                         [J-72A-H-2018][M.O. - 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 Order of
D/B/A STORMS RESTAURANT,              :   the Commonwealth Court entered
LAWRENCEVILLE BREWERY, INC.,          :   5/17/17 at No. 79 CD 2016 affirming the
D/B/A THE CHURCH BREW WORKS,          :   order of the Court of Common Pleas of
1215 INCORPORATED, D/B/A RITA’S       :   Allegheny County entered 12/21/15 at
ITALIAN ICE, DIRT DOCTORS             :   No. GD 15-16442
CLEANING SERVICE LLC, AND             :
MODERN CAFÉ INC.                      :
                                      :
                                      :
             v.                       :   ARGUED: October 23, 2018
                                      :
CITY OF PITTSBURGH                    :
                                      :
             v.                       :
                                      :
SERVICE EMPLOYEES                     :
INTERNATIONAL UNION LOCAL 32BJ        :
                                      :
APPEAL OF: SERVICE EMPLOYEES          :
INTERNATIONAL UNION LOCAL 32 BJ       :



PENNSYLVANIA RESTAURANT AND           :   No. 58 WAP 2017
LODGING ASSOCIATION, STORMS           :
RESTAURANT AND CATERING, LLC          :   Appeal from the Order of the Order of
D/B/A STORMS RESTAURANT,              :   the Commonwealth Court entered
LAWRENCEVILLE BREWERY, INC.,          :   5/17/17 at No. 101 CD 2016, affirming
D/B/A THE CHURCH BREW WORKS,          :   the order of the Court of Common Pleas
1215 INCORPORATED, D/B/A RITA’S       :   of Allegheny County entered on
ITALIAN ICE, DIRT DOCTORS             :   12/21/15 at No. GD 15-16442
CLEANING SERVICE LLC, AND             :
MODERN CAFÉ INC.                      :
                                      :
                                      :
             v.                       :   ARGUED: October 23, 2018
                                      :
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 32 BJ      :



BUILDING OWNERS AND MANAGERS         :   No. 59 WAP 2017
ASSOCIATION OF PITTSBURGH            :
                                     :   Appeal from the Order of the Order of
                                     :   the Commonwealth Court entered
            v.                       :   5/17/17 at No. 100 CD 2016 affirming
                                     :   the order of the Court of Common Pleas
CITY OF PITTSBURGH, COUNCIL OF       :   of Allegheny County entered 12/17/15
THE CITY OF PITTSBURGH, AND          :   at GD 15-13329
WILLIAM PEDUTO, AND SERVICE          :
EMPLOYEES INTERNATIONAL UNION        :
LOCAL 32 BJ                          :
                                     :
APPEAL OF: SERVICE EMPLOYEES         :
INTERNATIONAL UNION LOCAL 32 BJ      :   ARGUED: October 23, 2018




BUILDING OWNERS AND MANAGERS         :   No. 60 WAP 2017
ASSOCIATION OF PITTSBURGH            :
                                     :   Appeal from the Order of the Order of
                                     :   the Commonwealth Court entered
            v.                       :   5/17/17 at No. 102 CD 2016 affirming
                                     :   the order of the Court of Common Pleas
CITY OF PITTSBURGH, COUNCIL OF       :   of Allegheny County entered 12/17/15
THE CITY OF PITTSBURGH, AND          :   at No. GD 15-13329
WILLIAM PEDUTO, AND SERVICE          :
EMPLOYEES INTERNATIONAL UNION        :
LOCAL 32 BJ                          :
                                     :
APPEAL OF: SERVICE EMPLOYEES         :
INTERNATIONAL UNION LOCAL 32 BJ      :   ARGUED: October 23, 2018




                   [J-72A-H-2018][M.O. – Wecht, J.] - 2
BUILDING OWNERS AND MANAGERS          :   No. 61 WAP 2017
ASSOCIATION OF PITTSBURGH             :
                                      :   Appeal from the Order of the Order of
                                      :   the Commonwealth Court entered
             v.                       :   5/17/17 at No. 100 CD 2016 affirming
                                      :   the order of the Court of Common Pleas
CITY OF PITTSBURGH, COUNCIL OF        :   of Allegheny County entered 12/17/15
THE CITY OF PITTSBURGH, AND           :   at No. GD 15-13329
WILLIAM PEDUTO, AND SERVICE           :
EMPLOYEES INTERNATIONAL UNION         :
LOCAL 32 BJ                           :
                                      :
APPEAL OF: CITY OF PITTSBURGH,        :
COUNCIL OF THE CITY OF                :
PITTSBURGH, AND WILLIAM PEDUTO        :   ARGUED: October 23, 2018




BUILDING OWNERS AND MANAGERS          :   No. 62 WAP 2017
ASSOCIATION OF PITTSBURGH             :
                                      :   Appeal from the Order of the Order of
                                      :   the Commonwealth Court entered
             v.                       :   5/17/17 at No. 102 CD 2016 affirming
                                      :   the order of the Court of Common Pleas
CITY OF PITTSBURGH, COUNCIL OF        :   of Allegheny County entered 12/17/15
THE CITY OF PITTSBURGH, AND           :   at No. GD 15-13329
WILLIAM PEDUTO, AND SERVICE           :
EMPLOYEES INTERNATIONAL UNION         :
LOCAL 32 BJ                           :
                                      :
APPEAL OF: CITY OF PITTSBURGH,        :
COUNCIL OF THE CITY OF                :
PITTSBURGH, AND WILLIAM PEDUTO        :   ARGUED: October 23, 2018



