SEPTA v. City of Phila., Aplts. ( 2014 )

[J-65-2013] [MO: McCaffery, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SOUTHEASTERN PENNSYLVANIA : No. 20 EAP 2013
TRANSPORTATION AUTHORITY, :
: Appeal from the Order of Commonwealth
Appellee : Court entered on April 13, 2011 at No.
: 2445 CD 2009, reversing the Order
: entered on November 10, 2009, in the
v. : Court of Common Pleas, Philadelphia
: County, Civil Division at No. 3055 July
: Term, 2009
CITY OF PHILADELPHIA AND :
PHILADELPHIA COMMISSION ON : 20 A.3d 558 (Pa. Cmwlth. 2011)
HUMAN RELATIONS, :
:
Appellants : ARGUED: September 11, 2013
CONCURRING AND DISSENTING OPINION
MR. CHIEF JUSTICE CASTILLE DECIDED: September 24, 2014
I concur with the Majority’s conclusion that SEPTA was not required to exhaust
administrative remedies within the Philadelphia Commission on Human Relations
(“Commission”) prior to turning to our courts for a declaratory judgment as to the legal
question of whether the Commission has jurisdiction over SEPTA concerning the City of
Philadelphia’s (“City”) Fair Practices Ordinance (“FPO”). I respectfully dissent, however,
from the Majority’s conclusion that the analysis set forth in Department of General
Services v. Ogontz Area Neighbors Association, 483 A.2d 448 (Pa. 1984), and later
employed in similar land use cases, represents the proper analysis for determining
whether SEPTA is subject to the FPO such that it may be compelled to appear before
the Commission to participate in proceedings adjudicating SEPTA’s alleged violations of
the FPO - an issue not presented in Ogontz or its progeny. In my view, SEPTA is not
properly subject to the FPO, and the Ogontz test, employed by this Court to date in
resolving conflicts between governmental entities concerning the use of land, is
inapposite to resolving the issue presented in this case.
In Ogontz, this Court was called upon to determine: “whether the Zoning Board of
Adjustment of the City of Philadelphia . . . ha[d] the power to enforce its regulations as
to use and structural requirements for buildings against the Department of General
Services, an agency of the Commonwealth.” Id. at 449. Similarly, in County of
Venango v. Borough of Sugarcreek, Zoning Hearing Board, 626 A.2d 489 (Pa. 1993),
the second case upon which the Majority relies, this Court was called upon to determine
“whether the powers of Venango County . . . [were] pre-eminent over the Zoning
Ordinance adopted by Sugarcreek Borough . . . .” Id. at 489. Likewise, in Hazleton
Area School District v. Zoning Hearing Board, 778 A.2d 1205 (Pa. 2001), the third case
upon which the Majority relies, this Court was called upon to determine “whether the
authority granted to a school district under the Public School Code . . . preempt[ed] the
powers . . . granted to a local zoning hearing board under the Municipalities Planning
Code . . . .” Id. at 1207. While each of those cases referenced the Ogontz test in
resolving the governmental land use disputes at issue therein, unlike the present case,
none of those cases involved an attempt to haul a Commonwealth agency before a city,
township or borough, for an adjudication concerning any alleged violation of civil rights
conferred by the municipality alone upon private individuals.
In Ogontz, the dispute concerned the City’s denial of the agency’s application for
construction permits relative to building a proposed facility, where the proposed use
thereof was not permitted by the applicable zoning ordinance, and the building as
proposed was not in conformity with applicable sections of the Philadelphia Code. Part
[J-65-2013] [MO: McCaffery, J.] - 2
of the dispute, ultimately, was the issue of whether the City, specifically the City’s
zoning board, had jurisdiction over the Commonwealth agency. In resolving the
dispute, the Ogontz Court observed that municipal corporations, such as the City, are
subject to regulation by the state, having been created, governed, and having the extent
of their powers determined by the General Assembly, generally subject to change,
repeal or abolition at the will of the General Assembly. Accord Robinson Township v.
