IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Builders Association, :
Petitioner :
:
v. :
:
Department of Labor & Industry, : No. 479 M.D. 2021
Respondent : Submitted: September 15, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION BY
JUDGE COVEY FILED: October 26, 2022
Before this Court in its original jurisdiction is Pennsylvania Builders
Association’s (PBA)1 Application for Judgment on the Pleadings (Application) and
the Department of Labor and Industry’s (Department) Answer thereto. After review,
this Court grants the Application.
Background2
In 1999, the General Assembly enacted the Pennsylvania Construction
Code Act (PCCA),3 the purpose of which was to “establish uniform and modern
construction standards throughout the Commonwealth.” Commonwealth v. Null,
1
PBA is a non-profit statewide trade association that is affiliated with the National
Association of Home Builders and 32 other local Pennsylvania associations. See Petition for
Review in the Nature of a Complaint in Equity Seeking Declaratory Relief and Injunctive Relief
¶ 5. It is governed by a board of directors consisting of representatives from the local associations.
See id. PBA brings this action on behalf of its nearly 4,200 members, consisting of builders,
remodelers, material suppliers, subcontractors, design professionals, and consultants. See id.
2
All facts are as alleged in the pleadings and the documents attached thereto.
3
Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101-7210.1103.
186 A.3d 424, 427 n.1 (Pa. Super. 2018) (quoting Flanders v. Ford City Borough,
986 A.2d 964, 969 (Pa. Cmwlth. 2009)). To that end, in Section 301(a)(1) of the
PCCA, the General Assembly mandated that the Department shall “promulgate
regulations adopting the [then-current] 1999 [Building Officials and Code
Administrators, Inc. (]BOCA[)] National Building Code, Fourteenth Edition, as a
Uniform Construction Code [(UCC).4]” 35 P.S. § 7210.301(a)(1). In Section
301(a)(2) of the PCCA, the General Assembly directed that the Department “shall
include a provision that all detached one-family and two-family dwellings and one-
family townhouses that are not more than three stories in height[,] and their
accessory structures[,] shall be designed and constructed either in accordance with
the” International Code Council’s “[(]ICC[)] International One and Two Family
Dwelling Code, 1998 Edition, or in accordance with the requirements of the [UCC].”
35 P.S. § 7210.301(a)(2). The ICC is a private, non-profit entity. See Petition for
Review in the Nature of a Complaint in Equity Seeking Declaratory Relief and
Injunctive Relief (Complaint) ¶ 9. BOCA later merged into the ICC codes.
Section 304(a)(3) of the PCCA further mandates:
The [D]epartment shall promulgate regulations
updating accessibility standards under Chapter 3
[(Uniform Construction Code)] by adopting by
December 31 of the year of issuance of the accessibility
provisions of the most recently published edition of the
ICC codes and any other accessibility requirements
which shall be specified in the regulations, or contained
in or referenced by the [UCC] relating to persons with
disabilities.
4
Section 401.1 of the Department’s Regulations defines the UCC as “[P]art [XIV of the
Department’s Regulations, titled Uniform Construction Code], [a]n International Building Code
and the International Residential Code for One- and Two-Family Dwellings, available from the
International Code Council[], . . . and any standards adopted by the Department in this [P]art [XIV]
under [S]ections 301 and 304 of the [PCCA] (35 P.S. §§ 7210.301[,] 7210.304).” 34 Pa. Code §
401.1.
2
35 P.S. § 7210.304(a)(3) (emphasis added). Importantly, Section 304(a)(2) of the
PCCA adds that regulations promulgated thereunder are exempt from the
requirements of Section 205 of what is commonly referred to as the Commonwealth
Documents Law (CDL),5 45 P.S. § 1205 (relating to Department of Justice approval
as to legality), and Sections 204(b) and 301(10) of the Commonwealth Attorneys
Act,6 71 P.S. §§ 732-204(b), 732-301(10) (relating to reviewing agency regulations
for form and legality). See 35 P.S. § 7210.304(a)(2).
On December 25, 2021, pursuant to Section 304(a)(3) of the PCCA, the
Department amended Sections 403.21,7 403.26,8 and 403.289 of the Department’s
Regulations, 34 Pa. Code §§ 403.21, 403.26, 403.28, and certain definitions in
Section 401.1 of the Department’s Regulations, 34 Pa. Code § 401.1, to expressly
adopt the ICC’s 2021 amendments to accessibility provisions of the International
Building Code, International Existing Building Code, and International Swimming
5
Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602, and 45 Pa.C.S. §§
501-907.
6
Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§ 732-101 - 732-506.
7
Section 403.21(a) of the Department’s Regulations adopts and incorporates Chapter 11
of the International Building Code of 2021 and the accessibility provisions of the International
Existing Building Code of 2021 as the UCC. See 34 Pa. Code § 403.21(a). The Department
correspondingly amended Section 401.1 of the Department’s Regulations to define the
International Building Code to include, inter alia: “Chapter 11 [(Accessibility)] and Appendix E
of the ‘International Building Code 2021’ issued by the ICC[,]” and International Existing
Building Code to include “[t]he accessibility provisions in the ‘International Existing Building
Code for Buildings 2021’ issued by the ICC.” 34 Pa. Code § 401.1.
8
Amended Section 403.26 of the Department’s Regulations adopts the accessibility
provisions contained in Section 307.1.4 of the International Swimming Pool and Spa Code of 2021
(relating to general design requirements). See 34 Pa. Code § 403.26. Section 401.1 of the
Department’s Regulations defines the International Swimming Pool and Spa Code as “[a]n
International Swimming Pool and Spa Code issued by the ICC.” 34 Pa. Code § 401.1.
9
Section 403.28(b)(3)(ii) of the Department’s Regulations was amended to state that
accessibility requirements in the International Building Code of 2021 shall apply to bathrooms in
uncertified state-owned buildings, restaurants or retail commercial establishments constructed
between August 31, 1965 and February 18, 1989. See 34 Pa. Code § 403.28(b)(3)(ii).
3
Pool and Spa Code (collectively, 2021 Accessibility Regulations). See Complaint
Ex. A, 51 Pa. B. 7981-84 (2021).
Facts
On December 29, 2021, PBA filed the Complaint, alleging therein that
the General Assembly delegated unfettered legislative authority to a private entity
to establish accessibility standards, and that PBA and its members are aggrieved as
a result.10 Specifically, PBA asserted:
26. Section 304(a)(3) of the PCCA . . . is unconstitutional
because, in violation of [a]rticle [II], [s]ection 1 of the
Pennsylvania Constitution,[11] it delegates “de facto,
unfettered control over” accessibility standards, Protz [v.
Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), . . .
