Phantom Fireworks Showrooms, LLC v. Tom Wolf, Governor of the Comwlth of PA , 198 A.3d 1205 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Phantom Fireworks Showrooms, LLC, :
Sky King Fireworks of Easton, Inc., :
Sky King Fireworks of Erie, Inc., :
Sky King Fireworks of Morrisville, :
Inc., Sky King Fireworks of Tioga, :
LLC, CRJ Enterprises, LLC, :
Petitioners :
:
v. : No. 21 M.D. 2018
: Argued: September 13, 2018
Tom Wolf, Governor of the :
Commonwealth of Pennsylvania, :
Russell C. Redding, Secretary of the :
Pennsylvania Department of :
Agriculture, C. Daniel :
Hassel, Secretary of the Pennsylvania :
Department of Revenue, Joseph B. :
Scarnati, III, Pro Tempore of the :
Senate of Pennsylvania, Mike Turzai, :
Speaker of the Pennsylvania House of :
Representatives, :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION
BY JUDGE SIMPSON FILED: December 4, 2018
Before this Court, in our original jurisdiction, is a petition for review
challenging the constitutionality of the Act of October 30, 2017, P.L. 672, No. 43
(Act 43).
Petitioners are Phantom Fireworks Showrooms, LLC; Sky King
Fireworks of Easton, Inc.; Sky King Fireworks of Erie, Inc.; Sky King Fireworks of
Morrisville, Inc.; Sky King Fireworks of Tioga, LLC; and CRJ Enterprises, LLC
(collectively, Phantom Fireworks).
Respondents are Tom Wolf, Governor of Pennsylvania (Governor
Wolf), Russell C. Redding, Secretary of the Pennsylvania Department of Agriculture
(Secretary Redding), and C. Daniel Hassell, Secretary of the Pennsylvania
Department of Revenue (Secretary Hassell)1 (collectively, Executive Respondents);
Joseph B. Scarnati, III, President Pro Tempore of the Senate of Pennsylvania
(Senator Scarnati); and Mike Turzai, Speaker of the Pennsylvania House of
Representatives (Speaker Turzai).
Executive Respondents jointly and Senator Scarnati and Speaker Turzai
separately filed preliminary objections to the petition for review. Phantom
Fireworks opposed the preliminary objections and filed an application for summary
relief concerning its constitutional challenges, which all Respondents oppose. Both
the preliminary objections and the application for summary relief have been briefed
and argued. They are now before us for disposition.
I. Background
Act 43 originated as House Bill (HB) 542, Printer’s Number (PN) 568
of 2017. The short bill read in its entirety:
1
The case caption incorrectly lists Secretary Hassell as C. Daniel Hassel.
2
AN ACT
Amending the act of March 4, 1971 (P.L. 6, No. 2),
entitled ‘An act relating to tax reform and State taxation
by codifying and enumerating certain subjects of taxation
and imposing taxes thereon; providing procedures for the
payment, collection, administration and enforcement
thereof; providing for tax credits in certain cases;
conferring powers and imposing duties upon the
Department of Revenue, certain employers, fiduciaries,
individuals, persons, corporations and other entities;
prescribing crimes, offenses and penalties,’ in sales and
use tax, providing for remote sales tax notice.
The General Assembly of the Commonwealth of
Pennsylvania hereby enacts as follows:
Section 1. The act of March 4, 1971 (P.L. 6, No. 2),
known as the Tax Reform Code of 1971, is amended by
adding a section to read:
Section 279. Remote Sales Tax Notice. -- (a) A
seller in this Commonwealth or remote seller shall
conspicuously provide the following notice to a purchaser
in this Commonwealth upon each separate sale at retail of
tangible personal property or services via an Internet
website operated by the seller or remote seller:
‘Unless you paid Pennsylvania sales tax on
this purchase, you may owe a Pennsylvania
use tax on this purchase based on the total
sales price of the purchase in accordance with
the act of March 4, 1971 (P.L. 6, No. 2),
known as the Tax Reform Code of 1971.
Visit www.revenue.state.pa.us for more
information. If you owe a Pennsylvania use
tax on this purchase, you must report and
remit the tax on your Pennsylvania income
tax form.’
(b) The department shall impose a fine of not less
than five dollars ($5) on a seller or remote seller for each
3
sale in which the seller or remote seller is in violation of
this section.
(c) This section shall apply to sales made on or after
the effective date of this section.
Section 2. This act shall take effect in 60 days.
HB 542, PN 568.
HB 542 was amended several times. In its final form, enacted as Act
43, it contains voluminous additions concerning revenue issues beyond sales tax
issues.2 Relevant here, Article XXIV of Act 43 adds a new chapter to the Tax
Reform Code,3 relocating and modifying the provisions of the Fireworks Law.4 The
modifications include expansion of permissible fireworks sales to consumers,
imposition of a 12% tax (including the 6% sales tax) on those sales, and permitting
peak season sales of fireworks in tents and other temporary structures. Act 43
repeals the entire former Fireworks Law.
Among its provisions concerning fireworks sales in temporary
structures, Act 43 provides that sales in temporary structures are governed by the
safety standards in “NFPA 1124,” defined as Standard 1124 in the 2006 edition of
the National Fire Protection Association (NFPA) CODE FOR THE MANUFACTURE,
TRANSPORTATION, AND STORAGE OF FIREWORKS AND PYROTECHNIC ARTICLES
2
For example, Act 43 as enacted includes a section concerning tobacco settlement funds
received by the Commonwealth.
3
Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §§9401-9416.
4
The former law was Act of May 15, 1939, P.L. 134, as amended, 35 P.S. §§1271-1278.
4
(Code) “or any subsequent edition” of that Code. Pet. for Review, Ex. A at 33. This
definition is significant to our reasoning below.
Phantom Fireworks asserts, and Respondents do not dispute, that NFPA
1124 has been amended in subsequent editions of the NFPA Code. According to
Phantom Fireworks,5 in the 2013 edition, NFPA Code 1124 was similar to the 2006
edition. However, the NFPA withdrew NFPA Code 1124 in 2014. The current
edition of the NFPA Code, published in 2017, contains no safety standards for retail
sales of consumer fireworks.
In the course of the various amendments to HB 542, its title also
expanded substantially. In its final form, the title included the phrase “providing for
fireworks,” referring to Article XXIV of Act 43, titled simply “Fireworks.” Pet. for
Review, Ex. A at 2, 32.
II. Issues
Phantom Fireworks contends Act 43 violates the following several
provisions of the Pennsylvania Constitution. Adding the provisions of the Fireworks
Law, including its safety provisions, to the text of Act 43 violates the original
purpose rule of Article III, Section 1. Similarly, by including provisions governing
sundry subjects in addition to the original tax provision, Act 43 violates the single
subject requirement of Article III, Section 3. By burying a short descriptor,
“providing for fireworks,” in its lengthy title, Act 43 also violates Article III, Section
3’s requirement that a bill’s title contain a clear expression of its subject matter.
5
We recite the amendments as represented by Phantom Fireworks for background purposes
only.
5
Further, by failing to set forth the entire text of the repealed Fireworks Law, Act 43
violates the repealed text publication requirement in Article III, Section 6. In
addition, by providing that sales in temporary structures will be governed by NFPA
standards in the 2006 or any subsequent edition, Act 43 impermissibly delegates
legislative authority in violation of Article II, Section 1.
There is considerable overlap in the preliminary objections filed by the
Executive Respondents, Senator Scarnati, and Speaker Turzai. The various
preliminary objections allege failure to join the Commonwealth and the Attorney
General as indispensable parties, lack of standing, improper inclusion of the
Executive Respondents as parties, non-ripeness of Phantom Fireworks’ claims,
improper pleading of a request for relief as a separate count of the petition, and
sovereign immunity of Executive Respondents.
Phantom Fireworks argues its claims present questions of law
appropriate for resolution by summary relief. Respondents disagree that Phantom
Fireworks is entitled to any relief, but they do not contend that summary disposition
of the issues is inappropriate. In fact, Senator Scarnati asserts a counter-request for
summary relief, seeking dismissal of all counts of the petition for review.