Commonwealth, 83 A.3d 901, 977 (Pa. 2013). In contrast, the Court observed that
Commonwealth agencies derive their powers from their enabling statutes. Thus, the
Court explained that the conflict at issue was that which “arises when a Commonwealth
agency seeks to utilize real property in a manner that conflicts with a municipal
corporation’s zoning regulations,” and that such a conflict “is not a contest between
superior and inferior governmental entities, but instead a contest between two
instrumentalities of the state.” Ogontz, 483 A.2d at 452.
Within that context, the Court went on to explain:
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.
Id. (emphasis added) (citing Township of South Fayette v. Commonwealth, 385 A.2d
344 (Pa. 1978) (dispute concerning Commonwealth operation of treatment unit for
delinquent juveniles in violation of township zoning ordinance); City of Pittsburgh v.
Commonwealth, 360 A.2d 607 (Pa. 1976) (dispute between municipality and Bureau of
Corrections as to whether municipality’s zoning authority preempted Bureau’s authority
to establish pre-release facilities); and Pemberton Appeal, 252 A.2d 597 (Pa. 1969)
(dispute between school district and township as to whether township could exclude
[J-65-2013] [MO: McCaffery, J.] - 3
schools from certain areas through zoning regulations)). The Court indicated that its
allowance of appeal was occasioned, at least in part, by the fact that prior to Ogontz,
this Court had yet to formulate “[a] general rule as to the precise circumstances under
which a Commonwealth agency’s land use determinations will prevail over the land use
regulations of a local zoning board[.]” Id. Thus, this Court set out to establish such a
general rule by looking to “these cases,” i.e., prior cases involving land use
determinations by Commonwealth agencies that conflicted with those of local zoning
boards. See Twp. of South Fayette; City of Pittsburgh; and Pemberton Appeal. Not
surprisingly, this Court observed that: “The common thread running through these cases
is the assertion that [w]hen there is an apparent conflict in the use of land use powers[,]
we must look to the intent of the Legislature to determine which exercise of authority is
to prevail.” Id. at 453-54 (internal citation omitted).
The following statement by the Court is critical, I believe, to our determination as
to whether the analysis in Ogontz is applicable to the instant matter:
When we approach this task . . . we are immediately faced
with a paradox: determination of legislative intent as to
priority of the two governmental entities is necessary to
decide the case, but that intent is indecipherable from the
applicable statutes. Having rejected balancing, and being
unable to determine legislative intent as to which
agency is to prevail, we 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). 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.
Id. at 455 (emphasis added).
Ultimately, the Court concluded:
[J-65-2013] [MO: McCaffery, J.] - 4
[D]eciding 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 DPW is subject to the jurisdiction of the Zoning
Board and that in the case of a conflict between DPW’s land
use plans and the zoning use regulatory scheme of
Philadelphia, the zoning scheme shall prevail. We decline to
infer a legislative intent that the Commonwealth agency
has preemptive land use powers. Of course, should the
legislature determine that one or more Commonwealth
agencies or projects should be empowered to supersede
local land use regulations, it need only pass legislation to
that effect.
Id. (emphasis added). Ogontz makes perfect sense given its land use context.
Consistently, and as the Majority concedes, in County of Venango and in
Hazleton Area School District, this Court has indeed applied the general rule set forth in
Ogontz to resolve apparent conflicts involving governmental land use powers. In
County of Venango, the county sought to construct a new jail upon county owned land
located within the Borough of Sugarcreek, and zoned as a residential area not
permitting the proposed use. In Hazleton Area School District, the district sought to
rent-out its athletic fields within Hazle Township for baseball games when such use was
not permitted by the Township’s zoning ordinances. In each of those governmental land
use cases, the Ogontz analysis was helpful and appropriate in resolving the land use
conflicts between governmental entities. Contrary to the Majority’s suggestion here,
however, while we observed in Hazleton that the Ogontz Court “employed a two-step
process for analyzing conflicting statutes[,]” Hazleton Area School District, 778 A.2d at
1210 (emphasis added), we did not hold that Ogontz sets forth the analytical process
which every court must follow in resolving every conflict that arises between every
governmental entity in order to determine legislative intent, and we certainly did not
[J-65-2013] [MO: McCaffery, J.] - 5
purport to mandate a legislative, or myopic, approach to be employed without regard to
the context of the conflict at issue.