161 A.3d 827,] 836 [(Pa. 2017)], to the ICC, without
building in “any of the procedural mechanisms” essential
to “protect against ‘administrative arbitrariness and
caprice,[’]” such as requiring ICC to “hold hearings,
accept public comments, or explain the grounds” for the
standards it adopts “in a reasoned opinion, which then
could be subject to judicial review.” Id. Further, the ICC
accessibility standard makers are private parties, “not
public employees who may be subject to discipline or
removal.” Id.
27. [The Department’s] 2021 Accessibility Regulations,
based as they are on this same unconstitutional delegation
10
Also on December 29, 2021, PBA filed an Application for Summary Relief with this
Court. On January 31, 2022, the Department filed an answer to the Application for Summary
Relief. On February 9, 2022, PBA filed an Unopposed Application to Withdraw the Application
for Summary Relief and Establish Briefing Schedule re: Application for Judgment on the Pleadings
(Application to Withdraw). On February 23, 2022, this Court granted the Application to
Withdraw.
11
Article II, section 1 of the Pennsylvania Constitution specifies: “The legislative power
of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and
a House of Representatives.” PA. CONST. art. II, § 1. Therefore, “[t]he General Assembly cannot
constitutionally delegate the power to make law to any other branch of government or to any other
body or authority.” Scarantino v. Pub. Sch. Emps.’ Ret. Bd., 68 A.3d 375, 384 (Pa. Cmwlth. 2013).
4
of legislative power to the ICC, are likewise
unconstitutional, and for the same reasons.
Complaint ¶¶ 26-27. PBA claimed that, in addition to adverse economic impacts,
delays, or interpretive and enforcement difficulties PBA members will suffer as a
result of the 2021 Accessibility Regulations, PBA and its members were denied the
opportunity to provide meaningful comment during the promulgation process. See
Complaint ¶¶ 18, 20.c, 23-24.
PBA attached to the Complaint copies of the Regulatory Analysis Form
(Analysis Form) that the Department submitted to the Independent Regulatory
Review Commission (IRRC) on November 5, 2021, in support of the 2021
Accessibility Regulations’ final-omitted rulemaking,12 and the December 25, 2021
Pennsylvania Bulletin publication of the 2021 Accessibility Regulations, including
the information the Department supplied to IRRC in the Analysis Form. See
Complaint Exs. A, B. PBA requests from this Court: (1) a declaration that the 2021
Accessibility Regulations unlawfully delegate legislative power to the ICC in
violation of article II, section 1 of the Pennsylvania Constitution; and (2) an order
permanently enjoining enforcement of the 2021 Accessibility Regulations.
On January 31, 2022, the Department filed an Answer and New Matter
to the Complaint. Therein, the Department admitted that it promulgated the 2021
Accessibility Regulations as Section 304(a)(3) of the PCCA mandates. See
Department Answer & New Matter ¶ 6; see also Complaint Ex. C. The Department
12
Normally, agencies must provide notice of proposed rulemaking and review responsive
comments before it may promulgate a new or amended regulation. See Sections 201 and 202 of
the CDL, 45 P.S. §§ 1201-1202. However, Section 204(3) of the CDL allows agencies to omit
those steps and proceed to final-omitted rulemaking if notice and comment are “impracticable,
unnecessary, or contrary to the public interest.” 45 P.S. § 1204(3). Here, the Department declared
in the Analysis Form: “The final-omitted procedure is appropriate under the [CDL] because the
full regulatory process is impracticable since the PCCA requires the Department to adopt the
updated accessibility provisions of the ICC codes without change. See 45 P.S. § 1204(a)(3).”
Complaint Ex. B, Analysis Form, at 2.
5
acknowledged that it made representations in the Analysis Form that the PCCA
required it to adopt the ICC’s updated accessibility regulations without analysis or
change, see Department Answer & New Matter ¶ 16; see also Complaint Ex. C at 2,
4, 8-10, and that “[t]he regulated community is required to absorb the cost of
compliance with the new or altered standards mandated by th[e 2021 Accessibility
Regulations].” Complaint Ex. C at 5. The Department denied that PBA or its
members are aggrieved by any economic impact, delay, or interpretive and
enforcement difficulties from the promulgation of the 2021 Accessibility
Regulations. See Department Answer & New Matter ¶¶ 18, 20c., 23-24.
In addition, in its New Matter, the Department asserted: PBA failed to
join a necessary party; PBA lacks standing to bring this action; PBA’s members
failed to exhaust their administrative remedies; the Complaint fails to comply with
the Declaratory Judgments Act (DJA);13 if granted, declaratory judgment would
prejudice rights of persons not parties to this proceeding; one or more of PBA’s
claims is barred by consent, has been waived, or is barred by public policy; the
requested relief would cause undue hardship, or unfairly prejudice members of the
public who need greater accessibility to commercial buildings and/or Type B
Dwelling Units;14 and, at all times relevant hereto, the Department has applied
applicable laws and its Regulations reasonably and in good faith. See id. ¶¶ 32-41.
On February 8, 2022, PBA filed a Reply to New Matter, denying the Department’s
New Matter. At that point, the pleadings were closed.
On February 28, 2022, PBA filed the Application, declaring that there
are no issues of material fact and that PBA is entitled to judgment in its favor as a
matter of law. On March 28, 2022, the Department filed the Answer claiming that
13
42 Pa.C.S. §§ 7531-7541.
14
“Type B Dwelling Units include buildings with [four] or more attached units, such as
apartments within existing buildings and clusters of [four] or more patio homes.” Complaint at 12
n.2.
6
PBA is not entitled to judgment as a matter of law, and that whether PBA had the
opportunity to conduct meaningful review and comment before the 2021
Accessibility Regulations were promulgated is a disputed issue of material fact
precluding judgment on the pleadings. The parties filed briefs in support of their
respective positions.
Discussion
Initially, Pennsylvania Rule of Appellate Procedure 1532(b) provides
that, “similar to the type of relief envisioned by the Pennsylvania Rules of Civil
Procedure regarding judgment on the pleadings[,]” Pa.R.A.P. 1532(b), Note, “[a]t
any time after the filing of a petition for review in an . . . original jurisdiction matter,
the court may on application enter judgment if the right of the applicant thereto is
clear.” Pa.R.A.P. 1532(b). This Court has expounded:
A motion for judgment on the pleadings is in the nature of
a demurrer; all of the opposing party’s allegations are
viewed as true and only those facts which have been
specifically admitted by him may be considered against
him. In reviewing a motion for judgment on the pleadings,
the court may only consider the pleadings themselves and
any documents properly attached thereto. A motion for
judgment on the pleadings should be granted by a [] court
only when the pleadings show there is no genuine issue of
material fact and the moving party is entitled to judgment
as a matter of law.
Trib Total Media, Inc. v. Highlands Sch. Dist., 3 A.3d 695, 698 n.2 (Pa. Cmwlth.