There is substantial overlap in the parties’ briefing of issues relating to
the preliminary objections and the request for summary relief. Accordingly, we
dispose of all issues, including the preliminary objections, the request for summary
relief, and the counter-application for summary relief, in a single decision.
6
III. Preliminary Objections6
A. Proper Parties
1. Nonjoinder of Indispensable Parties
A party is indispensable when its rights are so connected with the
claims of the litigants that no relief can be granted without infringing on those rights.
Pa. State Educ. Ass’n v. Pa. Dep’t of Educ., 516 A.2d 1308 (Pa. Cmwlth. 1986)
(citing Piper Aircraft Corp. v. Ins. Co. of N. Am., 417 A.2d 283 (Pa. Cmwlth. 1980)).
Section 7540 of the Declaratory Judgments Act, 42 Pa. C.S. §7540(a), defines an
indispensable party as any person who has or claims “any interest which would be
affected by the declaration.” Id. A Commonwealth agency whose interest will be
affected by a declaration sought against another is an indispensable party. Pa. State
Educ. Ass’n (citing Piper; Pleasant Twp. v. Erie Ins. Exch., 348 A.2d 477 (Pa.
Cmwlth. 1975)).
Here, Senator Scarnati argues that both the Commonwealth and the
Attorney General are indispensable parties whose nonjoinder deprives this Court of
original jurisdiction. We disagree.
Both Pa. R.C.P. No. 235 and Pa. R.A.P. 521 state clearly that while a
party challenging the constitutionality of a statute must notify the Attorney General
of the challenge, the Attorney General may, but need not, intervene in order to be
heard on the issue of constitutionality. See MCT Transp. v. Phila. Parking Auth., 60
6
In ruling on preliminary objections, this Court accepts as true all well-pleaded allegations
of material fact and all inferences reasonably deducible from those facts. Key v. Dep’t of Corr.,
185 A.3d 421 (Pa. Cmwlth. 2018). However, we need not accept unwarranted inferences,
conclusions of law, argumentative allegations, or expressions of opinion. Id. For this Court to
sustain preliminary objections, it must appear with certainty that the law will permit no recovery.
Id. We resolve any doubt in favor of the non-moving party. Id.
7
A.3d 899 (Pa. Cmwlth.) (en banc), aff’d, 81 A.3d 813 (Pa. 2013), aff’d sub nom.
MCT Transp. Inc. v. Phila. Parking Auth., 83 A.3d 85 (Pa. 2013) (Attorney General
was not indispensable party in constitutional challenge where he received notice of
petition for review and chose not to represent the Commonwealth). Moreover, if the
Attorney General files a brief on the constitutional issue, the Commonwealth will
thereafter be deemed an intervening party. If the Attorney General were an
indispensable party, there would be no need either for intervention or for rules
allowing the Attorney General to be heard without deciding to intervene. Similarly,
if the Commonwealth were an indispensable party, there would be no need for a
provision deeming the Commonwealth a party upon the Attorney General’s decision
to intervene.
As support for his argument, Senator Scarnati cites City of Philadelphia
v. Commonwealth, 838 A.2d 566 (Pa. 2003) (Phila. I). Like this case, Phila. I
concerned Article III constitutional challenges to the validity of a statute. However,
“‘the mere fact that a challenged statute may be declared unconstitutional does not,
of itself, make the Commonwealth an indispensable party.’” Ballroom, LLC v.
Commonwealth, 984 A.2d 582, 589 (Pa. Cmwlth. 2009) (quoting Pa. Sch. Bds.
Ass’n v. Commonwealth Ass’n of Sch. Adm’rs., Teamsters Local 502, 696 A.2d
856, 867 (Pa. Cmwlth. 1997)).
Contrary to Senator Scarnati’s representation, Phila. I does not stand
for the proposition that the Attorney General is an indispensable party in an action
challenging the constitutionality of a statute. To the contrary, although the Governor
and the Secretary of the Commonwealth were parties in Phila. I, the Attorney
8
General was not a named party, and our Supreme Court expressly held that no other
parties needed to be joined beyond those already participating in the action. Phila I.
Moreover, although the Court observed that the Commonwealth was a named party,
it did not hold that the Commonwealth was an indispensable party.
We conclude that neither the Commonwealth nor the Attorney General
is an indispensable party. We overrule Senator Scarnati’s preliminary objection in
that regard.
2. Standing
Senator Scarnati asserts Phantom Fireworks lacks capacity to sue
because it lacks standing to bring this action. Standing, a prerequisite to bringing a
civil action, is a question of law. Fumo v. City of Phila., 972 A.2d 487 (Pa. 2009).
Phantom Fireworks argues it has standing under both the traditional legal analysis
and the limited exception to the general rule denying taxpayer standing to challenge
the constitutionality of a statute. We agree.7
a. Traditional Standing Analysis
The concept of standing mandates that the party must have a
substantial, direct, and immediate interest in the outcome of the litigation. Fumo. A
substantial interest in the outcome of litigation is one that surpasses the common
interest of all citizens in procuring obedience to the law. Pa. Fed’n of Dog Clubs v.
Commonwealth, 105 A.3d 51 (Pa. Cmwlth. 2014) (citing Johnson v. Am. Standard,
7
Speaker Turzai argues Phantom Fireworks lacks standing to challenge any provisions of
Act 43 not related to fireworks. This apparently is an oblique reference to a provision concerning
tobacco settlement funds. In light of our conclusion below relating to severability, we need not
decide that issue.
9
8 A.3d 318 (Pa. 2010); Fumo). A direct interest requires a causal connection
between the asserted violation and the harm complained of. Id. An interest is
immediate when the causal connection is not remote or speculative. Id.
In Allegheny County v. Monzo, 500 A.2d 1096 (Pa. 1985), our
Supreme Court affirmed standing based on the petitioner’s economic disadvantage,
where a county motel room tax burdened motels competing with out-of-county
establishments. Motels throughout the county incurred increased tax expenses, but
those near the county line could not easily recoup those expenses by raising room
rates because of price competition from nearby motels across the county line not
burdened by the county tax. Because the tax’s operation significantly affected and
harmed the in-county motels, they had standing to challenge the tax. Id.; see also
William Penn Parking Garage, Inc. v. Pittsburgh, 346 A.2d 269 (Pa. 1975) (tax on
public parking, although ostensibly imposed on parking patrons, was causally linked
to harm to parking garage operators’ businesses, giving them standing to challenge
the tax).
Similarly, here, Phantom Fireworks alleges it must compete for sales
with vendors in temporary structures having much lower overhead than brick and
mortar facilities. Having, in addition, lower licensing fees and little or no expense
for safety features under Act 43, those vendors have a cost advantage, and thus a
competitive pricing advantage. Phantom Fireworks’ pricing disadvantage
constitutes significant, direct harm and therefore confers standing to challenge Act
43. See Monzo; William Penn Parking.
10
b. Taxpayer Standing
In addition, Phantom Fireworks argues it has standing as a taxpayer,
separate from its standing under the traditional analysis. In general, status as a
taxpayer does not alone confer standing to challenge the constitutionality of a statute.
Stilp v. Gen. Assembly, 940 A.2d 1227 (Pa. 2007) (Stilp III) (citing Application of
Biester, 409 A.2d 848 (Pa. 1979)). However, an exception to the general rule
provides standing to a taxpayer who demonstrates a stronger interest in the litigation
than that of other taxpayers. Id. This exception arises from a public policy of
enabling the citizenry to assert statutory challenges that might otherwise be
prevented by standing issues. Id.; see also Pittsburgh Palisades Park, LLC v.
Commonwealth, 888 A.2d 655 (Pa. 2005).
Taxpayer standing requires the party asserting it to satisfy five factors:
(1) the governmental action would otherwise go
unchallenged;
(2) those directly and immediately affected by the
complained of matter are beneficially affected and not
inclined to challenge the action;
(3) judicial relief is appropriate;
(4) redress through other channels is unavailable; and
(5) no other persons are better situated to assert the claim.
