[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018, J-72H-2018] [MO: Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
PENNSYLVANIA RESTAURANT AND : No. 57 WAP 2017
LODGING ASSOCIATION, STORMS :
RESTAURANT AND CATERING, LLC : Appeal from the Order of the
D/B/A STORMS RESTAURANT, : Commonwealth Court entered May
LAWRENCEVILLE BREWERY, INC., : 17, 2017 at No. 79 CD 2016, affirming
D/B/A THE CHURCH BREW WORKS, : the Order of the Court of Common
1215 INCORPORATED, D/B/A RITA’S : Pleas of Allegheny County entered
ITALIAN ICE, DIRT DOCTORS : December 21, 2015 at No. GD 15-
CLEANING SERVICE, LLC, AND : 16442
MODERN CAFE INC. :
:
: ARGUED: October 23, 2018
v. :
:
:
CITY OF PITTSBURGH :
:
:
v. :
:
:
SERVICE EMPLOYEES :
INTERNATIONAL UNION LOCAL 32BJ :
:
:
APPEAL OF: SERVICE EMPLOYEES :
INTERNATIONAL UNION LOCAL 32BJ :
:
PENNSYLVANIA RESTAURANT AND : No. 58 WAP 2017
LODGING ASSOCIATION, STORMS :
RESTAURANT AND CATERING, LLC : Appeal from the Order of the
D/B/A STORMS RESTAURANT, : Commonwealth Court entered May 17,
LAWRENCEVILLE BREWERY, INC., : 2017 at No. 101 CD 2016, affirming the
D/B/A THE CHURCH BREW WORKS, : Order of the Court of Common Pleas of
1215 INCORPORATED, D/B/A RITA’S : Allegheny County entered December
ITALIAN ICE, DIRT DOCTORS : 21, 2015 at No. GD 15-16442
CLEANING SERVICE, LLC, AND :
MODERN CAFE INC. :
: ARGUED: October 23, 2018
v. :
:
CITY OF PITTSBURGH, COUNSEL OF :
THE CITY OF PITTSBURGH, AND :
WILLIAM PEDUTO, AND SERVICE :
EMPLOYEES INTERNATIONAL UNION :
LOCAL 32 BJ :
:
:
APPEAL OF: SERVICE EMPLOYEES :
INTERNATIONAL UNION LOCAL 32BJ :
:
BUILDING OWNERS AND MANAGERS : No. 59 WAP 2017
ASSOCIATION OF PITTSBURGH :
: Appeal from the Order of the
: Commonwealth Court entered May 17,
v. : 2017 at No. 100 CD 2016, affirming the
: Order of the Court of Common Pleas of
: Allegheny County entered December
CITY OF PITTSBURGH, COUNCIL OF : 17, 2015 at No. GD 15-13329
THE CITY OF PITTSBURGH, AND :
WILLIAM PEDUTO, AND SERVICE : ARGUED: October 23, 2018
EMPLOYEES INTERNATIONAL UNION :
LOCAL 32 BJ :
:
:
APPEAL OF: SERVICE EMPLOYEES :
INTERNATIONAL UNION LOCAL 32BJ :
: No. 60 WAP 2017
BUILDING OWNERS AND MANAGERS :
ASSOCIATION OF PITTSBURGH : Appeal from the Order of the
: Commonwealth Court entered May 17,
: 2017 at No. 102 CD 2016, affirming
v. : the Order of the Court of Common
: Pleas of Allegheny County entered
: December 17, 2015 at No. GD 15-
CITY OF PITTSBURGH, COUNCIL OF : 13329
THE CITY OF PITTSBURGH, AND :
WILLIAM PEDUTO, AND SERVICE : ARGUED: October 23, 2018
EMPLOYEES INTERNATIONAL UNION :
LOCAL 32 BJ :
:
:
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018, J-72H-2018] [MO: Wecht, J.]
