IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Building Owners and Managers : Association of Pittsburgh : No. 100 C.D. 2016 : Argued: November 16, 2016

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 : No. 102 C.D. 2016 : Argued: November 16, 2016

v

. :

: City of Pittsburgh, Council of the : City of Pittsburgh, and William : Peduto, and Service Employees : International Union Local 32 BJ :

: Appeal of: City of Pittsburgh, : Council of the City of Pittsburgh, : and William Peduto :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

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

HONORABLE JO SEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: May 17, 20172 The City of Pittsburgh, its Council, its Mayor (collectively, City) and

the Service Employees International Union Local 32 BJ ( SEIU ) appeal the or der of

the Allegheny County Court of Common Pleas (trial court) 1 granting the Building

Owners and Managers Association of Pittsburgh’s (BOMA) motion for judgment

on the pleadings and declaring that Sections 410.4(A), (B), and (C)(2) of the City’s

Safe and Secure Building Act (Ordinance) 2 are invalid and unenforceable. We

affirm.

In August 2015, BOMA filed a complaint against the City for

equitable and declaratory relief challenging the Ordinance as ultra vires in

violation of Section 2962(f) of the Home R ule Charter and Optional Plans Law

( Home Rule Charter Law ) 3 and SEIU intervened. All parties filed a motion for

judgment on the pleadings. In ruling on the motions, the trial court noted the

1 The appeals were consolidated by this Court’s order of February 29, 2016.

2 Sections 410.4(A), (B), and (C)(2) of the Ordinance require “Security Officers” and
“Building Service Employees” who work in commercial office buildings, retail buildings of at

least 100,000 square feet, museums and cultural institutions of at least 100,000 square feet, and

properties owned, managed, or oc cupied by the City to receive training by a school certified by
the City’s Fire Bureau to identify, prevent, and respond to emergency situations and for a

“Covered Owner” to cert ify compliance therewith

. See Trial Court 12/17/15 Opinion at 3

- 7 ; Reproduced Record (R.R.) at 6a

- 7a.

3 53 Pa. C.S. §2962(f). Section 2962(f) states:

(f) Regulation of business and employment.

— A municipality

which adopts a home rule charter shall not determine duties,

responsibilities or requirements placed upon businesses,

occu pations and employers, including the duty to withhold, remit

or report taxes or penalties levied or imposed upon them or upon

persons in their employment, except as expressly provided by

statutes which are applicable in every part of this Commonwealth

or w hich are applicable to all municipalities or to a class or classes

of municipalities

.3

holding in the Supreme Court’s opinion in Building Owners and Managers

Association of Pittsburgh v. City of Pittsburgh , 985 A.2d 7 1 1 (Pa. 2009) ( BOMA )

that the City exceeded its authority and violated the Home Rule Charter Law when

the City enacted “T he Protection of Displaced Contract Workers Ordinance ”

(Displaced W orkers Ordinance) requiring employers with new service contracts to

retain the employees of the former contractor for 180 days. Herein, t he trial court

concluded :

Sections 410.4(A), (B), and (C)(2) of the [Ordinance]

place affirmative duties on businesse s, occupations and employers in violation of the [ Home Rule Charter Law ].

Penalties for non

- compliance exist and include a fine and “preventing the occupancy of a Covered Property.” See Section 410.7(B). I am bound by the Supreme Court’s ruling in [ BOMA ]. For these reasons, [BOMA]’s motion for judgment on the pleadings is granted. [ 4 ]

Trial Court 12/17/15 Opinion at 10. The City and SEIU then filed the instant

consolidated appeals. 5

The City first argue s that: (1) the Ordinance enjoys a presumption of

validity; (2) the Pennsylvania Constitution provides the City a broad grant of

authority; (3) the Home Rule Charter Law requires that the City’s authority be

liberally construed in favor of the City; and (4) the City’s charter cont ains a broad

statement of authority. However, the City’s assertions in this regard are followed

4 A motion for judgment on the pleadings should be granted when the pleadings

demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgme nt as a

matter of law. Swartz v. Swartz , 689 A.2d 302, 303 (Pa. Super. 1997).