Pa. Dog Clubs, 105 A.3d at 58 (quoting Pittsburgh Palisades, 888 A.2d at 662;
Consumer Party of Pa. v. Commonwealth, 507 A.2d 323, 329 (Pa. 1986), overruled
on other grounds, Pennsylvanians Against Gambling Expansion Fund, Inc. v.
11
Commonwealth, 877 A.2d 383 (Pa. 2005) (PAGE)) (internal quotation marks and
footnote omitted).
Here, Phantom Fireworks meets all five requirements for taxpayer
standing. The absence of other civil actions concerning Act 43’s constitutionality
suggests it will go unchallenged if Phantom Fireworks is denied standing. See Pa.
Dog Clubs. The other entities directly affected by Act 43 are the vendors selling
fireworks in temporary structures, which benefit from the expansion of legally
permissible product lines, without the concomitant expense of safety features
Phantom Fireworks must provide in its brick and mortar stores. Thus, the vendors
using temporary structures will not be inclined to challenge the amendment to Act
43. Id. Judicial relief is proper because determining the constitutionality of a statute
is a judicial duty. Id. No reasonably available alternate channel to challenge Act 43
is apparent. Id. Because Phantom Fireworks purportedly holds the largest market
share of fireworks sales in Pennsylvania (at least until the enactment of Act 43), it
appears no other entity adversely affected by Act 43 is better situated to challenge
the constitutionality of its fireworks provisions. None of the parties pointed to any
such entity.8
Accordingly, Phantom Fireworks has standing alternately under the
taxpayer standing exception.
8
Unlike in Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655 (Pa. 2005),
on which Executive Respondents rely, nothing in the pleadings here suggests a special interest
among legislators in challenging Act 43. Executive Respondents do not contend Act 43 was
“contested hotly” before its enactment, nor that any provision of Act 43 “strips the General
Assembly and [its] successors of the ability to amend [Act 43’s] provisions.” Id. at 662.
12
3. Executive Respondents as Parties
Executive Respondents argue they are not proper parties to this action.
We agree as to Governor Wolf, but disagree as to the other Executive Respondents.
Phantom Fireworks and Executive Respondents agree that in
accordance with Allegheny Sportsmen’s League v. Ridge, 790 A.2d 350 (Pa.
Cmwlth. 2002), the Governor is not a necessary party to a declaratory judgment
action challenging the constitutionality of a statute where the head of the executive
agency responsible for implementing and defending that statute is already a party.
See also Leonard v. Thornburgh, 467 A.2d 104 (Pa. Cmwlth. 1983) (en banc)
(Governor not required to participate in action challenging constitutionality of tax
statute, where Secretary of the Department of Revenue was a party and represented
Governor’s interests; avoiding unnecessary duplication of parties was more efficient
and expeditious). Further, Governor Wolf is not an indispensable party merely
because he signed the challenged statute into law. Howard v. Commonwealth, 957
A.2d 332 (Pa. Cmwlth. 2008) (citing Pa. Sch. Bds. Ass’n).
Here, as Executive Respondents correctly observe, the Department of
Revenue is responsible for receiving the tax funds generated under Act 43. The
Department of Agriculture is responsible for the licensing and inspection duties set
forth in Article XXIV (pertaining to fireworks), the portion of Act 43 at issue. Both
Secretary Redding and Secretary Hassell are named parties. Therefore, Governor
Wolf is not a necessary party.
However, we discern no merit in Executive Respondents’ argument that
Secretary Hassell and Secretary Redding should be dismissed from this action. As
13
discussed above, Allegheny Sportsmen’s League and Leonard support retaining as
parties the heads of administrative agencies responsible for implementing a statute
and defending it against constitutional challenges.
Stilp v. Commonwealth, 910 A.2d 775 (Pa. Cmwlth. 2006), aff’d, 974
A.2d 491 (Pa. 2009) (Stilp II), cited by Executive Respondents, does not support
their argument. This Court in Stilp II concluded the determination of proper parties
in that case was governed by Phila. I. In turn, Phila. I included participation as
parties by both legislative and executive branch respondents. Moreover, the Stilp II
action included both the Governor and the state Treasurer among the respondents,
in addition to state legislative leaders. The discussion of necessary parties focused
on whether additional legislators should be required, not whether the executive
parties were indispensable.
Accordingly, we determine that Governor Wolf is not a necessary party,
because the heads of the two administrative agencies charged with implementing
and defending the provisions of Article XXIV of Act 43 are already parties. We
dismiss Governor Wolf from this action. However, Secretary Hassell and Secretary
Redding are necessary parties, and we will not dismiss them from the action.
B. Ripeness
Speaker Turzai further contends Phantom Fireworks’ claim seeking
declaratory and injunctive relief is not ripe. We discern no merit in this argument.
“[T]he doctrine of ripeness concerns the timing of a court’s intervention
in litigation.” Phila. Entm’t & Dev. Partners, L.P. v. City of Phila., 937 A.2d 385,
14
392 (Pa. 2007). “The basic rationale underlying the ripeness doctrine is ‘to prevent
the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements.’” Id. (quoting Abbott Labs v. Gardner, 387
U.S. 136, 148 (1967)).
However, the Declaratory Judgments Act, 42 Pa. C.S. §§7531-7541,
provides a relatively lenient standard for ripeness in declaratory judgment actions.
The Declaratory Judgments Act is remedial in nature. 42 Pa. C.S. §7541(a). “Its
purpose is to settle and to afford relief from uncertainty and insecurity with respect
to rights, status, and other legal relations, and is to be liberally construed and
administered.” Id. An action is ripe for adjudication under the Declaratory
Judgments Act where it presents “the ripening seeds of a controversy.” Wecht v.
Roddey, 815 A.2d 1146, 1150 (Pa. Cmwlth. 2002).
Here, Phantom Fireworks alleges it is already experiencing business
losses arising from competition by transient vendors. Further, as Act 43 expressly
authorizes sales by such vendors, Phantom Fireworks has no legal recourse to
recover its business losses from them. It can only hope to address such losses going
forward by means of this lawsuit. Phantom Fireworks’ challenge to Act 43 is
therefore ripe for adjudication.
This Court’s decision in City Council of Philadelphia ex. rel. City of
Philadelphia v. Commonwealth, 806 A.2d 975 (Pa. Cmwlth. 2002) (Phila. II),
vacated and remanded, 847 A.2d 55 (Pa. 2004), on which Speaker Turzai relies, is
distinguishable. In Phila. II, the petition did not allege any loss of revenue, and any
15
future loss would be recoverable through normal legal channels. Moreover, and of
significance, our Supreme Court vacated and remanded the matter for a decision on
the merits, rejecting this Court’s initial conclusion that the controversy was not ripe.
Philadelphia Entertainment is likewise distinguishable. In that case, the
petitioner challenged the constitutionality of a zoning ordinance that had not been
enforced or applied. By contrast, Act 43 is a taxing statute, and its provisions are in
force. Moreover, the authorized sale of fireworks in temporary structures, the main
target of Phantom Fireworks’ petition, has occurred. As stated above, Phantom
Fireworks alleges in its pleading that it is already suffering losses in sales because
of the competitive edge Act 43 gives to transient competitors.9
We conclude this case is ripe for adjudication.
C. Failure to Answer Preliminary Objections
Phantom Fireworks did not file an answer to any of the preliminary
objections, although it briefed its opposition to them. Senator Scarnati argues that
the lack of a responsive pleading by Phantom Fireworks entitles him to prevail by
9
The other two authorities Speaker Turzai cites in his ripeness discussion are inapt because
they do not involve ripeness, but rather, mootness. See In re Gross, 382 A.2d 116 (Pa. 1978);
Harris v. Rendell, 982 A.2d 1030 (Pa. Cmwlth. 2009), aff’d per curiam, 992 A.2d 121 (Pa. 2010).
16
default regarding his preliminary objections asserting failure to join necessary
parties and lack of capacity to sue (standing).10
Pa. R.C.P. No. 1028(a)(5) includes lack of capacity to sue and
nonjoinder of a necessary party among the bases for preliminary objections. Pa.
