Building Owners & Managers Ass'n v. City of Pittsburgh

Justice TODD,

dissenting.

I respectfully dissent. The Majority’s interpretation of the Home Rule Charter and Optional Plans Law, 53 Pa.C.S.A. §§ 2901-3171 (“Home Rule Law”), and its conclusion that a municipality that adopts home rule may not regulate business in any fashion, leads to a result that is both unreasonable and *514in direct conflict with the General Assembly’s manifest intent to give home rule municipalities greater power than if they had opted for other forms of government. Indeed, after today’s decision, municipalities which have adopted home rule now possess less power than non-home rule municipalities. Moreover, the Majority’s zero-regulation interpretation will open a Pandora’s Box of challenges to numerous ordinances currently on the books which regulate, to one degree or another, local business in home rule municipalities. Finally, the Majority’s reconciliation of its approach today with the Commonwealth Court’s decision in Hartman v. City of Allentown, 880 A.2d 737 (Pa.Cmwlth.2005), which upheld an anti-discrimination ordinance in light of a similar challenge, simply cannot be sustained by the Majority’s own statutory interpretation construct. Instead of using the same plain language approach to strike the Protection of Displaced Contract Workers Ordinance, the Majority, in its attempt to harmonize its decision today with Hartman, engrafts onto the statute a distinction between affirmative and non-affirmative duties that is not found there, and that is impossible to reconcile with the plain language of the statute. In doing so, the Majority overlooks a more nuanced approach which prohibits home rule municipalities from determining duties already imposed by the legislature, but does not bar all regulation of businesses and employers.

As a threshold matter, the Majority limits its review of the Home Rule Law to the inquiry of whether the language is clear and free from all ambiguity, 1 Pa.C.S.A. § 1921(b); yet, judicial review of a statute is not so circumscribed and a variety of principles of statutory construction must be employed to guide our inquiry — the singular one, not mentioned in the Majority Opinion, being to ascertain the intent of the legislature. 1 Pa.C.S.A. § 1921(a). Indeed, this function is so paramount that “[i]n the construction of the statutes of the Commonwealth, the rules set forth in [the Statutory Construction Act] shall be observed, unless the application of such rules would result in a construction inconsistent with the manifest intent of the General Assembly.” 1 Pa.C.S.A. *515§ 1901. Furthermore, while statutory language that is free from all ambiguity must be regarded, 1 Pa.C.S.A. § 1921(b), certain presumptions are simultaneously in operation, aiding our understanding of the General Assembly’s intent. Specifically, we presume that the General Assembly did not intend a result that is unreasonable, absurd, or impossible of execution. 1 Pa.C.S.A. § 1922(1). Additionally, we accept that the legislature intends to favor the public interest as against any private interest. 1 Pa.C.S.A. § 1922(5). Finally, and specific to the issue before us, the legislature itself has mandated that home rule municipal powers are to be “liberally construed in favor of the municipality.” 53 Pa.C.S.A. § 2961. Thus, it is with the full panoply of tools of statutory construction that the Court discerns the intent of the General Assembly.

The Home Rule Law provides in relevant part that a “municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers ... except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities.” 53 Pa.C.S.A. § 2962(f). The Majority simply looks to “the plain language of the statute and our review of prior case law” to conclude that the Home Rule Law prohibits home rule municipalities from any regulation of businesses or employers. Majority Opinion at 510, 985 A.2d at 714. Applying this sweeping interpretation to the City of Pittsburgh’s Protection of Displaced Contract Workers Ordinance, the Majority concludes that “[tjhis is plainly a ‘requirement’ placed upon the new contractor,” and summarily strikes the ordinance. Id.

A closer review of Section 2962(f) and of the Home Rule Law, including its origins and purpose, reveals that the Majority’s “plain language” approach leads to a result that is both in direct conflict with the manifest intent of the legislature and unreasonable.

The purpose of home rule is the transfer of authority to control certain municipal affairs from the state to the local level and to broaden powers of home rule municipalities in *516relation to non-home rule municipalities. Indeed, the Pennsylvania Constitution provides that municipalities that adopt home rule are empowered to exercise any power or function not proscribed by the Constitution, the General Assembly, or its home rule charter. Pa. Const, art. 9, § 2; see also, Jonathan M. Kopcsik, Constitutional Law — Home Rule and Firearms Regulation: Philadelphia’s Failed Assault Weapons Ban — Ortiz v. Commonwealth, 70 Temp. L.Rev. 1055, 1056-57 (1997). Additionally, as noted above, the legislature itself has mandated that home rule municipal powers are to be “liberally construed in favor of the municipality.” 53 Pa. C.S.A. § 2961. Thus, the undisputed intent of the General Assembly was for municipalities which have adopted home rule to enjoy not only expansive powers, but broader powers of self government than non-home rule municipalities.

Related thereto, municipalities governed by municipal codes — -that is, those that have not adopted home rule — have enacted ordinances that place duties, responsibilities, and requirements on businesses, occupations, and employers. These have been upheld under a municipality’s “general welfare” powers, i.e., the exercise of police powers for the promotion of health, safety, comfort, morals, and welfare of the citizens of the municipality. See Taylor v. Harmony Twp. Bd. of Comm., 851 A.2d 1020, 1024-25 (Pa.Cmwlth.2004) (citing Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634 (1954));1 see generally, Kevin C. Forsythe, National, State and Local Perspectives on the Regulation of Business Dislocations: Smaller Manufacturers Council v. City of Pittsburgh, 45 U.Pitt. L.Rev. 439 (1984). Moreover, the General Assembly has recognized these general welfare powers in various municipal codes. See, e.g., 53 P.S. § 23158; 53 P.S. § 37403(60).

