[J-87-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

SOUTHEASTERN PENNSYLVANIA 

TRANSPORTATION AUTHORITY,

Appellee

v.

CITY OF PHILADELPHIA AND 

PHILADELPHIA COMMISSION ON 

HUMAN RELATIONS,

Appellants

:

:

:

:

:

:

:

:

:

:

:

:

:

:

No. 10 EAP 2016

Appeal from the Order of the 

Commonwealth Court at No. 2445 CD 

2009 filed 8/7/2015 reversing and 

remanding the Order, dated 11/10/2009 

in the Court of Common Pleas, 

Philadelphia County, Civil Division at 

No. 03055, July Term, 2009.

ARGUED: September 13, 2016

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

JUSTICE MUNDY DECIDED: April 26, 2017

This case comes to us for a second time to determine if the Southeastern 

Pennsylvania Transportation Authority (SEPTA) is exempted from the jurisdiction of the

City of Philadelphia (the City) via the Philadelphia Commission on Human Relations 

(Philadelphia Commission) and the provisions of the Philadelphia Fair Practices 

Ordinance (FPO). We previously remanded this case to the Commonwealth Court to 

ascertain the legislative intent regarding this issue by employing the analysis set forth

by this Court in Dep‘t of Gen. Serv. v. Ogontz Area Neighbors Ass‘n, 483 A.2d 448 (Pa. 

1984). See Southeastern Pennsylvania Transp. Auth. v. City of Philadelphia, et al., 101 

A.3d 79, 90-91 (Pa. 2014) (SEPTA III). On remand, the Commonwealth Court 

determined that, applying the Ogontz test, the language and statutory scheme of the 
[J-87-2016] - 2

relevant statutes revealed the legislature‘s intent to exempt SEPTA from actions 

brought under the FPO. Southeastern Pennsylvania Transp. Auth. v. City of 

Philadelphia, et al., 122 A.3d 1163, 1173 (Pa. Cmwlth. 2015) (SEPTA IV). For reasons 

that follow, we affirm the decision of the Commonwealth Court.

This Court recounted the early procedural history of this case in our SEPTA III 

opinion, which we set forth again here.

This case has its origins in seven administrative proceedings against 

SEPTA that individuals instituted with the Philadelphia Commission from 

July 2007 through April 2009, alleging violations of the FPO.2 At least two 

of the administrative complaints included claims of types of discrimination 

against which the FPO offers protection, but that the Pennsylvania Human 

Relations Act (―PHRA‖)3does not cover. SEPTA filed a motion to dismiss 

each of the administrative cases for lack of jurisdiction, and the 

Philadelphia Commission denied the motions.

While all seven administrative proceedings were still pending,[] SEPTA 

instituted this civil action against Appellants seeking both declaratory and 

injunctive relief. SEPTA maintained in its complaint[] that because it is a 

Commonwealth agency, and Appellants are a political subdivision and a 

municipal agency, respectively, the FPO does not apply to it, and the 

Pennsylvania Constitution barred Appellants from exercising jurisdiction 

over it.[]

Appellants filed preliminary objections demurring to SEPTA‘s complaint. 

Appellants argued that because Philadelphia‘s powers under the First 

Class City Home Rule Act7[(FCCHRA)] extend to enacting and enforcing 

anti-discrimination laws, the FPO applied to SEPTA and the Philadelphia 

Commission had jurisdiction over it. Appellants further contended that an 

original action for declaratory and injunctive relief was inappropriate 

because SEPTA had to await final agency decisions in the individual 

administrative cases against it before it could seek appellate review in 

court. In response, SEPTA pointed out that the statute authorizing the 

creation of metropolitan transportation authorities, such as SEPTA, 

provides that such an authority ―shall exercise the public powers of the 

Commonwealth as an agency and instrumentality thereof,‖ 74 Pa.C.S. 

§ 1711(a), and asserted that Philadelphia‘s authority as a home-rule 

jurisdiction extends only to the regulation of its municipal affairs. In its 

brief in opposition to the preliminary objections, SEPTA did not rely upon, 

or refer to in any manner, the section of its enabling legislation pertaining 

to sovereign and official immunity. 74 Pa.C.S. § 1711(c)(3). The trial 

court sustained the preliminary objections and dismissed SEPTA‘s 
[J-87-2016] - 3

complaint.[]

SEPTA appealed to the Commonwealth Court, which reversed. SEPTA v. 

City of Philadelphia, 20 A.3d 558 (Pa. Cmwlth. 2011) (en banc) [(Septa 

II)]. A majority of the court concluded that the Philadelphia Commission 

lacked jurisdiction because SEPTA is an ―agency and instrumentality‖ of 

the Commonwealth and therefore within the jurisdiction of the 

Pennsylvania Human Relations Commission (the ―State Commission‖). 

