          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Restaurant and               :
Lodging Association, Storms               : No. 79 C.D. 2016
Restaurant and Catering, LLC              : Argued: November 16, 2016
d/b/a Storms Restaurant,                  :
Lawrenceville Brewery, Inc., d/b/a        :
The Church Brew Works, 1215               :
Incorporated, d/b/a Rita's Italian Ice,   :
Dirt Doctors Cleaning Service LLC,        :
and Modern Cafe Inc.                      :
                                          :
                     v.                   :
                                          :
City of Pittsburgh                        :
                                          :
                     v.                   :
                                          :
Service Employees International           :
Union Local 32 BJ                         :
                                          :
Appeal of: City of Pittsburgh             :


Pennsylvania Restaurant and               :
Lodging Association, Storms               : No. 101 C.D. 2016
Restaurant and Catering LLC               : Argued: November 16, 2016
d/b/a Storms Restaurant,                  :
Lawrenceville Brewery Inc.                :
d/b/a The Church Brew Works,              :
1215 Incorporated, d/b/a Rita's Italian   :
Ice, Dirt Doctors Cleaning Service LLC,   :
and Modern Cafe Inc.                      :
                                          :
                     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            :
BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                    FILED: May 17, 2017



                 The City of Pittsburgh (City) and Service Employees International
Union, Local 32BJ, (SEIU) appeal the December 21, 2015 order of the Court of
Common Pleas of Allegheny County (trial court),1 which granted the motion for
judgment on the pleadings filed by the Pennsylvania Restaurant and Lodging
Association; Storms Restaurant and Catering, LLC, d/b/a Storms Restaurant;
Lawrenceville Brewery, Inc., d/b/a The Church Brew Works; 1215 Incorporated,
d/b/a Rita's Italian Ice; Dirt Doctors Cleaning Service LLC, and Modern Cafe Inc.
(collectively, Appellees), and held that the City lacked authority to adopt the Paid
Sick Days Act, an ordinance mandating paid sick leave for employees. We affirm.
               On August 3, 2015, Pittsburgh City Council enacted an ordinance,
known as the Paid Sick Days Act, amending Title VI, Article 1 of the Pittsburgh
Code. The stated purpose of the ordinance is to enhance the public health by
ensuring that employees across the City are able to earn paid sick time. The Paid




      1
          The appeals were consolidated by this Court’s order of February 29, 2016.
Sick Days Act was signed into law by Mayor Peduto on August 13, 2015, and it
applies to almost all employers doing business in the City.2
                The ordinance provides that all employees have a right to sick time,
and it requires employers to provide employees a minimum of one hour of paid
sick leave for every thirty-five hours they work. Employers of fewer than fifteen
employees must permit the accrual of up to twenty-four hours of paid sick leave
per calendar year (unpaid during the first year), and employers of fifteen or more
employees must allow the accrual of up to forty hours of paid sick leave per
calendar year.
                Appellees challenged the ordinance by filing a declaratory judgment
action on September 21, 2015, and a motion for preliminary injunctive relief on
October 13, 2015.         The trial court granted SEIU’s petition for permission to
intervene.       The parties agreed to a sixty-day stay of the application and
enforcement of the ordinance, and after the City and SEIU filed answers to the
complaint, all parties filed motions for judgment on the pleadings.
                The trial court first noted that the City is a home rule charter
municipality created pursuant to the Home Rule Charter and Optional Plans Law
(Home Rule Charter Law).3             The trial court concluded that, because Section
2962(f) of the Home Rule Charter Law limits the City’s authority to regulate


       2
         Section 2(F) of the Paid Sick Days Act defines an employer as “a person, partnership,
limited partnership, association, or unincorporated or otherwise, corporation, institution, trust,
government body or unit or agency, or any other entity situated or doing business in the City and
that employs one (1) or more persons for a salary, wage, commission or other compensation.”
Reproduced Record (R.R.) at 119a. The definition does not include the United States
Government or the State of Pennsylvania. Id.

       3
           53 Pa. C.S. §§2901-2984.


                                                2
business, “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), the City lacked authority to
enact the Paid Sick Days Act. The trial court rejected the City’s assertions that the
Disease Prevention and Control Law of 19554 and/or provisions of the Second
Class City Code5 provide such authority, and granted Appellees’ motion for
judgment on the pleadings.6
                On appeal to this Court, the City argues that the trial court erred in
concluding that the City lacked authority to enact the Paid Sick Days Act.7 The
City first argues that: (1) the Paid Sick Days Act enjoys a presumption of validity;
(2) the Pennsylvania Constitution provides the City a broad grant of authority; (3)
the Home Rule Charter Law requires that the City’s authority be liberally
construed in favor of the City; and (4) the City’s charter contains a broad statement
of authority. However, the City’s assertions in this regard are followed by little
analysis and do not address Section 2962(f) of the Home Rule Charter Law, upon
which the trial court based its decision.
                Section 2962(f) of the Home Rule Charter Law expressly limits a
home rule municipality’s regulation of businesses. It states:

       4
           Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S §§521.1-521.21.

