[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
                      2018 and J-72H-2018] [MO:Wecht, J.]
                 IN THE SUPREME COURT OF PENNSYLVANIA
                             WESTERN DISTRICT


PENNSYLVANIA RESTAURANT AND              :   No. 57 WAP 2017
LODGING ASSOCIATION, STORMS              :
RESTAURANT AND CATERING, LLC             :   Appeal from the Order of the
D/B/A STORMS RESTAURANT,                 :   Commonwealth Court entered May
LAWRENCEVILLE BREWERY, INC.,             :   17, 2017 at No. 79 CD 2016, affirming
D/B/A THE CHURCH BREW WORKS,             :   the Order of the Court of Common
1215 INCORPORATED, D/B/A RITA'S          :   Pleas of Allegheny County entered
ITALIAN ICE, DIRT DOCTORS                :   December 21, 2015 at No. GD 15-
CLEANING SERVICE LLC, AND                :   16442.
MODERN CAFE INC.                         :
                                         :   ARGUED: October 23, 2018
                                         :
            v.                           :
                                         :
                                         :
CITY OF PITTSBURGH                       :
                                         :
                                         :
            v.                           :
                                         :
                                         :
SERVICE EMPLOYEES                        :
INTERNATIONAL UNION LOCAL 32BJ           :
                                         :
                                         :
APPEAL OF: SERVICE EMPLOYEES             :
INTERNATIONAL UNION LOCAL 32BJ           :

PENNSYLVANIA RESTAURANT AND              :   No. 58 WAP 2017
LODGING ASSOCIATION, STORMS              :
RESTAURANT AND CATERING LLC              :   Appeal from the Order of the
D/B/A STORMS RESTAURANT,                 :   Commonwealth Court entered May
LAWRENCEVILLE BREWERY INC.D/B/A          :   17, 2017 at No. 101 CD 2016,
THE CHURCH BREW WORKS, 1215              :   affirming the Order of the Court of
INCORPORATED, D/B/A RITA'S ITALIAN       :   Common Pleas of Allegheny County
ICE, DIRT DOCTORS CLEANING               :   entered December 21, 2015 at No.
SERVICE LLC, AND MODERN CAFE             :   GD 15-16442.
INC.                                     :
                                         :   ARGUED: October 23, 2018
                                         :
            v.                           :
                                         :
                                         :
CITY OF PITTSBURGH, COUNCIL OF           :
THE CITY OF PITTSBURGH, AND              :
WILLIAM PEDUTO, AND SERVICE              :
EMPLOYEES INTERNATIONAL UNION            :
LOCAL 32 BJ                              :
                                         :
                                         :
APPEAL OF: SERVICE EMPLOYEES             :
INTERNATIONAL UNION LOCAL 32BJ           :

BUILDING OWNERS AND MANAGERS             :   No. 59 WAP 2017
ASSOCIATION OF PITTSBURGH                :
                                         :   Appeal from the Order of the
                                         :   Commonwealth Court entered May
            v.                           :   17, 2017 at No. 100 CD 2016,
                                         :   affirming the Order of the Court of
                                         :   Common Pleas of Allegheny County
CITY OF PITTSBURGH, COUNCIL OF           :   entered December 17, 2015 at No.
THE CITY OF PITTSBURGH, AND              :   GD 15-13329.
WILLIAM PEDUTO, AND SERVICE              :
EMPLOYEES INTERNATIONAL UNION            :   ARGUED: October 23, 2018
LOCAL 32 BJ                              :
                                         :
                                         :
APPEAL OF: SERVICE EMPLOYEES             :
INTERNATIONAL UNION LOCAL 32BJ           :