2010) (citations omitted).
Genuine Issues of Material Fact
“[T]he burden is on the moving party to prove the non-existence of any
genuine issue of fact[,] and . . . all doubts as to the existence of a genuine issue of a
7
material fact must be resolved against the moving party.” Lyman v. Boonin, 635
A.2d 1029, 1032 (Pa. 1993). “[T]his Court regards all of the non-moving party’s
well-pleaded allegations as true, and may consider against that party only those
allegations that it has admitted.” Pa. Dep’t of Banking v. NCAS of Del., LLC, 948
A.2d 752, 759 (Pa. 2008). “Where there are material issues of fact in dispute,
judgment on the pleadings cannot be entered.” Pfister v. City of Phila., 963 A.2d
593, 597 (Pa. Cmwlth. 2009). “A fact is considered material if its resolution could
affect the outcome of the case under the governing law.” Hosp. & Healthsystem
Ass’n of Pa. v. Commonwealth, 77 A.3d 587, 602 (Pa. 2013).
PBA proclaims in the Application that “there are no material facts that
bear on either the allegations of the [Complaint] or the Answer [and] New Matter
and [R]eply [to New Matter] that are disputed.” Application ¶ 6. The Department
retorts that its denials and PBA’s legal conclusions relative to Complaint paragraphs
18, 20.c, 23, and 24 (wherein PBA asserted that its members will suffer adverse
economic, delay, and/or interpretive/enforcement impacts, and have been denied the
opportunity to meaningfully comment) represent disputed material facts and, thus,
judgment cannot be entered on the pleadings. See Department’s Answer ¶ 6.
However, PBA’s Complaint presents a constitutional challenge to
Section 304(a)(3) of the PCCA and the Department’s Regulations promulgated
pursuant thereto. “Constitutional challenges to legislative enactments present this
Court with questions of law . . . .” Haveman v. Bureau of Pro. & Occupational
Affairs, State Bd. of Cosmetology, 238 A.3d 567, 572 (Pa. Cmwlth. 2020) (quoting
Germantown Cab Co. v. Phila. Parking Auth., 206 A.3d 1030, 1041 (Pa. 2019)).
Specifically, a challenge that a statute or regulation is a standardless delegation of
legislative authority represents a question of law. See Eagle Env’t II, L.P. v. Dep’t
of Env’t Prot., 884 A.2d 867, 877 (Pa. 2005) (“[C]hallenges to the constitutionality
of regulations or statutes constitute pure questions of law[.]”); see also U.S. Orgs.
8
for Bankr. Alts., Inc. v. Dep’t of Banking, 991 A.2d 370 (Pa. Cmwlth. 2010) (where
constitutionality is raised in an application for summary relief further factual
development is unnecessary to dispose of the application).
Notwithstanding, PBA pled in Complaint paragraphs 18, 20.c, and 24
that the 2021 Accessibility Regulations’ adoption of ICC’s current accessibility
standards change the UCC’s previous accessibility regulations; that such changes
will increase costs and delay new building construction and existing building
renovations; and, because they conflict with, and are more stringent than, federal
accessibility requirements under the Americans With Disabilities Act of 199015 and
the Fair Housing Amendments Act of 1988,16 they create significant interpretative
and enforcement difficulties, all to the detriment of PBA and its members. See
Complaint ¶¶ 18, 20.c, 24. PBA also alleged in Complaint paragraph 23 that the
Department’s automatic adoption of the ICC’s accessibility standards denied PBA
the opportunity to provide meaningful comment on the 2021 Accessibility
Regulations before the Department promulgated them. See id. ¶ 23.
In its Answer and New Matter, the Department admitted that the 2021
Accessibility Regulations changed the UCC’s previous accessibility regulations, but
specifically denied that the changes would delay planned projects or create
interpretive and enforcement difficulties. See Department Answer & New Matter ¶¶
18, 24. The Department also denied that the changes would increase costs, claiming
the Department lacked sufficient knowledge or information as to the truth of that
claim, and that it was speculative. See id. ¶¶ 18, 20.c. The Department further
denied that PBA was not afforded meaningful review of the 2021 Accessibility
Regulations, stating: “[O]n July 20, 2021, an authorized representative of [the
Department] emailed Daniel Durden [(Durden)], President of PBA, to, inter alia, see
15
42 U.S.C. §§ 12101-12213.
16
42 U.S.C. §§ 3601-3631.
9
whether [he] and [his] organization support these changes, or if there are any
concerns with these sections[,]” id. at 23 (quotation marks omitted), but Durden did
not respond.17
Although the Department claimed in its Answer and New Matter that
PBA had an opportunity to meaningfully comment on the 2021 Accessibility
Regulations, the Department had previously represented to IRRC in the Analysis
Form:18 “[T]he PCCA requires the Department to adopt the updated accessibility
provisions of the ICC codes without change.” Complaint Ex. B, Analysis Form, at
2, see also Complaint Ex. B, Analysis Form, at 4, 8-10; “No alternatives may be
considered.” Id. at 8; and, the Department “has no flexibility with the[] [2021
Accessibility Regulations, as] . . . [it] is without discretion to modify them.” Id. at
9. IRRC published the Department’s responses in the December 25, 2021
Pennsylvania Bulletin. See Complaint Ex. A. Those statements confirm the
Department’s allegations that it “had no role in the formulation of the updated ICC
standards” and, by extension, the 2021 Accessibility Regulations adopting those
standards. Department Answer & New Matter ¶ 17.
In addition, although it claimed in its Answer and New Matter that it
lacked knowledge of whether the 2021 Accessibility Regulations would impact PBA
members, according to the Analysis Form, the Department had previously informed
17
In the Analysis Form, the Department declared that PBA “expressed support” for the
2021 Accessibility Regulations. Complaint Ex. B, Analysis Form, at 4. Pennsylvania Bulletin at
2 (51 Pa. B. at 7981). In the Complaint, PBA clarified that the Department’s representation was
incorrect. See Complaint at 4 n.1. The Department did not proffer in the pleadings any support
for its conclusion that PBA’s lack of response evidenced PBA’s acquiescence or consent.
However, the Department admits in its brief to this Court that PBA’s failure to respond “d[id] not
. . . constitute a binding acceptance [of the 2021 Accessibility Regulations.]” Department Br. at
13.
18
IRRC incorporated the Department’s Analysis Form responses in the Pennsylvania
Bulletin publication of the 2021 Accessibility Regulations. See Complaint Ex. A, 51 Pa. B. 7981-
84.