PENNSYLVANIA RESTAURANT AND           :   No. 63 WAP 2017
LODGING ASSOCIATION, STORMS           :
RESTAURANT AND CATERING, LLC          :   Appeal from the Order of the Order of
D/B/A STORMS RESTAURANT,              :   the Commonwealth Court entered
LAWRENCEVILLE BREWERY, INC.,          :   5/17/17 at No. 79 CD 2016, affirming
D/B/A THE CHURCH BREW WORKS,          :   the order of the Court of Common Pleas
1215 INCORPORATED, D/B/A RITA’S       :   of Allegheny County entered on

                    [J-72A-H-2018][M.O. – Wecht, J.] - 3
ITALIAN ICE, DIRT DOCTORS              : 12/21/15 at No. GD 15-16442
CLEANING SERVICE LLC, AND              :
MODERN CAFÉ INC.                       :
                                       :
                                       :
             v.                        : ARGUED: October 23, 2018
                                       :
CITY OF PITTSBURGH                     :
                                       :
             v.                        :
                                       :
SERVICE EMPLOYEES                      :
INTERNATIONAL UNION LOCAL 32 BJ        :
                                       :
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 Order of
D/B/A STORMS RESTAURANT,               :   the Commonwealth Court entered
LAWRENCEVILLE BREWERY, INC.,           :   5/17/17 at No. 101 CD 2016, affirming
D/B/A THE CHURCH BREW WORKS,           :   the order of the Court of Common Pleas
1215 INCORPORATED, D/B/A RITA’S        :   of Allegheny County entered on
ITALIAN ICE, DIRT DOCTORS              :   12/21/15 at No. GD 15-16442
CLEANING SERVICE LLC, AND              :
MODERN CAFÉ INC.                       :
                                       :
                                       :
             v.                        :   ARGUED: October 23, 2018
                                       :
CITY OF PITTSBURGH, COUNCIL OF         :
THE CITY OF PITTSBURGH, AND            :
WILLIAM PEDUTO, AND SERVICE            :
EMPLOYEES INTERNATIONAL UNION          :
LOCAL 32 BJ                            :
                                       :
                                       :
APPEAL OF: CITY OF PITTSBURGH,         :
COUNCIL OF THE CITY OF                 :
PITTSBURGH, AND WILLIAM PEDUTO         :




                     [J-72A-H-2018][M.O. – Wecht, J.] - 4
                      CONCURRING AND DISSENTING OPINION


CHIEF JUSTICE SAYLOR                               DECIDED: JULY 17, 2019


       I join Parts I, II, III, and IV(c) of the majority opinion and respectfully dissent as to

the remainder. I also join Justice Baer’s concurring and dissenting opinion, and write

separately to explain further why I do not believe the General Assembly has given

express authorization for the Paid Sick Days Act.

       As the majority aptly explains, see Majority Opinion, slip op. 30, the central

question involves how specific such authorization must be to satisfy the requirement

that it be “express” for purposes of the following restriction:

       (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, . . .
       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) (the “Business Exclusion”).

       The majority observes that the concept of express statutory authorization is not

entirely precise, see Majority Opinion, slip op. at 34, and ultimately finds such authority

in the Disease Prevention and Control Law (the “DPCL”), which permits qualifying

municipalities to enact legislation “relating to disease prevention and control[.]” 35 P.S.

§521.16(c). The majority reasons it would be improper to read “express” in an overly

strict manner where home-rule municipalities are concerned, as doing so would

“hamstring home-rule municipalities from exercising their home-rule authority in any way

that burdens businesses[.]” Majority Opinion, slip op. at 34. The majority suggests the

Paid Sick Days Act is more akin to a health-and-safety ordinance that affects

businesses than a statute solely concerned with regulating businesses. See id. at 35.


                           [J-72A-H-2018][M.O. – Wecht, J.] - 5
      While I agree that the term “express” lacks complete precision, I respectfully

disagree with the majority’s conclusion that the DPCL constitutes express authority in

the present context. As a general matter, and as the majority recognizes, home-rule

municipalities are ordinarily permitted to “legislate concerning municipal governance

without express statutory warrant for each new ordinance[.]” City of Phila. v. Schweiker,

579 Pa. 591, 605, 858 A.2d 75, 84 (2004). That principle is substantially diminished in

the present dispute because the Business Exclusion, by its terms, is directly aimed at

limiting the power of home rule municipalities. As such, its specific legislative purpose

is, in fact, to “hamstring home-rule municipalities from exercising their home-rule

authority” insofar as they seek to impose requirements on employers. See generally id.

(noting that home rule powers can be limited by, inter alia, the General Assembly); PA.