R.C.P. No. 1028(c)(2) suggests these categories of preliminary objections “cannot
be determined from facts of record.” Therefore, if the respondent filing preliminary
objections endorses them with a notice to plead, the petitioner must file a response,
to the extent required under Pa. R.C.P. No. 1029.
Senator Scarnati endorsed his preliminary objections with a notice to
plead. Therefore, we must determine whether Rule 1029 required Phantom
Fireworks to file a responsive pleading on the issues of nonjoinder and standing.
Rule 1029 governs the effect of failure to deny averments in a pleading.
Pa. R.C.P. No. 1029(a) requires the responding party to admit or deny each averment
of fact in the preceding pleading. “Averments in a pleading to which a responsive
pleading is required are admitted when not denied specifically or by necessary
implication.” Pa. R.C.P. No. 1029(b). By contrast, “[a]verments in a pleading to
which no responsive pleading is required shall be deemed to be denied.” Pa. R.C.P.
No. 1029(d). Thus, whether Phantom Fireworks had to file a responsive pleading
admitting or denying Senator Scarnati’s preliminary objections concerning
10
Senator Scarnati also demurred to all counts of the petition for review. He does not
assert that Phantom Fireworks had any obligation to answer the averments of the preliminary
objections comprising the demurrers.
17
indispensable parties and standing depends on whether those preliminary objections
contained averments of fact.
Phantom Fireworks insists it did not need to answer Senator Scarnati’s
preliminary objections concerning nonjoinder and standing because they “contain
no facts as to which a responsive pleading was required or could possibly have been
useful.” Pet’rs’ Br. at 27. We agree.
Our review of Senator Scarnati’s preliminary objections reveals that
those asserting nonjoinder of a necessary party and lack of standing aver only
conclusions of law, not disputed facts. See Preliminary Objections by Respondent
Senator Joseph B. Scarnati, III ¶¶6-22. Accordingly, Phantom Fireworks did not
have to respond to those averments.11 Rather, they are deemed denied under Pa.
R.C.P. No. 1029(d).
D. Failure to Brief Immunity Defense
In their preliminary objections, Executive Respondents raised the
defense of sovereign immunity. However, Phantom Fireworks asserts Executive
11
In his preliminary objection relating to necessary parties, Senator Scarnati also argued
Phantom Fireworks failed to provide notice to the Attorney General of Pennsylvania that it was
challenging the constitutionality of a statute. We observe that a notice to the Attorney General is
attached to the petition for review. Moreover, Senator Scarnati did not brief that issue. Therefore,
he has waived it. Triage, Inc. v. Pa. Dep’t of Transp., 537 A.2d 903 (Pa. Cmwlth. 1988).
In any event, waiver is not a mandatory sanction for failure to give the requisite notice to
the Attorney General; rather, the court may stay the action to allow notice and time for the Attorney
General to be heard, or may simply proceed without a response from the Attorney General. See
Pa. R.C.P. No. 235; Mosley v. Pittsburgh Pub. Sch. Dist., Civ. Action No. 07-1560, 2008 U.S.
Dist. LEXIS 42189 (W.D. Pa. May 27, 2008).
18
Respondents waived that preliminary objection because they did not brief the issue
of sovereign immunity in support of their preliminary objections. We agree. A party
waives a preliminary objection it does not support in its brief. Triage, Inc. v. Pa.
Dep’t of Transp., 537 A.2d 903 (Pa. Cmwlth. 1988). We therefore overrule
Executive Respondents’ preliminary objection asserting sovereign immunity.12
E. Separate Count Asserting Request for Relief
Senator Scarnati moves to strike Count V pursuant to Pa. R.C.P. No.
1020(a), arguing it is not a cause of action, but merely a request for relief. This
argument is without merit.
Pa. R.C.P. No. 1020(a) requires: “Each cause of action and any special
damage related thereto shall be stated in a separate count containing a demand for
relief.” Thus, on its face, Rule 1020(a) only requires that a cause of action and any
related “special damage” must be stated in the same count.
The Pennsylvania Rules of Civil Procedure do not define “special
damage.” However, Pennsylvania courts apply “special damage” to mean calculable
monetary losses, such as out-of-pocket expenses. See, e.g., McGlawn v. Pa. Human
Relations Comm’n, 891 A.2d 757, 775-76 (Pa. Cmwlth. 2006) (including in “special
damages” specific fees, premiums, and interest, but not embarrassment and
humiliation); Agriss v. Roadway Express, Inc., 483 A.2d 456, 474 (Pa. Super. 1984)
(equating “special damages” with “concrete economic loss computable in dollars”).
12
We note, however, that notwithstanding a waiver of the immunity defense in connection
with preliminary objections, a party may still reassert that defense in its answer, if any, to the
petition for review, following disposition of the preliminary objections. Triage.
19
A request for injunctive relief is equitable in nature. It is the antithesis
of a legal claim for calculable money damages. Therefore, we conclude Rule
1020(a) is inapplicable to a demand for declaratory and injunctive relief.
Moreover, when considering preliminary objections regarding claims
seeking equitable relief, this Court has discretion to disregard pleading
imperfections. See Nagle v. Pa. Ins. Dep’t, 406 A.2d 1229 (Pa. Cmwlth. 1979),
rev’d in part on other grounds sub nom. Pechner v. Pa. Ins. Dep’t, 452 A.2d 230 (Pa.
1982). To the extent Count V may be deemed defective, we disregard any such
defect here. In light of our disposition of the other preliminary objections and the
application for summary relief, any pleading defect is immaterial. Therefore, we
deny the motion to strike.
IV. Request for Summary Relief
Pa. R.A.P. 1532(b) allows this Court to enter judgment upon
application any time after the filing of a petition for review, when the applicant’s
right to relief is clear. Taglienti v. Dep’t of Corr., 806 A.2d 988 (Pa. Cmwlth. 2002).
We may grant summary relief where the dispute is legal rather than factual, but not
where there are disputes of fact. Id. (citing Milton S. Hershey Med. Ctr. v.
Commonwealth, 788 A.2d 1071 (Pa. Cmwlth. 2001)). We review the record in the
light most favorable to the opposing party and resolve all doubts concerning the
existence of a genuine issue of material fact in favor of that party. Taglienti (citing
P.J.S. v. Pa. State Ethics Comm’n, 723 A.2d 174 (Pa. 1999)).
An application for summary relief is appropriate where a party asserts
a challenge to the constitutionality of a statute and no material facts are in dispute.
20
Phila. Fraternal Order of Corr. Officers v. Rendell, 701 A.2d 600 (Pa. Cmwlth. 1997)
(citing Magazine Publishers v. Dep’t of Revenue, 618 A.2d 1056 (Pa. Cmwlth.
1992), aff’d, 654 A.2d 519 (Pa. 1995)).
Here, our review of the various Respondents’ briefs reveals no dispute
of fact. The parties argue solely questions of law relating to the constitutionality of
Act 43. Therefore, consideration of Phantom Fireworks’ request for summary relief
concerning its constitutional challenges is appropriate at this time.
A. Legal Standard of Constitutionality
“[I]n interpreting a constitutional provision, we view it as an expression
of the popular will of the voters who adopted it, and, thus, construe its language in
the manner in which it was understood by those voters.” Washington v. Dep’t of
Pub. Welfare, 188 A.3d 1135, 1149 (Pa. 2018) (citing Stilp v. Commonwealth, 905
A.2d 918 (Pa. 2006) (Stilp I)). “[W]e do not consider such language in a ‘technical
or strained manner, but are to interpret its words in their popular, natural and
ordinary meaning.’” Id. (quoting Scarnati v. Wolf, 173 A.3d 1110, 1118 (Pa. 2017)).
“‘[W]e must favor a natural reading which avoids contradictions and difficulties in
implementation, which completely conforms to the intent of the framers and which
reflects the views of the ratifying voter.’” Id. (quoting In re Bruno, 101 A.3d 635,
659 (Pa. 2014); Commonwealth ex rel. Paulinski v. Isaac, 397 A.2d 760, 766 (Pa.
