             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Southeastern Pennsylvania                    :
Transportation Authority,                    :
                  Appellant                  :
                                             :
                v.                           :   No. 2445 C.D. 2009
                                             :   Argued: February 11, 2015
City of Philadelphia and                     :
Philadelphia Commission on                   :
Human Relations                              :


BEFORE:         HONORABLE DAN PELLEGRINI, President Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
                HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE MARY HANNAH LEAVITT, Judge
                HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE ANNE E. COVEY, Judge

OPINION
BY JUDGE LEAVITT                                                    FILED: August 7, 2015

                The Southeastern Pennsylvania Transportation Authority (SEPTA)
seeks a declaratory judgment that as a Commonwealth agency it is not subject to
the City of Philadelphia’s anti-discrimination ordinance, but only to the provisions
of the Pennsylvania Human Relations Act.1 The defendants, the City and the
Philadelphia Commission on Human Relations (Philadelphia Commission),
demurred to the complaint, and the Court of Common Pleas of Philadelphia
County (trial court) sustained their preliminary objections. This Court reversed.
The Supreme Court vacated our order and remanded the matter to this Court to do


1
    Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.
additional analysis. Concluding that the legislature did not intend SEPTA to be
subject to a local anti-discrimination ordinance, we reverse.
                                        Background
              In 1963, the General Assembly established SEPTA pursuant to the
Metropolitan Transportation Authorities Act, 74 Pa. C.S. §§1701-1785.2 That Act
provides:

              There is hereby authorized the creation of a separate body
              corporate and politic in each metropolitan area, to be known as
              the transportation authority of that metropolitan area, extending
              to and including all of the territory in the metropolitan area.

74 Pa. C.S. §1711(a). A “metropolitan area” is defined as “[a]ll of the territory
within the boundaries of any county of the first class and all other counties located
in whole or in part within 20 miles of the first class county.” 74 Pa. C.S. §1701.
Philadelphia is a “county of the first class.” Consistent with Section 1701, SEPTA
operates a mass-transit system in Philadelphia and the four contiguous counties of
Bucks, Chester, Delaware and Montgomery. As a transportation authority, SEPTA
exercises the powers of a Commonwealth agency. Section 1711(a) further states:

              An authority shall in no way be deemed to be an instrumentality
              of any city or county or other municipality or engaged in the
              performance of a municipal function, but shall exercise the
              public powers of the Commonwealth as an agency and
              instrumentality thereof.

74 Pa. C.S. §1711(a) (emphasis added).


2
 The original Metropolitan Transportation Authorities Act of 1963, Act of August 14, 1963, P.L.
984, No. 450, has been replaced by the current Metropolitan Transportation Authorities Act, 74
Pa. C.S. §§1701-1785. All transportation authorities are deemed to have been created under the
current act. 74 Pa. C.S. §1711(c)(1).


                                              2
               Philadelphia is a first class city that is governed under authority of the
First Class City Home Rule Act.3 Consistent with that authority, the City has
established the Philadelphia Commission to administer and enforce the
Philadelphia Fair Practices Ordinance,4 which prohibits discrimination in the areas
of employment, housing and public accommodations.                         The Fair Practices
Ordinance forbids discrimination on the basis of race, ethnicity, color, sex, sexual
orientation, gender identity, religion, national origin, ancestry, age, disability,
marital status, familial status, genetic information, or domestic or sexual violence
victim status. PHILA. CODE §§9-1103, 9-1106.5
               In 1955, the General Assembly enacted the Pennsylvania Human
Relations Act, which forbids discrimination in the areas of employment, housing


3
  Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§13101-13157.
4
  The Fair Practices Ordinance is codified at Sections 9-1101 through 9-1129 of The Philadelphia
Code.
5
 Sections 1103 and 1106 of the Fair Practices Ordinance state, in relevant part, as follows:
       §9-1103 Unlawful Employment Practices.
              (1) It shall be an unlawful employment practice to deny or
              interfere with the employment opportunities of an individual based
              upon his or her race, ethnicity, color, sex, sexual orientation,
              gender identity, religion, national origin, ancestry, age, disability,
              marital status, familial status, genetic information, or domestic or
              sexual violence victim status.
PHILA. CODE §9-1103.
       §9-1106 Unlawful Public Accommodations Practices.
             (1) It shall be an unlawful public accommodations practice to
             deny or interfere with the public accommodations opportunities of
             an individual or otherwise discriminate based on his or her race,
             ethnicity, color, sex, sexual orientation, gender identity, religion,
             national origin, ancestry, disability, marital status, familial status,
             or domestic or sexual violence victim status.
PHILA. CODE §9-1106.


                                                3
and public accommodations on the basis of “race, color, familial status, religious
creed, ancestry, age, sex, national origin, handicap or disability, [or] use of guide
or support animals because of the blindness, deafness or physical handicap of the
user….” Section 2 of the Human Relations Act, 43 P.S. §952. Its reach is
statewide.
              Both the Human Relations Act and the Fair Practices Ordinance
forbid invidious discrimination.         The protected classes in each legislation are
nearly identical, but there are differences. The Fair Practices Ordinance forbids
discrimination on the basis of a person’s sexual orientation and gender identity,
genetic information or domestic violence status, and the Human Relations Act does
not. On the other hand, the Human Relations Act protects those who use support
animals by reason of their deafness and blindness; the Fair Practices Ordinance
does not.
                             Facts and Procedural History
              Between July 2007 and April 2009, the Philadelphia Commission
initiated seven separate complaints and investigations against SEPTA for alleged
discrimination against its employees or customers in violation of the Fair Practices
Ordinance. Complaint, ¶14; Reproduced Record at 95a-96a (R.R. ___).6 Two of
the complaints involved alleged discrimination on the basis of gender identity and


6
  Three complaints alleged discrimination on the basis of disability, one alleged religious
discrimination, one alleged gender discrimination, one alleged sexual orientation discrimination
and one alleged gender identity discrimination. Complaint, ¶14; R.R. 95a-96a. All but two
complaints involve alleged conduct expressly prohibited by the Human Relations Act. SEPTA’s
complaint lists only the name of the complainants, the date the complaints were filed and the
type of discrimination being alleged. The record contains no more specific information such as
whether each complainant was a SEPTA employee or customer, or the details of the alleged
incidents.


                                               4
sexual orientation.7 Id.; R.R. 95a. SEPTA responded that as a Commonwealth
agency, the Philadelphia Commission lacked jurisdiction over it.                          SEPTA
requested the Philadelphia Commission dismiss each of the administrative
complaints or certify them for an interlocutory appeal to address the jurisdiction
issue. The Philadelphia Commission denied SEPTA’s requests.
               On July 23, 2009, while the administrative complaints were pending,
SEPTA filed the instant complaint against the City and the Philadelphia
Commission (collectively, City).8            SEPTA sought a declaration that the Fair
Practices Ordinance does not apply to SEPTA because it is a Commonwealth
agency. SEPTA also sought an injunction against the Philadelphia Commission’s
exercise of jurisdiction over SEPTA.9
               The City filed preliminary objections demurring to SEPTA’s
complaint. On November 9, 2009, after briefing and argument, the trial court
sustained the City’s preliminary objections and dismissed SEPTA’s complaint for



7
  The complaint based on gender identity was brought by an individual that identifies as female
and purchased a bus pass listing her gender as female; however, the surgery has not yet taken
place. Bus passes cannot be shared or transferred to another passenger. The bus driver
questioned the proffered pass saying, “You don’t look like a female. Are you a male?” Faced
with the bus driver’s opposition to using the bus pass, the passenger paid the cash fare to ride the
bus. Paul Nussbaum, City to probe transit rider’s gender ID complaint, PHILADELPHIA
INQUIRER,        September         20,       2008.              http://articles.philly.com/2008-09-
20/news/24991546__1__septa-gender-cash-fare (last visited 8/5/2015).
8
  The seven complaints against SEPTA have not yet been resolved by the Philadelphia
Commission. City’s Brief at 7.
9
  The next day, SEPTA filed a motion for preliminary injunction. The trial court granted the
preliminary injunction on the grounds that the City failed to file a timely answer. The City filed
a motion for reconsideration. The trial court granted the City’s motion and vacated the
preliminary injunction. The trial court has not issued an order on the reconsideration of
SEPTA’s motion for preliminary injunction.


                                                 5
the stated reason that SEPTA had failed to exhaust its administrative remedies and,
further, was not exempt from the Fair Practices Ordinance. SEPTA appealed.

