’n , 924 A.2d 706, 711 (Pa. Cmwlth. 2007) )

.

In Shapp , this Court outlined the confines of a Governor’s authority to
issue executive orders. We classified executive orders into three types: (1) proclamations for a ceremonial purpose ; 10 (2) directives to subordinate officials for the execution of the duties of the Executive Branch of government ; and , (3) implementation of a statute or other law. Only the third type of executive orders is legally enforceable. Id.

Respondents contend the Executive Order is permi tt e d under the second category of orders, as a directive to subordinates , like the order in Shapp

. We reject this contention.

10 The parties agree the E xecutive Order does not fall within the first category as a proclamation. An example of such an order is one directing that all flags be flown at half

- mast to honor a fallen soldier.23 In Shapp , the executive order at issue requested certain members of the
Governor’s staff to file financial disclosure statements (Shapp Order) . In analyzing whether the financial disclosure statements qualified as “public r ecords” under the then Right

- to

- Know Law, 11 we assessed whether the executive order affected legal rights or duties. T his Court determined the executive order did not fix rights or duties because it was voluntary. The only penalty for noncompliance was “a possible removal from office, an official demotion, restrictions on responsibilities, a reprimand or a loss of favor.” Id. at 913. As a result, we concluded the Shapp Order
constituted a “ communication with subordinate officials in the nature of requests or suggested direct ions for the execution of the duties of the Executive Branch.” Id. As such, the Shapp Order fell within the second category of permissible executive orders.

In th is cont ext, a “subordinate” is “subject to the authority or control
of another .

... ” A M

. H ERITAGE D ICTIONARY 1212 (2 nd Coll. ed. 1985) ; see Appeal
of Hartranft , 85 Pa. 433 (1878)

. A subordinate of the Governor is considered his legal agent authori z ed to act on h is behalf. Id. at 444 ( addressing power to subpoena Governor an d his subordinates “who are employed to render these powers [with which he is clothed] efficient” ) ; Opie v. Glascow Inc. , 375 A.2d 396 , 39 8 (Pa. Cmwlth. 1977) (explaining government employees, as distinguished from officers, “merely exercise subordinate mi nisterial functions” under supervision)

.

Considering applicability of the second category to the Executive
Order here , we consider its terms. Section 2 establishes a new body, the Advisory

11 Act of June 21, 1957, P.L. 390, formerly 65 P.S. §§66.1

- 66. 9 , repealed by , Section 3102 of the Right

- to

- Know Law, Act of February 14, 2008, P.L. 6, 65 P.S. §67.3102

.24

Group , comprised of the Secretary and Deputy Secretary of the De partment, with remaining members appointed by the Governor. Its purpose is to ensure the quality of home care services under the Participant Model. Its function is advisory only, and consists of policy

- making. The Advisory Group is required to review

an d assess policies from a best practices perspective

. This portion of the Executive
Order arguably involves a directive to subordinates to gather information.

However, we conclude that Sections 3 and 4 of the Exe cutive Order

are not permissible executive actions under the second category. There are several
reasons for this conclusion. First and foremost, factual differences between the
current Executive Order and the Shapp O rder render the Shapp case inapposite

. In
both function a

nd phrasing, the executive orders are not comparable.

The primary difference is that of scope. The Shapp Order consisted of a communication, in the form of a discrete request, to existing subordinates. Specifically, t

he Shapp Order used the word “reque sting” when it asked members of
the Executive Branch to disclose their financial interests. By contrast, the Executive Order mandates actions by the Secretary and Deputy Secretary, as well as by third parties and the newly created role of Designated Repre sentative. See E.O. Section 3 “The Secretary shall recognize a [Designated Representative] ....;” “[T]he Secretary shall designate [AAA] ....;” “The [Designated Representative] shall continue to act as such ....” Accordingly, the Executive Order creates rights and duties. It does not set forth voluntary activities as in the Shapp Order . Also unlike the Shapp Order,
the Executive Order creates a multi

- part process, involving many non

- subordinates25

in critical roles. The Shapp Order did not create new bodies or positions of influen ce, or direct action by anyone other than subordinates in the Executive Branch.