       5
           Act of March 7, 1901, P.L. 20, as amended, 53 P.S. §§23101-23175.

       6
          A motion for judgment on the pleadings should be granted when the pleadings
demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgment as a
matter of law. Swartz v. Swartz, 689 A.2d 302, 303 (Pa. Super. 1997).

       7
         Because this matter involves purely a question of law, our scope of review is plenary
and the standard of review is de novo. Shields v. Council of Borough of Braddock, 111 A.3d
1265, 1268 (Pa. Cmwlth. 2015).


                                                3
             (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.
53 Pa. C.S. §2962(f) (emphasis added).
             In Smaller Manufacturers Council v. Council of City of Pittsburgh,
485 A.2d 73 (Pa. Cmwlth. 1984), we considered a City ordinance that required
plant owners and operators to notify the Bureau of Business Security of any plans
to close, relocate, or reduce operations if such actions would affect more than 15%
of their employees. We held that the ordinance was invalid under former Section
302(d) of the Home Rule Charter Law,8 a substantially similar prior version of
Section 2962(f), because it regulated the duties, responsibilities, and requirements
of the businesses. We further held in Smaller that, based on the clear language of
Section 302(d), the ordinance was prohibited unless the City was expressly
authorized to enact such an ordinance by the legislature.

      8
       Act of April 13, 1972, P.L. 184, formerly 53 P.S. §1-302(d), repealed by the Act of
December 19, 1996, P.L. 1158, 53 Pa. C.S. §2962(f), which stated:

             No municipality which adopts a home rule charter shall at any time
             thereunder determine the 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 the acts of the General Assembly which
             are applicable in every part of the Commonwealth or which are
             applicable to all municipalities or to a class or classes of
             municipalities. (Emphasis added.)


                                             4
             Thereafter, in Building Owners and Managers Association of
Pittsburgh v. City of Pittsburgh (BOMA), 985 A.2d 711 (Pa. 2009), our Supreme
Court considered whether the City exceeded its authority as a home rule
municipality when it passed “The Protection of Displaced Contract Workers
Ordinance,” which required employers with new service contracts to retain the
employees of the prior contractor for at least 180 days. In its analysis, the Supreme
Court cited Smaller and affirmed this Court’s holding that the ordinance at issue in
BOMA also was invalid. In doing so, the court noted that the ordinance in BOMA
was “far more invasive [than the reporting requirement in Smaller] because it
forces contractors to retain certain employees for approximately half a year.” 985
A.2d at 714-15. Additionally, the court rejected the argument that preemption is
the only limitation on the City’s authority to regulate business.
             In this case, the Paid Sick Days Act imposes numerous affirmative
duties upon employers.       In addition to mandating that employers provide
employees a minimum amount of paid sick leave, the ordinance: directs the
manner of accruing sick leave; requires that unused paid sick leave be carried over
to the following calendar year; states that sick leave time can be used for
employees and family members; defines family members (as including
grandparents and grandchildren and their spouses); and imposes notice and record-
keeping duties. In light of the express limitations in Section 2962(f) of the Home
Rule Charter Law and following the decisions in BOMA and Smaller, we must
conclude that the City was without authority to enact the Paid Sick Days Act.
             The City maintains that the limitations on municipal authority set
forth in Section 2962(f) are inapplicable here for two reasons: (1) the Paid Sick
Days Act is a public health regulation, and, as such, it is outside the scope of this


                                          5
limiting provision; (2) alternatively, the exception clause in Section 2962(f) applies
because express authority is granted to the City by the Second Class City Code
and/or the Disease Prevention and Control Law. We disagree.
             The City first asserts that the Paid Sick Days Act is a health regulation
authorized by Section 2962(c)(4) of the Home Rule Charter Law, which allows the
City “to enact and enforce ordinances related to building codes or any other safety,
sanitation or health regulation pertaining thereto.”       53 Pa. C.S. §2962(c)(4)
(emphasis added). Section 2962(c)(4) states:

             (c) Prohibited Powers- A municipality shall not:

             (4) Enact or promulgate any ordinance or regulation with
             respect to definitions, sanitation, health, standards of
             identity or labeling pertaining to the manufacture,
             processing, storage, distribution and sale of any foods,
             goods, or services subject to any Commonwealth statutes
             and regulations unless the municipal ordinance or
             regulation is uniform in all respects with the
             Commonwealth statutes and regulations thereunder. This
             paragraph does not affect the power of any municipality
             to enact and enforce ordinances relating to building
             codes or any other safety, sanitation or health
             regulations pertaining thereto.
53 Pa. C.S. §2962(c)(4) (emphasis added). However, in making this argument, the
City relies on words taken out of context; significantly, it does not explain how the
Paid Sick Days Act “pertains to” building codes.
             The City also argues that the Second Class City Code specifically
authorizes the City to “make regulations to secure the general health of the
inhabitants” and “to prevent the introduction of contagious or pestilential diseases
into the city.” Article XIX, Section 3, Clauses XXXIII and XXXIV of the Act of
March 7, 1901, P.L. 20, 53 P.S. §§23145, 23146. However, as noted above, the


                                          6
exception in Section 2962(f) of the Home Rule Charter law only applies to
authority “as expressly provided by statutes . . . .” 53 Pa.C.S. §2962(f). The
provisions of the Second Class City Code on which the City relies do not expressly
grant the City authority to impose the affirmative duties upon employers set forth
in the Paid Sick Days Act. Therefore, these provisions do not compel application
of the exception in Section 2962(f) of the Home Rule Charter Law.
             Finally, the City argues that it has authority under Section 16(c) of the
Disease Prevention and Control Law, which states in part that “[m]unicipalities
which have boards or departments of health or county departments of health may
enact ordinances or issue rules and regulations relating to disease prevention and
control . . . .” 35 P.S. §521.16(c). However, the City does not have a health
department.9 We reject the City’s interpretation of this provision as applicable to
“any municipality served by” a county department of health.
             In addition to the above arguments, SEIU asserts a public policy
justification for the ordinance, alleging a relationship between paid sick leave and
public health. However, neither the wisdom nor the purpose of the Paid Sick Days
Act is material to the only issue before us, which is whether the City had authority
to adopt this ordinance. While the City repeatedly asserts that broad powers to
regulate are conferred by other statutory provisions, its arguments cannot
overcome the plain language of Section 2962(f) of the Home Rule Charter Law,
which is not a broad grant of authority, but instead, is an express limitation on the




      9
         We do not consider, however, whether Section 16(c) of the Disease Prevention and
Control Law would permit a municipality or county that has a health department to enact an
ordinance mandating paid sick leave for employees.


                                            7
City’s authority to impose obligations on business, occupations, and employers.
53 Pa. C.S. §2962(f).
             We recognize that paid sick leave for employees is a laudable goal.
The power to achieve that goal rests with our General Assembly, however, through
statewide legislation addressing paid sick leave or, alternatively, through
legislation vesting authority to do so in local municipalities.
             Accordingly, we affirm.




                                        MICHAEL H. WOJCIK, Judge




                                           8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Restaurant and               :
Lodging Association, Storms               : No. 79 C.D. 2016
Restaurant and Catering, LLC              :
d/b/a Storms Restaurant,                  :
Lawrenceville Brewery, Inc., d/b/a        :
The Church Brew Works, 1215               :
Incorporated, d/b/a Rita's Italian Ice,   :
Dirt Doctors Cleaning Service LLC,        :
and Modern Cafe Inc.                      :
                                          :
                     v.                   :
                                          :
City of Pittsburgh                        :
                                          :
                     v.                   :
                                          :
Service Employees International           :
Union Local 32 BJ                         :
                                          :
Appeal of: City of Pittsburgh             :

Pennsylvania Restaurant and               :
Lodging Association, Storms               : No. 101 C.D. 2016
Restaurant and Catering LLC               :
d/b/a Storms Restaurant,                  :
Lawrenceville Brewery Inc.                :
d/b/a The Church Brew Works,              :
1215 Incorporated, d/b/a Rita's Italian   :
Ice, Dirt Doctors Cleaning Service LLC,   :
and Modern Cafe Inc.                      :
                                          :
                     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            :
                                ORDER


           AND NOW, this 17th day of May, 2017, the December 21, 2015 order
of the Court of Common Pleas of Allegheny County is AFFIRMED.