1979)). “‘[O]ur ultimate touchstone is the actual language of the Constitution
itself.’” Id. (quoting Stilp I, 905 A.2d at 939).
There is a strong presumption in the law that legislative enactments are
constitutional. Christ the King Manor v. Dep’t of Pub. Welfare, 911 A.2d 624 (Pa.
21
Cmwlth. 2006) (en banc), aff’d per curiam, 951 A.2d 255 (Pa. 2008) (citing PAGE).
A court will not declare a statute unconstitutional unless the constitutional violation
is clear, palpable, and plain. Id. The court will resolve all doubts in favor of
constitutionality. Id. Thus, a party challenging the constitutionality of a statute has
a heavy burden of persuasion. Id.
B. Article III Challenges
1. Background and Purpose of Article III
When interpreting the Pennsylvania Constitution, courts consider both
the circumstances surrounding enactment of its provisions and the probable
construction the voters placed on it. Washington (citing Scarnati). In Washington,
our Supreme Court examined the historical and legal background of Article III of
the Pennsylvania Constitution, as well as the fundamental purposes the voters
intended the provisions of Article III to serve. See id.
In the period during and after the Civil War, special interest legislation
was commonplace, enabled by abuses and insufficient controls in the legislative
process. Id. Deceptive titles of bills, mixing disparate subjects in omnibus
legislation, and hasty amendments without notice to lawmakers, all caused the voters
to lose faith in the General Assembly’s performance of its constitutional mandate to
represent their interests. Id. Consequently, in 1873, an overwhelming majority of
voters approved a constitutional convention so that amendments to the Pennsylvania
Constitution could address these abuses. Id. Article III was a product of that
convention. Id. “[T]he overarching purpose of [the] restrictions on the legislative
process contained in Article III was to furnish essential constitutional safeguards to
ensure our Commonwealth’s government is open, deliberative, and accountable to
22
the people it serves.” Id. at 1147. “[A]s these provisions are mandatory
constitutional directives from the people, not mere advisory guidelines, the General
Assembly must comply with them in the course of the legislative process.” Id.
Article III, Section 1 provides: “No law shall be passed except by bill,
and no bill shall be so altered or amended, on its passage through either House, as to
change its original purpose.” PA. CONST. art. III, §1. The objective of Article III,
Section 1 was to halt the practice of adding, at various stages of the legislative
process, provisions unrelated to a bill’s original purpose. Washington. By
eliminating such stealth tactics, legislators considering the bill would have sufficient
notice of all its provisions and could cast informed votes. Id. Article III, Section 1
is unchanged since its enactment in 1874. Id.
Article III, Section 3 provides: “No bill shall be passed containing more
than one subject, which shall be clearly expressed in its title, except a general
appropriation bill or a bill codifying or compiling the law or a part thereof.” PA.
CONST. art. III, §3. Article III, Section 3 serves the dual purposes of preventing
enactment of laws that could not pass on their own, and promoting thorough scrutiny
of single subject bills. Pa. State Ass’n of Jury Comm’rs v. Commonwealth, 64 A.3d
611 (Pa. 2013).
Our Supreme Court recognizes that the nature of the legislative process
includes some changes as a bill passes through each house in the General Assembly.
Washington. In considering constitutional challenges under Article III, Sections 1
23
and 3 (as well as 4),13 courts apply a “germaneness” analysis. Id. at 1151. “This test
requires examination of the original subject of the bill and then a determination of
whether ‘the amendments to the bill added during the legislative process are germane
to and do not change the general subject of the bill.’” Id. (quoting Stilp I, 905 A.2d
at 959; Pa. Sch. Bds. Ass’n v. Commonwealth Ass’n of Sch. Adm’rs, 805 A.2d 476,
488 (Pa. 2002)). “Amendments are germane to the original general subject matter
of a bill if both the subject of the amendments and the subject of the original contents
of the bill ‘have a nexus to a common purpose.’” Id. (quoting Commonwealth v.
Neiman, 84 A.3d 603, 612 (Pa. 2013)). “In other words, the subject of the
amendments and the subject of the original bill language must constitute ‘a unifying
scheme to accomplish a single purpose.’” Id. (quoting Neiman, 84 A.3d at 612;
Phila. I, 838 A.2d at 589). “In making this determination, a reviewing court may
hypothesize a ‘reasonably broad’ unifying subject; however such a hypothetical
subject cannot be unduly expansive, lest the purpose of the constitutional provision
be defeated.” Id. at 1152 (quoting Phila. I, 838 A.2d at 589).
13
Phantom Fireworks does not challenge Act 43 on the basis of Article III, Section 4, the
section at issue in Washington v. Department of Public Welfare, 188 A.3d 1135 (Pa. 2018).
However, our Supreme Court’s recent analysis of Article III, Section 4 in Washington is directly
applicable in this case:
Our [Supreme] Court utilizes the same germaneness test
[used in analyzing Article III, Section 4 challenges] to determine
whether the manner of passage of a bill violates Article III, Section
1 and Article III, Section 3; thus a finding that amendments to a bill
made during the legislative process are not germane to the subject
of its original provisions will also support a determination that the
bill’s passage violated these constitutional provisions as well.
Id. at 1151 n.33 (citing Stilp v. Commonwealth, 905 A.2d 918, 919 (Pa. 2006); Pennsylvanians
Against Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 410 (Pa. 2005)). We
note that our Supreme Court decided Washington after all briefing of the preliminary objections
and application for summary relief in this case was complete.
24
2. Phantom Fireworks’ Article III Challenges
a. Original Purpose of Bill
The original bill that eventually became Act 43 was HB 542. That short
bill contained only a proposed amendment adding a section to the Tax Reform Code
that required remote sellers to notify Pennsylvania buyers of their sales and use tax
obligations, and imposed fines for failure to do so.
As ultimately enacted, Act 43 contained voluminous additions to HB
542, including Article XXIV, Fireworks, the article challenged here by Phantom
Fireworks. Thus, the changes made to the original bill were extensive. However, in
hypothesizing reasonably broad purposes for legislative bills, our Supreme Court
has viewed extensive amendments as still within the overarching purposes of the
original bills.
In Stilp I, the original bill’s only provision sought to assure that the
Governor would be the highest-paid executive officer in the Commonwealth. Id.
Subsequent voluminous additions to the bill prior to its passage added significant
raises in compensation to the judiciary and the General Assembly, as well as to high-
ranking executive officers. Id. Our Supreme Court rejected an original purpose
challenge to the bill as passed. The Court found both the original bill and the final
version as amended related to the overarching subject of compensation for
government officials. Id.
In PAGE, the original bill would merely have allowed police to perform
criminal background checks and fingerprinting of persons in the horse racing
industry. Id. As finally enacted, the bill was more than 140 times longer than its
25
original form and included provisions authorizing and regulating slot machines
within the Commonwealth. Id. Our Supreme Court found no violation of Article
III, Section 1. The Court determined both the original and final versions of the bill
related to the regulation of gambling. Id.
This Court likewise views a bill’s original purpose broadly. In City of
Philadelphia v. Rendell, 888 A.2d 922 (Pa. Cmwlth. 2005), the original bill revised
residency requirements for parking authority members, clarified police officers’
voting rights, and authorized municipalities to remove fluoride from their drinking
water. The final bill mandated that the parking authority would continue
administering and enforcing on-street parking regulations, and that net parking
revenues would be directed to the Philadelphia School District. Id. The original
provisions concerning police officers’ voting rights and removal of fluoride from
municipal water supplies were not in the final bill. Id. Nonetheless, this Court
rejected an original purpose challenge to the constitutionality of the final bill as
enacted. We concluded that both the original and final versions of the bill served
the same overarching purpose of regulating parking authorities. Id.
This Court also rejected an original purpose challenge in Common
Cause v. Commonwealth, 710 A.2d 108 (Pa. Cmwlth. 1998), aff’d per curiam, 757
A.2d 367 (Pa. 2000). There, the original bill contained only provisions regarding
seasonal registrations of vehicles. As amended, the final bill contained voluminous
additions concerning vehicle registration fees, highway maintenance funding
allocations, trucking regulations, fuel taxes, and laws governing mass transit. Id.