10
the IRRC: “The regulated community[19] will be financially impacted by the cost of
compliance with updated building codes; however, the PCCA requires the
Department to update the accessibility regulations and prescribes the standards that
the Department must adopt.” Complaint Ex. B, Analysis Form, at 4. The
Department also declared:
The regulated community is required to absorb the cost of
compliance with the new or altered standards mandated by
the[] [2021 Accessibility Regulations]. It is impossible to
estimate the cost of compliance since the number of
projects and the design of each individual project is
unknown. Third-party agencies that perform UCC
inspection[s] may incur costs associated with updating
their code materials.
Id. at 5. Therefore, although the amount of such costs may be speculative at this
stage, the Department has admitted that the 2021 Accessibility Regulations will
economically impact PBA’s members.
Based on the pleadings and documents attached thereto, the General
Assembly mandated in Section 304(a)(3) of the PCCA that the Department adopt
ICC’s accessibility codes without change and, thus, any PBA comments lacked
meaningful effect on the 2021 Accessibility Regulations. Further, based on the
pleadings and documents attached thereto, PBA and its members will experience
associated costs. Accordingly, the Department’s denials and PBA’s legal
conclusions relative to Complaint paragraphs 18, 20.c, 23, and 24, do not prevent
19
When asked to list the persons, groups, or entities that will be required to comply with
the 2021 Accessibility Regulations, the Department responded, in pertinent part:
Building and facility contractors, design professionals,
manufactured housing and modular building manufacturers,
building and facility owners, developers, local municipalities,
construction code officials, third[-]party inspection agencies and the
Department must comply with th[e 2021 Accessibility Regulations].
Complaint Ex. B, Analysis Form, at 4.
11
this Court from granting the Application if PBA is entitled to judgment in its favor
as a matter of law.
Entitlement to Judgment as a Matter of Law
1. Declaratory Judgment
PBA claims that it is entitled to a declaratory judgment in its favor as a
matter of law. See Application ¶¶ 7-8. Declaratory judgment petitions are governed
by the DJA. The DJA’s purpose is “to settle and to afford relief from uncertainty
and insecurity with respect to rights, status, and other legal relations” and,
accordingly, must “be liberally construed and administered.” 42 Pa.C.S. § 7541(a).
To that end, Section 7533 of the DJA specifies: “Any person . . . whose rights, status,
or other legal relations are affected by a statute . . . may have determined any
question of construction or validity arising under the . . . statute . . . and obtain a
declaration of rights, status, or other legal relations thereunder.” 42 Pa.C.S. § 7533.
Thus, Section 7532 of the DJA affords courts the “power to declare rights, status,
and other legal relations whether or not further relief is or could be claimed[] . . . ,
and such declarations shall have the force and effect of a final judgment or decree.”
42 Pa.C.S. § 7532. Moreover, the Pennsylvania Supreme Court has ruled that “a
facial challenge to the validity of a statutory provision and pure question of law . . .
is [] generally appropriate for pre-enforcement review in a declaratory judgment
action.” Robinson Twp., Wash. Cnty. v. Commonwealth, 83 A.3d 901, 990 (Pa.
2013); see also Bayada Nurses, Inc. v. Dep’t of Lab. & Indus., 8 A.3d 866 (Pa. 2010).
a. Standing
Preliminarily, the Department claims that PBA lacks standing to bring
this action. “[A] person who is not adversely affected in any way by the matter he
seeks to challenge is not aggrieved thereby and has no standing to obtain a judicial
12
resolution of his challenge.” Fumo v. City of Phila., 972 A.2d 487, 496 (Pa. 2009).
“An individual can demonstrate that he has been aggrieved if he can establish that
he has a substantial, direct and immediate interest in the outcome of the litigation.”
Id.
A substantial interest in the outcome of litigation is one
that surpasses the common interest of all citizens in
procuring obedience to the law. A direct interest requires
a causal connection between the asserted violation and the
harm complained of. An interest is immediate when the
causal connection is not remote or speculative.
Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1215 (Pa. Cmwlth.
2018) (citations omitted).
Under Pennsylvania law, an association has standing as
representative of its members to bring a cause of action
even in the absence of injury to itself, if the association
alleges that at least one of its members is suffering
immediate or threatened injury as a result of the action
challenged. [See] P[a.] Med. Soc’y v. Dep’t of Pub.
Welfare, . . . 39 A.3d 267, 278 ([Pa.] 2012); accord S[.]
Whitehall Twp. Police Serv. v. S[.] Whitehall Twp., . . . 555
A.2d 793, ([Pa.] 1989) (collective bargaining agent has
standing to sue if members are aggrieved, even if action is
not related solely to collective bargaining).
Robinson Twp., 83 A.3d at 922; see also Friends of Lackawanna v. Dunmore
Borough Zoning Hearing Bd., 186 A.3d 525 (Pa. Cmwlth. 2018); see also William
Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975) (harm to
parking garage operators’ businesses due to public parking tax gave them standing
to challenge the tax); N.-Cent. Pa. Trial Lawyers Ass’n v. Weaver, 827 A.2d 550
(Pa. Cmwlth. 2003) (association had standing based on allegations that the
challenged statute directly affected its membership of Pennsylvania medical
malpractice attorneys, and whose clients would be directly and substantially
affected). “Under Pennsylvania law, the doctrine of standing is ‘a prudential,
13
judicially[]created tool,’ affording discretion to courts.” Firearm Owners Against
Crime v. Papenfuse, 261 A.3d 467, 481 (Pa. 2021) (quoting In re Hickson, 821 A.2d
1238, 1243 (Pa. 2003)).
Here, based on the facts as pled in the Complaint, that are supported by
the documents attached thereto, PBA’s members will, at the very least, experience
economic impacts due to the Department’s adoption of the ICC’s updated
accessibility codes. See Complaint ¶¶ 18, 20.c, 23-24, Exs. A, B. Accordingly,
because PBA members will be aggrieved, this Court holds that PBA has
associational standing to bring this action.
b. Merits
“The Pennsylvania Constitution prevents the General Assembly from
passing off to another branch or body de facto control over matters of policy.” Protz,
161 A.3d at 841. In the Complaint, PBA seeks a declaration from this Court that
Section 304(a)(3) of the PCCA, and the Department’s 2021 Accessibility
Regulations promulgated pursuant thereto, unlawfully delegate legislative power to
the ICC, a private entity, in violation of article II, section 1 of the Pennsylvania
Constitution. The Department admitted in the pleadings that it had no role in the
formulation of the updated ICC standards, and adopted the ICC’s 2021 accessibility
amendments without change. See Complaint Ex. B, Analysis Form, at 2, 4, 8-10;
see also Department Answer & New Matter ¶ 17.
PBA argues:
Section 304(a)(3)[ of the PCCA]’s directive, . . . in its
essence, requires [the Department] to rubber-stamp into
law whatever accessibility standards the ICC publishes,
without the ability to consider any alterations to these
standards. In abdicating its responsibility to legislate and
make policy choices as to the appropriate accessibility
standards, and delegating that responsibility to a third
14
party it does not control, the General Assembly has failed
to provide any mechanism for [the Department] to
question, modify, reject, or even independently review and
concur with the accessibility standards the ICC adopts.