               This Court, sitting en banc, reversed the trial court.10                      See
Southeastern Pennsylvania Transportation Authority v. City of Philadelphia and
Philadelphia Commission on Human Relations, 20 A.3d 558 (Pa. Cmwlth. 2011).
This Court concluded that SEPTA is a Commonwealth agency for purposes of
discrimination claims and, as such, subject only to the Pennsylvania Human
Relations Act. We stated:

               [T]he PHRC’s [Pennsylvania Human Relations Commission]
               enabling legislation clearly gives the PHRC, not the
               [Philadelphia] Commission, jurisdiction over SEPTA as an
               instrumentality of the Commonwealth in matters involving
               discrimination. Furthermore, there is no comparable grant of
               explicit jurisdiction to the [Philadelphia] Commission through
               its enabling ordinance, and any such grant would clearly
               conflict with the PHRC’s enabling statute.

Id. at 562. Because the Philadelphia Commission lacked jurisdiction over SEPTA,
this Court held that the exhaustion of remedies doctrine did not preclude SEPTA’s
pursuit of declaratory and injunctive relief.

               The Pennsylvania Supreme Court vacated this Court’s order and
remanded for further proceedings. See Southeastern Pennsylvania Transportation


10
   When an appellate court considers whether preliminary objections in the nature of a demurrer
were properly sustained, the standard of review is de novo and the scope of review is plenary.
Mazur v. Trinity Area School District, 961 A.2d 96, 101 (Pa. 2008). A demurrer is properly
sustained only if, based on the facts pleaded, it is clear and free from doubt that no recovery is
possible. Id. If any doubt exists, it should be resolved in favor of overruling the demurrer.
Cornelius v. Roberts, 71 A.3d 345, 347 n.2 (Pa. Cmwlth. 2013). The court must accept as true
all well-pleaded, material and relevant facts alleged in the complaint and every inference that is
fairly deducible from those facts. Id.


                                                6
Authority v. City of Philadelphia and Philadelphia Commission on Human
Relations, 101 A.3d 79 (Pa. 2014) (SEPTA v. Philadelphia II). The Supreme Court
agreed that SEPTA was not required to exhaust its administrative remedies before
commencing its action, which presented a purely legal challenge. The Supreme
Court also agreed that SEPTA is a Commonwealth agency.11                                However, it
concluded that this Court failed to do the legislative intent analysis announced in
Department of General Services v. Ogontz Area Neighbors Association, 483 A.2d
448 (Pa. 1984), and used to determine when a state agency may be regulated by a
local agency.12 The Supreme Court stated as follows:

                In conclusion, although the Commonwealth Court correctly
                determined that SEPTA was not required in this instance to
                exhaust its administrative remedies before commencing this
                declaratory judgment action, it erred by not applying the
                Ogontz legislative intent analysis to determine whether SEPTA
                may properly be held to the provisions of the [Fair Practices
                Ordinance] and the jurisdiction of the Philadelphia
                Commission. We therefore vacate the Commonwealth Court’s
                order and remand the case to that court for it to conduct that
                analysis.

SEPTA v. Philadelphia II, 101 A.3d at 90-91. Accordingly, we do that analysis
here.13

11
   The Supreme Court stated that “SEPTA has mistaken our insistence that courts seek out and
effectuate the intent of the legislature for a requirement that the legislature state its intent clearly
or explicitly that a municipality is to have ‘preeminent powers’ over a state agency in a given
area of law.” SEPTA v. Philadelphia II, 101 A.3d at 87.
12
   Three Justices authored dissents, with two of them opining that this Court had already
performed the legislative intent analysis.
13
   This case involves an issue of statutory interpretation, which is a pure question of law.
Philomeno & Salamone v. Board of Supervisors of Upper Merion Township, 966 A.2d 1109,
1111 (Pa. 2009). Questions of law are subject to de novo review, and our scope of review is
plenary. Id.


                                                   7
                                     Ogontz Test
               At issue in Ogontz was the Commonwealth’s proposed construction of
a mental health facility in a Philadelphia neighborhood that was zoned residential.
The Philadelphia Zoning Board of Adjustment denied the Department of General
Services’ permit application because the proposed use was not permitted in a
residential district. The Department appealed, arguing that the Zoning Board could
not impose any restrictions on the construction of a building authorized by a state
statute.   In considering that legal question, the Pennsylvania Supreme Court
established the analysis to be used “[w]hen there is an apparent conflict in the use
of ... powers” by two different governmental entities or agencies. Ogontz, 483
A.2d at 453-54 (quoting City of Pittsburgh v. Commonwealth, 360 A.2d 607, 612
(Pa. 1976)).
               Noting that both government agencies were creatures of statute, the
Supreme Court identified the Department’s preemption claim as one of statutory
construction:

               [T]he conflict that arises when a Commonwealth agency seeks
               to utilize real property in a manner that conflicts with a
               municipal corporation’s zoning regulations is not a contest
               between superior and inferior governmental entities, but instead
               a contest between two instrumentalities of the state. The
               legislature has the power to regulate both of these governmental
               entities, enlarging or restricting their authority to act; and
               generally, the task of courts in these cases is to determine,
               through an examination of the enabling statutes applicable to
               each of the governmental entities, which the legislature
               intended to have preeminent powers. The problem, essentially,
               is one of statutory interpretation.

Ogontz, 483 A.2d at 452 (internal citation omitted) (emphasis added).             The
Supreme Court adopted a two-part test for resolving this statutory construction

                                           8
problem. First, a reviewing court must determine whether one legislative scheme
was intended to have priority over the other. Second, where that priority cannot be
discerned, the court must

              turn to the statutory construction rule that legislative intent may
              be determined by a consideration, inter alia, of the
              consequences of a particular interpretation.               Statutory
              Construction Act, 1 Pa. C.S.A. §1921(c)(6).

Id. at 455.
              Concluding that the statutes relevant to the proposed mental health
facility did not provide a clear answer on priority, the Ogontz court considered the
consequences of having the Department or the City prevail in the controversy. It
concluded that upholding the zoning ordinance would not frustrate the
Commonwealth’s ability to build mental health facilities. The Court reasoned as
follows:

              The consequences of deciding that the Commonwealth should
              be preeminent in this matter are that Philadelphia’s zoning
              scheme would be frustrated in this case and in every other case
              where a Commonwealth land use plan conflicted with the city
              plan. On the other hand, if the city were to prevail, the
              Commonwealth’s mandate to establish mental health facilities
              at various locations in the state would not necessarily be
              frustrated, for the loss of one location might well be
              compensated for by substitution of another. Thus, deciding that
              the city’s zoning authority supersedes that of the
              Commonwealth agency to establish a mental health facility in a
              particular geographical location arguably would give effect to
              the legislative mandates of both governmental entities, a
              consequence which, absent more certain legislative direction,
              seems advisable. Accordingly, we hold that [the Department] is
              subject to the jurisdiction of the Zoning Board and that in the
              case of a conflict between [the Department’s] land use plans
              and the zoning use regulatory scheme of Philadelphia, the
              zoning scheme shall prevail.

                                           9
Id. (emphasis added).
             Thus, Ogontz teaches that if there is a clear legislative directive as to
which agency should be preeminent in a given situation, that directive controls. If
there is no clear expression of legislative intent, courts must try to glean legislative
intent in a way that gives effect to the mandates of both agencies, if possible. As
instructed by the Supreme Court in its remand order, we consider the two-part test
announced in Ogontz, beginning with whether the relevant statutes express a clear
legislative directive on priority.
                                 Legislative Priority
             SEPTA argues that the applicable statutes demonstrate a legislative
intent not to subject SEPTA to the Fair Practices Ordinance. This is because
SEPTA’s enabling statute grants SEPTA immunity from suit, except where
sovereign immunity has been expressly waived.            The legislature has waived
SEPTA’s sovereign immunity for discrimination under the Pennsylvania Human
Relations Act but nowhere else, including in the First Class City Home Rule Act.
SEPTA urges that because legislative intent is clear, there is no need to analyze the
consequences of a particular statutory interpretation.
             The City responds that SEPTA’s enabling act does not answer the
question of legislative intent. If it did, there would have been no need for the
Supreme Court to remand for this Court to perform an Ogontz analysis. The City
argues that enforcement of its Fair Practices Ordinance does not conflict with
SEPTA’s enabling act. The Pennsylvania Human Relations Act specifies that it
was not intended to repeal or supersede a municipality’s anti-discrimination
ordinance.    The City believes this expresses the legislative intent that local
municipalities may operate concurrently with the Pennsylvania Human Relations


                                          10
Commission, with overlapping jurisdiction.14
              The Metropolitan Transportation Authorities Act, as noted supra,
confirmed that SEPTA is a Commonwealth instrumentality and agency. Section
1711(a) states:

              An authority shall in no way be deemed to be an instrumentality
              of any city or county or other municipality or engaged in the
              performance of a municipal function, but shall exercise the
              public powers of the Commonwealth as an agency and
              instrumentality thereof.

