[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G2018, J-72H-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

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. 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

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-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G2018, J-72H-2018] [MO: Wecht, J.]

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 v. 

CITY OF PITTSBURGH, COUNSEL OF 

THE CITY OF PITTSBURGH, AND 

WILLIAM PEDUTO, AND SERVICE 

EMPLOYEES INTERNATIONAL UNION 

LOCAL 32 BJ

APPEAL OF: SERVICE EMPLOYEES 

INTERNATIONAL UNION LOCAL 32BJ

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 

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

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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

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: October 23, 2018
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G2018, J-72H-2018] [MO: Wecht, J.]

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APPEAL OF: SERVICE EMPLOYEES 

INTERNATIONAL UNION LOCAL 32BJ

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

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

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 

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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

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

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 
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G2018, J-72H-2018] [MO: Wecht, J.]

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ITALIAN ICE, DIRT DOCTORS 

CLEANING SERVICE, LLC, AND 

MODERN 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

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

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December 21, 2015 at No. GD 15-

16442

ARGUED: October 23. 2018

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 23, 2018
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G2018, J-72H-2018] [MO: Wecht, J.]

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APPEAL OF: CITY OF PITTSBURGH, 

COUNCIL OF THE CITY OF 

PITTSBURGH, AND WILLIAM PEDUTO

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CONCURRING AND DISSENTING OPINION

JUSTICE DOUGHERTY DECIDED: JULY 17, 2019

I agree with and fully support the Majority’s discussion of the historical and legal 

background of the Home Rule Charter and Optional Plans Law (the Home Rule Law), as 

well as the Majority’s legal analysis and interpretation regarding the powers and 

limitations granted to home rule municipalities. I further support the Majority’s evaluation 

of the Business Exclusion limitation placed on home rule municipalities at 53 Pa.C.S. 

§2962(f). More specifically, I agree with the Majority’s determination that the City of 

Pittsburgh (City) did not exceed its authority in enacting the Paid Sick Days Act (PSDA) 

because the PSDA has a “direct nexus with public health,” and falls, in part, “within . . . 

the City’s traditional police powers” authorizing it to overcome the Business Exclusion.

Majority Op. at 34. However, I cannot agree with the Majority’s disparate treatment of the 

City’s Safe and Secure Buildings Act (SSBA). I would find, under the analysis performed 

by the Majority in interpreting the PSDA, the SSBA similarly has the requisite statutory 

authority to overcome the Business Exclusion. Accordingly, I join parts I, II, III, IV.A and 

IV.B, but must respectfully dissent from parts IV.C and V of the Majority Opinion. 

As a threshold matter, I note we must exercise great care in discerning limits on 

the power of home rule municipalities to enact ordinances. The General Assembly 

specifically granted home rule municipalities expansive authority by providing:

A municipality which has adopted a home rule charter may 

exercise any powers and perform any function not denied by 

the Constitution of Pennsylvania, by statute or by its home rule 

charter. All grants of municipal power to municipalities governed 
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G2018, J-72H-2018] [MO: Wecht, J.]

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by a home rule charter under this subchapter, whether in the 

form of specific enumeration or general terms, shall be liberally 

construed in favor of the municipality.

53 Pa.C.S. §2961. Additionally, “pursuant to the constitutional and statutory provisions 

authorizing home rule, a home rule municipality’s exercise of power is presumed to be 

valid absent a specific constitutional or statutory limitation, and ambiguities are to be 

resolved in favor of the municipality.” In re Petition to Recall Reese, 665 A.2d 1162, 1164 

(Pa. 1995); see also Devlin v. City of Philadelphia, 862 A.2d 1234, 1242 (Pa. 2004), citing 

PA. CONST. art. IX, §2. We must also acknowledge the decision to become a home rule 

municipality is accomplished “by the affirmative vote of the electors of the City” and 

“[w]here [a home rule charter] is adopted by a constitutionally empowered electorate, it 

affords an example of pure democracy — the sovereign people legislating directly and 

not by representatives in respect of the organization and administration of their local 

government.” In re Addison, 122 A.2d 272, 275-76 (Pa. 1956). 

Keeping the above principles in mind, this Court’s responsibility in interpreting 

ordinances passed by a home rule municipality is to protect the ability of an electorate —

that constitutionally chose to be governed under the Home Rule Law — to govern itself 

by liberally construing home rule municipal powers in favor of the municipality. 