Second, f rom our careful reading , we conclude Section s 3 and 4 of the
Executive Order do not merely direct subor dinates. Rather, Section s 3 and 4 alter the employment relationship between DCWs and participants that occurs in a participant’s home. This is accomplished by inserting the Department and DCW Representative into that relationship , with the goal of negotiat ing terms and
conditions of emplo yment without input by participants

. DCWs are not
subordinates of the Governor. UHCWP , the Designated Representative, is not a
subordinate of the Governor. AAA is also not a subordinate of the Governor. Notwithstanding their status as non

- subordinates, the Executive Order directs these providers and entities as part of the election, collectivization and bargaining process it creates.

Third, w e are also unconvinced that Section s 3 and 4 of the Executive
Order are merely a means of information gathering as Respondents assert. Indeed, information g athering is not mentioned. No part of Section 3, comprised of the election process, meet and confer process and MOU, consists of information gathering. Section 4 involves compilation of the DCW List, to enabl e an employee organization’s representation as set forth in Section 3. Respondents do not persuasively explain why Sections 3 and 4, which do not involve any participant input, are primarily information gathering, as opposed to collective bargaining.26 Fourth, Respondents do not explain why the Section 2 Advisory Group is inadequate for information gathering. Stated differently, Respondents do not identify information that can only be gathered through the “meet and confer”
sessions , which include the De partment and the Designated Representative, but exclude participants.

For all these reasons , we determine that Sections 3 and 4 of the
Executive Order are not truly a means of providing information to Governor Wolf
to assist Respondents in assessing quality of home care services.

Having determined that Sections 3 and 4 of the Executive Order do not fall within the second category of authorized executive orders, we consider
whether the Executive Order is otherwise authorized under Shapp

.

b . Enforcing or Implementing Existing Law Executive orders that qualify under t he third category of executive orders are designed to implement or enforce a statute or other law. Id. Executive orders falling under this category are either specifically authorized, by statute or constitutional provision, or are necessarily implied from executive duties. Id.

Respondents cite no specific authority enabling the Executive Order.
Furthe r, w e discern no authority that either specifically authorizes the Executive Order, or necessitates its issuance so Governor Wolf may perform his duties

.27 Petitioners argue t he Exe cutive Order creates new entities and processes that are inconsistent wit h legislative policy. T hey assert that through the
Executive Order Governor Wolf does not enforce or implement existing law ; rather , he excee d s his authority because the Executive Order makes law , a power reserved to the legislative branch

.

Pursuant to Shapp , no executive order may “be contrary to any constitutional or statutory pr ovision.” Id. at 914. We examine Petitioners’ contention that the Executive Order conflicts with the PLRA and PERA by granting collective bargaining rights to DCWs

.

i

. PLRA , NLRA and PERA The PLRA is Pennsylvania’s analog to the National Labor Relations Act (NLRA), 29 U.S.C. § § 151

- 169 , setting forth an employee ’ s rights. The PLRA allows defined employees to collectively bargain through an exclusive representative. Spe cifically, Section 5 of t he PLRA permits employees to organize, including forming or joining a labor organization, to collectively bargain, and to engage in activities for the purposes of collective bargaining. 43 P.S. §2 1 1.5.

Relevant here , DCWs are e xpressly excluded from the definition of employee in Section 3 of the PLRA . 43 P.S. §2 1 1.3. It provides:

[t] he term ‘ employe ’ shall include any employe, and shall not be limited to the employes of a particular employer, unless the act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute, or because of any unfair labor practice, and who has not obtained any other regular and28 substantially equivalent employ ment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any person in the home of such person , or any individual employed by his parent or spouse.

Id. (emphasis added).

DCWs provide in

- home persona l care services. The clear policy decision by the General Assembly was to preclude the reach of collective bargaining to domestic service rendered to a person in his or her home. This policy choice, which is consistent with the long

- standing “home as cas tle” trope in law and custom, is binding. It cannot be altered by executive order.

Further, PERA, which grants public employees the right to unionize, also does not confer collective bargaining rights on DCWs. DCWs are not Commonwealth employees ; their employers are participants who are private parties. April Stip. ¶7.