5 Because this matter involves purely a question of law, our scope of review is plenary

and the standard of review is de novo

. Shields v. Council of Borough of Braddock , 111 A.3d

1265, 1268 (Pa. Cmwlth. 2015).4

by little analysis and do not address Section 2962(f) of the Home Rule Charter

Law, upon which the trial court based its decision.

As noted above, Section 29 62(f) of the Home Rule Charter Law

states, in relevant part, that “[a] municipality which adopts a home rule charter

shall not determine duties, responsibilities or requirements placed upon businesses,

occupations and employers . . . except as expressly pr ovided by statutes which are

applicable in every part of this Commonwealth or which are applicable to all

municipalities or to a class or classes of municipalities .” 53 Pa. C.S. §2962(f).

In Smaller Manufacturers Council v. Council of City of Pittsburgh

,
485 A.2d 73 (Pa. Cmwlth. 1984), we considered a City ordinance that required

plant owners and operators to notify the Bureau of Business Security of any plans

to close, relocate, or reduce operations if such actions would affect more than 15%

of their emp loyees. We held that the ordinance was invalid under former Section

302(d) of the Home Rule Charter Law, 6 a substantially similar prior version of

Section 2962(f), because it regulated the duties, responsibilities, and requirements

of the businesses. We further held in Smaller that, based on the clear language of

6 Act of April 13, 1972, P.L. 184, formerly 53 P.S. §1

- 302(d), repealed by the Act of

December 19, 1996, P.L. 1158, 53 Pa. C.S. §2962(f)

, which stated:

No municipality which adopts a home rule charter shall at any time

thereunder determine the duties, responsibilities or requirements

placed upon businesses , occupations and employers , including the

duty to withhold, remit or report taxes or penalties levied or

imposed upon them or upon persons in their employment, except

as expressly provided by the acts of the General Assembly which

are applicable in every part of the Commonwealth or which are

applicable to all municipalities or to a class or classes of

municipalities. (Emphasis added

. )5

Section 302(d), the ordinance was prohibited unless the City was expressly

authorized to enact such an ordinance by the legislature.

Thereafter, in BOMA , our Supreme Court considered whether t he City

exceeded its authority as a home rule municipality when it enacted the Displaced

Workers Ordinance. In its analysis, the Supreme Court cited Smaller and affirmed

this Court’s holding that the ordinance at issue in BOMA also was invalid. In

doing so, the court noted that the ordinance in BOMA was “far more invasive [than

the reporting requirement in Smaller ] because it forces contractors to retain certain

employees for approximately half a year.” 985 A.2d at 714

- 15. Additionally, the

court reject ed the argument that preemption is the only limitation on the City’s

authority to regulate business.

In this case, the Ordinance imposes numerous affirmative duties upon

employers. Sections 410.4(A), (B), and (C)(2) affirmatively require “Security

Offic ers” and “Building Service Employees” who work in commercial office

buildings, retail buildings of at least 100,000 square feet, museums and cultural

institutions of at least 100,000 square feet, to receive training by a school certified

by the City’s Fire Bureau to identify, prevent, and respond to emergency situations

,
and for a “Covered Owner” to certify compliance therewith. R.R. at 6a

- 7a . In

light of the express limitations in Section 2962(f) of the Home Rule Charter Law

and following the decisions i n BOMA and Smaller , we must conclude that the City

was without authority to enact the Ordinance.

The City and SEIU maintain that the limitations on municipal

authority in Section 2962(f) are inapplicable here because the exception clause in

Section 2962(f) applies as express authority granted to the City by the relevant6

provisions of the Second Class City Code 7 and/or the Emergency Management

Services Code. 8 We disagree. 9

The City and SEIU assert that the Second Class City Code specifically

authorizes the City to : “make regulations to secure the general health of the

inhabitants, and to remove and prevent nuisances;” “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;” and

“ provide for the preparation and distribution by the Departmen t of Public Safety of

rules and regulations to minimize the danger of fire and lessen fire waste

. ” 53 P.S.