Rather, Section 304 [of the PCCA] gives “de facto,
unfettered control” to a private entity, including
“incorporating, sight unseen, subsequent modifications”
to standards “without also providing adequate criteria to
guide and restrain the exercise of the delegated authority,”
Protz, in direct violation of [a]rticle II, [s]ection 1.
PBA Br. at 18 (italics added).
In 2010, after the Department promulgated Regulations adopting ICC’s
2009 code amendments (related to sprinkler requirements), PBA similarly sought a
declaration that Section 304(a) of the PCCA and its related Regulations violated
article II, section 1 of the Pennsylvania Constitution, and an injunction prohibiting
the Department from enforcing them. See Pa. Builders Ass’n v. Dep’t of Lab. &
Indus., 4 A.3d 215 (Pa. Cmwlth. 2010).
The Pennsylvania Builders Association Court explained:
By claiming that the PCCA is unconstitutional, [PBA]
ha[s] a heavy burden to overcome.
Our law provides a strong presumption that
legislative enactments, as well as the manner in
which legislation is enacted, do not violate the
[Pennsylvania] Constitution. A party that
challenges the constitutionality of a statute bears
‘a very heavy burden of persuasion’ to overcome
this presumption. ‘Accordingly, a statute will not
be declared unconstitutional unless it clearly,
palpably, and plainly violates the [Pennsylvania]
Constitution [and a]ll doubts are to be resolved in
favor of finding that the legislative enactment
passes constitutional muster.’
Ass’n of Settlement Cos. v. Dep’t of Banking, 977 A.2d
1257, 1261 (Pa. Cmwlth. 2009) (citations omitted).
Article II, [s]ection 1 of the Pennsylvania Constitution
provides that “[t]he legislative power of this
15
Commonwealth shall be vested in a General Assembly,
which shall consist of a Senate and a House of
Representatives.” P[A]. C[ONST]. art. II, § 1. “Legislative
power has been described as the power to incur public
debts, levy or collect taxes or make laws.” Scuoteguazza
v. Dep’t of Transp., . . . 399 A.2d 1155, 1157 ([Pa.
Cmwlth.] 1979). The legislative power implicated here is
the General Assembly’s authority to “make laws.” In
Association of Settlement Companies, this Court stated
that “[a]rticle II, section 1 [of the Pennsylvania
Constitution] embodies the fundamental concept that only
the General Assembly may make laws, and cannot
constitutionally delegate the power to make law to any
other branch of government or to any other body or
authority.” [Id.] at 1265 (quotation marks omitted). Thus,
neither [the Department] nor ICC may be delegated the
General Assembly’s power to make law.
Pa. Builders Ass’n, 4 A.3d at 220-21.
[T]o the extent the General Assembly was attempting via
the PCCA to delegate its rule-making authority over
Pennsylvania’s building codes to [the Department] and,
consequently ICC, it had the authority to do so as long as,
in light of the subject matter covered and the scope of the
powers granted therein, the PCCA sets forth a definite and
reasonable standard for such authority.
Pa. Builders Ass’n, 4 A.3d at 221.
[T]he non-delegation doctrine does not prevent the
General Assembly from adopting as its own a particular
set of standards which already are in existence at the time
of adoption. However, . . . the non-delegation doctrine
prohibits the General Assembly from incorporating,
sight unseen, subsequent modifications to such
standards without also providing adequate criteria to
guide and restrain the exercise of the delegated
authority.
Protz, 161 A.3d at 838-39 (emphasis added). The Pennsylvania Builders
Association Court examined the process by which the Department adopted the ICC’s
code amendments pursuant to Section 304(a) of the PCCA, and determined that,
16
until 2008, when the General Assembly added Section 107 of the PCCA20
establishing the UCC Review and Advisory Council (RAC),21
[the Department] was, in fact, mandated to promulgate
ICC’s codes as Pennsylvania’s UCC without exception.
So if, in fact, [the Department] does not go through notice-
and-comment rulemaking, and there is no other oversight
of the process, Pennsylvania’s UCC would be adopted
without the opportunity for interested parties to express
their views on how those changes would affect the
Commonwealth. As a result, it would appear that at least
for Pennsylvania’s [previous] UCC, ICC wielded
extraordinary power to establish Pennsylvania’s building
laws.
As for the 2009 UCC at issue here, the introduction of
RAC to the process of [the Department’s] adoption of the
Pennsylvania UCC afforded oversight and input by
industry members, and meant that [the Department] could
no longer adopt ICC’s codes “sight unseen.” Thus, what
20
Added by Section 2 of the Act of October 9, 2008, P.L. 1386, 35 P.S. § 7210.107.
21
RAC is
a 19-member group consisting of industry members (such as
contractors, engineers, inspectors and architects) appointed by the
Governor, whose responsibility is to gather information relative to
the UCC and proposed changes thereto, evaluate it, and make
recommendations to the Governor concerning it. Under Sections
107(b)(3) and 304(d)(1)-(2) of the PCCA, 35 P.S. §§
7210.107(b)(3), 7210.304(d)(1)-(2), RAC is authorized to make
determinations as to whether any new or amended provisions of
ICC’s codes are not consistent with the PCCA, or are inappropriate
for inclusion in Pennsylvania’s UCC, and RAC is to notify [the
Department] of the same by May 1st of the issuing year. Where that
is the case, [the Department] must exclude the offending provisions
when adopting the UCC, thereby leaving the corresponding
provisions of the prior UCC version in effect.
Pa. Builders Ass’n, 4 A.3d at 218. RAC has the authority, after review and comment by industry
members, and the public, to “adopt, reject[,] or modify” the updated ICC codes before
incorporating them into the UCC. Section 108(a)(ix) of the PCCA, added by Section 3 of the Act
of October 25, 2017, P.L. 356, 35 P.S. § 7210.108(a)(ix).
Section 304(d) of the PCCA has since been deleted by Section 2 of the Act of April 25,
2011, P.L. 1, and replaced by other provisions.
17
was unconstitutional about the pre-RAC process had been
rectified by the time [the Department] was required to
adopt ICC’s 2009 codes. The RAC process served as a
means for the General Assembly to restrain [the
Department’s] promulgation of Pennsylvania’s
construction laws. According to the pleadings, it is
undisputed that at the time [the Department] had to adopt
ICC’s 2009 codes, RAC was in place, held hearings, and
received submissions from PBA on ICC’s 2009 codes.
Pa. Builders Ass’n, 4 A.3d at 222 (footnote omitted).
The Pennsylvania Builders Association Court observed:
[T]he PCCA’s basic policy choices are made by the
General Assembly. Section 102(b) of the PCCA[, 35 P.S.