Despite the definitional exclusion of DCWs from the PLRA and PERA , the terminology in Section 3 of the Executive Order is similar to the terminology contained in collective bargaining statutes , as discussed immediately hereafter

.

ii

. Representative Election and Designation The Executive Order provides an election and designation process for selecting the Designated Representative. It provides “ [t]here shall only be one [DCW] Repres entative recognized at any time.” E.O. at 5. Thus, the Designated29

Representative is the exclusive representative for all DCWs, and the Secretary shall only recognize one Designated Representative.

Under the PLRA, the chosen representative “ shall be the exclusive representative of all the employees ... for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” Section 7 of the PLRA, 43 P.S. §211.7(a) (emphasis added). Under PERA, the c hosen representative “ shall be the exclusive representative of all the employes ... to bargain on wages, hours, terms and conditions of employment.” Section 606 of PERA, 43 P.S. §1101.606.

iii . Meet and Confer The Executive Order provides the Secret ary, the Deputy Secretary and the Designated Representative “ shall meet and confer” regarding terms and conditions of employment, including recruitment, wages, benefits, payment procedures and voluntary deductions, and training. E.O. at 5. Although the p arties are not compelled to reach mutual understandings, any “[m]utual understandings reached during the meet and confer process shall be reduced to writing.” Id.

PERA obligates the public employer and the employee representative
to “ meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment ...

. ” Section 701 of PERA, 43 P.S. §1101.701 (emphasis added). Once an agreement is reached, it “ shall be reduced to writing and signed by the parties.” Section 901 of PERA, 43 P.S. §1101.901.30 The NLRA explains collective bargaining as follows: “[t] o bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at rea sonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment
....” Section 8(d) of the NLRA, 29 U.S.C. §158(d) (emphasis added)

.

Our review of statutes governing organized labor reveals the
incon gruence between the statutes and the Executive Order. By excluding DCWs from the definition of employees in the PLRA , the General Assembly chose to deny DCWs the ability to collectively bargain. By issuing the Executive Order, and encouraging DCWs’ to or ganize collectively , Governor Wolf is essentially

u surp ing that legislative power. See Nat’l Solid Wastes Mgmt

. Ass’n v. Casey
, 600 A.2d 260 (Pa. Cmwlth. 1991).

iv

. 2010 Rendell Order Significantly, the Executive Order bears striking s imilar ities to an executive order Governor Ed ward Rendell issued in 2010 that pertained to DCWs (Rendell Order). Like the Executive Order here , the Rendell Order: created a process for organizing DCWs, including election of a union representative;
established an ad visory council regarding participant care; created a list of DCWs; and, authorized negotiations between the Department and the elected union representative

. Also like the Executive Order, the Rendell Order did not mandate the parties reach an agreement. However, if the mandatory negotiations led to an agreement, the Rendell Order required any mutual understanding to be put in writing.31 Similar to the present litigation, the participants and DCWs challenged the Rendell Order as an invalid abuse of execut ive power and sought to enjoin its implementation. See Pa. Homecare Assoc., et al. v. Rendell, et al. (Pa. Cmwlth., No. 776 M.D. 2010, filed October 28, 2010) (single j. op.) (unreported)

. 12 This Court, through Senior Judge Ke it h B. Quigley, issued a prel iminary injunction precluding implementation or enforcement of the Rendell Order.

In its opinion granting preliminary injunctive relief, this Court reasoned the petitioners showed a clear right to relief in that the Rendell Order was
inconsistent with t he PLRA by permitting DCWs to organize collectively. Essentially, election of on e exclusive DCW representative under the Rendell Order to represent DCW

- employee interests in negotiation s with the Commonwealth regarding terms and conditions of employment a llowed collective bargaining

.

In terms of function, this Court recognized that any agreement resulting from the mandatory negotiations qualified as a collective bargaining agreement. Further, the Court noted that while DCWs were not Commonwealth employees, the agreement purported to create an employment relationship whereby
the Commonwealth became the de facto employer. Id. , slip op. at n.10.