26
We determined the original and final versions of the bill related to the same general
subject, vehicular transportation. Id.
Here, Phantom Fireworks argues Act 43’s fireworks provisions pertain
mainly to health and safety rather than taxes. However, the decisions above
demonstrate that neither the volume of the additions to the original bill nor the
expansion of the subject matter’s parameters will give rise to a violation of Article
III, Section 1, provided the original and final versions fall under the same broad,
general subject area. Consistent with the decisions discussed above, we conclude
that the broad overarching purpose of both original HB 542 and the final version as
passed by the General Assembly is taxation and revenue generation.
Therefore, we discern no violation of Article III, Section 1.
b. Single Subject and Clear Title Requirements
As discussed above, there were two legislative practices that the
framers and the electorate sought to eliminate with their adoption of Article III,
Section 3. The first involved the insertion into a single bill of a number of distinct
and independent subjects of legislation in order to deliberately hide the real purpose
of the bill. Washington; Leach v. Commonwealth, 118 A.3d 1271 (Pa. Cmwlth.
2015), aff’d, 141 A.3d 426 (Pa. 2016). The second was the practice of “logrolling,”
which involves “embracing in one bill several distinct matters, none of which could
singly obtain the assent of the legislature, and procuring its passage by combining
the minorities who favored the individual matters to form a majority that would
adopt them all.” Leach, 118 A.3d at 1279 (quoting Neiman, 84 A.3d at 611). “[T]he
27
single-subject requirement prevents the attachment of riders that could not become
law on their own to popular bills that are certain to pass.” Id.
Accordingly, our Supreme Court interprets Article III, Section 3 as
mandating that a final bill enacted by the General Assembly meet two specific
criteria: “First, the title of the bill must clearly express the substance of the proposed
law. [Phila. I] Second, the differing topics within the bill must be ‘germane’ to each
other ….” Jury Comm’rs, 64 A.3d at 616; see Neiman, 84 A.3d at 612 (quoting Jury
Comm’rs).
Here, Petitioners contend Act 43 does not satisfy either criterion. We
disagree.
i. Single Subject Requirement
Guided by the principles our Supreme Court articulated in Washington
and Neiman, we cannot conclude that Act 43 clearly, palpably and plainly violates
the single subject requirement set forth in Article III, Section 3 of the Pennsylvania
Constitution. Although Act 43 includes provisions relating to taxation, fireworks,
and tobacco settlement revenue, they all fall within the single unifying subject of
revenue generation. Accord PAGE, 877 A.2d at 396 (unifying subject of “regulation
of gaming” was sufficient to satisfy Article III, Section 3’s single subject
requirement); Christ the King Manor, 911 A.2d at 635 (unifying subject of
“regulation of publicly funded healthcare services” was sufficient to satisfy Article
III, Section 3’s single subject requirement).
28
Act 43’s fireworks provisions include a new 12% consumer fireworks
tax, as well as seller application and licensing fees. Pet. for Review, Ex. A at 37.
The insertion of additional fireworks-related provisions does not destroy the
overarching purpose of taxation and generating revenue.
Further, our Supreme Court directs that “where the provisions added
during the legislative process assist in carrying out a bill’s main objective, or are
otherwise ‘germane’ to the bill’s subject as reflected in the title, the requirements of
Article III, Section 3 are met.” PAGE, 877 A.2d at 395.
While certain provisions related to the regulation of fireworks may not
directly relate to taxation, those provisions undoubtedly “assist in carrying out” Act
43’s “main objective,” which is revenue generated from an expanded and
modernized fireworks market. Stated differently, Act 43 adds a new tax rate for
fireworks, distributes tax revenue from the sale of fireworks, broadens the tax base
by expanding fireworks sales, and attempts to ensure that tax revenues from
fireworks sales are generated safely.
There are other constitutional issues related to Act 43, as discussed
below. However, for these reasons, we discern no violation of Article III, Section
3’s single subject requirement.
ii. Clear Expression of Title Requirement
“Although Article III, Section 3 mandates that a bill’s subject be set
forth in its title, it does not require a title to be an index or a synopsis of the bill’s
contents.” Christ the King Manor, 911 A.2d at 635 (citing PAGE); see also
29
DeWeese v. Weaver, 824 A.2d 364, 372 (Pa. Cmwlth. 2003) (en banc) (“The title
serves as a signal not a précis of the bill’s contents.”). “Indeed, to require the title
to catalogue every provision of a bill might not only make the title unworkably long,
but might foster the very problems that the requirement was meant to prevent.”
PAGE, 877 A.2d at 405-06. As this Court explained,
Article III, Section 1 was not intended to tyrannize
legislators with pedantic and picayune standards for
drafting a bill’s title. Commonwealth v. Stofchek, [185 A.
840 (Pa. 1936)]. The focus should be on the substance of
the bill, not its title. The constitutional mandate is
intended only to prevent fraudulent efforts to sneak
legislation past unknowing legislators or the Governor. Id.
In short, as difficult as it may be to have a statute declared
unconstitutional for failing to clear the low fence of
germaneness, it is that much harder to set aside a statute
for the reason that it moved through the legislative process
under a deceptive title.
DeWeese, 824 A.2d at 372 n.15.
A party challenging constitutionality under Article III, Section 3’s
“clear expression of title” requirement must show “either (1) that the legislators and
the public were actually deceived as to the act’s content at the time of passage, or
(2) that the title on its face is such that no reasonable person would have been on
notice as to the act’s contents.” Christ the King Manor, 911 A.2d at 635 (emphasis
in original).
Here, as Phantom Fireworks acknowledges, the title of Act 43 includes
an indication that it is “providing for fireworks.” Pet. for Review, Ex. A at 1. The
30
petition for review fails to aver or show that legislators or members of the public
were actually deceived as to Act 43’s contents at the time of passage. Therefore,
Phantom Fireworks does not satisfy the first prong of a clear title analysis. See
Christ the King Manor.
In applying the second prong of a clear title analysis, we likewise
examine the title at the time of passage. Here, we conclude that the final title of Act
43, expressly listing “providing for fireworks” among the primary topics covered
within the bill, Pet. for Review, Ex. A at 1, sufficiently places reasonable persons on
notice as to the contents of Act 43. See PAGE. Contrary to Phantom Fireworks’
assertion, nothing more is required. Id. at 406 (“a title does not need to express each
and every subtopic contained in the bill …”).
The decisions relied on by Phantom Fireworks, Sears v. Corbett, 49
A.3d 463 (Pa. Cmwlth. 2012), rev’d and vacated sub nom. Sears v. Wolf, 118 A.3d
1091 (Pa. 2015) and Provident Life & Trust Co. v. Hammond, 79 A. 628 (Pa. 1911),
do not compel a different result. Ruling on preliminary objections in Sears, this
Court determined that two acts redirecting tobacco settlement monies violated
Article III, Section 3’s clear expression of title requirement. On further appeal,
however, our Supreme Court reversed, and also expressly “vacated” this Court’s
“opinions on preliminary objections and summary relief,” including our discussion
regarding Article III, Section 3. Sears v. Wolf, 118 A.3d at 1105 (emphasis added).
Thus, Phantom Fireworks cannot rely on that decision in support of its arguments
here.14
14
We admonish litigants from citing vacated opinions without fully acknowledging
negative subsequent history.
31
In Hammond, the Supreme Court held that the title of a 1907
amendatory enactment was defective because the date of approval of the original act,
as recited in the title of the amending act, was incorrect. There was no such act of
the date specified; therefore, the title was fatally defective. Hammond is inapposite
here; this case does not involve the title of a statute referencing another statute that
does not exist.