-2
APPEAL OF: SERVICE EMPLOYEES :
INTERNATIONAL UNION LOCAL 32BJ :
:
BUILDING OWNERS AND MANAGERS :
ASSOCIATION OF PITTSBURGH : No. 61 WAP 2017
:
: Appeal from the Order of the
v. : Commonwealth Court entered May 17,
: 2017 at No. 100 CD 2016, affirming
CITY OF PITTSBURGH, COUNCIL OF : the Order of the Court of Common
THE CITY OF PITTSBURGH AND : Pleas of Allegheny County entered
WILLIAM PEDUTO, AND SERVICE : December 17, 2015 at No. GD 15-
EMPLOYEES INTERNATIONAL UNION : 13329
LOCAL 32BJ :
: ARGUED: October 23, 2018
APPEAL OF: CITY OF PITTSBURGH, :
COUNCIL OF THE CITY OF :
PITTSBURGH, AND WILLIAM PEDUTO :
:
BUILDING OWNERS AND MANAGERS : No. 62 WAP 2017
ASSOCIATION OF PITTSBURGH :
: Appeal from the Order of the
: Commonwealth Court entered May 17,
v. : 2017 at No. 102 CD 2016, affirming
: the Order of the Court of Common
CITY OF PITTSBURGH, COUNCIL OF : Pleas of Allegheny County entered
THE CITY OF PITTSBURGH AND : December 17, 2015 at No. GD 15-
WILLIAM PEDUTO, AND SERVICE : 13329
EMPLOYEES INTERNATIONAL UNION :
LOCAL 32BJ : ARGUED: October 23. 2018
:
APPEAL OF: CITY OF PITTSBURGH, :
COUNCIL OF THE CITY OF :
PITTSBURGH, AND WILLIAM PEDUTO :
:
PENNSYLVANIA RESTAURANT AND : No. 63 WAP 2017
LODGING ASSOCIATION, STORMS :
RESTAURANT AND CATERING, LLC : Appeal from the Order of the
D/B/A STORMS RESTAURANT, : Commonwealth Court entered May 17,
LAWRENCEVILLE BREWERY, INC., : 2017 at No. 79 CD 2016, affirming the
D/B/A THE CHURCH BREW WORKS, : Order of the Court of Common Pleas
1215 INCORPORATED, D/B/A RITA’S : of Allegheny County entered
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018, J-72H-2018] [MO: Wecht, J.]
-3
ITALIAN ICE, DIRT DOCTORS : December 21, 2015 at No. GD 15-
CLEANING SERVICE, LLC, AND : 16442
MODERN CAFE INC. :
: ARGUED: October 23. 2018
:
v. :
:
:
CITY OF PITTSBURGH :
:
:
v. :
:
:
SERVICE EMPLOYEES :
INTERNATIONAL UNION LOCAL 32BJ :
:
APPEAL OF: CITY OF PITTSBURGH, :
COUNCIL OF THE CITY OF :
PITTSBURGH, AND WILLIAM PEDUTO :
:
PENNSYLVANIA RESTAURANT AND : 64 WAP 2017
LODGING ASSOCIATION, STORMS :
RESTAURANT AND CATERING, LLC : Appeal from the Order of the
D/B/A STORMS RESTAURANT, : Commonwealth Court entered May 17,
LAWRENCEVILLE BREWERY, INC., : 2017 at No. 101 CD 2016, affirming
D/B/A THE CHURCH BREW WORKS, : the Order of the Court of Common
1215 INCORPORATED, D/B/A RITA’S : Pleas of Allegheny County entered
ITALIAN ICE, DIRT DOCTORS : December 21, 2015 at No. GD 15-
CLEANING SERVICE, LLC, AND : 16442
MODERN CAFE INC. :
: ARGUED: October 23, 2018
:
v. :
:
:
CITY OF PITTSBURGH, COUNCIL OF :
THE CITY OF PITTSBURGH, AND :
WILLIAM PEDUTO, AND SERVICE :
EMPLOYEES INTERNATIONAL UNION :
LOCAL 32BJ :
:
:
:
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018, J-72H-2018] [MO: Wecht, J.]