The majority noted that the State Commission is responsible for the 

administration of the PHRA, which bans any ―employer‖ from engaging in 

certain forms of discrimination. 43 P.S. §§ 955, 956(a). Because the 

PHRA defines ―employer‖ as including ―the Commonwealth or any political 

subdivision or board, department, commission or school district thereof,‖9

and because neither the PHRA nor the FPO explicitly grants the 

Philadelphia Commission jurisdiction over SEPTA, the majority concluded 

the State Commission—and not the Philadelphia Commission—had 

jurisdiction over SEPTA. The Commonwealth Court did not base any 

portion of its reasoning upon the section of SEPTA‘s enabling legislation 

pertaining to sovereign and official immunity. 74 Pa.C.S. § 1711(c)(3). 

Because the majority considered the State Commission‘s jurisdiction over 

SEPTA to be clear, and a Commonwealth instrumentality‘s challenge to 

―the scope of a governmental body‘s action pursuant to statutory authority‖ 

through a declaratory judgment action to be proper, the majority also 

concluded that SEPTA had no duty to exhaust its administrative remedies 

before seeking relief in court. SEPTA [II], supra at 563.

[] Judge Dante Pellegrini dissented. He concluded that SEPTA is not a 

Commonwealth agency, and even if it were, it would still be subject to the 

provisions of the FPO and the jurisdiction of the Philadelphia Commission. 

The dissent stated that the General Assembly had enacted the portion of 

SEPTA‘s enabling act that provides that a metropolitan transportation 

authority such as SEPTA is ―an agency and instrumentality thereof‖ 

merely to avoid constitutional and statutory questions, such as limitations 

on local governments‘ acquisition of debt. 74 Pa.C.S. § 1711(a). The 

dissent opined that the cited language was not intended to render SEPTA 

a state agency for all purposes.

The dissent then concluded that even if SEPTA were part of the 

Commonwealth government, it nonetheless would be subject to the 

jurisdiction of the Philadelphia Commission under Commonwealth v. 

Ogontz Area Neighbors Association, 505 Pa. 614, 483 A.2d 448, 452 

(1984). In that case, the Department of Public Welfare (―DPW‖)—which 

we characterized as ―an agency of the Commonwealth‖—applied to the 

City of Philadelphia for the permits needed to build a facility for the 

mentally handicapped. Id. at 449–50. The City denied the permits on the 

ground that the proposed facility did not comply with use and other 
[J-87-2016] - 4

restrictions under the Philadelphia Zoning Code. On review in this Court, 

we rejected the notion that DPW was immune from local land regulations 

because it had the power to condemn property to establish the facility it 

sought to construct. We reasoned that because the General Assembly 

had established both the City and DPW, and had fixed the extent of each 

entity‘s powers, we would need to examine the enabling act of each entity 

to determine which entity‘s authority the legislature had intended to prevail 

for purposes of the parties‘ controversy. Because the applicable statutes 

did not clearly state which entity the legislature had intended to be 

―preeminent,‖ we applied the rule of statutory construction that a court may 

determine legislative intent by considering ―the consequences of a 

particular interpretation.‖ Id. at 455 (citing 1 Pa.C.S. § 1921(c)(6)). 

Because Philadelphia‘s zoning scheme would have been frustrated if 

DPW were to have prevailed, while subjecting DPW to local zoning rules 

and restrictions would not necessarily have frustrated DPW‘s mandate to 

establish mental health facilities, we concluded that the legislature had 

intended the City to have priority in the circumstances at issue.

The dissent here applied the principles we set forth in Ogontz and 

concluded that, as in Ogontz, the relevant statutes were ambiguous as to 

which entity was intended to have priority. The dissent therefore 

considered the effect of holding each entity preeminent and determined 

that ruling in SEPTA‘s favor would frustrate the legislature‘s intended 

scheme. Characterizing the PHRA as granting the State and Philadelphia 

Commissions‘ ―concurrent jurisdiction,‖ the dissent explained that deeming 

SEPTA ―preeminent‖ over Appellants would thwart the legislatively 

established system of shared jurisdiction. The dissent explained that, on 

the other hand, treating Appellants as ―preeminent‖ would not interfere 

with SEPTA‘s purpose of providing public transportation. The dissent 

stated, ―All the consequence of the City‘s and the [State Commission‘s] 

preeminence means is that SEPTA would still have to respond to 

complaints, like private companies, of those choosing to file their claims of 

unlawful discrimination with [the Philadelphia Commission].‖ SEPTA [III],

supra at 569 (Pellegrini, J., dissenting).