BUILDING OWNERS AND MANAGERS             :   No. 60 WAP 2017
ASSOCIATION OF PITTSBURGH                :
                                         :   Appeal from the Order of the
                                         :   Commonwealth Court entered May
            v.                           :   17, 2017 at No. 102 CD 2016,
                                         :   affirming the Order of the Court of
                                         :   Common Pleas of Allegheny County
CITY OF PITTSBURGH, COUNCIL OF           :   entered December 17, 2015 at No.
THE CITY OF PITTSBURGH, AND              :   GD 15-13329.
WILLIAM PEDUTO, AND SERVICE              :
EMPLOYEES INTERNATIONAL UNION            :   ARGUED: October 23, 2018
LOCAL 32BJ                               :
                                         :
                                         :
APPEAL OF: SERVICE EMPLOYEES             :
INTERNATIONAL UNION LOCAL 32BJ           :

[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
                    2018 and J-72H-2018] [MO: Wecht, J.] - 2
BUILDING OWNERS AND MANAGERS             :   No. 61 WAP 2017
ASSOCIATION OF PITTSBURGH                :
                                         :   Appeal from the Order of the
                                         :   Commonwealth Court entered May
            v.                           :   17, 2017 at No. 100 CD 2016,
                                         :   affirming the Order of the Court of
                                         :   Common Pleas of Allegheny County
CITY OF PITTSBURGH, COUNCIL OF           :   entered December 17, 2015 at No.
THE CITY OF PITTSBURGH, AND              :   GD 15-13329.
WILLIAM PEDUTO, AND SERVICE              :
EMPLOYEES INTERNATIONAL UNION            :   ARGUED: October 23, 2018
LOCAL 32BJ                               :
                                         :
                                         :
APPEAL OF: CITY OF PITTSBURGH,           :
COUNCIL OF THE CITY OF                   :
PITTSBURGH, AND WILLIAM PEDUTO           :

BUILDING OWNERS AND MANAGERS             :   No. 62 WAP 2017
ASSOCIATION OF PITTSBURGH                :
                                         :   Appeal from the Order of the
                                         :   Commonwealth Court entered May
            v.                           :   17, 2017 at No. 102 CD 2016,
                                         :   affirming the Order of the Court of
                                         :   Common Pleas of Allegheny County
CITY OF PITTSBURGH, COUNCIL OF           :   entered December 17, 2015 at No.
THE CITY OF PITTSBURGH, AND              :   GD 15-13329.
WILLIAM PEDUTO, AND SERVICE              :
EMPLOYEES INTERNATIONAL UNION            :   ARGUED: October 23, 2018
LOCAL 32BJ                               :
                                         :
                                         :
APPEAL OF: CITY OF PITTSBURGH,           :
COUNCIL OF THE CITY OF                   :
PITTSBURGH, AND WILLIAM PEDUTO           :

PENNSYLVANIA RESTAURANT AND              :   No. 63 WAP 2017
LODGING ASSOCIATION, STORMS              :
RESTAURANT AND CATERING, LLC             :   Appeal from the Order of the
D/B/A STORMS RESTAURANT,                 :   Commonwealth Court entered May
LAWRENCEVILLE BREWERY, INC.,             :   17, 2017 at No. 79 CD 2016, affirming
D/B/A THE CHURCH BREW                    :   the Order of the Court of Common
WORKS,1215 INCORPORATED, D/B/A           :   Pleas of Allegheny County entered
RITA'S ITALIAN ICE, DIRT DOCTORS         :   December 21, 2015 at No. GD 15-
                                         :   16442.

[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
                    2018 and J-72H-2018] [MO: Wecht, J.] - 3
CLEANING SERVICE LLC, AND                :
MODERN CAFE INC.                         : ARGUED: October 23, 2018
                                         :
                                         :
            v.                           :
                                         :
                                         :
CITY OF PITTSBURGH                       :
                                         :
                                         :
            v.                           :
                                         :
                                         :
SERVICE EMPLOYEES                        :
INTERNATIONAL UNION LOCAL 32BJ           :
                                         :
                                         :
APPEAL OF: CITY OF PITTSBURGH,           :
COUNCIL OF THE CITY OF                   :
PITTSBURGH, AND WILLIAM PEDUTO

