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 JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: May 17, 2017
2

The City of Pittsburgh, its Council, its Mayor (collectively, City) and 

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

the Allegheny County Court of Common Pleas (trial court)1granting 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)2are 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 Rule 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 occupied 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 certify 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, 

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 

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.
3

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

Association of Pittsburgh v. City of Pittsburgh, 985 A.2d 711 (Pa. 2009) (BOMA)

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

the City enacted “The Protection of Displaced Contract Workers Ordinance” 

(Displaced Workers Ordinance) requiring employers with new service contracts to 

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

concluded:

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

place affirmative duties on businesses, 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 argues 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 contains 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 judgment 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 2962(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 provided by statutes which are 

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

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

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 employees. We held that the ordinance was invalid under former Section 

302(d) of the Home Rule Charter Law,6a 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 the 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 rejected 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 

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, 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 in 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 relevant 
6

provisions of the Second Class City Code7and/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 Department 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 expressly 

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 relating 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 compel 

 

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. 297, 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 exception in Section 2962(f) of the Home Rule Charter Law 

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

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

The City and SEIU also argue that the City has authority under 

Sections 7501(a) and 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:

Each political subdivision . . . is directed and authorized to 

establish a local emergency management organization 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 

within 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 Intergovernmental 

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 Plan.

(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 regulation and training 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 emergency 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 to 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 achieving 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 emergencies 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” and to enter into intergovernmental 

cooperation agreements with other government entities with respect to emergency 

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

to “[c]ooperate and coordinate” with private employers 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 related 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 all respects with the 

Commonwealth statutes and regulations thereunder. This

paragraph does not affect the power of any municipality 

to enact and enforce ordinances relating to building 

codes 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, Judge
IN 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 17th day of May, 2017, the order of the Allegheny 

County Court of Common Pleas dated December 17, 2015, at No. GD 15-13329 is 

AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge
IN 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 Local 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, 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, : No. 102 C.D. 2016

and William Peduto : Submitted: November 16, 2016

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 JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

DISSENTING OPINION

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

City of Pittsburgh, (Pa. Cmwlth., Nos. 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