Applying the persuasive Rendell Order reasoning to this ca se, we recognize that t he current Executive Order’s requirement that an employee organization and the Department meet and confer is the essence of collective

12 Pursuant to Section 414(b) of this Court’s Internal Operating Procedure s , a single

judge opinion shall be cited only for its persuasive value.32

bargaining. Indeed, t he “meet and confer” phrasing in the NLRA and PERA
mirrors that of the Execu tive Order. We conclude the Executive Order in effect grants collective bargaining rights to DCWs by empowering a Designated Representative as the ir exclusive representative.

Further, p articipants , the actual employer s , are excluded from the
meet and confer process , and there is no provision for their input

. By excl uding participants, yet addressing terms and conditions of employment to which participants as employers may be subject, the Executive Order impairs participants’ rights to control personal care rendered to them in their own homes

.

v . Section 5 Disclaimers
The self

- serving disclaimers in Section 5 of the Executive Order do not save it from invalidity , for several reasons

. 13 First, w e are guided by the nature of the relationship, not the terms used to describe it. See , e.g. , Schneider Nat’l Carriers v. Workers’ Comp. Appeal Bd. (Baerdon) , 738 A.2d 53 (Pa. Cmwlth. 1999) (independent contractor agreement is not d isposit ive; court may d iscern employment relationship from other factors). The Executive Order grants rights to DCWs to organize and select an exclusive representative to negotiate terms and conditions of employment. Meet and confer sessions are collective bargaining, and any agreement reache d between the Department and UH C W P is a collective bargaining agreement. In this manner, Governor Wolf establishes rights and duties contrary to existing legislation. Casey

.

13 “[T] his Executive Order shall not be construed or interpreted to create collective bargaining rights or a collective bargaining agreement under federal or state law. ” E.O. at 6.33 Second, the doctrine of separation of powers precludes the executive from directing or constraining a judicial function. Interpretation of official language to determine the legal effects of the language is a judicial function.
While the executive can express his intent, he cannot direct how the judiciary shall interpret a legal document . This is e specially tru e where, as here, there are operative provisions which contradict the claimed intent

. Shapp , 348 A.2d at 914 (“the Executive Branch, through executive orders, is not permitted ... to usurp the judicial prerogative to interpret [the law]. If such power was granted, those interpretations would be subject to change at least every four years, and the law would be filled with uncertainty.”).

vi. Severability Next, we consider whether the Executive Order is capable of separation under the doctrine of severabili ty

. Saulsbury v. Bethlehem Steel Co. , 196 A.2d 664, 666 (Pa. 1964) (“a statute o r ordinance may be partially valid and partially invalid, and ... if the provisions are distinct and not so interwoven as to be inseparable ... courts should sustain the valid por tions”).

Unlike Section 3 , Section 2 of the Executive Order does not implicate collective bargaining or impose requirements in conflict with existing rights and
duties. The Section 2 Advisory Group holds an advisory role only, designed to assist the Executive Branch in implementing the Home Care Programs under Act 150 and Medicaid waiver programs

. As such, we are persuaded that Section 2 of the Executive Order falls within Governor Wolf’s sphere of executive authority.34 However, Section 4 (DCW Li st) is expressly integral to the election process set forth in Section 3 (a) , and thus depends on Section 3 (a) for its operation

. Therefore, Section 4 is not severable from Section 3. Similarly, those porti ons of
Section s 1 and 5 derived from Section 3 are so interwoven with the invalid provisions so as to be non

- severable and incapable of operation

. Id. ; see also Robinson Twp., Washington Cnty. v. Com. , 83 A.3d 901 (Pa. 2013).