______________________________________________

2

In general terms, the FPO protects against discrimination: in employment 

based upon a person‘s race, ethnicity, color, sex, sexual orientation, 

gender identity, religion, national origin, ancestry, age, disability, marital 

status, familial status, genetic information, or domestic or sexual violence 

victim status; in public accommodations based upon race, ethnicity, color, 

sex, sexual orientation, gender identity, religion, national origin, ancestry, 

disability, marital status, familial status, or domestic or sexual violence 

victim status; and in housing accommodation, commercial property and 

other real estate opportunities based upon race, ethnicity, color, sex, 

sexual orientation, gender identity, religion, national origin, ancestry, 
[J-87-2016] - 5

disability, marital status, age, source of income, familial status, or 

domestic or sexual violence victim status. Phila. Code §§ 9–1103, 1106, 

1108.

3

43 P.S. §§ 951–963. The PHRA protects most, but not all, of the 

categories of individuals covered by the FPO. In general terms, the PHRA 

protects against discrimination in employment, housing, and public 

accommodation because of race, color, familial status, religious creed, 

ancestry, handicap or disability, age, sex, and national origin. In addition, 

it prohibits discrimination based upon the use of a guide or support animal 

because of the blindness, deafness or physical handicap of the user or 

because the user is a handler or trainer of support or guide animals.

. . .

7 53 P.S. §§ 13101–13157.

. . .

9

43 P.S. § 954.

SEPTA III, 101 A.3d at 82-84 (some citations and footnotes omitted).

In reviewing the Commonwealth Court‘s SEPTA II decision, we held that the 

Commonwealth Court‘s reliance on the status of SEPTA as a Commonwealth agency, 

was not dispositive of the issue of preemption. Citing Ogontz, County of Venango v. 

Borough of Sugarcreek, 626 A.2d 489, 490 (Pa. 1993), and Hazleton Area Sch. Dist. v. 

Zoning Hearing Bd., 778 A.2d 1205, 1210 (Pa. 2001), we explained that a governmental 

entity, that derives its existence from the legislature, does not possess inherently 

superior powers over another such legislatively created entity by virtue of its type or the

entity‘s respective designation as ―Commonwealth‖ or ―municipal.‖ SEPTA III at 87. 

Rather, the question must be resolved through an inquiry into the legislative intent as 

revealed by the pertinent enabling legislation. Thus, we rejected SEPTA‘s structurebased argument that for a Municipal Authority to exercise jurisdiction over a 

Commonwealth agency, it was necessary for the legislature to expressly so provide. Id.

at 87-88. We similarly rejected the Appellants‘ argument that the presumed validity 

afforded Home Rule enactments resolved the issue of legislative intent. Id. at 88. We,
[J-87-2016] - 6

therefore, held that the Commonwealth Court should have pursued an inquiry into the 

legislative intent in accordance with the stepped analysis first enunciated in Ogontz. 

As identified in Hazleton, our opinion in Ogontz, supra sets forth the 

analytical process a court is to follow to determine which entity the 

legislature intended to have preeminent powers over a given area of 

regulation.

The first step requires the reviewing court to determine, 

through examination of the statutes, which governmental 

entity, if any, the General Assembly expressly intended to be 

preeminent. Id. In the event there is no such express 

legislative mandate, the second step requires the court ―to 

determine legislative intent as to which agency is to prevail . 

. . . turn[ing] to the statutory construction rule that legislative 

intent may be determined by a consideration, inter alia, of 

the consequences of a particular interpretation.‖

Hazleton, supra at 1210 (quoting Ogontz, supra at 455 (citing in turn 1 

Pa.C.S. § 1921(c)(6))) (emphasis omitted).

Id. at 87. In essence, we rejected the Commonwealth Court‘s status-based analysis 

and remanded for it to ascertain the legislative intent by applying the Ogontz test to the 

entities‘ respective enabling legislation.1 Id.

On remand, a majority of the Commonwealth Court sitting en banc addressed the 

first prong of the Ogontz test, which it phrased as ―determin[ing] whether one legislative 

scheme was intended to have priority over the other.‖ SEPTA IV, 122 A.3d at 1168. 

Looking at the respective legislative schemes, the Majority noted the Metropolitan 

 

1 Chief Justice Castille and Justice Eakin filed concurring and dissenting opinions 

expressing the view that Ogontz should not have applicability beyond the land use and 

zoning issues involved therein. SEPTA III, 101 A.3d at 92-93 (Castille, C.J. concurring 

and dissenting); Id. at 97 (Eakin, J. concurring and dissenting). Chief Justice Castille 

opined that the Commonwealth Court sufficiently reviewed the relevant statutory 

language and properly concluded it precluded enforcement of the FPO against SEPTA.