74 Pa. C.S. §1711(a) (emphasis added).                The Metropolitan Transportation
Authorities Act also established that SEPTA enjoys sovereign immunity. Section
1711(c) states, in relevant part, as follows:

              It is hereby declared to be the intent of the General Assembly
              that an authority created or existing under this chapter,
              including any authority established under the former provisions
              of Article II of the Pennsylvania Urban Mass Transportation
              Law or the former provisions of Chapter 15, and the members,
              officers, officials and employees of any of them, shall continue
              to enjoy sovereign and official immunity, as provided in 1
              Pa.C.S. § 2310 (relating to sovereign immunity reaffirmed;
              specific waiver), and shall remain immune from suit except as
              provided by and subject to the provision of 42 Pa.C.S. §§ 8501
              (relating to definitions) through 8528 (relating to limitations on
              damages).

74 Pa. C.S. §1711(c)(3) (emphasis added). In turn, 1 Pa. C.S. §2310 states:

              Pursuant to section 11 of Article 1 of the Constitution of
              Pennsylvania, it is hereby declared to be the intent of the

14
  The American Civil Liberties Union of Pennsylvania and the Mazzoni Center, a self-described
provider of health care services to Philadelphia’s lesbian, gay, bisexual and transgender
communities, have filed an amici curiae brief taking the position that SEPTA is subject to the
Fair Practices Ordinance.


                                             11
              General Assembly that the Commonwealth, and its officials and
              employees acting within the scope of their duties, shall
              continue to enjoy sovereign immunity and official immunity and
              remain immune from suit except as the General Assembly shall
              specifically waive the immunity. When the General Assembly
              specifically waives sovereign immunity, a claim against the
              Commonwealth and its officials and employees shall be brought
              only in such manner and in such courts and in such cases as
              directed by the provisions of Title 42 (relating to judiciary and
              judicial procedure) or 62 (relating to procurement) unless
              otherwise specifically authorized by statute.

1 Pa. C.S. §2310 (emphasis added). In short, suits against the Commonwealth are
“permissible only where the legislature has expressly waived immunity.” Ebersole
v. Southeastern Pennsylvania Transportation Authority, 111 A.3d 286, 289 (Pa.
Cmwlth. 2015) (emphasis added).
              The Pennsylvania Human Relations Act prohibits discrimination in
employment, housing and public accommodation by, inter alia, a person or
employer.      Pursuant to Section 4 of the Act, a “person” includes “the
Commonwealth of Pennsylvania, and all political subdivisions, authorities, boards
and commissions thereof,” 43 P.S. §954(a), and an “employer” includes “the
Commonwealth or any political subdivision or board, department, commission or
school district thereof.” 43 P.S. §954(b). It is beyond peradventure that SEPTA is
subject to the Pennsylvania Human Relations Act.15 Thus, the legislature has



15
   The City argues that SEPTA should not be treated as the Commonwealth for purposes of the
Pennsylvania Human Relations Act, noting that the Court’s prior ruling in this case was vacated
by the Supreme Court in SEPTA v. Philadelphia II, 101 A.3d 79. The Supreme Court did not
hold that SEPTA should not be treated as the Commonwealth for purposes of the Pennsylvania
Human Relations Act. To the contrary, the Supreme Court agreed that SEPTA is a
Commonwealth agency pursuant to its enabling act for purposes of this case. Id. at 87 (referring
to SEPTA as a “state agency.”).


                                              12
“specifically” waived SEPTA’s immunity from actions brought under the
Pennsylvania Human Relations Act. 1 Pa. C.S. §2310.
             In order to make SEPTA also subject to the Fair Practices Ordinance,
the legislature would have had to “specifically” waive SEPTA’s immunity from
actions brought under local anti-discrimination ordinances. It did not do so.
             The City relies upon the First Class City Home Rule Act as the basis
for its authority to enforce the Fair Practices Ordinance against SEPTA. Our
Supreme Court held that the Home Rule Act is not dispositive, explaining:

             We consider the rule that a home-rule municipality’s exercise
             of legislative power is presumed valid, absent a specific
             constitutional or statutory limitation, to relate to a
             municipality’s authority to enact ordinances regarding a
             particular subject matter. That rule does not pertain to whether
             the municipality may enforce ordinances and regulations
             against a Commonwealth agency or instrumentality.

SEPTA v. Philadelphia II, 101 A.3d at 88. Simply, the Home Rule Act does not
waive the immunity of Commonwealth agencies with the specificity required by 1
Pa. C.S. §2310.
             The City also argues that the General Assembly has not prohibited its
application of the Fair Practices Ordinance to SEPTA or other Commonwealth
agencies. Commonwealth agencies must abide by the City’s zoning and traffic
ordinances. Likewise, it argues, they must abide by the City’s anti-discrimination
ordinance.
             This argument overlooks two important points.          First, the anti-
discrimination law is unlike zoning and traffic ordinances. Philadelphia alone
regulates zoning and traffic control within the City. Therefore, if SEPTA were not
subject to the City’s zoning and traffic ordinances, there would be a regulatory

                                         13
vacuum leaving SEPTA with carte blanche to do as it pleased in these important
areas. This would produce an absurd result. On the other hand, the Fair Practices
Ordinance is not the only anti-discrimination law applicable in Philadelphia. As
discussed supra, SEPTA is subject to the Pennsylvania Human Relations Act,
which prohibits SEPTA from discriminating against its employees and passengers.
Second, the Fair Practices Ordinance authorizes private individuals to sue SEPTA
for monetary damages, and SEPTA has been granted immunity from such
damages.16
              Section 1122 of the Fair Practices Ordinance authorizes a private right
of action in the Philadelphia County Court of Common Pleas for damages. PHILA.
CODE §9-1122. The ordinance also authorizes the Philadelphia Commission to
award compensatory damages, punitive damages, attorneys’ fees and payment of
the Commission’s own expenses.             PHILA. CODE §§9-1105, 9-1107.17             In this



16
   Indeed, as observed by the amici curiae, “[f]or those SEPTA employees or riders who identify
as lesbian, gay, bisexual or transgender, their ability to pursue claims before the local Human
Relations Commissions is literally the difference between having their ‘day in court’ and having
no legal recourse at all.” Amici Curiae Brief at 4.
17
   Sections 1105 and 1107 of the Fair Practices Ordinance state as follows:
        §9-1105 Remedies for Unlawful Employment Practices.
               (1) In addition to the relief authorized by §9-1121 (relating to
               penalties), the Commission may issue an order directing a
               respondent who has engaged in an unlawful employment practice
               to take affirmative action to redress the harms suffered by the
               complainant. The Commission may order remedies, including, but
               not limited to:
                        (a) An order requiring the respondent to cease and
                        desist such unlawful practice;
                        (b) Any injunctive or other equitable relief,
                        including:
(Footnote continued on the next page . . .)
                                              14
respect, the Fair Practices Ordinance veers far away from zoning and traffic
ordinances, which are enforced only by the City. As this Court has explained,

(continued . . .)
                             (.1) hiring, reinstating or upgrading,
                             with or without back pay;
                             (.2)    admitting      or     restoring
                             membership in a labor organization;
                             (.3)    admission to a guidance,
                             apprentice-training or retraining
                             program;
                     (c) Payment of compensatory damages;
                     (d) Payment of punitive damages, not to exceed
                     $2,000 per violation;
                     (e) Payment of reasonable attorneys’ fees;
                     (f) Payment of hearing costs as reimbursement for
                     expenses incurred by the Commission.
PHILA. CODE §9-1105.
       §9-1107 Remedies for Unlawful Public Accommodations Practices.
             (1) In addition to the relief authorized by §9-1121 (relating to
             penalties), the Commission may issue an order directing a
             respondent who has engaged in an unlawful public
             accommodations practice to take affirmative action to redress the
             harms suffered by the complainant. The Commission may order
             remedies, including, but not limited to:
                     (a) An order requiring the respondent to cease and
                     desist such unlawful practice;
                     (b) Any injunctive or other equitable relief,
                     including extending full, equal, unsegregated public
                     accommodations, advantages and facilities;
                     (c) Payment of compensatory damages;
                       (d) Payment of punitive damages, not to exceed
                       $2,000 per violation;
                       (e) Payment of reasonable attorneys’ fees;
                       (f) Payment of hearing costs as reimbursement for
                       expenses incurred by the Commission.
PHILA. CODE §9-1107.