Applying the severability principle, we conclude that Section 2 of the
Executive Order is self

- sustaining. Therefore, we grant Respondents’ application for summary relief as to Section 2, and we uphold its validity.

v i i . Summary Governor Wolf exceeded his authority in issuing Sections 3 and 4 of
the Executive Order. Most of t he Executive Order does not merely implement or enforce existing law, so as to be authorized under the third category of executive
orders in Shapp . Instead, the Executive Order is de facto legislation , with provisions contrary to the existing statutory scheme. Casey

. At its core, the
Exec utive Order invades the relationship between a DCW and the employer

pa rticipant who receives personal services in his or her home. For these and the
above reas ons, we declare Sections 3 and 4, and related Sections 1(d) and (e), and
5 (b) through (g) , of the Executive Order invalid

. 14

14 As we declare Section 4 of the Executive Order an invalid exercise of executive authority, we need not address the alleged privacy interest in precluding solicitation of DCWs on the DCW List.35 III. Conclusion For the foregoing reasons, we grant Petitioners’ application for

summary relief in part , and we declare Sections 3 and 4 of the Executive Order
invalid and void

. Parts of Section 1 (definitions of DCW List and Di rect Care Worker Representative) are also invalid. See E.O. Section s 1(d) and (e). Further,

p arts of Section 5 which expressly refer to new relationships that may arise by operation of Sections 3 and 4 , including any references to a MOU, are also invalid.
See E.O. Sections 5 ( b ) through 5(g). Respondents are enjoined from enforcing those
related sections of the Ex ecutive Order or taking any actions in accordance with
those sections of the Executive Order. Israel

. Conversely, we deny Respondents’ application for summary relief in part as to Sections 1(d) and (e) , 3, 4 , and Sections 5(b) through 5(g) of the Executive Order.

As a result of the foregoing , Respondents’ preliminary objections in the
nature of a demurrer are rendered moot. See Leach

. We overrule Respondents’ preliminary objections challenging Petitioners’ aggrievement.

ROBERT SIMPSON, Judge

Judge Covey did not participate in the decision in this case.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jessica Markham, Victoria Markham, : Jesse Charles, Pennsylvania Homecare : Association, United Cerebral Palsy of : Pennsylvania, : Petitioners :

: v. : No. 176 M.D. 2015
: Thomas W. Wolf, in his Official : Capacit y as Governor of the : Commonwealth of Pennsylvania, : Department of Human Services, : Office of Long Term Living, : Respondents :

O R D E R

AND NOW , this 22 nd day of September , 2016, Petitioners’ Application for Summary Relief pursuant to Pa. R.A.P. 1532(b) is GRANTED in
PART
, only as to Sections 1(d) and (e), 3, 4, and Sections 5(b) through 5(g) of
Executive Order 2015

- 05; and JUDGMENT is entered in their favor as to those

s ections and subsections only

. Respondents’ Application f or Summary Relief is
DENIED in PART as to Sections 1 (d) and (e) , 3, 4 , and Sections 5(b) through 5(g)
of Executive Order 2015

- 05 , and GRANTED as to other provisions

.

Sections 1(d) and (e), 3, 4 , and 5(b) through (g) of Executive Order
2015

- 05 are hereby declared INVALID
, and any past actions taken pursuant to
those sections are declared VOID ab INITIO

. Respondents are ENJOINED from prospect ively enforcing those sections of Executive Order 2015

- 05 , or taking any
future actions in accorda nce with those sections.AND FURTHER , Respondents’ preliminary objection to the ripeness

of Petitioners’ claims is OVERRULED for the reasons set forth in the foregoing opinion. Respondents’ preliminary objections in the nature of a demurrer are
DISMISSED as MOOT

.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jessica Markham, Victoria : Markham, Jesse Charles, : No. 176 M.D. 2015 Pennsylvania Homecare : Argued: June 8, 2016 Association, United Cerebral : Palsy of Pennsylvania, : : Petitioners :

: v. :

: Thomas W. Wolf, in his Official : Capacity as Governor of the : Commonwealth of Pennsylvania, : Department of Human Services, : Office of Long Term Living, : : Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, P resident Judge

HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge

DISSENTING OPINION BY JUDGE WOJCIK FILED: September 22, 2016

I respectfully dissent. The well

- written majority opinion disposing of the parties’ application s for summary relief 1 and Respondents’ preliminary

1 This Court may grant summary relief if the applicant’s right to judgment is clear and no material issues of fact are in dispute. Pa. R.A.P. 1532(b); Jubelirer v. Rendell , 953 A.2d 514, 521 (Pa. 2008).MHW