§§23145, 25081, 25092. However, as noted above, the exception in Section

2962(f) of the Home Rule Charter Law only applies to authority “ as express ly

provided by statutes . . . .” 53 Pa. C.S. §2962(f). The foregoing provisions do not

expressly grant the City the specific authority to impose the aforementioned

affirmative duties upon private employers . The provisions of Chapter 62 of the

Second Class City Code

, 10 relat ing to the regulation of business and occupations

,

also do not expressly provide the City the power to impose such affirmative duties

upon private employers

. Therefore, the Second Class City Code does not c ompel

7 See Article XIX, Section 3, Clause XXXIII of the Act of March 7, 1901, P.L. 20, 53

P.S. §23145; Section 1(a), ( l ) of the Act of May13, 1915, P.L. 2 97, 53 P.S. §§25081, 25092.

8 See 35 Pa. C.S. §§7501(a), 7503.

9 Because the provisions of Section 2962(f) of the Home Rule Charter Law are applicable
in this case, we reject the City’s and SEIU’s assertion that the Supreme Court’s opinion in

BOMA is not controlling and SEIU’s reliance on Section 2601 of the Home Rule Charter Law

.

10 Act of March 31, 1927, P.L. 95 , 53 P.S. §§25251

- 25257; Act of June 10, 1881, P.L.

109, 53 P.S. §§25271

- 25273; Act of May 21, 1921, P.L. 1053, as amended , 53 P.S. §§25291

- 25296; Act of April 4, 1905, P.L. 102, as amended , 53 P.S. §§25311

- 25325.7

application of the e xception in Section 2962(f) of the Home Rule Charter Law

because it does not c onfer upon the City the authority to enact Sections 410.4(A),

(B), and (C)(2) of the Ordinance

.

T he City and SEIU also argue that the City has authority under

Section s 7501 (a) a nd 7503 of the Emergency Management Services Code to enact

Sections 410.4(A), (B), and (C)(2) of the Ordinance

. 11 However, the Emergency

11 35 Pa. C.S. §§7501 (a) ; 7503. Section 7501 (a) states, in relevant part:

E ach political subdivision . . . is directed and authorized to

establish a local emergency management organ ization in

accordance with the plan and program of the Pennsylvania

Emergency Management Agency. Each local organization shall

have responsibility for emergency management, response and

recovery within the territorial limits of the political subdivision

w ithin which it is organized . . . .

35 Pa. C.S. §7501(a).

In turn, Section 7503 states:

Each political subdivision shall, either individually or

pursuant to the provisions of the [General Local Government

Code, 53 Pa. C.S. §§ 2301

- 2317], adopt an Inter governmental

Cooperation agreement with other political subdivisions to :

(1) Prepare, maintain and keep current a disaster emergency

management plan for the prevention and minimization of injury

and damage caused by disaster, prompt and effective response to disaster and disaster emergency relief and recovery in consonance

with the Pennsylvania Emergency Management P lan.

(2) Establish, equip and staff an emergency operations center,

consolidated with warning and communication systems to support

government operations in emergencies and provide other essential

facilities and equipment for agencies and activities assigned

emergency functions

.

(Footnote continued on next page...)8

Management Services Code does not expressly empower the City to enact these

Ordinance provisions because it does not apply to the regulat ion and trai ning of

“ Security Officers ” or “ Building Service Employees ” of private employers.

Rather, Sections 7501 and 7503 merely authorize the City to establish its own

(continued...)

(3) Provide individual and organizational training programs to

insure prompt, efficient and effective disaster emerge ncy services

.

(4) Organize, prepare and coordinate all locally available

manpower, materials, supplies, equipment, facilities and services

necessary for disaster emergency readiness, response and recovery

.