―No remand to assess legislative intent is called for in this matter because the 

Commonwealth Court appropriately ascertained and effectuated the General 

Assembly‘s intent by looking to, and applying, the plain language of the relevant 

statutory provisions.‖ Id. at 95; accord Id. at 98 (Saylor, J. dissenting).
[J-87-2016] - 7

Transportation Authorities Act (MTAA) established that SEPTA is a Commonwealth 

agency and instrumentality. Id. at 1169 (quoting 74 Pa.C.S. § 1711(a)). It further noted 

the MTAA afforded SEPTA sovereign and official immunity. Id. at 1169-70 (quoting 74 

Pa.C.S. § 1711(c)). The Majority observed that 1 Pa.C.S. § 2310 provides that agencies 

with sovereign immunity may only be sued ―where the legislature has expressly waived

immunity.‖ Id. at 1170 (quoting Ebersole v. Southeastern Pennsylvania Transp. Auth., 

111 A.3d 286, 289 (Pa. Cmwlth. 2015) (emphasis added in SEPTA IV)). The 

Commonwealth Court then reviewed the PHRA, which expressly waives immunity of 

Commonwealth agencies from actions initiated under it. Id. (citing 43 P.S. § 954). In 

contrast, the Majority concluded the FCCHRA, which is the source for the City‘s 

authority to enact the FPO, does not contain an express waiver of the immunity 

accorded to Commonwealth agencies. Id. at 1171. The Majority explained that the 

FPO authorizes private claims, including potential awards for compensatory damages, 

punitive damages and attorney fees. Id., (citing PHILA. CODE §§ 9–1105, 9–1107). It, 

therefore, distinguished the provisions of the FPO from the land use and traffic 

regulation enforcement disputes that were the subjects of earlier cases. Id. at 1171-

1172. ―The penalties authorized by the [FPO] require an express waiver of sovereign 

immunity, and none has been expressed by the General Assembly.‖ Id. at 1172.

The Majority rejected the City‘s argument that Section 122of the PHRA 

accomplishes a waiver of sovereign immunity relative to the FPO. It noted that the 

 

2

The relevant section provides as follows.

(a) The provisions of this act shall be construed liberally for the 

accomplishment of the purposes thereof, and any law inconsistent with 

any provisions hereof shall not apply.

(b) Except as provided in subsection (c), nothing contained in this act shall 

be deemed to repeal or supersede any of the provisions of any existing or 

(continued...)
[J-87-2016] - 8

legislature waived SEPTA‘s immunity only as to the jurisdiction of the State 

Commission, and that such waivers are to be narrowly construed. Id., at 1172-73 (citing

Dean v. Dept. of Transp., 751 A.2d 1130, 1134 (Pa. 2000)).

3

Judge Pellegrini filed a dissent in which he argued an interpretation of the 

statutory language as revealing the intent of the legislature to subject SEPTA to the 

jurisdiction of the FPO. Id. at 1176 (Pellegrini, J. dissenting). Judge Pellegrini argued 

that the designation of SEPTA as a Commonwealth agency does not afford it 

equivalency with the Commonwealth for all purposes, citing cases holding SEPTA‘s 

status as a Commonwealth agency is related to the reasons for its creation. Id. at 

1177. He notes SEPTA is an ―authority‖ tasked with providing a commercial service. 

Id. He noted the subject matter in question here, anti-discrimination enforcement, is 

removed from SEPTA‘s fundamental transportation function. That is, SEPTA provides a 

service, not the governing function that appertains to municipalities. Id. Judge 

Pellegrini viewed the authority afforded the City through the FCCHRA, and section 12 of 

the PHRA, which permits local governments to concurrently promulgate and enforce 

 

(...continued)

hereafter adopted municipal ordinance, municipal charter or of any law of

this Commonwealth relating to discrimination because of race, color, 

familial status, religious creed, ancestry, age, sex, national origin or 

handicap or disability[.] . . . In the event of a conflict between the 

interpretation of a provision of this act and the interpretation of a similar 

provision contained in any municipal ordinance, the interpretation of the 

provision in this act shall apply to such municipal ordinance.

43 P.S. § 962(a), (b).

3 Acknowledging in light of its holding that it was unnecessary to reach the issue, the 

Commonwealth Court Majority also proceeded to determine that under the second 

prong of the Ogontz test a review of the consequences of the competing interpretations 

of the statutes favored the same conclusion relative to the legislature‘s intent. SEPTA 

IV, 122 A.3d at 1175.
[J-87-2016] - 9

anti-discrimination ordinances, as revealing a statutory scheme where the City 

predominates over SEPTA in the arena of enforcing anti-discrimination laws. Id. at 

1183. He concluded ―[t]here is nothing in the legislative scheme that would suggest that 

SEPTA‘s interests should predominate over the Commonwealth‘s; everything suggests 