- 2

objections in the nature of demurrer 2 is based upon the premise that direct care workers (DCW s ) are employed in “domestic service,” and thus are not “employees” eligible to collectively bargain under Section 3 of the Pennsylvania Labor Relations Act (PLRA). 3 However, w hether DCWs are employed in
“domestic service” is a legal determination that cannot be made at this juncture in
the absence of a developed factual record , which has yet to occur

. See Dutrow v. Workers' Compensation Appeal Board (Heckard’s Catering) , 632 A.2d 950, 952 (Pa. Cmwlth. 1993) (legal determination as to whether a claimant was employed in “domestic service” was based on factual record)

.

As the majority sets forth, the PLRA is Pennsylvania’s analog to the National Labor Relations Act (NLRA), 29 U.S.C. §§151

- 169. Both the PLRA and
the NLRA authorize “employees” to self

- organize, to form, join or assist labor organization s, to collective ly bargain , and to engage in activities for the pur poses of collective bargaining. Section 5 of the PLRA, 43 P.S. §2 1 1.5 ; 29 U.S.C. §157

.

Ho wever, both the PLRA and NLRA exclude individuals employed in

“ domestic service ” from the term “ employee. ” Specifically, Section 3 (d) of the PLRA provides:

The term ‘ employe ’ shall include any employe, and shall not be limited to the employes of a partic ular employer, unless the act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute, or because of any unfair labor practice, and who

2 When ruling on preliminary objections in nature of demurrer, this Court is not required to accept as true any unwarranted factual inferences, conclusions of law, or expressions of opinion. Guarrasi v. Scott , 25 A.3d 394, 400 n.5 (Pa. Cmwlth. 2011).

3 Act of June 1, 1937, P.L. 1168, as amended
, 43 P.S. §2 1 1.3.MHW

- 3 has not obtained any o ther regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any person in the home of such person , or any individual employed by his parent or spouse.

43 P.S . §211.3 (emphasis added)

. 4

However, the PLRA does not define “domestic service.” When words of a statute are undefined, they must be construed in accordance with their common and approved usage. Section 1903(a) of the Statutory Construction Act
of 1972, 1 Pa.C.S. §1903(a); Adams Outdoor Adver tising , L.P. v. Zoning H earin g B oard of Smithfield T

ownship , 909 A.2d 469 (Pa. Cmwlth. 2006). “Where a court needs to define an undefined term, it may consult definitions in statutes, regulations or the diction ary for guidance, although such definitions are not controlling.” Adams Outdoor , 909 A.2d at 483; see THW Group, LLC v. Zoning
B oard of Adjustment , 86 A.3d 330 (Pa. Cmwlth.), appeal denied , 101 A.3d 788 (Pa. 2014).

4 Similarly, Section 152(3) of the NLRA provides: The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any indivi dual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individu al employed as an agricultural laborer, or in the domestic service of any family or person at his home

. . . . 29 U.S.C. §152(3) (emphasis added).MHW

- 4 Pennsylvania courts have examined the term “domestic service” in
other labor and employment contexts. For instance, Section 321 of the Workers' Compensation Act (Act) 5 excludes persons engaged in “domestic service” from provisions of the Act

. T his Court interpreted “domestic service” a s work that
“serves the needs of a household.” Dutrow , 632 A.2d at 952 ( citing Viola v. Workmen's Compensation Appeal Board (Welch) , 549 A.2d 1367 , 1369 (Pa. Cmwlth. 1988) )

. In Viola , the claimant was hired to care for her employer's invalid wife. Her j ob duties entailed administering medication, feeding, bathing and dressing the employer's wife, and helping her in and out of bed. We
determined the c laimant did not serve, nor was she employed to serve, the needs of the household. Rather, her role relat ed to the personal care and specialized medical needs of the employer’s wife, not performing household duties. Because the claimant’s job duties were more akin to those of a nurse’s aide, and did not involve the performance of household duties, we conclud ed the claimant was not engaged
in “domestic service” for workers’ compensation purposes

. 549 A.2d at 1369 ; cf.
Dutrow ( baby

- sitting constituted “ domestic service ” because it served the needs of the household, not just the needs of the child )

.