(5) Adopt and implement precautionary measures t o mitigate the

anticipated effects of disaster

.

(6) Execute and enforce such rules and orders as the agency shall

adopt and promulgate under the authority of this part

.

(7) Cooperate and coordinate with any public and private agency

or entity in achievin g any purpose of this part

.

(8) Have available for inspection at its emergency operations

center all emergency management plans, rules and orders of the

Governor and the agency

.

(9) Provide prompt and accurate information regarding local

disaster emergen cies to appropriate Commonwealth and local

officials and agencies and the general public

.

(10) Participate in all tests, drills and exercises, including remedial

drills and exercises, scheduled by the agency or by the Federal

Government

.

(11) Participate in the program of integrated flood warning systems

under section 7313(6) (relating to powers and duties).

35 Pa. C.S. §7503.9

“local emergency management organization ” an d to enter into int ergovernmental

cooperation agreements with other government entities with respect to emergency

management, response and recovery . At mo st , Section 7503(7) authorizes the City

to “[c] ooperate and coordinate ” with private employer s and does not empower the

City to compel the regulation and training of their private employees.

Finally, SEIU argues that the Ordinance is a health regulation

authorized by Section 2962(c)(4) of the Home Rule Charter Law, which allows the

City “to enact and enforce ordinances rel ated to building codes or any other safety,

sanitation or health regulation pertaining thereto. ” 53 Pa. C.S. §2962(c)(4)

(emphasis added). Section 2962(c)(4) states:

(c) Prohibited Powers

- A municipality shall not :

(4) Enact or promulgate any ordinance or regulation with respect to definitions, sanitation, health , standards of identity or labeling pertaining to the manufacture, processing, storage, distribution and sale of any foods, goods, or services subject to any Commonwealth statutes and regulations unless the municipal ordinance or regulation is uniform in a ll respects with the Commonwealth statutes and regulations thereunder. This paragraph does not affect the power of any municipality to enact and enforce ordinances r elating to building

co d e s or any other safety, sanitation or health regulations pertaining thereto

.

53 Pa. C.S. §2962(c)(4) (emphasis added). However, in making this argument,

SEIU relies on words taken out of context; significantly, it does not explain how

the Ordinance “pertains to” building codes.

Accordingly, the trial court’s order is affirmed.

MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Building Owners and Managers : Association of Pittsburgh : No. 100 C.D. 2016

:

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 : No. 102 C.D. 2016

:

v. :

: City of Pittsburgh, Council of the : City of Pittsburgh, and William : Peduto, and Service Employees : International Union Local 32 BJ :

: Appeal of: City of Pittsburgh, : Council of the City of Pittsburgh, : and William Peduto :

O R D E R

AND NOW, this 17 th day of May , 201 7

, the order of the Allegheny

County Court of Common Pleas dated December 17, 2015, at No. GD 15

- 13329 is

AFFIR MED.

__________________________________ MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

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 Lo cal 32 BJ :

: Appeal of: Service Employees : No. 100 C.D. 2016

International Union Local 32 BJ : Submitted : November 16, 2016

Building Owners and Managers : Association of Pittsburgh :

:

v. :

: City of Pittsburgh, Cou ncil of the : City of Pittsburgh, and William Peduto, : and Service Employees International : Union Local 32 BJ :

: Appeal of: City of Pittsburgh, : Council of the City of Pittsburgh, : No. 102 C.D. 2016

and William Peduto : Submitted: No vember 16, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT

, President Judge

HONORABLE REN É E COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. M c CULLOUGH, Judge

HONORABLE MIC H AEL H. WOJCIK Judge HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE COSGROVE FILED: May 17, 2017As my dissent in Pennsylvania Re staurant and Lodging Association v.

City of Pittsburgh

, (Pa. Cmwlth., No s . 79 C

. D

. 2016 and 101 C

. D

. 2016 , filed May

17, 2017 ) addresses my concerns with the present majority opinion, it is

incorporated herein.

___________________________ JOSEPH M. COSGROVE , Judge