                                              15
“[a]bsent a legislative abrogation of immunity, no party may seek to obtain relief
against the Commonwealth.” New Foundations, Inc. v. Department of General
Services, 893 A.2d 826, 830 (Pa. Cmwlth. 2005). Sovereign immunity bars an
action seeking to compel a state party to act or seeking monetary damages, except
where the legislature has created an exception. Finn v. Rendell, 990 A.2d 100, 105
(Pa. Cmwlth. 2010).      Further, punitive damages cannot be recovered from
Commonwealth agencies. Feingold v. Southeastern Pennsylvania Transportation
Authority, 517 A.2d 1270, 1276-77 (Pa. 1986). The penalties authorized by the
Fair Practices Ordinance require an express waiver of sovereign immunity, and
none has been expressed by the General Assembly.
            The City argues, nevertheless, that the Pennsylvania Human Relations
Act expresses a waiver of sovereign immunity because it specifies that it does not
repeal or supersede any municipal anti-discrimination ordinance. Section 12 of the
Pennsylvania Human Relations Act states, in relevant part, as follows:

            (a) The provisions of this act shall be construed liberally for
            the accomplishment of the purposes thereof, and any law
            inconsistent with any provisions hereof shall not apply.
            (b) Except as provided in subsection (c), nothing contained in
            this act shall be deemed to repeal or supersede any of the
            provisions of any existing or hereafter adopted municipal
            ordinance, municipal charter or of any law of this
            Commonwealth relating to discrimination because of race,
            color, familial status, religious creed, ancestry, age, sex,
            national origin or handicap or disability[.]… In the event of a
            conflict between the interpretation of a provision of this act and
            the interpretation of a similar provision contained in any
            municipal ordinance, the interpretation of the provision in this
            act shall apply to such municipal ordinance.




                                        16
43 P.S. §962(a), (b).18 The City contends that Section 12 means, specifically, that
the Fair Practices Ordinance can be enforced against SEPTA.
               We disagree. The legislature has waived SEPTA’s immunity from
suit arising from discrimination by making it subject to the jurisdiction of the
Pennsylvania Human Relations Commission. Exceptions to sovereign immunity
are to be narrowly construed.19 Dean v. Department of Transportation, 751 A.2d
1130, 1134 (Pa. 2000). Section 12(b) of the Pennsylvania Human Relations Act
does not express an intent to subject SEPTA, or any Commonwealth agency, to the
Fair Practices Ordinance.20


18
   Section 12.1 of the Pennsylvania Human Relations Act authorizes the creation of local human
relations commissions and specifies that:
        (d) The legislative bodies of political subdivisions shall have the authority to
        grant to local commissions powers and duties similar to those now exercised by
        the Pennsylvania Human Relations Commission under the provisions of this act.
        (e) The local human relations commission shall notify the Pennsylvania Human
        Relations Commission of complaints received involving discriminatory acts
        within that commission’s jurisdiction.
43 P.S. §962.1. Section 12.1 was added by the Act of January 24, 1966, P.L.(1965) 1523.
19
   See 1 Pa. C.S. §2310 (“the Commonwealth … shall continue to enjoy sovereign immunity …
and remain immune from suit except as the General Assembly shall specifically waive the
immunity. … A claim against the Commonwealth … shall be brought only in such manner and
in such courts and in such cases as … specifically authorized by statute.”).
20
   In his dissent, President Judge Pellegrini posits that the Pennsylvania Human Relations Act
gives Philadelphia authority over SEPTA in anti-discrimination matters. Section 12.1(d) allows
local commissions to have “powers and duties similar to those now exercised by the
Pennsylvania Human Relations Commission.” 43 P.S. §962.1(d) (emphasis added). “Similar”
does not mean “identical.” Accordingly, this language does not expressly confer jurisdiction in
local commissions to supervise Commonwealth agencies. Section 12.1(d) does not mean that
local commissions have jurisdiction over SEPTA. Section 12(b) of the Human Relations Act
specifies that it did not repeal or supersede any municipal law prohibiting discrimination because
of “race, color, familial status, religious creed, ancestry, age, sex, national origin or handicap or
disability[.]” 43 P.S. §962(b). Municipalities do have the power to define discrimination in
ways that differ from the definition in the Human Relations Act. Hartman v. City of Allentown,
(Footnote continued on the next page . . .)
                                                17
               In sum, it is apparent from the language of the applicable statutes that
the legislature did not intend to subject SEPTA to the Fair Practices Ordinance.
Therefore, we need proceed no further in our legislative intent analysis.
Nevertheless, for the sake of completeness, we will address the second prong of the
Ogontz test.
                             Consideration of Consequences
               The second prong of the Ogontz test discerns legislative intent by
considering, inter alia, the consequences of a particular interpretation. SEPTA
argues that to subject it to the Fair Practices Ordinance would add another layer of
regulation in addition to that provided in federal and state civil rights laws.21 This
would cause confusion because, inter alia, its service area extends beyond
Philadelphia.       SEPTA will expend scarce resources on a daunting legal
investigation of what it can do and where it can do it, and not on its central mission
of providing public transportation services.
               On the other hand, finding in favor of SEPTA will protect the public
fisc, a vital consideration. Exempting SEPTA from the Fair Practices Ordinance
still leaves SEPTA subject to the Pennsylvania Human Relations Act. SEPTA


(continued . . .)
880 A.2d 737 (Pa. Cmwlth. 2005). However, the source of the power to do so is the police
power under the municipality’s enabling act, not the Human Relations Act. Section 12(b)’s
savings clause is silent as to the municipality’s authority over state agencies and, thus, does not
confer power on the City to enforce the Fair Practices Ordinance against state agencies.
21
   It is undisputed that SEPTA is subject to the jurisdiction of the Pennsylvania Human Relations
Commission and the United States Equal Employment Opportunity Commission. SEPTA is also
subject to Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of
“race, color or national origin” when providing public transportation, 42 U.S.C. §2000d, and
Title VII which prohibits employment discrimination on the basis of “race, color, religion, sex or
national origin.” 42 U.S.C. §2000e-2.


                                               18
cannot engage in invidious discrimination at will and does not wish to do so. It is
up to the General Assembly, not the City, to amend the Pennsylvania Human
Relations Act to enlarge the categories of citizens protected from invidious
discrimination.       The Fair Practices Ordinance expressly excludes religious
employers and the United States government from its terms.                              Excluding
Commonwealth agencies from its reach is consistent with the policy to exclude
federal agencies.22
               The City responds that the consequences of applying the Fair
Practices Ordinance to SEPTA weigh strongly in favor of coverage. If SEPTA can
comply with the City’s traffic ordinances, it can comply with the Fair Practices
Ordinance. Further, forbearing from acts of discrimination will not adversely
affect SEPTA’s core mission of providing efficient transportation; to the contrary,
non-discrimination should be part of SEPTA’s central mission. SEPTA’s concerns
about confusing multi-jurisdictional regulation is addressed by compliance with the
strictest anti-discrimination laws, i.e., the Fair Practices Ordinance.23                      It is

22
   SEPTA argues that a remand is needed for the development of a record regarding the
consequences of subjecting SEPTA to the Fair Practices Ordinance. Judge Simpson’s dissent
agrees with this point. The City argues that a record is unnecessary. The task of statutory
construction includes consideration of the “consequences of a particular interpretation,” 1 Pa.
C.S. §1921, and the “proper construction of a statute is resolvable by a court as a matter of law.”
Allegheny County Sportsmen’s League v. Rendell, 860 A.2d 10, 24 (Pa. 2004). Thus, the Ogontz
consideration of the consequences of a particular statutory interpretation is a legal, not a factual,
question that does not require evidence. Consequences can be posited by the Court.
   Ogontz did not cite facts in its consequences analysis. The only case where the Ogontz test
was applied outside the context of land use is Saucon Valley School District v. Robert, 785 A.2d
1069 (Pa. Cmwlth. 2001). In Saucon, this Court posited the consequences without reference to
record evidence.
23
   The Fair Practices Ordinance and the Pennsylvania Human Relations Act define protected
classes differently. The language differences may, or may not, have significance. Both
proscribe sex discrimination, which is a flexible concept.


                                                19
irrelevant that applying the Fair Practices Ordinance to SEPTA may have
significance to other Commonwealth agencies. It is not clear that it would because
the Ogontz analysis could vary depending on the facts of a case. Finally, the City
contends that it is irrelevant that the City has excluded some employers from the
Fair Practices Ordinance’s coverage. The relevant question is whether an Ogontz
analysis favors application of the Fair Practices Ordinance to SEPTA, an entity
headquartered in Philadelphia that employs 9,000 people and provides
transportation to a large percentage of the City’s population.
              We agree that the focus is on SEPTA in this prong of the Ogontz
analysis and not on other persons the City has exempted from the Fair Practices
Ordinance. However, we conclude that a consideration of the consequences of
subjecting SEPTA to the Fair Practices Ordinance leads to the conclusion that the
legislature did not intend this result.
              SEPTA operates in Philadelphia, but also in Bucks, Chester, Delaware
and Montgomery Counties.           Each county contains numerous municipalities.24
“[A]ll municipalities have the authority to enact anti-discrimination laws pursuant
to their police powers.” Building Owners and Managers Association of Pittsburgh
v. City of Pittsburgh, 985 A.2d 711, 715 n.12 (Pa. 2009). This means that if
SEPTA is subject to the provisions of the Fair Practices Ordinance, it would also
be subject to anti-discrimination legislation enacted by any of the over 100
municipalities through which it operates its various bus, train and trolley routes.
The compliance problems are myriad.               Were SEPTA subject to the anti-

24
  There are 54 municipalities in Bucks County, 73 in Chester County, 49 in Delaware County
and 62 in Montgomery County. See also SEPTA v. Philadelphia II, 101 A.3d at 97 (Eakin, J.,
concurring and dissenting) (explaining that SEPTA operates “in over 100 municipalities across
southeastern Pennsylvania.”).