[the City‘s] governmental interest predominates.‖ Id. at 1179. Judge Pellegrini also 

argued that, to the extent SEPTA may be protected by sovereign immunity, such was 

limited to monetary damages but does not extend to other forms of relief the 

Philadelphia Commission has at its disposal. Id. at 1182.4 

Appellants contend that, in SEPTA III, this Court resolved the first prong of the 

Ogontz test in their favor, and that the Commonwealth Court erred in ignoring that 

holding. Appellants‘ Brief at 24. Appellants argue that the Commonwealth Court 

Majority ―revives the very presumption in favor of SEPTA that this Court directed that it 

avoid.‖ Id. at 25. In line with its arguments in the prior appeal, Appellants emphasize 

that the FCCHRA grants the City authority to legislate for its municipal functions as fully 

as could the Commonwealth‘s legislature, absent an explicit or implicit preemption by 

the General Assembly. Id., (citing Warren v. City of Philadelphia, 115 A.2d 218, 221 

(Pa. 1955)). This includes the authority to enact the FPO. Id. at 26 (citing Devlin v. City 

of Philadelphia, 862 A.2d 1234 (Pa. 2004)). Appellants also rely on the provisions and 

history of the PHRA, which contemplates concurrent, and perhaps more stringent, local 

 

4

Judge Simpson authored a separate dissent declaring his view that the matter should 

be remanded to develop a record about the effects enforcement of the FPO would have 

on SEPTA‘s ability to attend to its core functions. SEPTA IV, 122 A.3d at 1185 

(Simpson, J, dissenting). Judge Pellegrini agreed that the record was underdeveloped 

and would also remand. He further expressed his reasons why he deems the Majority‘s 

conclusion, that the impact of such enforcement would be daunting, to be ―specious.‖ 

Id. at 1183. Because we agree that, under the first prong of the Ogontz test, the 

legislative scheme reveals an intent to shield SEPTA from the FPO, we do not reach, 

and express no opinion about, the impact on the respective entities of enforcement or 

non-enforcement under the second part of the Ogontz test.
[J-87-2016] - 10

regulation and enforcement in the anti-discrimination arena. Id. at 27. Additionally, 

Appellants reference the presumptive validity of a municipality‘s enactments under the

Home Rule powers. Id. at 28. Appellants assert that the FCCHRA contains no 

indication that SEPTA should be excluded from the purview of the Philadelphia 

Commission‘s jurisdiction.

Appellants dispute the Commonwealth Court Majority‘s conclusion that the 

language and statutory scheme of the MTAA evinces an intent that SEPTA is excluded 

from the jurisdiction of the Philadelphia Commission and the FPO. Appellants assert 

that the MTAA‘s provisions conferring sovereign immunity upon SEPTA ―do[] not speak 

to the authority of a municipality to enforce validly-enacted and generally applicable 

local anti-discrimination legislation against SEPTA,‖ or to legislative intent on the issue. 

Id. at 31. Appellants claim the Commonwealth Court‘s reasoning adopts the rationale in 

Chief Justice Castille‘s dissent, which they assert we rejected in SEPTA III. Id. at 31-

32. Appellants argue that relying upon the grant of sovereign immunity in this instance 

essentially resurrects the presumption and status-based approach favoring 

Commonwealth agencies that this Court disapproved. Appellants note that the fact 

SEPTA enjoyed sovereign immunity was not dispositive in Ogontz, where we held

SEPTA was not exempt from the City‘s enforcement of its zoning regulations. Id. at 33-

34. 

Appellants next argue that the fact that the legislature expressly waived SEPTA‘s 

immunity in the PHRA is unavailing to SEPTA because legislative intent as to priority is 

not discerned by a determination of whether or not a third entity has a role to play, and 

because the scope of protections afforded by the FPO are greater than those afforded

by the PHRA. Id. at 34-35. Finally, Appellants suggest that, to the extent SEPTA‘s 

sovereign immunity acts as a bar to enforcement of the FPO against it, it does not 
[J-87-2016] - 11

implicate all of the enforcement tools available to the Philadelphia Commission. Id. at 

37. Sovereign immunity, they point out, has been held to pertain to awards of monetary 

damages, but not other forms of equitable and declaratory relief. Id. at 38-39.

5

―To 

argue, based on sovereign immunity, that the General Assembly has expressly 

abrogated all of the [Philadelphia] Commission‘s jurisdiction, ignores that the bulk of the 

[Philadelphia] Commission‘s work is essentially investigatory and administrative.‖ Id. at 

40. 

