Southeastern Pennsylvania Transportation Authority v. City of Philadelphia

[J-87-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

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

SOUTHEASTERN PENNSYLVANIA : No. 10 EAP 2016
TRANSPORTATION AUTHORITY, :
: Appeal from the Order of the
Appellee : Commonwealth Court at No. 2445 CD
: 2009 filed 8/7/2015 reversing and
: remanding the Order, dated 11/10/2009
v. : in the Court of Common Pleas,
: Philadelphia County, Civil Division at
: No. 03055, July Term, 2009.
CITY OF PHILADELPHIA AND :
PHILADELPHIA COMMISSION ON : ARGUED: September 13, 2016
HUMAN RELATIONS, :
:
Appellants :

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
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‖)3 does 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] - 2
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] - 3
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).
______________________________________________
22
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] - 4
 disability, marital status, age, source of income, familial status, or
domestic or sexual violence victim status. Phila. Code §§ 9–1103, 1106,
1108.
33
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 structure-

based 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] - 5
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] - 6
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 122 of 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] - 7
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] - 8
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] - 9
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] - 10
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] - 11
 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] - 12
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] - 13
 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).

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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] - 15
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] - 16
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] - 17
 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.

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