                                             20
discrimination ordinances of each municipality, its legal obligations would change
in the course of a single bus trip. Compliance would require learning the content
of every municipality’s ordinance as well as constant monitoring of each ordinance
to remain current, and training all employees accordingly. The City contends that
SEPTA simply needs to comply with the City’s ordinance, which it claims to be
the strictest. Nevertheless, any of the 100 municipalities may adopt an ordinance
stricter than the City’s at any time.
             SEPTA receives its funding from state and federal sources, and to a
much lesser extent, local sources in the areas it serves. A primary purpose of
sovereign immunity is “protection of the public fisc.”        Frazier v. Workers’
Compensation Appeal Board (Bayada Nurses, Inc.), 52 A.3d 241, 250 (Pa. 2012).
Spending these funds to ensure compliance with any potential number of different
local anti-discrimination statutes would divert them away from SEPTA’s core
mission of providing public transportation.
             Simply put, subjecting SEPTA to local anti-discrimination laws could
prove overwhelming. Courts must presume that the legislature did not intend a
result that is unreasonable or absurd where the legislature’s intent is not clear. 1
Pa. C.S. §1922(1). Thus, even if the intent of the legislature were not apparent
from the language of the applicable statutes, we would conclude that the
consequences of finding in SEPTA’s favor are far less problematic than a ruling
that SEPTA is subject to the Fair Practices Ordinance. SEPTA is still subject to
federal and state anti-discrimination statutes.




                                          21
                                   Conclusion
            In sum, we conclude that the legislature did not intend for SEPTA to
be subject to the Philadelphia Fair Practices Ordinance or the jurisdiction of the
Philadelphia Commission.
            Accordingly, the order of the trial court sustaining the preliminary
objections of the City and Philadelphia Commission is reversed. The matter is
remanded for further proceedings consistent with this opinion.

                                             ______________________________
                                             MARY HANNAH LEAVITT, Judge




                                        22
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Southeastern Pennsylvania                :
Transportation Authority,                :
                  Appellant              :
                                         :
            v.                           :   No. 2445 C.D. 2009
                                         :
City of Philadelphia and                 :
Philadelphia Commission on               :
Human Relations                          :


                                    ORDER

            AND NOW, this 7th day of August, 2015, the order of the Court of
Common Pleas of Philadelphia County sustaining the preliminary objections filed
by the City of Philadelphia and the Philadelphia Commission on Human Relations
in the above-captioned matter is hereby REVERSED. The matter is REMANDED
for further proceedings consistent with the foregoing opinion.
            Jurisdiction relinquished.
                                               ______________________________
                                               MARY HANNAH LEAVITT, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Southeastern Pennsylvania                   :
Transportation Authority,                   :
                  Appellant                 :
                                            :
               v.                           : No. 2445 C.D. 2009
                                            : Argued: February 11, 2015
City of Philadelphia and                    :
Philadelphia Commission on                  :
Human Relations                             :


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MARY HANNAH LEAVITT, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge


DISSENTING OPINION BY
PRESIDENT JUDGE PELLEGRINI                                  FILED: August 7, 2015


               The question in this case is whether the Southeastern Pennsylvania
Transportation Authority (SEPTA) is subject to the City of Philadelphia’s
(Philadelphia) anti-discrimination ordinances enacted pursuant to a grant of power in
the First Class City Home Rule Act1 and the Pennsylvania Human Relations Act
(PHRA).2


      1
          Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§13101-13157.

      2
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.
            In finding that SEPTA is not subject to those ordinances, as instructed on
remand, the majority conducts an analysis as set forth in Department of General
Services v. Ogontz Area Neighbors Association, 483 A.2d 448 (Pa. 1984), to
determine which entity prevails “[w]hen there is an apparent conflict in the use of ...
powers” by two different governmental entities or agencies. Ogontz, 483 A.2d at
453-54 (quoting City of Pittsburgh v. Commonwealth, 360 A.2d 607, 612 (Pa. 1976)).
Noting that both government agencies were creatures of statute, our Supreme Court
adopted a two-part test for resolving this statutory construction problem. First, it
must be determined whether one legislative scheme was intended to have priority
over the other. Second, if that priority cannot be discerned, courts must try to glean
legislative intent in a way that “would give effect to the legislative mandates of both
governmental entities.” Id at 455.


            Employing a common set of tropes, the majority finds under the first
prong of Ogontz that SEPTA has legislative priority because it is “an instrument of
the Commonwealth” that leads the majority to what it considers a certain narrative
inevitability that SEPTA’s interests in running a “transportation system” are
paramount over Philadelphia’s interest in enacting and enforcing human relations
ordinances specifically authorized by the General Assembly to root out invidious
discrimination.


            As to the second prong, the majority succumbs and blindly accepts
SEPTA’s baseless claims, without any evidence, that if subject to local human
relations ordinances, SEPTA somehow could not carry out its transportation
responsibilities because it would be required to know what each local human relations



                                       DRP - 2
ordinance provides in the 100 different municipalities in which it operates, again,
“without proof” that each of those municipalities has a human relations ordinance.


             I respectfully dissent because, under the first prong of Ogontz, SEPTA is
subject to charges of discrimination brought under Philadelphia’s anti-discrimination
ordinances because it is clear under the Constitution and the legislative scheme that
Philadelphia’s interests in eliminating discrimination are paramount under the grants
of power given to it as compared to the powers given to SEPTA by the General
Assembly. If we even need to get to the second prong, both mandates of both
agencies would not be impeded if SEPTA is made subject to Philadelphia’s anti-
discrimination ordinances because Philadelphia would be able to carry out its
legislative mandate without in any way impeding SEPTA’s ability to provide public
transportation.


             Moreover, the consequences subjecting SEPTA to Philadelphia’s anti-
discrimination ordinances as well as any other relevant local laws is no more than an
inconvenience that any multi-jurisdictional private business is subject to in order to
operate. However, the consequence of failing to apply those anti-discrimination
ordinances is that Philadelphia residents would not be protected by the anti-
discrimination ordinances which, in addition to the local enforcement of the
traditional subjects of discrimination, also forbid discrimination on the basis of a
person’s sexual orientation and gender identity which are classes not protected by the
state PHRA.       The majority acknowledges this “is at the heart of the current
controversy” because it was not until after those types of claims of anti-




                                      DRP - 3
discrimination were raised that SEPTA claimed that it was not subject to
Philadelphia’s anti-discrimination ordinances.


                                             I.
             Under the first prong of the Ogontz test, we must examine the legislative
scheme to determine which governmental entity has priority. In this case, this prong
is particularly important because this is the first case involving an authority, SEPTA,
an entity that is not directly controlled by elected officials.


                                             A.
             SEPTA, headquartered in Philadelphia, was created in 1963 pursuant to
the Metropolitan Transportation Authorities Act, 74 Pa. C.S. §§1701-1785, to provide
public transportation in the area commonly known, as the SEPTA name suggests, the
five counties commonly identified as Southeastern Pennsylvania – Philadelphia,
Bucks, Chester, Delaware and Montgomery counties. 74 Pa. C.S. §1713. When
operating outside those counties, SEPTA is treated just like any private common
carrier and must obtain a certificate of public convenience from the appropriate
regulatory agency. 74 Pa. C.S. §1711.


             SEPTA is governed by a 15-member Board.                 Uniquely, while
Philadelphia appoints only two members to the Board, those two members can veto
any item that is approved by the full SEPTA Board unless that veto is overridden
with the vote of at least 75% of the full Board within 30 days. The other four
counties appoint two members each. Of the remaining five members on the Board,




                                          DRP - 4
the Governor and majority and minority leaders of the two houses of the
Pennsylvania State Legislature appoint one member each.