CONST. art. IX, §2 (providing same); 53 Pa.C.S. §2961 (same).1

      As for the DPCL, while that statute, at best, impliedly confers authority to

Pittsburgh to enact the Paid Sick Days Act, I find it tenuous to couch such authority as

“express” – which I take to mean specific, clear, unmistakable, and not left to inference

or implication. In this regard, “express authorization” as understood in other contexts,

while not controlling, is nonetheless relevant. See, e.g., Key Tronic Corp. v. United

States, 511 U.S. 809, 114 S. Ct. 1960 (1994) (closely confining the concept of express

statutory authorization for fee shifting within a certain category of environmental

litigation to circumstances where the enactment’s text is “explicit” on the topic);

Commonwealth v. Beam, 567 Pa. 492, 495-96, 788 A.2d 357, 359-60 (2002) (in




1 Non-home-rule municipalities are limited by the separate principle that they are
“creatures of the state” with no inherent powers, and can only legislate as expressly
enabled by the General Assembly. Schweiker, 579 Pa. at 605, 858 A.2d at 84.


                         [J-72A-H-2018][M.O. – Wecht, J.] - 6
evaluating the authority given to administrative agencies, equating “express legislative

delegation” with “legislative language that is clear and unmistakable”). 2

       Further, given that the Business Exclusion prevents home-rule cities from

“determin[ing] duties, responsibilities or requirements placed upon businesses,

occupations and employers,” its reference to express statutory authority should, in my

view, be understood as contemplating authorization which specifically enables some

form of business regulation as such. More to the point, I would not conclude that a

generalized mandate to promote health and suppress disease reflects a legislative

purpose to grant “express” statutory authority to regulate businesses in the manner of

the Paid Sick Days Act.




2  The majority disagrees that Beam supports my present view, observing that the
Court’s holding arose in the context of administrative agency powers, where the
presumption to be applied in cases of uncertainty is against delegation. I might be
aligned with the majority’s view in this respect if, when crafting the Business Exception,
the Legislature had not chosen to include the modifier, “expressly.”

As well, Beam’s ultimate recognition of agencies’ “textually unspecified powers,”
Majority Opinion, slip op. at 30 n.19, proceeded from the premise that statutory grants
consist, “not only of that which is expressly granted, but also of authority which is
necessarily implied.” Beam, 567 Pa. at 493, 788 A.2d at 358; see also id. at 496, 788
A.2d at 360 (“[T]he rule requiring express legislative delegation is tempered by the
recognition that an administrative agency is invested with the implied authority
necessary to the effectuation of its express mandates.”). The Business Exclusion, by
contrast, eliminates this possibility by clarifying that any exception to it must be
“expressly provided.”

Finally, to the extent the majority criticizes the concept that “express” authority does not
include authority which is left to inference or implication, see Majority Opinion, slip op. at
30 n.19 (describing this as a “new requirement [I would] add onto Beam’s formulation”),
it seems to me that such limitation follows from the plain English meaning of “expressly.”
See, e.g., W EBSTER’S NEW COLLEGE DICTIONARY 404 (3d ed. 2008) (indicating
“expressly” means “explicitly”).


                          [J-72A-H-2018][M.O. – Wecht, J.] - 7
      Nor am I persuaded by the majority’s description that the Paid Sick Days Act is

“more like a ‘health or safety ordinance’ that affects business than a statute with its

principal focus upon regulating business for its own sake[.]” Majority Opinion, slip op. at

35 (brackets omitted). To the contrary, the ordinance mandates that certain benefits be

included in the compensation package which businesses afford to their employees, with

the underlying premise that such benefit will indirectly curtail the spread of disease

through its incentive structure. As such, it is, in the first instance, an ordinance which

regulates the compensation given to employees by business entities. Accord Brief for

Appellees at 21 (describing the Paid Sick Days Act as a “labor and employment

ordinance”). The concept that its expected indirect effects can transform the DPCL into

express authority to regulate businesses in the face of the very specific and directed

language used in the Business Exclusion is, to my mind at least, highly attenuated.

      I do agree with the majority that the Business Exclusion is designed to prevent a

patchwork of inconsistent business regulations, many of which may apply to a single

business with locations in several municipalities. See Majority Opinion, slip op. at 34

(referencing the Legislature’s “concern for the imposition of inconsistent requirements

from one municipality to the next”).      The exclusion evidently reflects the General

Assembly’s determination that – again, unless expressly stated otherwise – such

regulations are a matter of statewide concern to be governed by the Commonwealth’s

legislative body. That being the case, I would clarify that, to qualify as an exception to

the Business Exclusion, the challenged ordinance must be supported by more than a

generalized mandate to suppress disease (as reflected in the DPCL), as salutary a goal

as that may be.     Because the Paid Sick Days Act fails to satisfy that standard, I

respectfully dissent from the majority’s conclusion that it falls within the narrow

exception to the Business Exclusion.


                          [J-72A-H-2018][M.O. – Wecht, J.] - 8
Justices Baer and Mundy join this concurring and dissenting opinion.




                  [J-72A-H-2018][M.O. – Wecht, J.] - 9