For these reasons, we see no violation of Article III, Section 3’s clear
expression of title requirement.
c. Repealed Text Requirement
Act 43 expressly repealed the former Fireworks Law, 35 P.S. §§1271-
78. Citing PAGE, Phantom Fireworks contends the General Assembly’s failure to
include in Act 43 the entire text of the Fireworks Law, in brackets, violated the
requirement of Article III, Section 6 of the Pennsylvania Constitution that “no law
shall be revived, amended, or the provisions thereof extended or conferred, by
reference to its title only, but so much thereof as is revived, amended, extended or
conferred shall be re-enacted and published at length.” PA. CONST. art. III, §6.
Our Supreme Court’s decision in PAGE applies generally to Article III
constitutional issues. See Christ the King Manor. Pertinent here, the statute at issue
in PAGE repealed a section of an earlier statute. The repeal provision simply
referred to the repealed statute by its citation and popular name. The new statute did
not contain the repealed language in brackets. The Court observed that Article III
aims to require full notice of all proposed legislative enactments, so legislators and
the public can see exactly what changes are under consideration, without the need to
32
refer back to the prior version for comparison. PAGE. Therefore, the Court
concluded, “Article III, [S]ection 6 requires, with regard to a directed, specific
repealer, the effectuation of which is not otherwise apparent from the associated bill,
that as much of the law that is expressly repealed by the bill must be published at
length.” Id. at 412.
However, in Christ the King Manor, this Court sustained a demurrer to
a constitutional challenge similar to Phantom Fireworks’ repealed text challenge
here. The petitioners challenged the constitutionality under Article III, Section 6 of
a statutory amendment altering the scope of permissible regulations concerning
nursing care reimbursements during a specified period. In that case, the amendment
did not contain a specific repeal of the prior law. This Court found the petition failed
to state an Article III, Section 6 claim for two reasons. First, the new amendment
was more “in the nature of a temporary inconsistency rather than the directed,
specific repeal or amendment which is the subject of the constitutional provision.”
Id. at 639. Second, and of significance here, the petitioners did not allege that any
member of the General Assembly was misled by the absence of the entire text of the
prior law. Id. Based on that reasoning and the strong presumption of
constitutionality accorded a statute, this Court agreed with the respondents in Christ
the King Manor that the petitioners failed to present a viable constitutional challenge
to the defective repeal. Id.
Here, the repealer at issue is substantially similar to that in PAGE.
However, Phantom Fireworks, like the petitioners in Christ the King Manor, failed
to allege that anyone was misled by the absence of the full text of the Fireworks Law
33
in brackets within Act 43. In light of the presumption of constitutionality and our
disposition of the other issues in this case, we deny summary relief on this issue.
C. Delegation of Legislative Authority
Phantom Fireworks challenges Act 43’s definition of a “temporary
structure” as including “temporary retail sales stands, tents, canopies and membrane
structures meeting the specifications of NFPA 1124.” Act 43 defines “NFPA 1124”
as “The National Fire Protection Association Standard 1124, [CODE FOR THE
MANUFACTURE, TRANSPORTATION, AND STORAGE OF FIREWORKS AND PYROTECHNIC
ARTICLES], 2006 edition, or any subsequent edition.” Pet. for Review, Ex. A at 33
(emphasis added). Phantom Fireworks argues that regulating temporary structures
by reference to NFPA 1124, as Act 43 defines that term, constitutes an
unconstitutional delegation of legislative authority by the General Assembly. We
are constrained to agree.
Our Supreme Court’s decision in Protz v. Workers’ Compensation
Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017) controls the
delegation issue in this case. At issue in Protz was a provision of the Workers’
Compensation Act15 relating to impairment rating evaluations (IREs) of workers’
compensation claimants. Section 306(a.2) of the Workers’ Compensation Act, 77
P.S. §511.2(1),16 required physicians performing IREs to apply the methodology
provided in “the most recent edition” of the American Medical Association [AMA]
GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (GUIDES). Protz, 161 A.3d
15
Act of June 2, 1915, P.L. 735, as amended, 77 P.S. §§1-1041.4, 2501-2708.
16
Added by Act of June 24, 1996, P.L. 350.
34
at 830 (quoting 77 P.S. §511.2(1)). The Court found this statutory provision violated
Article II, Section 1 of the Pennsylvania Constitution, which vests all legislative
power in the General Assembly. Protz, 161 A.3d at 830.
As the Supreme Court explained, “when the General Assembly
empowers some other branch or body to act, our jurisprudence requires ‘that the
basic policy choices involved in “legislative power” actually be made by the
[l]egislature as constitutionally mandated.’” Id. at 833 (quoting Tosto v. Pa. Nursing
Home Loan Agency, 331 A.2d 198, 202 (Pa. 1975)). “This constraint serves two
purposes. First, it ensures that duly authorized and politically responsible officials
make all of the necessary policy decisions, as is their mandate per the electorate ….
[S]econd, it seeks to protect against the arbitrary exercise of unnecessary and
uncontrolled discretionary power.” Id. (citing William Penn Parking Garage).
Accordingly, when the General Assembly assigns any authority or
discretion to execute or administer a law, “the Constitution imposes two fundamental
limitations. First, … the General Assembly must make ‘the basic policy choices,’
and second, the legislation must include ‘adequate standards which will guide and
restrain the exercise of the delegated administrative functions.’” Id. at 833-34
(quoting PAGE, 877 A.2d at 418). As the Court observed further, a permissible
delegation of legislative authority must “include concrete measures to channel the
[delegatee’s] discretion, … safeguards to protect against arbitrary, ad hoc decision
making, such as a requirement that the [delegatee] hold hearings, allow for public
notice and comment, or explain the grounds for its [decisions] in a reasoned opinion
35
subject to judicial review.” Id. at 835 (citing and discussing W. Phila. Achievement
Charter Elementary Sch. v. Sch. Dist. of Phila., 132 A.3d 957 (Pa. 2016)).
Applying these principles in Protz, the Court found the General
Assembly’s delegation of authority to the AMA failed to provide any of the
necessary safeguards. Without any policy statement or other limiting parameters,
the AMA could create any formula, including one that would yield a loss of disability
benefits for every claimant, or alternatively, for no claimant. Id. Moreover, it could
change the formula at will, potentially with such frequency that no one could keep
up with the changes, or alternatively, with such infrequency as to fall behind recent
medical advances. Id. It could add new provisions or remove existing ones. Id.
The Court also observed that the General Assembly failed to “require
that the AMA hold hearings, accept public comments, or explain the grounds for its
methodology in a reasoned opinion, which then could be subject to judicial review.
Further, the AMA physicians who author the GUIDES are, of course, not public
employees who may be subject to discipline or removal.” Id. at 836 (citing Tosto).
Here, the provisions of Act 43 at issue suffer from the same
constitutional defects as the AMA standards in Protz. The General Assembly
delegated authority to the NFPA without providing any of the safeguards required
to conform that delegation of authority to constitutional strictures. The General
Assembly provided no policy statement or other limiting parameters, leaving the
NFPA free to create, alter, or remove, as frequently or infrequently as it chooses,
any standard it chooses concerning temporary structures used to sell fireworks.
36
Moreover, without statutory controls, NFPA drafters may be open to influence by
trade groups or individuals whose interests may or may not match those of the
electors.
Moreover, as in Protz, the General Assembly here failed to include in
Act 43 any provisions that would require the NFPA to hold hearings, accept public
comments, or explain the grounds for its safety standards in reasoned opinions which
are subject to judicial review. Similarly, the private individuals who draft the
NFPA’s safety standards are not public employees subject to discipline or removal
by the General Assembly or any public agency. Notably, although Act 43 does
contemplate safety inspections of the temporary structures, neither the General
Assembly nor the inspectors have any control over the safety standards to be applied
in those inspections. Cf. Protz 161 A.3d at 836 (physician performing IRE is
constrained by law to follow the AMA’s methodologies, with “no power to limit the
AMA’s delegated authority”).
Speaker Turzai urges us to construe Act 43 in a manner that will render
it constitutional, by simply reading the definition of NFPA 1124 as limited to its
2006 version. We are not free to do so. The plain language of the definition refers
to the 2006 edition of NFPA 1124 “or any subsequent edition.” We cannot ignore
the clear language of Act 43 as drafted. Accord Protz, 161 A.3d at 839 (Court would
not construe statute requiring “most recent edition” of AMA methodologies to mean
the specific edition in effect when the statute was enacted).