In Jack v. Belin's Estate , 27 A.2d 455, 457 (Pa. Super. 1942), our Superior Court held the gardener of a household estate was engaged in domestic
service for purposes of the Act

. The Court explained that domestic service contributes to the personal needs and comf ort of the employer, as opposed to an enterprise for profit. The Court continued :

Cooks and house maids are domestic servants, not because they work indoors, but because they serve the

5 Act of June 2, 1915, P.L. 736, as amended
, 77 P.S. §676

.MHW

- 5 needs of the household . Similarly, one who drives an automobile in br inging supplies from market or in disposing of waste materials or who raises vegetables and produce for use on the estate is a domestic servant in the broader sense contemplated by the [Workers’ Compensation] Act. Growing flowers for the delight and pleasu re of the family of the owners is the same kind of service. Jack , 27 A.2d at 457 (emphasis added)

.

Similar to the Act , the Pennsylvania Minim um Wage Act of 1968 (MWA) 6 also exempts employment for “[d]omestic services in or about the private
h ome of the employer ” from the statute's minimum wage and overtime requirements. Section 5(a)(2) of the MWA, 43 P.S. § 333.105(a)(2). The regulation defin ing “domestic services” provides:

Work in or about a private dwelling for an employer in his capacity as a hou seholder, as distinguished from work in or about a private dwelling for such employer in the employer's pursuit of a trade, occupation, profession, enterprise or vocation.

34 Pa. Code §231.1(b)

.

In Bayada Nurses, Inc. v. Department of Labor and Industr ies , 8 A.3d 866, 883 (Pa. 2010) , th e Supreme Court was asked to interpret the “domes tic services” exemption of the MWA's overtime provisions. The Court observed that the language of the MWA is consistent with the same exemption provided in Section 213(a)( 5) of the federal Fair Labor Standards Act (FLSA), 29 U.S.C. §213(a)(15), which does not prohibit an exemption for agency employment. The healthcare provider argued the two statutes should be interpreted in p ari materia , and that the federal approach shou ld govern, permitting agency employers to

6 Act of January 17, 1968, P.L. 11, as amended
, 43 P.S. §§ 333.101

- 333.115

.MHW

- 6

benefit from the domestic services exemption. The Court disagreed. Although the MWA and FSLA contain nearly identical exemption language, the Court explained the federal exemption relating to “domestic services” was more expansive than the state regulation. Id. at 871, 877

- 78. T he Court ruled that the state exemption was only meant to cover individuals directly employed by the householder, not those who were employed by third party agencies. Id

. at 883. The Co urt held the FLSA does not supersede state law and Pennsylvania may enact and impose more generous overtime provisions than those contained under the FLSA

. Id

. Thus , t he
C ourt rejected the argument that the domestic services exemption in the MWA
should be construed in pari materia with the FLSA

. Id

.

Similarly , in Blue Mountain Mushroom Co mpany , Inc. v. Pennsylvania Labor Relations B oard , 735 A.2d 742, 748 (Pa. Cmwlth. 1999), appeal denied , 785 A.2d 91 (Pa. 2001) , this Court rejected the notio n that, because the PLRA was patterned after the NLRA, Pennsylvania courts must adhere to federal interpretation. There, we examined whether the term “agricultural laborer” pertained to mushroom workers. “Agricultural laborers,” like domestic service

wor kers, are excluded from the definition of employee un der both the PLRA and the NLRA. 43 P.S. §211.3; 2 9 U.S.C. §152(3). Although mushroom workers were historically considered horticultural workers, in 1947, Congress directed the
National Labor Relations Board ( NLRB) to follow the FLSA’s definition of “agriculture,” which included the production, cultivation, growing and harvesting
of horticultural commodities. Blue Mountain , 735 A.2d at 747 (citing 29 U.S.C. §203(f)). Notwithstanding, Pennsylvania was n ot constrained to follow the NLRB in redefining the term “ employee ” to include mushroom workers absent direction by the General Assembly. In Pennsylvania, mushroom production is consideredMHW

- 7

horticultural, not agricultural. Id

. Consequently, mushroom workers are “employees,” not “agricultural laborers,” for purposes of the PLRA. Id

.