PENNSYLVANIA RESTAURANT AND              :   No. 64 WAP 2017
LODGING ASSOCIATION, STORMS              :
RESTAURANT AND CATERING LLC              :   Appeal from the Order of the
D/B/A STORMS RESTAURANT,                 :   Commonwealth Court entered May
LAWRENCEVILLE BREWERY INC. D/B/A         :   17, 2017 at No. 101 CD 2016,
THE CHURCH BREW WORKS, 1215              :   affirming the Order of the Court of
INCORPORATED, D/B/A RITA'S ITALIAN       :   Common Pleas of Allegheny County
ICE, DIRT DOCTORS CLEANING               :   entered December 21, 2015 at No.
SERVICE LLC, AND MODERN CAFE             :   GD 15-16442.
INC.                                     :
                                         :   ARGUED: October 23, 2018
                                         :
            v.                           :
                                         :
                                         :
CITY OF PITTSBURGH, COUNCIL OF           :
THE CITY OF PITTSBURGH, AND              :
WILLIAM PEDUTO, AND SERVICE              :
EMPLOYEES INTERNATIONAL UNION            :
LOCAL 32BJ                               :
                                         :
                                         :
APPEAL OF: CITY OF PITTSBURGH,           :
COUNCIL OF THE CITY OF                   :
PITTSBURGH, AND WILLIAM PEDUTO           :

[J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
                    2018 and J-72H-2018] [MO: Wecht, J.] - 4
                         CONCURRING AND DISSENTING OPINION


JUSTICE BAER                                              DECIDED: JULY 17, 2019

         I agree with the general legal conclusion underlying the Majority’s decision:

Subsection 2962(f) of the Home Rule Charter and Optional Plans Law precludes home-

rule municipalities, like the City of Pittsburgh (“City”), from regulating businesses and

employers, “except as expressly provided by statutes which are applicable in every part

of this Commonwealth or which are applicable to all municipalities or to a class or classes

of municipalities[.]” 53 Pa.C.S. § 2962(f).1 I also agree with the Majority that Subsection

2962(f) bars the City’s Safe and Secure Buildings Act (“SSBA”) because the SSBA

regulates businesses and employers by imposing “a complex and burdensome set of

continuing obligations upon owners and employees of ‘covered properties,’” Majority

Opinion at 36, and the City has failed to identify a statute of this Commonwealth that

expressly provides a home-rule municipality with the authority to pass such an ordinance.

Consequently, I join the following parts of the Majority Opinion: I., II., III., and IV.C.

         I, however, respectfully dissent from the remainder of the Majority Opinion,

particularly its conclusion that Subsection 2962(f) does not invalidate the City’s Paid Sick

1   Subsection 2962(f) states, in full, as follows:
         (f) Regulation of business and employment.--A municipality which
         adopts a home rule charter shall not determine duties, responsibilities or
         requirements placed upon businesses, occupations and employers,
         including the duty to withhold, remit or report taxes or penalties levied or
         imposed upon them or upon persons in their employment, except as
         expressly provided by statutes which are applicable in every part of this
         Commonwealth or which are applicable to all municipalities or to a class or
         classes of municipalities. This subsection shall not be construed as a
         limitation in fixing rates of taxation on permissible subjects of taxation.
53 Pa.C.S. § 2962.


    [J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
                        2018 and J-72H-2018] [MO: Wecht, J.] - 5
Days Act (“PSDA”). As noted, Subsection 2962(f) prohibits the City from placing “duties,

responsibilities or requirements” upon “businesses, occupations and employers.”             It

seems beyond serious controversy that the PSDA regulates businesses and employers

by requiring them to provide sick leave to their employees. Indeed, the Majority appears

to agree. See Majority Opinion at 9 (explaining that the PSDA requires employers in the

City to provide sick leave to employees). Thus, Subsection 2962(f) precludes the City

from placing this requirement upon businesses and employers, unless the City can

identify express statutory language that permits it to legislate in this manner.