37
For all of these reasons, we conclude that Act 43’s provisions relating
to temporary structures violate Article II, Section 1 of the Pennsylvania Constitution,
as an impermissible delegation of legislative authority by the General Assembly.
D. Severability
Having determined that Act 43’s provisions relating to temporary
structures unconstitutionally delegate legislative authority to the NFPA, we next
consider whether we may sever the unconstitutional provisions of Act 43 and thereby
leave the remainder of the statute intact. We conclude the portions of Act 43 relating
to temporary structures are severable from the other provisions of Act 43.
Pennsylvania public policy favors severability of statutes containing
unconstitutional provisions. Annenberg v. Commonwealth, 757 A.2d 338 (Pa.
2000) (citing Pa. Dep’t of Educ. v. First Sch., 370 A.2d 702 (Pa. 1977)).
The provisions of every statute shall be severable. If any
provision of any statute or the application thereof to any
person or circumstance is held invalid, the remainder of
the statute, and the application of such provision to other
persons or circumstances, shall not be affected thereby,
unless the court finds that the valid provisions of the
statute are so essentially and inseparably connected with,
and so depend upon, the void provision or application, that
it cannot be presumed the General Assembly would have
enacted the remaining valid provisions without the void
one; or unless the court finds that the remaining valid
provisions, standing alone, are incomplete and are
incapable of being executed in accordance with the
legislative intent.
1 Pa. C.S. §1925.
38
The legislature’s intent is of primary significance in determining
severability. Nextel Commc’ns of the Mid-Atlantic, Inc. v. Commonwealth, 171
A.3d 682 (Pa. 2017), cert. denied sub nom. Nextel Commc’ns of the Mid-Atlantic,
Inc. v. Pa. Dep’t of Revenue, ___ U.S. ___, 138 S. Ct. 2635 (2018). The touchstone
of legislative intent is whether, with the unconstitutional portion of a statute
removed, the legislature would prefer what remains of the statute to no statute at all.
Id. (citing D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016)). We are also mindful that we
should remove as little language as possible. D.P. (citing Ayotte v. Planned
Parenthood of N. New England, 546 U.S. 320 (2006)); see Commonwealth v.
Killinger, 888 A.2d 592 (Pa. 2005).
Here, there is no question that the provisions of Act 43 outside Article
XXIV do not relate to fireworks and will not be affected by striking any language
from that Article. The real question is whether we may sever the unconstitutional
portions of Article XXIV while leaving the remainder of the Article intact. As Act
43 is fundamentally a tax/revenue statute, we conclude that the General Assembly
intended and would prefer to retain as much of Article XXIV as possible in order to
minimize the effect of the unconstitutional language on the Commonwealth’s
revenues. Therefore, we will sever the language referring to the delegatee, “NFPA
1124,” and to “Temporary structure” from the rest of Article XXIV.
However, severing the offending language of Act 43 requires removing
several provisions in Article XXIV relating to temporary structures. Act 43’s
definitions of “NFPA 1124” and “Temporary structure” contain the actual language
effecting the unconstitutional delegation of legislative authority. However, without
39
a definition of “Temporary structure,” other provisions of Article XXIV referring to
temporary structures are impossible to apply. See 1 Pa. C.S. §1925. Therefore,
those references must be severed from the rest of the statute as well.
The mere fact that we must sever multiple provisions is not in itself an
obstacle to severance as long as the remaining provisions of the statute can be
applied without the severed language. Cf. Protz, 161 A.3d at 841 (although
prevalence of the offending language does not by itself preclude severance, Court
would not sever that language when the remainder would be incomprehensible).
Based on our analysis above, we conclude Article XXIV, Sections 2407, 2408, and
2410 of Act 43 contain provisions that are impossible to apply without the definition
of “temporary structure” in Article XXIV, Section 2401. Severing those provisions
will leave the remaining portions of Article XXIV, as well as the rest of Act 43,
complete and “capable of being executed in accordance with the legislative intent.”
1 Pa. C.S. §1925.
Senator Scarnati advances a different severance remedy: severance of
the phrase “or any subsequent edition” from the definition of “NFPA 1124” in Act
43. We reject this alternate severance approach. As in Protz, the insurmountable
delegation problem here arises from the nature of the delegatee (NFPA) and its
processes, in addition to utter confusion over which edition of the NFPA safety
standards controls. The problem with the nature of the delegatee and its processes
cannot be solved by removing the phrase “or any subsequent edition.”
40
E. Cross-Application for Summary Relief
Senator Scarnati requests summary relief dismissing all claims asserted
by Phantom Fireworks, on the basis that they fail as a matter of law. In light of our
disposition of the application for summary relief, we grant the cross-application as
to Counts II through V.
V. Conclusion
Based on the foregoing discussion, we dismiss Governor Wolf from
this action.
We declare the following portions of Act 43 unconstitutional and enjoin
their enforcement, as violative of Article II, Section 1 of the Pennsylvania
Constitution:
1. Article XXIV, Section 2401, definitions of “NFPA 1124” and “Temporary
structure”;
2. Article XXIV, Section 2407, first clause: “Except as provided in section
2410” (the main section relating to temporary structures);
3. Article XXIV, Section 2408(a)(1)(ii) (relating to application fees for
temporary structures);
4. Article XXIV, Section 2408(b)(4) (relating to annual license fees for
temporary structures);
5. Article XXIV, Section 2408(c)(2) (relating to license issuance and inspections
of temporary structures);
6. Article XXIV, Section 2410 (relating to temporary structures).
41
We overrule all other preliminary objections and deny all other relief
sought in the petition for review.
We grant the cross-application for summary relief as to Counts II
through V of the petition for review. We deny the cross-application as to Count I.
ROBERT SIMPSON, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
42
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Phantom Fireworks Showrooms, LLC, :
Sky King Fireworks of Easton, Inc., :
Sky King Fireworks of Erie, Inc., :
Sky King Fireworks of Morrisville, :
Inc., Sky King Fireworks of Tioga, :
LLC, CRJ Enterprises, LLC, :
Petitioners :
:
v. : No. 21 M.D. 2018
:
Tom Wolf, Governor of the :
Commonwealth of Pennsylvania, :
Russell C. Redding, Secretary of the :
Pennsylvania Department of :
Agriculture, C. Daniel :
Hassel, Secretary of the Pennsylvania :
Department of Revenue, Joseph B. :
Scarnati, III, Pro Tempore of the :
Senate of Pennsylvania, Mike Turzai, :
Speaker of the Pennsylvania House of :
Representatives, :
Respondents :
ORDER
AND NOW, this 4th day of December, 2018, upon consideration of the
preliminary objections filed by all Respondents, the preliminary objection of
Governor Wolf asserting improper joinder is SUSTAINED and Governor Wolf is
dismissed as a party to this action. All other preliminary objections by all
Respondents are OVERRULED.
Upon consideration of Petitioners’ application for summary relief, the
application is GRANTED as to Count I of the petition for review. The following
portions of Act 43 are declared unconstitutional as violative of Article II, Section 1
of the Pennsylvania Constitution, and their enforcement is hereby enjoined:
1. Article XXIV, Section 2401, definitions of “NFPA 1124” and “Temporary
structure”;
2. Article XXIV, Section 2407, first clause: “Except as provided in section
2410” (the main section relating to temporary structures);
3. Article XXIV, Section 2408(a)(1)(ii) (relating to application fees for
temporary structures);
4. Article XXIV, Section 2408(b)(4) (relating to annual license fees for
temporary structures);
5. Article XXIV, Section 2408(c)(2) (relating to license issuance and inspections
of temporary structures);
6. Article XXIV, Section 2410 (relating to temporary structures).
Petitioners’ application for summary relief is DENIED as to Counts II through V of
the petition for review.
Senator Scarnati’s cross-application for summary relief as to Counts II
through V is GRANTED and those Counts are DISMISSED. The cross-application
as to Count I is DENIED.
ROBERT SIMPSON, Judge