Accordingly, I agree with the Majority that an overly strict definition of express authority in 

this context would improperly “hamstring home-rule municipalities from exercising their 

home-rule authority in any way that burdens businesses[.]” Majority Op. at 34. An 

interpretation requiring specific, express authority is contrary to the intent of the General 

Assembly to give home rule municipalities greater power than if they had opted for other 

forms of government. As recognized by Justice Todd in her dissent in Bldg. Owners & 

Managers Ass’n of Pittsburgh v. City of Pittsburgh, 985 A.2d 711 (Pa. 2009), a strict 

application of the Business Exclusion resulting in a “zero-regulation interpretation” would 
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G2018, J-72H-2018] [MO: Wecht, J.]

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mean Home Rule municipalities have less power than non-home rule municipalities, and 

would be unable to engage in any meaningful governance. Id. at 716 (Todd, J., 

dissenting). In light of the above, I therefore agree the PSDA bears a clear nexus with 

public health concerns, and is thus supported by applicable statutory authority — i.e., the 

City’s traditional police powers and the Disease Prevention and Control Law of 1955 

(DPCL), 35 P.S. §§521.1-521.21 — sufficient to overcome the Business Exclusion. 

Based on these same principles, however, I must depart from the Majority’s 

conclusion regarding the SSBA. In my respectful view, the Majority’s determination that

the SSBA does not overcome the Business Exclusion is the result of an imbalanced and 

inconsistent analysis, which I cannot endorse. While the Majority embraces a liberal 

construction of the City’s home rule municipality powers in interpreting the DPCL and 

resolves all ambiguities in favor of local regulation, thus finding the requisite authority for 

the PSDA to overcome the Business Exclusion, Majority Op. at 26, the Majority fails to 

engage in an equally liberal construction when analyzing the City’s proffered authority for 

the SSBA.1 Rather, the Majority strictly interprets that statutory authority, and concludes 

 

1 The City asserts its power to enact the SSBA can be found in: (1) the Emergency 

Management Services Code at 35 Pa.C.S. §§7501-7504; (2) the Second Class City Code 

at 53 P.S. §25081, §23145, §23158 and §25092; (3) and the Home Rule Law at 53 

Pa.C.S. §2962(c)(4). City’s Brief at 24-32. More specifically the City notes the SSBA is 

authorized by the Emergency Management Code, which obligates the City to prepare for 

effective responses to disasters for the safety of the public. Id. at 25-28. In addition, the 

City notes the SSBA is enabled by its police powers to secure the general health and 

maintain the welfare of the City as provided by the Second Class City Code. Id. at 29-

30, citing 53 P.S. §25081 (providing inspection authority to “decrease and prevent fire, 

the spread of fire, and fire waste, loss of life from fire, and loss of life or damage to property 

from unsafe or improper construction or design of buildings”); 53 P.S. §23145 (City has 

authority to “make regulations to secure the general health of the inhabitants, and to 

remove and prevent nuisances”); 53 P.S. §23158 (“To make all such ordinances, by-laws, 

rules and regulations, not 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 
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G2018, J-72H-2018] [MO: Wecht, J.]

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it does not expressly allow the SSBA to overcome the Business Exclusion. See Majority 

Op. at 37-43. 

The Majority justifies its disparate treatment of the PSDA and SSBA as an effort 

to find a “middle ground” between interpreting the word “express” too stringently or too 

broadly. Id. at 43. I am unable, however, to reconcile what, in my view, is an incongruous 

analysis of the two ordinances. In fact, the City submits arguably more applicable 

authority to support the SSBA, which the Majority dismisses in an abbreviated discussion. 

The Majority’s unbalanced treatment is clear from a comparison of its truncated SSBA 

analysis with its lengthy interpretation of the DPCL to find authority for the PSDA. The 

Majority’s attempt at compromise is admirable but problematic, and will undoubtedly 

result in continuing disparate application and subjective judicial interpretation. 

In my respectful opinion, judicial review should only be concerned with determining

if the particular ordinance that imposes requirements on businesses is authorized by 

existing statutory authority. Further, the analysis must always be conducted by liberally 

construing any ambiguities in the enabling legislation in favor of the home rule 

municipality’s constitutional right to control its municipal affairs at the local level, and 

ensure it maintains broader powers of self-government than non-home rule municipalities. 

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

Under a uniform application, I would hold both the SSBA and the PSDA are 

supported by the requisite statutory authority to overcome the Business Exclusion. I 

would thus reverse the Commonwealth Court’s entry of judgment on the pleadings. 

 

manufactures”). Lastly, the City asserts authority for the SSBA can be found in Section 

2962(c)(4) of the Home Rule Law which provides a home rule municipality retains “the 

power . . . to enact and enforce ordinances relating to building codes or any other safety, 

sanitation or health regulation pertaining thereto.” Id. at 31, quoting 53 Pa.C.S. 

§2962(c)(4).