       The City has failed to highlight any express statutory authority allowing it to

mandate that businesses and employers provide employees with sick leave, and I find

the Majority’s contrary conclusion to be unpersuasive. As to this latter statement, in

finding that the Disease Prevention and Control Law of 1955 (“DPCL”), 35 P.S. §§ 521.1-

521.21, contains sufficient authority to allow the City to pass the PSDA, the Majority first

finds “that the DPCL is ambiguous with regard to whether and when municipalities may

enact ordinances related to disease prevention and control.” Majority Opinion at 26.

Next, the Majority utilizes principles of statutory construction to conclude that, because

the City is within “the jurisdiction of the Allegheny County Health Department, [it] qualifies

as a municipality which has a department of health for purposes of [the] DPCL[.]” Id. at

29.   Lastly, the Majority apparently concludes that, because the general object of the

DPCL is disease prevention and control, it necessarily follows that the DPCL expressly

provides home-rule municipalities with the authority to require businesses and employers

to provide sick days to their employees. Id. at 29-36.

       In my view, the need for a circuitous, 11-page construction of the DPCL

demonstrates the contrary result, i.e., the DPCL does not contain express statutory

language allowing the City to mandate that businesses and employers provide their


 [J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
                     2018 and J-72H-2018] [MO: Wecht, J.] - 6
employees with sick days. I further note that, because the Majority finds that the DPCL

provides the City with sufficient authority to pass the PSDA, it understandably declines to

address whether the other statutory authority cited by the City can substantiate the validity

of the PSDA. However, to determine if I am in concurrence with or dissent from the

Majority’s ultimate conclusion, it is necessary for me to consider the only other statutory

sections upon which the City relies to assert express authority for the PSDA. These

sections can be found in the Second Class Cities Code (“SCCC”), 53 P.S. §§ 22101-

28707.

       According to the City, Section 22145 of the SCCC grants it the power to “make

regulations to secure the general health of the inhabitants, and to remove and prevent

nuisances.” City’s Brief at 17 (quoting 53 P.S. § 23145). The City further states that: (1)

Section 23146 of SCCC permits it to “make all necessary orders and regulations to

prevent the introduction of contagious or pestilential diseases into the city; to enact

quarantine laws for that purpose, and to enforce the same within five miles of the city

limits[,]” id. (quoting 53 P.S. § 23146); and (2) Section 23158 grants the City with authority

to “make all such ordinances, by-laws, rules and regulations, not inconsistent with the

Constitution and laws of this Commonwealth, as may be expedient or necessary . . . for

the . . . maintenance of the peace, good government and welfare of the city, and its trade,

commerce and manufacturers[,]” id. (quoting 53 P.S. § 23158). In sum, the City suggests

that these statutory provisions expressly provide it with authority to enact the PSDA.

       To the extent that the City can rely on provisions of the SCCC for purposes of

validating its authority to pass the PSDA, I believe these statutes suffer from short-

comings similar to those of the DPCL. While the above-stated provisions of the SCCC

may imply that second class cities have some authority to regulate businesses and

employers in a manner to protect the general welfare of their citizens, the statutes simply


 [J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
                     2018 and J-72H-2018] [MO: Wecht, J.] - 7
do not provide express statutory authority allowing home-rule municipalities to mandate

that businesses and employers provide sick leave to their employees.

      For these reasons, I conclude that the Commonwealth Court correctly determined

that Subsection 2962(f) invalidates both the SSBA and the PSDA. In closing, I note my

agreement with the expressions of the Chief Justice in his cogent Concurring and

Dissenting Opinion, which I join in full. Accordingly, I would affirm the Commonwealth

Court’s order, which affirmed that trial court’s order granting Appellees’ motion for

judgment on the pleadings.

      Chief Justice Saylor and Justice Mundy join this opinion.




 [J-72A-2018, J-72B-2018, J-72C-2018, J-72D-2018, J-72E-2018, J-72F-2018, J-72G-
                     2018 and J-72H-2018] [MO: Wecht, J.] - 8