*517Thus, the result of the Majority’s holding barring home rule municipalities from the regulation of businesses and employers is unmistakable: non-home rule municipalities may pass ordinances such as the one at issue herein, while home rule municipalities may not. This anomaly, and fundamental diminution of home rule municipal powers below that enjoyed by non-home rule municipalities, flies in the face of the manifest intent of the General Assembly in enacting the Home Rule Law.

Additionally, the mandate of effectuating the intention of the General Assembly is informed by the ramifications of a particular interpretation, for example, does a particular interpretation lead to a result that is unreasonable or absurd? 1 Pa.C.S.A. § 1922. Furthermore, as noted above, we presume that the General Assembly favors the public interest as against any private interest. 1 Pa.C.S.A. § 1922(5). The Majority’s broad reading of the limitations contained in the Home Rule Law now calls into question numerous ordinances enacted by home rule municipalities to protect their citizens. As suggested by Appellants, ordinances relating to licensure and public order are now vulnerable. The specter of striking-such ordinances is not only disconcerting, it is unreasonable and contrary to the expressed intention of the legislature.

Based upon the above, I believe that a plain language approach to interpreting Section 2962(f) leads to an unreasonable result and one that is contrary to the manifest intent of the General Assembly in enacting the Home Rule Law. 1 Pa.C.S.A. §§ 1901,1921(a), 1922(1). Thus, it must be rejected.

Finding the Majority’s approach to be untenable, I believe the more nuanced interpretation offered by Appellants, which finds that home rule municipalities may place duties upon businesses and employers, but only if no such duties have been placed upon them by the Commonwealth, to be proper. Under this interpretation of Section 2962(f), home rule municipalities are prohibited from determining duties which have already been imposed by the legislature; they are not barred from all regulation of businesses and employers. This less sweeping interpretation of Section 2962(f) gives life to both the *518statutory language and the intent of the General Assembly in granting home rule municipalities greater powers than non-home rule entities. Applying this approach, I would find that the City of Pittsburgh’s Protection of Displaced Contract Workers Ordinance was lawfully enacted under the Home Rule Law.

This approach is further supported by other subsections of the Home Rule Law which make concrete that the General Assembly did not intend a total ban on the regulation of businesses and employers because the legislature knew how to expressly prohibit home rule municipalities from acting. For example, with respect to the regulation of firearms, a municipality’s power is clear: “A municipality shall not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms.” 53 Pa.C.S.A. § 2962(g). Likewise, Section 2962(c)(5) provides that a municipality shall not “[e]nact any provision inconsistent with any statute heretofore enacted prior to April 13, 1972, affecting the rights, benefits or working conditions of any employee of a political subdivision of this Commonwealth.” 53 Pa.C.S.A. § 2962(c)(5). Thus, these provisions make it plain that, if the General Assembly had intended to prohibit home rule municipalities from enacting ordinances regulating business and employers, it could have done so in clear and express terms as it did in other sections of the Home Rule Law.

Finally, the Majority engrafts an “affirmative duty” requirement onto the Home Rule Law in its attempt to reconcile its decision today with the Commonwealth Court’s decision in Hartman. The Majority’s reconciliation with that decision is both internally inconsistent and unpersuasive. While using a plain language approach to declare the ordinance before us invalid, the Majority then embraces the Hartman court’s finding that the statute only forbids home rule municipalities from placing “affirmative duties” on businesses and employers. The plain language of the statute, however, makes no such distinction between affirmative and non-affirmative duties. Thus, contrary to its earlier approach, the Majority *519reads into the statute a distinction between affirmative and non-affirmative duties that simply is not there.

Furthermore, taking the Majority’s analysis by its terms, the Allentown ordinance at issue in Hartman, must be considered invalid. Here, the Majority concludes that “Pittsburgh’s Ordinance nonetheless purports to prohibit a new contractor from firing or releasing any employees from a prior contractor during a 180-day transition period ... [t]his is plainly a ‘requirement’ placed upon the new contractor.” Majority Opinion at 510, 985 A.2d at 714. Inserting into this analysis the anti-discrimination ordinance at issue in Hartman, yields “Allentown’s Ordinance nonetheless purports to prohibit a business from denying housing because of an individual’s sexual orientation ... [t]his is plainly a requirement placed upon a business.” This simple overlay of analysis makes manifest both the illusory distinction between affirmative and non-affirmative duties, as well as the inharmonious reading of the Majority’s initial plain language approach and that taken by the Commonwealth Court in Hartman. Simply stated, the Home Rule Law, by its terms, makes no distinction between affirmative and non-affirmative duties and the Hartman court’s approach and the plain language construct employed by the Majority in this ease are incongruous.

For these reasons, I respectfully dissent.

. As the Majority notes, Taylor concerned an ordinance limiting timber harvesting to prevent flooding and landslides, an undeniable determination of the “duties, responsibilities or requirements” for a business. Directly contrary to the Majority's assertion that this somehow shows that non-home rule municipalities "do not have greater power than home rule municipalities,” Majority Opinion at 512 n. 12, 985 A.2d at 715 n. 12, it precisely illustrates the kind of regulation a non-home rule municipality can engage in which, under the Majority’s approach, a home rule municipality could not.