             Though the Commonwealth does not have power to appoint a majority
of its Board members, Section 1711(a) further states that “[a]n authority shall in no
way be deemed to be an instrumentality of any city or county or other municipality or
engaged in the performance of a municipal function, but shall exercise the public
powers of the Commonwealth as an agency and instrumentality thereof.” 74 Pa. C.S.
§1711(a) (emphasis added).


             Notwithstanding that language, SEPTA is not considered to be the same
as the Commonwealth. In Southeastern Pennsylvania Transportation Authority v.
Union Switch & Signal, Inc., 637 A.2d 662, 665 (Pa. Cmwlth.), appeal denied, 648
A.2d 792 (Pa. 1994), we stated the difficulty in determining the status of SEPTA or,
for that matter, any authority, is directly related to the reasons behind its creation and
authorization by the General Assembly. We explained:

                   Although authorities owe their existence to the
             various units of government and their governing boards are
             appointed by those entities, they are not considered part of
             the normal governmental structure. Unlike municipal
             corporations that have “governmental” and “proprietary”
             functions, authorities engage only in the latter. Authorities
             are “public corporations, being corporate agencies engaged
             in the administration of civil government.” Generally,
             authorities are established for the purpose of financing and
             managing various revenue producing projects of a public
             nature or other activities that are not considered to be part
             of core governmental activities; they are a governmental
             business venture, a form of quasi-privatization. (Citations
             and footnotes omitted)


                                        DRP - 5
Id.


             SEPTA was created to take over the business of providing transportation
that was formerly provided by private transportation companies such as the
Philadelphia Transportation Company, Philadelphia Suburban Transportation,
Schuylkill Valley Lines and/or the Penn Central and Conrail. See Application of
Philadelphia Suburban Transportation Co., 264 A.2d 180 (Pa. Super. 1970);
Southeastern Pennsylvania Transportation Authority v. Philadelphia Transportation
Co., 38 Pa. D. & C. 2d 653, 654-55 (1965). In short, SEPTA is in the transportation
business, not in the business of governing.


                                           B.
             While it is often said that “municipalities are creatures of the General
Assembly,” that formulation has not be accurate since our Constitution was amended
in 1968 to provide that “[t]he General Assembly shall provide by general law for
local government within the Commonwealth.”             Pa. Const. art.      IX, §1.   The
Pennsylvania Constitution also provides that “[m]unicipalities shall have the right and
power to frame and adopt home rule charters,” and that pursuant to such charters, a
home rule municipality “may exercise any power or perform any function not denied
by this Constitution, by its home rule charter or by the General Assembly at any
time.” Pa. Const. art. IX, §2. Precisely speaking, municipalities are not creatures of
the General Assembly, but creatures of the Constitution created to mandate that local
matters be addressed by local citizens and the officials that they elect.




                                        DRP - 6
                 Philadelphia is a home rule municipality authorized by the General
Assembly by the First Class City Home Rule Act.3 Section 17 of the First Class City
Home Rule Act provides that a city “taking advantage of this act and ... amending its
charter thereunder shall have and may exercise all powers and authority of local self-
government and shall have complete powers of legislation and administration in
relation to its municipal functions ... [,]” subject to certain enumerated limitations. 53
P.S. §13131.


                 Unlike SEPTA, which is truly a mere creature of statute whose existence
could be extinguished by the General Assembly and which is likely to occur if a
private concern would offer to take over its transportation responsibilities,
Philadelphia is a creature of the constitution charged with governance at the local
level.       It is for this reason that the General Assembly provided in a clear and
unequivocal statement its intent that a quasi-governmental agency like SEPTA is
predominant and is exempt from local regulation.



         3
         Philadelphia became a home rule municipality under the First Class City Home Rule Act.
Pennsylvania initially adopted home rule in a 1922 Amendment to Article 15, Section 1 of the
Constitution of 1874, which provided:

                 Cities or cities of any particular class may be given the right and
                 power to adopt their local charters and to exercise the powers and
                 authorities of local self-governments, subject however, to such
                 restrictions, limitations and regulations as may be imposed by the
                 legislature.

In the half century that the 1922 Amendment was in effect, only one city, Philadelphia, was granted
home rule status by the General Assembly. In 1968, the Constitution was amended to require the
General Assembly to grant more local municipalities home rule power.




                                             DRP - 7
                                            C.
             When the Philadelphia Home Rule Charter was adopted in 1951, it
created the Philadelphia Commission on Human Relations to hear and enforce the
Philadelphia Fair Practices Ordinance. It prohibits discrimination in the areas of:
employment; housing and public accommodations; ethnicity; color; sex; sexual
orientation, gender identity; religion; national origin; ancestry; age; disability; marital
status; familial status; genetic information; or domestic or sexual violence victim
status. Philadelphia Code §§9-1103, 9-1106.


             In 1955, the General Assembly enacted the PHRA, which forbids
discrimination in the areas of employment, housing and public accommodations on
the basis of “race, color, familial status, religious creed, ancestry, age, sex, national
origin, handicap or disability, use of guide or support animals because of the
blindness, deafness or physical handicap of the user….” Section 2 of the PHRA, 43
P.S. §952. Its reach is statewide.


             However, when enacting the PHRA, the General Assembly did not
preempt local regulation. To the contrary, the General Assembly took that position
that the more attention addressed to eliminate invidious discrimination the better, and
authorized local governments to enact their own human relations ordinances. Section
12.1(a) of the PHRA states, in pertinent part, that “[t]he legislative body of a political
subdivision may, by ordinance or resolution, authorize the establishment of
membership in and support of a Local Human Relations Commission.” Added by the
Act of January 24, 1966, P.L. (1965) 1523, as amended, 43 P.S. §962.1(a). Section
12.1(d) states that “legislative bodies of political subdivisions shall have the authority



                                         DRP - 8
to grant to local commissions powers and duties similar to those now exercised by the
Pennsylvania Human Relations Commission under the provisions of this act.” 43
P.S. §962.1(d).


            In Hartman v. City of Allentown, 880 A.2d 737 (Pa. Cmwlth. 2005), we
said that the grant of power extended to local commissions to forbid discrimination
against other groups because the grant of power by the General Assembly was to
allow local governments to address matters of local concern at the local level and to
devote additional resources that the Commonwealth may not have to address a more
immediate concern. Addressing invidious discrimination is a matter of heightened
concern for Philadelphia because a substantial number of its citizens are African-
Americans and gay, not to mention that a majority of SEPTA’s riders are African-
Americans and women.


            There is nothing in the legislative scheme that would suggest that
SEPTA’s interests should predominate over the Commonwealth’s; everything
suggests that Philadelphia’s governmental interest predominates. Philadelphia is a
home rule municipality that has police powers to address invidious discrimination,
and the General Assembly has given it the power and encouraged it to enact its own
human relations ordinances and to enforce them.        There is no conflict in the
legislative scheme between Philadelphia’s enforcement of its Fair Practices
Ordinance and SEPTA’s legislative scheme to carry on its transportation business.
Under the first prong of the Ogontz test, the relevant statutes express a clear
legislative directive that Philadelphia has priority to enforce its Fair Practices
Ordinance so that SEPTA cannot engage in invidious discrimination.



                                      DRP - 9
                                          III.
                                          A.
             The majority does not seem to disagree that under the legislative scheme
alone, Philadelphia has priority to enforce its Fair Practices Ordinance. Apparently, it
would hold that SEPTA is subject to Philadelphia’s zoning and traffic laws, but for
the reasons outside the first prong of Ogontz, it finds that SEPTA is not subject to the
Philadelphia Fair Practices Act.


             The first reason that the majority posits as to why Philadelphia’s
legislative scheme predominates in zoning and traffic but not in anti-discrimination
ordinances is that there would be a regulatory vacuum leaving SEPTA to do as it
pleased in these important areas if SEPTA is not subject to Philadelphia’s zoning and
traffic ordinances. It goes on to say that because SEPTA is subject to the jurisdiction
of the Pennsylvania Human Relations Commission, then even if not subject to
Philadelphia’s Fair Practices Ordinance, SEPTA is, nevertheless, prohibited by law
from discriminating against its employees and customers. It seems to be suggesting
that “a no harm-no foul” rationale applies.


             However, under the first prong of Ogontz, we just look to see if there is a
legislative priority of one agency over the other; we do not consider an extraneous
and irrelevant factor of whether there is some third agency that can “pick up the
slack” if we ignore the legislative priority found by examining the relevant statutes
regarding those agencies. In any event, there is harm in this case in holding that
SEPTA is not under the jurisdiction of a local human relations commission both
because of local access and local human relations ordinances which have different



                                       DRP - 10
protected classes than the PHRA. As the majority itself quoted from an amicus brief,
“[f]or those SEPTA employees or riders who identify as lesbian, gay, bisexual or
transgender, their ability to pursue claims before the local Human Relations
Commission is literally the difference between having their ‘day in court’ and having
no legal recourse at all.” Amici Curiae Brief at 4. The simple answer is that the
General Assembly specifically gave Philadelphia the power to enforce its own
discrimination ordinances and gave it concurrent jurisdiction to root out invidious
discrimination.