To date, there has been no statutory or regulatory expansion of the term “domestic service” under the PLRA to include personal care services , such as nurses, home health aides or personal care aides

. But cf. 29 C.F.R. § 552.3 (federal regulation under the FLSA now includes “nurses,” “home health aides” and “personal care aides” in the definition of “domestic service employment” ). 7 Pennsylvania court s have not included personal care services in its interpretation of
the term “domestic service” in other labor contexts. See Dutrow; Viola

.

According to Governor Thomas W. Wolf’s Executive Order , No.
2015

- 05 (Executive Order), DCWs are individuals who provide “Participant

Directed Services, ” which include :

personal assistance services, respite . . . or similar types of services provided to a senior or a person with a disability who requires assistance . . . to meet such person’s dail y living need, (ii) ensure such person may adequately function in such person’s home, and (iii) provide such person with safe access to the community.

7 The definition of “domestic service employment” contained in Section 552.3 is derived from the regulations under the Social Security Act ( 20 C.F.R. §404.1057 ) . 29 C.F.R. §552.101. Prior to its amendment in January 2015, Sect ion 552.3 closely mirrored the Social Security Act regulation, which defines “ domestic service ” as “services of a household nature in or about a private home include services performed by cooks, waiters, butlers, housekeepers, governesses, maids, valets, b aby sitters, janitors, laundresses, furnace men, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use.” 20 C.F.R. §404.1057. T he Social Security Act does not include nurses, home health aides or personal care aid es in its definition of “domestic service.” Id

.MHW

- 8

Section 1(i) of the Executive Order. DCWs provide “in

- home personal care service” through home care service programs, such as the Attendant Care Services Act (Act 150). 8 Section 1(f) of the Executive Order.

Act 150’s definition of “Attendant care services” embraces both personal care and domestic

- type services. Specifically, Section 3 of A ct 150 provides: (1) Those basic and ancillary services which enable an

eligible individual to live in his home and community rather than in an institution and to carry out functions of daily living, self

- care and mobility.
(2) Basic services shall inclu de , but not be limited to: (i) Getting in and out of a bed, wheelchair and/or motor vehicle. (ii) Assistance with routine bodily functions, including, but not limited to:

(A) Health maintenance activities. (B) Bathing and personal hygiene. (C) Dres sing and grooming. (D) Feeding, including preparation and cleanup. (3) If a person is assessed as needing one or more of the basic services, the following services may be provided if they are ancillary to the basic services : (i) Homemaker

- type services , including, but not limited to, shopping, laundry, cleaning and seasonal chores. (ii) Companion

- type services, including, but not limited to, transportation, letter writing, reading mail and escort. (iii) Assistance with cognitive tasks, including, but not limited to, managing finances, planning activities and making decisions.

8 Act of December 10, 1986 , P.L. 1477, 62 P.S. §§3051

- 3058.MHW

- 9

62 P.S. §3053 (emphasis added). Under Act 150 , domestic

- type services are ancillary to personal care. Id

.

Significantly, i t is the provision of domestic service that would exclude DCWs from the collectively bargaining table under the PLRA , not the provision of personal care. See Section 5 of the PLRA, 43 P.S. §211.5. At this juncture, it is unclear whether the DCWs provide ancillary services akin to
“domestic services” or just basic personal care services akin to that of a nurse’s
aide. I f the DCWs are “serving the needs of the household,” then the majority properly declared portions of the Executive Order invalid and void as contrary to statutory law

. If , however, the DC Ws are more like nurse’s aides, providing personal care (as opposed to household) services, then the Pennsylvania Labor
Relations Board would presumably have jurisdiction over the subject matter at issue and we would analyze the Executive Order from that p erspective. As more
facts are needed to determine the DCWs’ legal status , I would deny summary relief
and allow the case to proceed to trial

.

MICHAEL H. WOJCIK, Judge