 

5 Appellants cite the following cases in support of this contention.

See Legal Capital, LLC. v. Medical Professional Liability Catastrophe Loss 

Fund, 750 A.2d 299, 302-03 (Pa. 2000) (sovereign immunity did not bar 

action seeking equitable relief or a declaratory judgment that plaintiff ̳s 

assignee was entitled to direct payments from the Medical Professional 

Liability Catastrophe Loss Fund, a Commonwealth executive agency); 

Wilkinsburg Police Officers Ass‘n By and Through Harder v. Com., 636 

A.2d 134, 137 (Pa. 1993) (―suits which simply seek to restrain state 

officials from performing affirmative acts are not within the rule of

immunity‖); Fawber v. Cohen, 532 A.2d 429, 433-34 (Pa. 1987) (―suits 

which . . . seek to restrain state officials from performing affirmative acts 

are not within the rule of [sovereign] immunity‖ – thus, action, which seeks 

to restrain the Secretary of Welfare and declare his regulations invalid, is 

not an action for which the Secretary enjoys sovereign immunity); Finn v. 

Rendell, 990 A.2d 100, 105 (Pa. Cmwlth. 2010) (―sovereign immunity does 

not bar a declaratory judgment action or injunction seeking to prohibit 

state parties, i.e., state agencies or employees, from acting‖); Stackhouse 

v. Com., Pennsylvania State Police, 892 A.2d 54, 59–60 n.6, 61 (Pa. 

Cmwlth. 2006) (―sovereign immunity [does not] bar[] claims. . . seeking 

prohibitory injunctions to restrain state action‖ or ―a mandamus action to

compel an agency or officer to perform a ministerial or mandatory 

statutory duty‖); McGriff v. Com., Pennsylvania Bd. of Probation and 

Parole, 561 A.2d 78, 80 (Pa. Cmwlth. 1989) (sovereign immunity was not 

a proper defense to parolee‘s mandamus petition seeking to compel 

Board of Probation and Parole to vacate its recommitment order after 

parolee ̳s original sentence had been vacated).

Appellants‘ Brief at 37-38.
[J-87-2016] - 12

The State Commission filed an amicus brief in support of Appellants. It advances 

the argument that the PHRA expressly provides for concurrent jurisdiction and liberal 

construction. The State Commission‘s Amicus Brief at 2. It argues SEPTA meets the 

definition of a local employer under the PHRA and notes that cases favor ―robust‖ 

application of anti-discrimination laws. Id. at 4-5. The State Commission argues that 

its interpretation of the PHRA is entitled to deference as the agency charged with 

implementing the statute. Id. at 6-7 (citing Office of Admin. v. Pa. Labor Rels. Bd., 916 

A.2d 541, 549 (Pa. 2007)).

American Civil Liberties Union of Pennsylvania (ACLU) and the Mazzoni Center 

Legal Services (Mazzoni Center) filed a joint Amicus brief. They reiterate the provisions 

of the PHRA allowing local ordinances to provide concurrent and greater enforcement. 

ACLU and Mazzoni Center‘s Amicus Brief at 22-23. They note that the PHRA and the 

FCCHRA predate the MTAA which created SEPTA. They argue the enactment of the 

MTAA did not alter the dual jurisdiction paradigm. Id. at 24. They further argue the 

MTAA did not meet the criteria under the Statutory Construction Act for repealing those 

earlier enactments, because it did not constitute a revision of all statutes on a subject,

or purport to establish a uniform and mandatory system over the subject matter at issue. 

Id. at 25-26.

6

 

SEPTA refutes Appellants‘ argument that the Commonwealth Court Majority did 

not properly apply the Ogontz test to the pertinent statutes in this case. SEPTA‘s Brief 

at 10. It argues that the Commonwealth Court did not resurrect a status-based priority 

of SEPTA over the City. Rather, it asserts the Commonwealth Court focused on the 

intent of the legislature relative to the City‘s exercise of jurisdiction over SEPTA. Id. at 

 

6 Again, in light of our disposition, we do not address the Amici‘s arguments related to 

the second prong of the Ogontz test.
[J-87-2016] - 13

10-11. SEPTA counters Appellants‘ assertion that the broad powers afforded the City 

under the FCCHRA support an inference of the legislative intent respecting preemption.

SEPTA argues it ignores our holding in SEPTA III, where we stated the presumption of 

validity is relevant to the authority to act, and not ―whether the municipality may enforce 

ordinances and regulations against a Commonwealth agency or instrumentality.‖ Id. at 

16 (quoting SEPTA III, 101 A.3d at 88). SEPTA argues that the MTAA plainly 

establishes that SEPTA is afforded sovereign immunity. Id. at 18. It notes such 

immunity must be expressly waived to permit suits against it. Id. at 19 (citing Powell v. 

Drumheller, 653 A.2d 619, 621 (Pa. 1995); Tork-Hiis v. Com., 735 A.2d 1256, 1258 (Pa. 