§ 7210.102(b),] clearly sets forth the General Assembly’s
purpose for the PCCA by providing eight specific
objectives for the PCCA. Since it is clear that the PCCA
sets forth the General Assembly’s basic policy, the first
requirement for lawful delegation of administrative duties
by the General Assembly has clearly been met.
The PCCA also contains adequate standards to guide and
restrain its execution and [the Department’s] exercise of
the delegated administrative functions. Pennsylvania’s
non-delegation doctrine “does not require that all of the
details needed to administer a law be precisely or
separately enumerated in the statute.” Matter of
Revocation of Rest. Liquor License No. R-12122, . . . 467
A.2d 85, 87 ([Pa. Cmwlth.] 1983). Moreover, as stated
previously, standards that control a non-legislative party’s
exercise of rulemaking authority must be viewed in light
of the task necessary to accomplish the General
Assembly’s purpose. [See] Gilligan [v. Pa. Horse Racing
Comm’n, 422 A.2d 487 (Pa. 1980)].
In the instant case, by the creation of RAC alone, the
second requirement was met as to the 2009 UCC.
Pursuant to Section 304(d) of the PCCA, after RAC
reviews and considers ICC’s codes, if it finds that any
section of ICC’s codes should be excluded, [the
Department] must exclude it when updating
Pennsylvania’s UCC. In addition to the creation of RAC,
Section 301 of the PCCA very specifically spells out how
18
[the Department] is to adopt Pennsylvania’s UCC. For
example, it provides the period of time in which [the
Department] must act, what information [the Department]
must consider (i.e., accessibility), prescribes standards to
be met and which entities may weigh in as to those
standards, etc. Finally, the Pennsylvania Supreme Court
and this Court have held that, where proposals by private
parties are required to be reviewed by a regulatory agency
before they are effective, there is no unconstitutional
delegation. P[a.] Coal Mining Ass’n v. Ins. Dep’t, . . . 370
A.2d 685 ([Pa.] 1977); Longwood Villa Nursing [&]
Convalescent Home Appeal, . . . 364 A.2d 976 ([Pa.
Cmwlth.] 1976). Thus, the second requirement for the
General Assembly’s delegation of administrative
authority has been met.
Pa. Builders Ass’n, 4 A.3d at 224-25 (footnote omitted).
The Pennsylvania Builders Association Court concluded:
[T]he RAC system worked in the manner in which the
General Assembly intended, and was a restraint on [the
Department’s] exercise of administrative authority. Since
the PCCA’s basic policy choices are clearly made by the
General Assembly, and the PCCA contains adequate
standards to guide and restrain the exercise of [the
Department’s] delegated functions, we hold that the
General Assembly did not unconstitutionally delegate its
authority over its execution and administration of the 2009
version of Pennsylvania’s UCC.
....
Accordingly, we hold that the post-RAC PCCA neither
improperly delegated the General Assembly’s rule-
making authority, nor its authority over the execution and
administration of that law, so [the Department’s] adoption
of ICC’s 2009 codes as Pennsylvania’s 2009 UCC did not
violate [a]rticle II, [s]ection 1 of the Pennsylvania
Constitution.
Id. at 225-26. Thus, in Pennsylvania Builders Association, the RAC process
supplied the necessary guidance and restraint for the exercise of delegated legislative
functions.
19
The Pennsylvania Supreme Court decided Protz in 2017.
At issue in Protz was [Section 306(a.2)] of the Workers’
Compensation [(WC)] Act [(WC Act)] relating to
impairment rating evaluations (IREs) of [WC]
claimants . . . , 77 P.S. § 511.2(1),[22] [which] required
physicians performing IREs to apply the methodology
provided in “the most recent edition” of the American
Medical Association [(AMA)] GUIDES TO THE
EVALUATION OF PERMANENT IMPAIRMENT ([Guides]).
Protz, 161 A.3d at 830 (quoting 77 P.S. § 511.2(1)). The
[Supreme] Court found this statutory provision violated
[a]rticle II, [s]ection 1 of the Pennsylvania Constitution,
which vests all legislative power in the General Assembly.
Protz, 161 A.3d at 830.
Phantom Fireworks, 198 A.3d at 1227 (footnotes omitted).
[I]in Protz, the [Supreme] Court found the General
Assembly’s delegation of authority to the AMA failed to
provide any of the necessary safeguards. Without any
policy statement or other limiting parameters, the AMA
could create any formula, including one that would yield a
loss of disability benefits for every claimant, or
alternatively, for no claimant. [See i]d. Moreover, it could
change the formula at will, potentially with such frequency
that no one could keep up with the changes, or
alternatively, with such infrequency as to fall behind
recent medical advances. [See i]d. It could add new
provisions or remove existing ones. [See i]d.
The [Protz] Court also observed that the General
Assembly failed to “require that the AMA hold hearings,
accept public comments, or explain the grounds for its
methodology in a reasoned opinion, which then could be
subject to judicial review. Further, the AMA physicians
who author the [Guides] are, of course, not public
employees who may be subject to discipline or removal.”
22
Section 306(a.2) of the WC Act, Act of June 2, 1915, P.L. 736, as amended, added by
the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, was repealed by the Act of October
24, 2018, P.L. 714 (Act 111), and replaced by Section 306(a.3) of the WC Act, added by Section
1 of Act 111, 77 P.S. § 511.3.
20
Id. at 836 (citing Tosto [v. Pa. Nursing Home Loan
Agency, 331 A.2d 198, 202 (Pa. 1975)]).
Phantom Fireworks, 198 A.3d at 1227-28 .
Phantom Fireworks involved Act 43.23 The petitioners therein
challenged a portion thereof which provided that fireworks sales in temporary
structures are governed by the safety standards in Standard 1124 of the 2006 edition
of the National Fire Protection Act (NFPA) Code for the Manufacture,
Transportation, and Storage of Fireworks and Pyrotechnic Articles (NFPA Code)
and any subsequent edition thereof. The petitioners claimed that Act 43 was an
impermissible delegation of legislative authority in violation of article II, section 1
of the Pennsylvania Constitution.
After reviewing Act 43 and related statutes and regulations, the
Phantom Fireworks Court concluded that the subject provision violated article II,
section 1 of the Pennsylvania Constitution as an impermissible delegation of
legislative authority by the General Assembly. The Phantom Fireworks Court
reasoned:
[T]he provisions of Act 43 at issue suffer from the same
constitutional defects as the AMA standards in Protz. The
General Assembly delegated authority to the NFPA
without providing any of the safeguards required to
conform that delegation of authority to constitutional
strictures. The General Assembly provided no policy
statement or other limiting parameters, leaving the NFPA
free to create, alter, or remove, as frequently or
infrequently as it chooses, any standard it chooses
concerning temporary structures used to sell fireworks.