                                         B.
            The second reason that the majority gives for failing to give Philadelphia
priority over SEPTA is that the Fair Practices Ordinance would authorize third parties
to sue SEPTA for monetary damages, including compensatory damages, punitive
damages, attorneys’ fees and payment of the Commission’s own expenses.
Philadelphia Code §§9-1105, 9-1107. It does so because employing its favorite trope
that SEPTA, as an agency and instrumentality of the Commonwealth, is immune
from any such actions under 1 Pa. C.S. §2310, which provides:

            Pursuant to section 11 of Article 1 of the Constitution of
            Pennsylvania, it is hereby declared to be the intent of the
            General Assembly that the Commonwealth, and its officials
            and employees acting within the scope of their duties, shall
            continue to enjoy sovereign immunity and official
            immunity and remain immune from suit except as the
            General Assembly shall specifically waive the immunity.
            When the General Assembly specifically waives sovereign
            immunity, a claim against the Commonwealth and its
            officials and employees shall be brought only in such
            manner and in such courts and in such cases as directed by
            the provisions of Title 42 (relating to judiciary and judicial


                                      DRP - 11
            procedure) or 62 (relating to procurement) unless otherwise
            specifically authorized by statute.


            Equating SEPTA with the Commonwealth itself, the majority then
reasons that because suits against the Commonwealth are permissible only where the
legislature has expressly waived immunity, SEPTA is immune from actions brought
under Philadelphia’s Fair Practices Law because the General Assembly has not
waived immunity under Section 2310. I disagree for a number of reasons.


            First, just because it has been determined that SEPTA is an “agency and
instrumentality of the Commonwealth” does not mean that it is the Commonwealth.
The courts determine an authority’s status based on the statute under consideration,
and we have looked to the legislative intent to determine whether the General
Assembly intended that type of authority to be considered “the Commonwealth.” In
Fisher v. Southeastern Pennsylvania Transportation Authority, 431 A.2d 394, 397
(Pa. Cmwlth. 1981), we stated:

            [W]e do not go so far as to suggest that whenever a
            legislative enactment refers to the “Commonwealth,” it
            means to embrace all authorities created by virtue of
            enabling acts. … The legislature many years ago
            recognized the need for efficient and inexpensive mass
            transportation systems designed to alleviate serious traffic
            difficulties in the overcrowded metropolitan areas of the
            Commonwealth. Thus, SEPTA and other transportation
            authorities were created pursuant to legislative guidelines
            designed to provide independent operating powers with
            minimal local government interference. The grant of broad
            powers by the Legislature was meant to insure efficient
            operation of the integrated transportation networks, not to
            expand the already large and complex state bureaucratic
            system. We do not believe that the Legislature intended


                                     DRP - 12
             SEPTA to be a Commonwealth agency in the traditional
             sense or for SEPTA employees to be considered
             Commonwealth employees for purposes of other legislative
             enactments.


             In Union Switch & Signal, Inc., a claim was brought by a contractor
against SEPTA before the Board of Claims on the basis that, as an agency of the
Commonwealth, jurisdiction had to be before the Board of Claims because the Board
was designated as having exclusive jurisdiction over contract claims when immunity
was waived for such claims. Over SEPTA’s objection that the Board of Claims did
not have jurisdiction, the Board of Claims refused to dismiss the appeal. SEPTA then
appealed to this Court, and we held that the Board of Claims lacked jurisdiction to
entertain   contract   claims   against   SEPTA   because   SEPTA     is   not   the
“Commonwealth.” Union Switch & Signal, Inc., 637 A.2d at 668-69. See also Quinn
v. Southeastern Pennsylvania Transportation Authority, 659 A.2d 613 (Pa. Cmwlth.
1995) (holding that SEPTA was a local agency and not an agency of the
Commonwealth for jurisdictional purposes and, thus, the court of common pleas had
jurisdiction over the appeal); Fraternal Order of Transit Police By and Through
Lamb v. Southeastern Pennsylvania Transportation Authority, 668 A.2d 270 (Pa.
Cmwlth. 1995) (same); Bolden v. Southeastern Pennsylvania Transportation
Authority, 953 F.2d 807 (3rd Cir. 1991), cert. denied, 504 U.S. 943 (1992) (holding
that SEPTA was not the “Commonwealth” and not entitled to immunity under the
Eleventh Amendment to the United States Constitution).


             Second, even if it was the Commonwealth, the General Assembly has
waived immunity for actions against SEPTA brought under local human relations
ordinances. To determine whether the General Assembly intended SEPTA to be


                                      DRP - 13
immune from actions brought under local human relations ordinances, the majority
acknowledges that the General Assembly has waived SEPTA’s immunity from suits
arising from discrimination by making it subject to the jurisdiction of the
Pennsylvania Human Relations Commission.


               As mentioned before, Section 12.1(d) of the PHRA states that
“legislative bodies of political subdivisions shall have the authority to grant to local
commissions powers and duties similar to those now exercised by the Pennsylvania
Human Relations Commission under the provisions of this act.” 43 P.S. §962.1(d).
Under this provision, similar powers and duties that are exercised by the
Pennsylvania Human Relations Commission can be exercised by the Philadelphia
Commission on Human Relations. Part of the power given under this provision to
local human relations commissions is jurisdiction over Commonwealth agencies to
root out invidious discrimination.4

       4
           In footnote 20, the majority responds to my dissent by saying that while the General
Assembly gave “powers and duties similar to those now exercised by the Pennsylvania Human
Relations Commission under the provisions of this act” in Section 12.1(d) of the PHRA, 43 P.S.
§962.1(d), that does not mean that it gave local commissions jurisdiction over SEPTA. The point of
the dissent, though, was because the General Assembly gave to the Pennsylvania Human Relations
Commission power over SEPTA, and it gave local commissions’ similar power, it must have
wanted local commissions to exercise jurisdiction over claims of discrimination by local authorities.
It is the same as with local zoning: there is no dispute that SEPTA is subject to local zoning and,
necessarily, local zoning boards have jurisdiction.

        Acknowledging that because local governments can expand the protected classes set forth in
Section 12(b) of the PHRA because the General Assembly only said that local governments could
enact similar and not identical human relations ordinances, the majority then goes on to state that
because it is not limited by PHRA, that somehow takes away Philadelphia’s power over SEPTA.
Implicit in that argument is that if the General Assembly had provided that restricted local human
relations ordinances to having identical provisions, Philadelphia would have jurisdiction over
SEPTA.
(Footnote continued on next page…)

                                            DRP - 14
               For example, under the Philadelphia Fair Practices Ordinance, an
“Employer” is defined as “[a]ny person who does business in the City of Philadelphia
through employees or who employs one or more employees exclusive of parents,
spouse, Life Partner or children, including any public agency or authority; any
agency, authority or other instrumentality of the Commonwealth; and the City, its
departments, boards and commissions.” Philadelphia Code §9-1102(h). This is
similar to the power given to the Pennsylvania Human Relations Commission, and if
SEPTA would discriminate against a minority in hiring, it would be subject to the
Philadelphia Commission on Human Relations’s jurisdiction.


               Finally, even if it was true that SEPTA is immune under 1 Pa. C.S.
§2310 from monetary damages, that does not mean that SEPTA is not subject to the
jurisdiction of the Philadelphia Commission on Human Relations. If it were so, then
it is subject to the local human relations ordinance; a complainant could not get
monetary damages but that does not mean that other relief is not available. 1 Pa. C.S.
§2310 does not make the state immune from prohibitory injunctions to restrain a state

(continued…)

        A more expansive grant of power by the General Assembly does not lead to the conclusion
that it did not want the same people and organizations that are subject to PHRA, then not to be
subject to local human relations ordinances. Quite the contrary, the General Assembly, by not
limiting local human relations ordinances to identical subjects of discrimination, evidenced that it
gave local governments the additional power to add provisions necessary to protect suspect classes
and, like in PHRA, wanted SEPTA to be made subject to local ordinances just like every other
person and business.

        Philadelphia has expanded the classes from those set forth in that provision to include sexual
orientation, gender identity, marital status, genetic information or domestic or sexual violence
victim status. Philadelphia Code §§9-1103, 9-1106. Under the majority view, SEPTA is free to
discriminate against those classes of people without any recourse anywhere.