1999)). SEPTA notes such a specific waiver is present in the PHRA, but not in the 

FCCHRA. Id. at 20. 

SEPTA argues that, contrary to Appellants‘ assertions, the Commonwealth Court 

did view the Ogontz test ―through the lens of the specific municipal ordinance. . . sought 

to be enforced,‖ and did not hold that sovereign immunity creates a per se exemption 

from all municipal jurisdiction. Id. at 21-22. Thus, SEPTA asserts the distinction drawn 

by the Commonwealth Court between the land use issues, applicable in Ogontz, and 

the regulations present in the FPO, which include rights of private action and the award 

of damages, is valid. Id. at 24-25. SEPTA argues Appellants‘ parsing of the potential 

enforcement remedies available under the FPO to support an inference of legislative 

intent to permit the Philadelphia Commission‘s partial jurisdiction over it is inapposite. 

Id. at 33-34.

Appellants sought allowance of appeal, which we granted for decision on the 

following question, as framed by Appellants:

Did the General Assembly, when it gave Philadelphia general police

powers as expansive as [those] of the General Assembly and specific

authority to enact local anti-discrimination laws, intend to exempt SEPTA

from compliance with those laws, when the consequence of compliance
[J-87-2016] - 14

would not materially disrupt SEPTA‘s core transportation function and the

consequence of non-compliance would leave hundreds of thousands of

Philadelphia passengers and employees without a remedy against many

forms of discrimination?

SEPTA v. City of Phila., 133 A.3d 292 (Pa. 2016).7

A.

Initially, we address Appellants‘ assertion that this Court essentially resolved the 

first prong of the Ogontz test prior to our remand to the Commonwealth Court in SEPTA 

III. That assertion is mistaken. Ogontz is implicated when a question arises as to 

legislative intent respecting competing interests between distinct entities created by the 

legislature. In SEPTA III, we held SEPTA was ―wrong in asserting that, in order for a

local governmental agency to prevail over a Commonwealth agency or instrumentality, 

the legislature must have clearly stated its intent in that regard.‖ SEPTA III, 101 A.3d at 

87. Rather, we explained ―we have applied the Statutory Construction Act in order to 

discern the legislature‘s intent.‖ Id. We further held that SEPTA‘s status-based 

argument and the City‘s reliance on the presumptive validity of homerule enactments 

did not provide such an express directive. Id. at 88. Therefore, we held that it was 

incumbent upon the Commonwealth Court to apply the two-part test set forth in Ogontz. 

Id. at 90. The first prong of that analysis requires an examination of the overall 

language of the legislation to discern if the General Assembly expressly intended one or 

the other to be preeminent. Ogontz, 483 A.2d at 455. While it is undisputed that neither 

enabling statute contained an explicit provision directly addressing the issue, that fact 

did not preclude the possibility that an examination of the statutes as a whole would 

reveal such a clear intent. Our holding merely recognized that the Commonwealth 

 

7 As in our earlier review of this case, the issue before us is one of statutory 

interpretation. ―Our standard of review of such a question of statutory interpretation is 

de novo, and our scope of review is plenary.‖ SEPTA III, 101 A.3d at 87 (citing

Hazelton, 778 A.2d at 1213).
[J-87-2016] - 15

Court in SEPTA II did not perform a review to discern the legislature‘s intent because it 

relied on the status of SEPTA as a Commonwealth agency, treating the competing 

entities in a hierarchical manner. SEPTA III, 101 A.3d at 87. We also noted that, as of 

the time of the appeal in SEPTA III, SEPTA had not relied on the sovereign immunity 

provisions and the Commonwealth Court did not base any of its reasoning thereon. Id.

at 83. Accordingly, we did not determine the first prong of the Ogontz analysis, and the 

Commonwealth Court, on remand, correctly engaged in an independent review of the 

enabling statutes to determine if the relevant legislative intent was therein expressed.8

B.

We next address Appellants‘ arguments that are reflected in Judge Pellegrini‘s 

dissent. Appellants adopt an approach that focuses on the core functions of the 

respective entities. This reliance on the core functions of SEPTA and the City, and 

Judge Pellegrini‘s distinction between an ―authority‖ providing a service and a 

municipality with governing authority, essentially turns the status-based analysis of the 

Commonwealth Court in SEPTA II on its head. Instead of prioritizing Commonwealth 

agencies over municipalities absent an express contrary intent by the legislature, 

Appellants would prioritize based on the governing versus the service-providing function 

of the respective entities. This is merely a different version of the status-based 

approach we rejected in SEPTA III. ―In a series of cases beginning with our decision in

 

8 Similarly, contrary to Appellants‘ assertions, the SEPTA III majority did not reject Chief 

Justice Castille‘s analysis of the legislative intent. His position that Ogontz should not 

apply beyond its facts was not agreed to by the majority, but the majority did not reach 

or opine on whether or not legislative intent was clear in the language of the statutes. 