Moreover, without statutory controls, NFPA drafters may
be open to influence by trade groups or individuals whose
interests may or may not match those of the electors.
Moreover, as in Protz, the General Assembly here failed
to include in Act 43 any provisions that would require the
23
Act of October 30, 2017, P.L. 672, No. 43.
21
NFPA to hold hearings, accept public comments, or
explain the grounds for its safety standards in reasoned
opinions which are subject to judicial review. Similarly,
the private individuals who draft the NFPA’s safety
standards are not public employees subject to discipline or
removal by the General Assembly or any public agency.
Phantom Fireworks, 198 A.3d at 1228.
Applying the well-settled delegation standards and case law to the case
at bar, the General Assembly had the authority “to delegate to [the Department] and,
consequently [the] ICC, its execution and administrative authority over
Pennsylvania’s [accessibility] codes, . . . as long as: (1) basic policy choices are still
made by the General Assembly; and (2) the legislation contains adequate standards
to guide and restrain the exercise of those functions.” Pa. Builders Ass’n, 4 A.3d at
224.
Relative to the first delegation requirement, this Court rules that the
General Assembly made basic policy choices as explained in the Pennsylvania
Builders Association Court’s conclusion that
the PCCA’s basic policy choices are made by the General
Assembly. Section 102(b) of the PCCA clearly sets forth
the General Assembly’s purpose for the PCCA by
providing eight specific objectives for the PCCA. Since it
is clear that the PCCA sets forth the General Assembly’s
basic policy, the first requirement for lawful delegation of
administrative duties by the General Assembly has clearly
been met.
Pa. Builders Ass’n, 4 A.3d at 224 (footnote omitted).
However, relative to whether the PCCA contains adequate standards to
guide and restrain the General Assembly’s delegation, although the RAC process
remains in effect to control UCC amendments, Section 107(b)(3) of the PCCA
announces:
With the exception of the accessibility provisions of the
most recently published editions of ICC codes, or any
22
other accessibility requirements specified in regulation,
contained in or referenced by the [UCC] relating to
persons with physical disabilities, [RAC shall] review the
updated sections, as provided under [S]ection 108 [of the
PCCA, 35 P.S. § 7210.108,] or other sections of the
collective codes, as provided under [S]ection
108(a)(1)(iii) [of the PCCA, 35 P.S. § 7210.108(a)(1)(iii)
(relating to additional sections)].
35 P.S. § 7210.107(b)(3) (emphasis added). Because the PCCA expressly exempts
ICC accessibility standards from the RAC review process, the RAC process does not
apply in the instant matter. See Complaint ¶ 13; Department Answer & New Matter
¶ 13.
Instead, in Section 106(a)(1) of the PCCA, the General Assembly
provides:
There is hereby created an Accessibility Advisory Board
which shall be composed of 11 members appointed by the
[Department’s] secretary. At least six members of the
[Accessibility A]dvisory [B]oard shall be public members,
three of whom shall be persons with physical disabilities,
one shall be an architect registered in Pennsylvania, one
shall be a member of the business community, and one
shall be a representative of the multifamily housing
industry. One member shall be a municipal official. The
chairman and minority chairman of the Labor and Industry
Committee of the Senate and the chairman and minority
chairman of the Labor Relations Committee of the House
of Representatives, or their designees, shall be members.
All members of the [Accessibility A]dvisory [B]oard,
except the members of the General Assembly, shall serve
for a term of two years and until their successors are
appointed.
35 P.S. § 7210.106(a)(1).
Section 106(b) of the PCCA specifies that “[t]he [Accessibility
A]dvisory [B]oard shall review all proposed regulations under [the PCCA] and shall
offer comment and advice to the [Department’s] secretary on all issues relating to
accessibility by persons with physical disabilities, including those which relate to
23
the enforcement of the accessibility requirements.”24 35 P.S. § 7210.106(b)
(emphasis added); see also Section 403.142(b)(1) of the Department’s Regulations,
34 Pa. Code § 403.142(b)(1). Importantly, however, although the Department must
consider the Accessibility Advisory Board’s comments and advice, unlike with
RAC, the General Assembly has not expressly authorized the Department to alter
ICC’s accessibility standards based on such input.25
Here, the Accessibility Advisory Board reviewed the 2021
Accessibility Regulations. In the Analysis Form, the Department represented to the
IRRC: “On July 15, 2021, the Department sought input from the Accessibility
Advisory Board,” which “expressed no concern with the proposed changes.”
Complaint Ex. B, Analysis Form, at 3. Notwithstanding, given the General
Assembly’s statutory mandate that the Department adopt the ICC’s accessibility
codes without modification, the Accessibility Advisory Board’s review process does
not in any way guide or restrain the ICC’s control over Pennsylvania’s UCC and the
Department’s Regulations.26
24
Section 301(a)(4) of the PCCA also provides:
The secretary shall consider the recommendations of the
[Accessibility A]dvisory [B]oard as provided in [S]ection 106(c) [of
the PCCA (relating to whether the secretary should grant
modifications from Chapter 11 (Accessibility) of the UCC
provisions for individual projects)]. . . .
35 P.S. § 7210.301(a)(4). Section 106(c) of the PCCA authorizes the Accessibility Advisory
Board to review and decide individual project modification applications. See 35 P.S. §
7210.106(c); see also Section 403.142(b)(2) of the Department’s Regulations, 34 Pa. Code §
403.142(b)(2).
25
Section 106(c) of the PCCA’s directive for the Accessibility Advisory Board to review
individual project modification applications and “advise the secretary regarding whether
modification should be granted or whether compliance . . . is technically infeasible[,]” 35 P.S. §
7210.106(c), does not provide such authority.
26
The Department also sought PBA’s input regarding the 2021 Accessibility Regulations.
Although PBA did not respond, as the Department has publicly represented, the Department lacked
authority to make any changes to the 2021 Accessibility Regulations had the PBA commented.
24
Moreover,
as in Protz, the General Assembly here failed to include in
[Section 304(a)(3) of the PCCA] any provisions that
would require the [Department] to hold hearings, accept
public comments, or explain the grounds for its
[accessibility] standards in reasoned opinions which are
subject to judicial review. Similarly, the private
individuals who draft the [Department’s accessibility]
standards are not public employees subject to discipline or
removal by the General Assembly or any public agency.
Phantom Fireworks, 198 A.3d at 1228. As written, in Section 304(a)(3) of the
PCCA, the General Assembly requires the Department to “incorporat[e], sight
unseen, subsequent modifications to [accessibility] standards without also providing
adequate criteria to guide and restrain the exercise of the delegated authority.” Protz,
161 A.3d at 839. In the absence of any such guidance or restraint, the second
requirement for the General Assembly’s delegation of legislative authority has not
been met.