                                             DRP - 15
agency from engaging in unlawful conduct. See Stackhouse v. Pennsylvania State
Police, 892 A.2d 54 (Pa. Cmwlth.), appeal denied, 903 A.2d 549 (Pa. 2006). For
example, in City of Pittsburgh v. Commonwealth, 360 A.2d 607 (Pa. 1976), our
Supreme Court held that the Department of Corrections had to comply with local
zoning; if the Department of Corrections did not comply, then the municipality could
seek an injunction to force it to comply. Similarly, if SEPTA has a practice of not
hiring gay people, then under Section 1105(a) of the Fair Practices Ordinance,
Philadelphia Code §9-1105(a), the Philadelphia Commission on Human Relations
could bring an equity action to cease and desist such an employment practice.


             From the foregoing, it is clear from the legislative scheme that the
Philadelphia Fair Practices Ordinance, just like its zoning and traffic laws, apply to
SEPTA.     Not only does the legislative scheme show that, in fact, the General
Assembly authorized the local government to engage in adoption and enforcement,
along with any concurrent exercise by the Pennsylvania Human Relations
Commission by authorizing local governments to enact and enforce local ordinances
similar to those that the Pennsylvania Human Relations Commission enforces.
Because it is apparent from the language of the applicable statutes that the legislature
intended and specifically provided to subject SEPTA to the Fair Practices Ordinance,
I need not proceed to the second prong of Ogontz but, like the majority, I will do so
for the sake of completeness.


                                          IV.
             Under the second prong of Ogontz, if the legislative priority cannot be
discerned, courts must try to glean legislative intent in a way that “would give effect



                                       DRP - 16
to the legislative mandates of both governmental entities.” Id at 455. The majority
adopts SEPTA’s argument that it would not be able to carry out its legislative
mandate if it was subject to the Philadelphia Fair Practices Ordinance because it
would add another layer of regulation provided in federal and state civil rights laws,
and its legal obligation would change in the course of a single bus trip because its
service area extends beyond Philadelphia.           The majority also buys SEPTA’s
argument that it will be required to expend scarce resources on a daunting legal
investigation of what it can do and where it can do it, and not on its central mission of
providing public transportation services. The majority concludes that subjecting
SEPTA to local anti-discrimination laws could prove overwhelming and damage the
public “fisc.”


             I agree with Judge Simpson that there is nothing on the record to support
these conclusions and would join in his dissent of the need to remand to the trial court
for factual findings. However, the majority’s reasons are so specious that they can be
rejected out of hand thereby obviating the need for a remand. Let’s look at those
reasons proffered by the majority.


             First, as to the majority’s assumption that it would be a daunting task to
keep track of the applicable local human relations ordinance and impede its ability to
carry out its public transportation responsibilities. Trucking companies, airlines and
private bus companies are subject to these types of regulations in every city that they
serve but they still manage to conduct their business, mostly at a profit. If they can
do it, SEPTA can do it if it wants to.




                                         DRP - 17
              Second, the idea that SEPTA cannot keep track of the local human
relations ordinance of each municipality in which it operates is ludicrous. This
premise is built on the notion that “SEPTA” just travels through these communities in
hermetically-sealed tubes letting passengers on and off, and has no contact at all with
the local officials in communities in which they operate. However, it has facilities
such as tracks, stations, bus shelters, switches, maintenance stations, vending
machines and electric lines in each of those communities, yet it somehow manages to
keep track of each of those facilities. This is much more difficult than getting an
ordinance from the 100 or so municipalities in which SEPTA operates, even if each
of them has enacted one.


              Not only that, SEPTA manages to know and comply with all the traffic
and zoning codes of the various municipalities through which it travels, but the task
somehow becomes “daunting” when it involves obtaining the relevant local human
relations ordinances. Certainly that task is even less daunting than keeping track of
traffic, but especially zoning codes, because the PHRA requires all human relations
ordinances to be similar while zoning ordinance are community specific. Moreover,
SEPTA’s lawyers do not even have to leave the office and can just go to the websites
of all the communities that post their ordinances, including human relations
provisions, or it could just ask the Pennsylvania Human Relations Commission. If
SEPTA’s inside and outside lawyers5 find the task too difficult, perhaps they should


       5
         That is apparently what the Pennsylvania Association of Realtors did.                See
http://www.parealtor.org/local-nondiscrimination-ordinances. The following site lists the local
human relations ordinances that are currently in effect. https://mazzonicenter.org/resources/list-
pennsylvania-ordinances-prohibiting-discrimination-based-sexual-orientation-gender-id.




                                           DRP - 18
get their station masters, yardmen, maintenance chiefs and landsmen who are in these
communities every day to take over that function. It will probably be the easiest
thing they have to track.


             Third, the idea that SEPTA’s compliance with all of these ordinances
would be so overwhelming that, as a consequence, its ability to provide transportation
services would be impeded because it would require constant monitoring to remain
current and all employees would have to be trained accordingly to such an extent
belies common sense. Comcast is located in Philadelphia, but operates in certainly
more than 100, and probably more than 10,000 communities, and yet, somehow,
manages to keep track of these types of ordinance and understands its obligations in
each community in which it serves. Moreover, aside from all of these human relation
ordinances being similar, instructing all of your employees to act in a fair and non-
discriminatory manner should be instilled from the moment of employment. This
should not be considered to be a burden, but an opportunity for an “instrumentality of
the Commonwealth” to advance the public policy of the Commonwealth. If Comcast
can do it, certainly SEPTA can do it if it wants to.


             The second dire consequence that the majority identifies is that it would
divert resources away from SEPTA’s core mission of providing public transportation
if it is made subject to local human relations ordinances and must handle and pay
damages for those claims. Again, this argument is specious. SEPTA is subject to
damages under the PHRA, so even if it was not subject to Philadelphia’s Fair
Practices Ordinance, the public fisc would not be substantially harmed. In any event,




                                       DRP - 19
the General Assembly wanted the public fisc to be harmed if governmental agencies
engaged in invidious discrimination.


                                          V.
             Finally, nothing in the Metropolitan Transportation Authorities Act
evidences any intent that SEPTA has priority over Philadelphia’s interest in making
SEPTA the subject of Philadelphia’s Fair Practices Ordinance or the jurisdiction of
the Philadelphia Commission on Human Relations. To the contrary, the General
Assembly made it clear that local governments are authorized to enact local human
relations ordinances to carry out the announced policy of the Commonwealth to root
out invidious discrimination and to supplement its efforts which would have priority
over the legislative grant to provide public transportation, a function that it assumed
from private companies.


             If we reach the second Ogontz prong that instructs us to glean legislative
intent in a way that “would give effect to the legislative mandates of both
governmental entities,” id. at 455, the majority’s finding that just knowing what those
ordinances provide is so daunting and overwhelming and is not supportable. The
consequence of making SEPTA subject to Philadelphia’s Fair Practices Ordinance
would mean that more invidious discrimination would be abated, while the trains,
buses and trolleys would still run on time, or almost on time, not only a carrying out
of the mandate of both agencies but also fostering the public good.




                                       DRP - 20
               Accordingly, I respectfully dissent and would affirm the decision of the
trial court.



                                        ________________________________
                                        DAN PELLEGRINI, President Judge




                                        DRP - 21
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Southeastern Pennsylvania                  :
Transportation Authority,                  :
                  Appellant                :
                                           :
                  v.                       :     No. 2445 C.D. 2009
                                           :     Argued: February 11, 2015
City of Philadelphia and                   :
Philadelphia Commission on                 :
Human Relations                            :



BEFORE: HONORABLE DAN PELLEGRINI, President Judge
        HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
        HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE ROBERT SIMPSON, Judge
        HONORABLE MARY HANNAH LEAVITT, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge


DISSENTING OPINION
BY JUDGE SIMPSON                               FILED: AUGUST 7, 2015


            I believe this case should be remanded to the Court of Common Pleas
of Philadelphia County (trial court) for the receipt of evidence and initial fact-
finding regarding the consequences of subjecting the Southeastern Pennsylvania
Transportation Authority (SEPTA) to the City of Philadelphia’s (City) anti-
discrimination ordinance. Because I would vacate and remand, I respectfully
dissent.


            In this case, the trial court sustained preliminary objections. The
pleadings are not closed, and no evidence has been adduced to resolve factual
issues raised by the preliminary objections.        After subsequent appeals, our
Supreme Court clarified the analysis which is to be undertaken in resolving the
preliminary objections. That analysis includes a consideration of the consequences
of subjecting SEPTA to the City’s anti-discrimination ordinance. See Se. Pa.
Transp. Auth. v. City of Philadelphia, 101 A.3d 79 (Pa. 2014).


             Questions regarding the consequences cannot be resolved by an
examination of the current complaint. See Reproduced Record at 96a. Therefore,
I would afford the parties an opportunity to make a record on this issue, and I
would allow the respected trial court to make initial factual determinations.




                                       ROBERT SIMPSON, Judge




                                      RES - 2
