[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018 and 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
LAWRENCEVILLE BREWERY INC.D/B/A : 17, 2017 at No. 101 CD 2016,
THE CHURCH BREW WORKS, 1215 : affirming the Order of the Court of
INCORPORATED, D/B/A RITA'S ITALIAN : Common Pleas of Allegheny County
ICE, DIRT DOCTORS CLEANING : entered December 21, 2015 at No.
SERVICE LLC, AND MODERN CAFE : GD 15-16442.
INC. :
: ARGUED: October 23, 2018
:
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 : No. 59 WAP 2017
ASSOCIATION OF PITTSBURGH :
: Appeal from the Order of the
: Commonwealth Court entered May
v. : 17, 2017 at No. 100 CD 2016,
: affirming the Order of the Court of
: Common Pleas of Allegheny County
CITY OF PITTSBURGH, COUNCIL OF : entered December 17, 2015 at No.
THE CITY OF PITTSBURGH, AND : GD 15-13329.
WILLIAM PEDUTO, AND SERVICE :
EMPLOYEES INTERNATIONAL UNION : ARGUED: October 23, 2018
LOCAL 32 BJ :
:
:
APPEAL OF: SERVICE EMPLOYEES :
INTERNATIONAL UNION LOCAL 32BJ :
BUILDING OWNERS AND MANAGERS : No. 60 WAP 2017
ASSOCIATION OF PITTSBURGH :
: Appeal from the Order of the
: Commonwealth Court entered May
v. : 17, 2017 at No. 102 CD 2016,
: affirming the Order of the Court of
: Common Pleas of Allegheny County
CITY OF PITTSBURGH, COUNCIL OF : entered December 17, 2015 at No.
THE CITY OF PITTSBURGH, AND : GD 15-13329.
WILLIAM PEDUTO, AND SERVICE :
EMPLOYEES INTERNATIONAL UNION : ARGUED: October 23, 2018
LOCAL 32BJ :
:
:
APPEAL OF: 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 and J-72H-2018] [MO: Wecht, J.] - 2
BUILDING OWNERS AND MANAGERS : No. 61 WAP 2017
ASSOCIATION OF PITTSBURGH :
: Appeal from the Order of the
: Commonwealth Court entered May
v. : 17, 2017 at No. 100 CD 2016,
: affirming the Order of the Court of
: Common Pleas of Allegheny County
CITY OF PITTSBURGH, COUNCIL OF : entered December 17, 2015 at No.
THE CITY OF PITTSBURGH, AND : GD 15-13329.
WILLIAM PEDUTO, AND SERVICE :
EMPLOYEES INTERNATIONAL UNION : ARGUED: October 23, 2018
LOCAL 32BJ :
:
:
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
v. : 17, 2017 at No. 102 CD 2016,
: affirming the Order of the Court of
: Common Pleas of Allegheny County
CITY OF PITTSBURGH, COUNCIL OF : entered December 17, 2015 at No.
THE CITY OF PITTSBURGH, AND : GD 15-13329.
WILLIAM PEDUTO, AND SERVICE :
EMPLOYEES INTERNATIONAL UNION : ARGUED: October 23, 2018
LOCAL 32BJ :
:
:
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
LAWRENCEVILLE BREWERY, INC., : 17, 2017 at No. 79 CD 2016, affirming
D/B/A THE CHURCH BREW : the Order of the Court of Common
WORKS,1215 INCORPORATED, D/B/A : Pleas of Allegheny County entered
RITA'S ITALIAN ICE, DIRT DOCTORS : December 21, 2015 at No. GD 15-
: 16442.
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018 and J-72H-2018] [MO: Wecht, J.] - 3
CLEANING SERVICE LLC, AND :
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 : No. 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
LAWRENCEVILLE BREWERY INC. D/B/A : 17, 2017 at No. 101 CD 2016,
THE CHURCH BREW WORKS, 1215 : affirming the Order of the Court of
INCORPORATED, D/B/A RITA'S ITALIAN : Common Pleas of Allegheny County
ICE, DIRT DOCTORS CLEANING : entered December 21, 2015 at No.
SERVICE LLC, AND MODERN CAFE : GD 15-16442.
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 :
:
:
APPEAL OF: CITY OF PITTSBURGH, :
COUNCIL OF THE CITY OF :
PITTSBURGH, AND WILLIAM PEDUTO :
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018 and J-72H-2018] [MO: Wecht, J.] - 4
CONCURRING AND DISSENTING OPINION
JUSTICE BAER DECIDED: JULY 17, 2019
I agree with the general legal conclusion underlying the Majority’s decision:
Subsection 2962(f) of the Home Rule Charter and Optional Plans Law precludes home-
rule municipalities, like the City of Pittsburgh (“City”), from regulating businesses 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).1 I also agree with the Majority that Subsection
2962(f) bars the City’s Safe and Secure Buildings Act (“SSBA”) because the SSBA
regulates businesses and employers by imposing “a complex and burdensome set of
continuing obligations upon owners and employees of ‘covered properties,’” Majority
Opinion at 36, and the City has failed to identify a statute of this Commonwealth that
expressly provides a home-rule municipality with the authority to pass such an ordinance.