Based on the foregoing, this Court holds that Section 304(a)(3) of the
PCCA delegates the General Assembly’s rule-making authority and its authority
over execution and administration of the UCC’s accessibility provisions to the ICC,
a non-governmental entity, clearly, palpably, and plainly in violation of article II,
section 1 of the Pennsylvania Constitution. Accordingly, because PBA has
overcome its burden of establishing that Section 304(a)(3) of the PCCA is
unconstitutional, PBA is entitled to a declaratory judgment in its favor as a matter of
law.
Notably, in the Analysis Form, the Department declared that PBA “expressed support” for
the 2021 Accessibility Regulations. Complaint Ex. B, Analysis Form, at 4. The IRRC published
that statement with the 2021 Accessibility Regulations in the Pennsylvania Bulletin. See
Complaint Ex. A, Pennsylvania Bulletin at 2 (51 Pa. B. at 7981). However, in the Complaint, PBA
clarified that the Department’s representation was incorrect. See Complaint at 4 n.1.
25
c. Severability
“Pennsylvania public policy favors severability of statutes containing
unconstitutional provisions.” Phantom Fireworks, 198 A.3d at 1228. Having
concluded that Section 304(a)(3) of the PCCA is unconstitutional, this Court must
determine whether it can be severed from the PCCA.
Section 1925 of the Statutory Construction Act of 1972 (SCA),
declares:
The provisions of every statute shall be severable.[27] If
any provision of any statute or the application thereof to
any person or circumstance is held invalid, the remainder
of the statute, and the application of such provision to
other persons or circumstances, shall not be affected
thereby, unless the court finds that the valid provisions of
the statute are so essentially and inseparably connected
with, and so depend upon, the void provision or
application, that it cannot be presumed the General
Assembly would have enacted the remaining valid
provisions without the void one; or unless the court finds
that the remaining valid provisions, standing alone, are
incomplete and are incapable of being executed in
accordance with the legislative intent.
1 Pa.C.S. § 1925; see also Protz. “The touchstone of legislative intent is whether,
with the unconstitutional portion of a statute removed, the legislature would prefer
what remains of the statute to no statute at all.” Phantom Fireworks, 198 A.3d at
1229 (citation omitted). This Court is “also mindful that [it] should remove as little
language as possible.” Id.
In the instant case, Section 304(a)(3) of the PCCA directs:
The [D]epartment shall promulgate regulations updating
accessibility standards under Chapter 3 [(Uniform
27
“Th[e Pennsylvania Supreme] Court has deemed the presumption in Section 1925 [of
the SCA] so fundamental . . . , when confronted with a finding that a provision of a statute is
invalid, that [it has] invoked Section 1925 [of the SCA] even where[, as here,] the parties failed to
argue severability.” Stilp v. Commonwealth, 905 A.2d 918, 970 (Pa. 2006).
26
Construction Code)] by adopting by December 31 of the
year of issuance of the accessibility provisions of the
most recently published edition of the ICC codes and
any other accessibility requirements which shall be
specified in the regulations, or contained in or
referenced by the [UCC] relating to persons with
disabilities.
35 P.S. § 7210.304(a)(3) (emphasis added). If this Court was to sever the
unconstitutional language from the provision, only the phrase, “The [D]epartment
shall promulgate regulations updating accessibility standards under Chapter 3
[(Uniform Construction Code)],” would remain. Such language is
so essentially and inseparably connected with, and so
depend[s] upon, the void provision[s] . . . , that it cannot
be presumed the General Assembly would have enacted
[it] without the void one; [and/]or . . . the court finds that
the remaining valid provision[], standing alone, [is]
incomplete and [is] incapable of being executed in
accordance with the legislative intent[, and well[-]settled
delegation restrictions].
1 Pa.C.S. § 1925. Because Section 304(a)(3) of the PCCA contains valid provisions
that are inseparable from invalid provisions, it is unconstitutional in its entirety. It
does not, however, render the remaining portions of the PCCA invalid and
unenforceable. Under such circumstances, Section 304(a)(3) must be stricken from
the PCCA and permanently enjoined from enforcement.28 See Robinson Twp.; see
28
“Under the void ab initio doctrine, a statute is held void in its entirety and ‘treated as if
it had never existed.’ Hawk v. Eldred T[wp.] B[d.] of Supervisors, 983 A.2d 216, 218 n.1 (Pa.
Cmwlth. 2009).” Weidenhammer v. Workers’ Comp. Appeal Bd. (Albright Coll.), 232 A.3d 986,
991-92 (Pa. Cmwlth. 2020). Therefore, “an unconstitutional statute is ineffective for any purpose,”
Glen-Gery Corp. v. Zoning Hearing Bd. of Dover Twp., 907 A.2d 1033, 1043 (Pa. 2006), and
cannot be enforced. Accordingly, the Department’s claims that (1) PBA’s failure to comment on
the 2021 Accessibility Regulations is material to its request for a permanent injunction because its
failure to object undermines any equitable rights it may have had, see Department Br. at 13, and
(2) “PBA’s speculative concerns about compliance with the 2021 Accessibility Regulations cannot
. . . form the basis of a clear right to injunctive relief” because “it would render the policy [in
Section 102 of the PCCA] meaningless[, and] would subject every subsequent amendment to
nationally recognized standards to a petition for permanent injunction,” are unpersuasive.
Department Br. at 15 (quotation marks omitted).
27
also Phantom Fireworks. Consequently, the Department’s Regulations promulgated
pursuant to Section 304(a)(3) of the PCCA, are also unenforceable.
Conclusion
For all of the above reasons, the Application is granted. This Court
declares Section 304(a)(3) of the PCCA unconstitutional as violative of article II,
section 1 of the Pennsylvania Constitution. Accordingly, the enforcement of Section
304(a)(3) of the PCCA, and the Department’s 2021 Accessibility Regulations
promulgated pursuant thereto, is enjoined.
_________________________________
ANNE E. COVEY, Judge
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Builders Association, :
Petitioner :
:
v. :
:
Department of Labor & Industry, : No. 479 M.D. 2021
Respondent :
ORDER
AND NOW, this 26th day of October, 2022, Pennsylvania Builders
Association’s Application for Judgment on the Pleadings is GRANTED. Section
304(a)(3) of the Pennsylvania Construction Code Act (PCCA), Act of November 10,
1999, P.L. 491, as amended, 35 P.S. § 7210.304(a)(3), is hereby declared
UNCONSTITUTIONAL as violative of article II, section 1 of the Pennsylvania
Constitution, PA. CONST. art. II, § 1. The enforcement of Section 304(a)(3) of the
PCCA, and the Department of Labor and Industry’s Regulations promulgated
pursuant thereto, is hereby ENJOINED.
_________________________________
ANNE E. COVEY, Judge