-4
APPEAL OF: CITY OF PITTSBURGH, :
COUNCIL OF THE CITY OF :
PITTSBURGH, AND WILLIAM PEDUTO :
CONCURRING AND DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: JULY 17, 2019
I agree with and fully support the Majority’s discussion of the historical and legal
background of the Home Rule Charter and Optional Plans Law (the Home Rule Law), as
well as the Majority’s legal analysis and interpretation regarding the powers and
limitations granted to home rule municipalities. I further support the Majority’s evaluation
of the Business Exclusion limitation placed on home rule municipalities at 53 Pa.C.S.
§2962(f). More specifically, I agree with the Majority’s determination that the City of
Pittsburgh (City) did not exceed its authority in enacting the Paid Sick Days Act (PSDA)
because the PSDA has a “direct nexus with public health,” and falls, in part, “within . . .
the City’s traditional police powers” authorizing it to overcome the Business Exclusion.
Majority Op. at 34. However, I cannot agree with the Majority’s disparate treatment of the
City’s Safe and Secure Buildings Act (SSBA). I would find, under the analysis performed
by the Majority in interpreting the PSDA, the SSBA similarly has the requisite statutory
authority to overcome the Business Exclusion. Accordingly, I join parts I, II, III, IV.A and
IV.B, but must respectfully dissent from parts IV.C and V of the Majority Opinion.
As a threshold matter, I note we must exercise great care in discerning limits on
the power of home rule municipalities to enact ordinances. The General Assembly
specifically granted home rule municipalities expansive authority by providing:
A municipality which has adopted a home rule charter may
exercise any powers and perform any function not denied by
the Constitution of Pennsylvania, by statute or by its home rule
charter. All grants of municipal power to municipalities governed
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018, J-72H-2018] [MO: Wecht, J.]
-5
by a home rule charter under this subchapter, whether in the
form of specific enumeration or general terms, shall be liberally
construed in favor of the municipality.
53 Pa.C.S. §2961. Additionally, “pursuant to the constitutional and statutory provisions
authorizing home rule, a home rule municipality’s exercise of power is presumed to be
valid absent a specific constitutional or statutory limitation, and ambiguities are to be
resolved in favor of the municipality.” In re Petition to Recall Reese, 665 A.2d 1162, 1164
(Pa. 1995); see also Devlin v. City of Philadelphia, 862 A.2d 1234, 1242 (Pa. 2004), citing
PA. CONST. art. IX, §2. We must also acknowledge the decision to become a home rule
municipality is accomplished “by the affirmative vote of the electors of the City” and
“[w]here [a home rule charter] is adopted by a constitutionally empowered electorate, it
affords an example of pure democracy — the sovereign people legislating directly and
not by representatives in respect of the organization and administration of their local
government.” In re Addison, 122 A.2d 272, 275-76 (Pa. 1956).
Keeping the above principles in mind, this Court’s responsibility in interpreting
ordinances passed by a home rule municipality is to protect the ability of an electorate —
that constitutionally chose to be governed under the Home Rule Law — to govern itself
by liberally construing home rule municipal powers in favor of the municipality.
Accordingly, I agree with the Majority that an overly strict definition of express authority in
this context would improperly “hamstring home-rule municipalities from exercising their
home-rule authority in any way that burdens businesses[.]” Majority Op. at 34. An
interpretation requiring specific, express authority is contrary to the intent of the General
Assembly to give home rule municipalities greater power than if they had opted for other
forms of government. As recognized by Justice Todd in her dissent in Bldg. Owners &
Managers Ass’n of Pittsburgh v. City of Pittsburgh, 985 A.2d 711 (Pa. 2009), a strict
application of the Business Exclusion resulting in a “zero-regulation interpretation” would
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018, J-72H-2018] [MO: Wecht, J.]
-6
mean Home Rule municipalities have less power than non-home rule municipalities, and
would be unable to engage in any meaningful governance. Id. at 716 (Todd, J.,
dissenting). In light of the above, I therefore agree the PSDA bears a clear nexus with
public health concerns, and is thus supported by applicable statutory authority — i.e., the
City’s traditional police powers and the Disease Prevention and Control Law of 1955
(DPCL), 35 P.S. §§521.1-521.21 — sufficient to overcome the Business Exclusion.