                                  __________________________________
                                  MICHAEL H. WOJCIK, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Restaurant and Lodging :
Association, Storms Restaurant and      :
Catering, LLC, d/b/a Storms Restaurant, :
Lawrenceville Brewery, Inc., d/b/a      :
The Church Brew Works, 1215             :
Incorporated, d/b/a Rita’s Italian Ice, :
Dirt Doctors Cleaning Service LLC,      :
and Modern Café Inc.                    :
                                        :
              v.                        :
                                        :
City of Pittsburgh                      :
                                        :
              v.                        :
                                        :
Service Employees International         :
Union Local 32 BJ                       :
                                        :     No. 79 C.D. 2016
Appeal of: City of Pittsburgh           :     Argued: November 16, 2016



Pennsylvania Restaurant and Lodging       :
Association, Storms Restaurant and        :
Catering LLC, d/b/a Storms Restaurant,    :
Lawrenceville Brewery, Inc., d/b/a        :
The Church Brew Works, 1215               :
Incorporated, d/b/a Rita’s Italian Ice,   :
Dirt Doctors Cleaning Service LLC,        :
and Modern Café Inc.                      :
                                          :
             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              :   No. 101 C.D. 2016
International Union Local 32 BJ           :   Argued: November 16, 2016
BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK Judge
               HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                              FILED: May 17, 2017

               The ordinance at issue in this matter was enacted by the City of
Pittsburgh, a home rule municipality, pursuant to its power to protect the health
and safety of the people within its borders. The majority, however, severely limits
this power not only for Pittsburgh but for all home rule municipalities by reading
into the Home Rule Charter and Optional Plans Law1 restrictions which are not
there. As I cannot agree that this is consistent with the law, I must dissent.
               Home rule municipalities are not somehow divested of their discrete
police powers to protect health and safety. On the contrary – if anything, these
entities have even greater powers than their non-home rule counterparts. See
Hartman v. City of Allentown, 880 A.2d 737, 742 (Pa. Cmwlth. 2005)(“The
essential principle underlying home rule is the transfer of authority to control
certain municipal affairs from the state to the local level… This transference
results in home rule municipalities having broader powers of self government than
non-home rule municipalities.”)(emphasis in the original).
               Where the majority seems to veer from this basic understanding is in
its failure to recognize the inherent power of municipalities when specifically



      1
          53 Pa.C.S. §§ 2901-2984.
acting to protect health and safety, even if that action impacts business. See Home
Rule in Pennsylvania, Governor’s Center for Local Government Services, Ninth
Edition January 2017 at page 66 (“Another of the basic police powers of
municipalities is the protection of the health and welfare of its citizens. Courts
have long upheld the right of municipalities to regulate business operations
impinging on the health of its citizens.”) (http://dced.pa.gov/download/home-rule-
governance-in-pennsylvania/?wpdmdl=56792&ind=Nm6XYNO35U_RldKo8slDV1q7x8-

5zPAAxQGEfWwg_hr-wqMBPKb2ZZF1cCFcdsRM) (last visited April 13, 2017)
(citing Western Pennsylvania Restaurant Association v. Pittsburgh, 77 A.2d 616,
621 (Pa. 1951)).2
              Although the majority cites Building Owners and Managers
Association of Pittsburgh v. City of Pittsburgh (BOMA), 985 A.2d 711 (Pa. 2009)
in support of its position, even that case recognizes the distinction between an
ordinance which arises out of the power to protect health and safety, and one which
is designed in the first place to regulate business. In response to the dissent, the
Court added a footnote, stating: “Respectfully, the dissent confuses regulating
business with health or safety ordinances that may affect a business.” Id. at 715,
n.12 (emphasis added).         It is clear that the Supreme Court understands this
important distinction; it is equally clear the present majority does not.

       2
          Not unlike the present case, Western Pennsylvania Restaurant Association addressed
the validity of a Pittsburgh public health ordinance. In upholding the ordinance, the Supreme
Court noted that while the city’s Charter Act “vests in it the power ‘To make regulations to
secure the general health of the inhabitants ***, - [this is] a power which, indeed, [the city]
would probably possess even in the absence of such a specific grant. Wartman v. City of
Philadelphia, 33 Pa. 202, 209 (1859) …” Western Pennsylvania Restaurant Association, 77
A.2d at 618 (emphasis added). In Wartman, a case from the mid-19th Century, the Supreme
Court recognized authority at “common law [in] Pennsylvania, that every municipal corporation
which has power to make by-laws and establish ordinances to promote the general welfare and
preserve the peace of a town or city, may … make such [] regulations concerning them as may
conduce to the public interest.” Wartman, 33 Pa. at 209.
                                            JMC - 2
             This case involves an effort to protect health and safety. That indeed
is what municipalities are for. In exercise of the political power to do so, the
present ordinance was enacted. If the people of Pittsburgh disagree with this
action, they will address their dissatisfaction through the political process. It is not
for this court to interfere. I therefore, and respectfully, dissent.




                                         ___________________________
                                         JOSEPH M. COSGROVE, Judge




                                          JMC - 3