Consequently, I join the following parts of the Majority Opinion: I., II., III., and IV.C.
I, however, respectfully dissent from the remainder of the Majority Opinion,
particularly its conclusion that Subsection 2962(f) does not invalidate the City’s Paid Sick
1 Subsection 2962(f) states, in full, as follows:
(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. This subsection shall not be construed as a
limitation in fixing rates of taxation on permissible subjects of taxation.
53 Pa.C.S. § 2962.
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018 and J-72H-2018] [MO: Wecht, J.] - 5
Days Act (“PSDA”). As noted, Subsection 2962(f) prohibits the City from placing “duties,
responsibilities or requirements” upon “businesses, occupations and employers.” It
seems beyond serious controversy that the PSDA regulates businesses and employers
by requiring them to provide sick leave to their employees. Indeed, the Majority appears
to agree. See Majority Opinion at 9 (explaining that the PSDA requires employers in the
City to provide sick leave to employees). Thus, Subsection 2962(f) precludes the City
from placing this requirement upon businesses and employers, unless the City can
identify express statutory language that permits it to legislate in this manner.
The City has failed to highlight any express statutory authority allowing it to
mandate that businesses and employers provide employees with sick leave, and I find
the Majority’s contrary conclusion to be unpersuasive. As to this latter statement, in
finding that the Disease Prevention and Control Law of 1955 (“DPCL”), 35 P.S. §§ 521.1-
521.21, contains sufficient authority to allow the City to pass the PSDA, the Majority first
finds “that the DPCL is ambiguous with regard to whether and when municipalities may
enact ordinances related to disease prevention and control.” Majority Opinion at 26.
Next, the Majority utilizes principles of statutory construction to conclude that, because
the City is within “the jurisdiction of the Allegheny County Health Department, [it] qualifies
as a municipality which has a department of health for purposes of [the] DPCL[.]” Id. at
29. Lastly, the Majority apparently concludes that, because the general object of the
DPCL is disease prevention and control, it necessarily follows that the DPCL expressly
provides home-rule municipalities with the authority to require businesses and employers
to provide sick days to their employees. Id. at 29-36.
In my view, the need for a circuitous, 11-page construction of the DPCL
demonstrates the contrary result, i.e., the DPCL does not contain express statutory
language allowing the City to mandate that businesses and employers provide their
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018 and J-72H-2018] [MO: Wecht, J.] - 6
employees with sick days. I further note that, because the Majority finds that the DPCL
provides the City with sufficient authority to pass the PSDA, it understandably declines to
address whether the other statutory authority cited by the City can substantiate the validity
of the PSDA. However, to determine if I am in concurrence with or dissent from the
Majority’s ultimate conclusion, it is necessary for me to consider the only other statutory
sections upon which the City relies to assert express authority for the PSDA. These
sections can be found in the Second Class Cities Code (“SCCC”), 53 P.S. §§ 22101-
28707.
According to the City, Section 22145 of the SCCC grants it the power to “make
regulations to secure the general health of the inhabitants, and to remove and prevent
nuisances.” City’s Brief at 17 (quoting 53 P.S. § 23145). The City further states that: (1)
Section 23146 of SCCC permits it to “make all necessary orders and regulations to
prevent the introduction of contagious or pestilential diseases into the city; to enact
quarantine laws for that purpose, and to enforce the same within five miles of the city
limits[,]” id. (quoting 53 P.S. § 23146); and (2) Section 23158 grants the City with authority
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 manufacturers[,]” id. (quoting 53 P.S. § 23158). In sum, the City suggests
that these statutory provisions expressly provide it with authority to enact the PSDA.
To the extent that the City can rely on provisions of the SCCC for purposes of
validating its authority to pass the PSDA, I believe these statutes suffer from short-
comings similar to those of the DPCL. While the above-stated provisions of the SCCC
may imply that second class cities have some authority to regulate businesses and
employers in a manner to protect the general welfare of their citizens, the statutes simply
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018 and J-72H-2018] [MO: Wecht, J.] - 7
do not provide express statutory authority allowing home-rule municipalities to mandate
that businesses and employers provide sick leave to their employees.
For these reasons, I conclude that the Commonwealth Court correctly determined
that Subsection 2962(f) invalidates both the SSBA and the PSDA. In closing, I note my
agreement with the expressions of the Chief Justice in his cogent Concurring and
Dissenting Opinion, which I join in full. Accordingly, I would affirm the Commonwealth
Court’s order, which affirmed that trial court’s order granting Appellees’ motion for
judgment on the pleadings.
Chief Justice Saylor and Justice Mundy join this opinion.
[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
2018 and J-72H-2018] [MO: Wecht, J.] - 8
Pa. Rstrnt & Lodging v. Pgh. Apl of: SEIU
Combined Opinion