Based on these same principles, however, I must depart from the Majority’s
conclusion regarding the SSBA. In my respectful view, the Majority’s determination that
the SSBA does not overcome the Business Exclusion is the result of an imbalanced and
inconsistent analysis, which I cannot endorse. While the Majority embraces a liberal
construction of the City’s home rule municipality powers in interpreting the DPCL and
resolves all ambiguities in favor of local regulation, thus finding the requisite authority for
the PSDA to overcome the Business Exclusion, Majority Op. at 26, the Majority fails to
engage in an equally liberal construction when analyzing the City’s proffered authority for
the SSBA.1 Rather, the Majority strictly interprets that statutory authority, and concludes
1 The City asserts its power to enact the SSBA can be found in: (1) the Emergency
Management Services Code at 35 Pa.C.S. §§7501-7504; (2) the Second Class City Code
at 53 P.S. §25081, §23145, §23158 and §25092; (3) and the Home Rule Law at 53
Pa.C.S. §2962(c)(4). City’s Brief at 24-32. More specifically the City notes the SSBA is
authorized by the Emergency Management Code, which obligates the City to prepare for
effective responses to disasters for the safety of the public. Id. at 25-28. In addition, the
City notes the SSBA is enabled by its police powers to secure the general health and
maintain the welfare of the City as provided by the Second Class City Code. Id. at 29-
30, citing 53 P.S. §25081 (providing inspection authority to “decrease and prevent fire,
the spread of fire, and fire waste, loss of life from fire, and loss of life or damage to property
from unsafe or improper construction or design of buildings”); 53 P.S. §23145 (City has
authority to “make regulations to secure the general health of the inhabitants, and to
remove and prevent nuisances”); 53 P.S. §23158 (“To make all such ordinances, by-laws,
rules and regulations, not inconsistent with the Constitution and laws of this
Commonwealth, as may be expedient or necessary . . . for the . . . maintenance of the
peace, good government and welfare of the city, and its trade, commerce and
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018, J-72H-2018] [MO: Wecht, J.]
-7
it does not expressly allow the SSBA to overcome the Business Exclusion. See Majority
Op. at 37-43.
The Majority justifies its disparate treatment of the PSDA and SSBA as an effort
to find a “middle ground” between interpreting the word “express” too stringently or too
broadly. Id. at 43. I am unable, however, to reconcile what, in my view, is an incongruous
analysis of the two ordinances. In fact, the City submits arguably more applicable
authority to support the SSBA, which the Majority dismisses in an abbreviated discussion.
The Majority’s unbalanced treatment is clear from a comparison of its truncated SSBA
analysis with its lengthy interpretation of the DPCL to find authority for the PSDA. The
Majority’s attempt at compromise is admirable but problematic, and will undoubtedly
result in continuing disparate application and subjective judicial interpretation.
In my respectful opinion, judicial review should only be concerned with determining
if the particular ordinance that imposes requirements on businesses is authorized by
existing statutory authority. Further, the analysis must always be conducted by liberally
construing any ambiguities in the enabling legislation in favor of the home rule
municipality’s constitutional right to control its municipal affairs at the local level, and
ensure it maintains broader powers of self-government than non-home rule municipalities.
See Hartman v. City of Allentown, 880 A.2d 737, 742 (Pa. Cmwlth. 2005).
Under a uniform application, I would hold both the SSBA and the PSDA are
supported by the requisite statutory authority to overcome the Business Exclusion. I
would thus reverse the Commonwealth Court’s entry of judgment on the pleadings.
manufactures”). Lastly, the City asserts authority for the SSBA can be found in Section
2962(c)(4) of the Home Rule Law which provides a home rule municipality retains “the
power . . . to enact and enforce ordinances relating to building codes or any other safety,
sanitation or health regulation pertaining thereto.” Id. at 31, quoting 53 Pa.C.S.
§2962(c)(4).
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018, J-72H-2018] [MO: Wecht, J.]
-8
Pa. Rstrnt & Lodging v. Pgh. Apl of: SEIU
Combined Opinion