The Court instead remanded for the Commonwealth Court to address the issue in the 

first instance, under the proper standard. As such, at most, the majority position was 

that Chief Justice Castille‘s analysis was premature. See SEPTA III, 101 A.3d 87-88. 
[J-87-2016] - 16

Ogontz, supra, this Court has held that a Commonwealth agency's challenge to a 

municipality's exercise of authority over it does not represent a contest between 

superior and inferior governmental entities, but instead a contest between two 

instrumentalities of the state.‖ Id. at 87 (quoting Ogontz, 483 A.2d at 452) (other 

citations omitted). The considerations reflected in Appellants‘ arguments may be 

relevant in the performance of the second part of the Ogontz analysis, if necessary, but 

are not indicative of the legislature‘s intent in the first part, which focuses on the 

language of the pertinent statutes. See id.

C. 

We turn then, to our de novo review of the authorizing statutes to discern if the 

legislature has expressed an intent to exempt SEPTA from enforcement of the FPO.

Reviewing the legislation establishing the City‘s authority under Home Rule and the 

legislation creating SEPTA, we note several facts are undisputed. Respecting SEPTA, 

it is clear the MTAA provides that SEPTA exercises its public powers as an agency of 

the Commonwealth. 74 Pa.C.S. § 1711(a). It is equally undisputed that the MTAA 

extends sovereign immunity to SEPTA. Id. at § 1711(c) (referencing 1 Pa.C.S. § 2310, 

which states that sovereign immunity continues until ―specifically waived‖ by the 

General Assembly); see also Frazier v. W.C.A.B. (Bayada Nurses, Inc.), 52 A.3d 241 

(Pa. 2012) (holding subrogation claim against SEPTA under the Workers Compensation 

Act was barred on the basis of sovereign immunity).

The authority of the City to enact the FPO and to enforce its provisions within 

Philadelphia is also not contested. That authority stems from the FCCHRA, which 

grants broad powers to the City to legislate in any non-prohibited field pertinent to its 
[J-87-2016] - 17

municipal functions. See 53 P.S. §§ 13101-13157. Additionally, the PHRA specifically 

provides that its provisions do not interfere with the authority of a municipality to pass 

appropriate ordinances and enforce anti-discrimination provisions concurrently with the 

State Commission. See 43 P.S. § 962(a), (b).

As recognized by the Commonwealth Court majority, these clear provisions show 

the legislature intended to shield SEPTA from entities initiating suits against it. The 

general authority of the City to legislate in this area, simply does not address the issue 

of its jurisdiction over SEPTA. In contrast, the sovereign immunity provisions do create 

an express limitation on any entity in bringing suit against SEPTA. We recognize that 

the legislature specifically waived sovereign immunity for Commonwealth agencies for 

purposes of enforcement of the PHRA. 43 P.S. § 954. It does not follow that the waiver 

of immunity piggybacks to the FPO merely because local municipalities are permitted to 

exercise concurrent enactment and enforcement authority with the State Commission

with respect to the subject matter at issue. Rather, Section 954 is an explicit expression 

of the legislature‘s intent to grant the State Commission exclusive jurisdiction over 

Commonwealth agencies in anti-discrimination matters. As noted above, any waiver of 

sovereign immunity must be specifically enacted by the legislature. 1 Pa.C.S. § 2310. 

No such waiver appears in the City‘s Home Rule authorization or SEPTA‘s enabling 

legislation. The fact that the FPO has an array of enforcement options does not provide 

a basis to infer the legislature intended only a partial exemption. As SEPTA suggests, 

this would require a selective reading of the FPO.

9

 

9 Our holding does not do harm to our deference to the State Commission in matters of 

statutory interpretation under its purview. First, such deference must give way to clear 

(continued...)
[J-87-2016] - 18

In conclusion, the Commonwealth Court did not err in its determination that, 

under the first prong of the Ogontz analysis, the statutory language and legislative 

scheme of the enabling legislation disclosed the legislature‘s intent to exclude SEPTA 

from the jurisdiction of the FPO. We, therefore, affirm the order of the Commonwealth 

Court.

Chief Justice Saylor and Justice Baer join the opinion.

Chief Justice Saylor and Justice Wecht file concurring opinions.

Justice Donohue files a dissenting opinion in which Justices Todd and Dougherty joins.

 

(...continued)

language of the legislature. Com., Office of Admin. v. Pennsylvania Labor Relations 

Bd., 916 A.2d 541, 550 (Pa. 2007). Second, the source of the statutory language 

evidence the General Assembly‘s intent on this issue stems from the MTAA, over which 

the PHRA has no interpretive function.