Respectfully, there is nothing in this Court’s opinion in Ogontz indicating that the
Court intended to stray from its adjudicative role and establish a quasi-legislative rule
requiring a mandatory two-step process in the lower courts in every case involving
disputes between Commonwealth agencies and municipalities whereby courts must first
determine whether one entity holds preeminence over another, and then determine
legislative intent as to which legislatively-created entity is to prevail exclusively by
considering the consequences of proffered interpretations. In my view, when employed
outside of its land use context, Ogontz at most stands for the general proposition that
the General Assembly’s intent is the controlling factor in conflicts respecting the
exercise of statutory authority, and where such intent is not apparent on the face of the
applicable statutes, that intent should be ascertained by turning to the Rules of Statutory
Construction, which permit (but do not mandate) consideration of the consequences of
competing interpretations. See generally 1 Pa.C.S. § 1921. Beyond that unremarkable
general proposition, I believe that the analysis in Ogontz has its application only in the
limited context of “the conflict that arises when a Commonwealth agency seeks to utilize
real property in a manner that conflicts with a municipal corporation’s zoning
regulations,” where the General Assembly’s “intent is indecipherable from the applicable
statutes” and “absent more certain legislative direction,” as the Court stated. Ogontz,
supra. Such is clearly not the context of this case.
Here, there is no dispute concerning a Commonwealth agency’s use of real
property. Rather, this case is about whether SEPTA can be hauled before the City’s
Commission and held liable for conduct which allegedly violates the City’s FPO, but
which otherwise violates no provisions of law enacted by the Commonwealth or federal
[J-65-2013] [MO: McCaffery, J.] - 6
governments. This is also not a case of indecipherable legislative intent, or the absence
of legislative direction. On the contrary, SEPTA’s enabling statute explicitly provides:
It is hereby declared to be the intent of the General
Assembly that an authority created or existing under this
chapter . . . 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).
Section 1711 of the Metropolitan Transportation Authorities Act (MTAA), 74 Pa.C.S. §
1711(c)(3) (emphasis added). Thus the General Assembly’s intent that SEPTA be held
immune from suit except as provided by the General Assembly is abundantly clear.
Goldman v. SEPTA, 57 A.3d 1154, 1180 (Pa. 2012) (“We agree with SEPTA that this
language establishes that SEPTA has been statutorily classified by the legislature as an
agency of the Commonwealth.”) (citing SEPTA v. Board of Revision of Taxes, 833 A.2d
710, 716 (Pa. 2003) (“SEPTA is part of the sovereignty of the Commonwealth and the
property owned by SEPTA is presumed to be immune from taxation.”); Tulewicz v.
SEPTA, 606 A.2d 427, 430 (Pa. 1992) (“SEPTA, by virtue of its enabling legislation,
qualifies as a Commonwealth agency.”); and Feingold v. SEPTA, 517 A.2d 1270, 1276-
77 (Pa. 1986) (“we have no hesitation in concluding that SEPTA was intended to be
considered an agency of the Commonwealth. . . . Therefore, we conclude that it would
be inappropriate to assess punitive damages against SEPTA given its status as a
Commonwealth agency.”)). Thus, although SEPTA is obviously not the
Commonwealth, by express legislative direction SEPTA is protected from suit, even in
administrative proceedings, by virtue of its creation and existence within, and coverage
by, the sovereignty of the Commonwealth. See, e.g., Frazier v. W.C.A.B. (Bayada
[J-65-2013] [MO: McCaffery, J.] - 7
Nurses, Inc.), 52 A.3d 241, 243 (Pa. 2012) (holding employer’s workers’ compensation
subrogation claim concerning settlement monies paid by SEPTA as Commonwealth
party was barred pursuant to statute affirming sovereign immunity of political
subdivisions); see also Warrick v. Pro Cor Ambulance, Inc., 709 A.2d 422, 425 (Pa.
Cmwlth. 1997) (“[S]ection 1711(c)(3) of the Act shows the intent of the General
Assembly to continue SEPTA’s entitlement to sovereign immunity absent an
exception”), aff’d without opinion by Warrick v. Pro Cor Ambulance, Inc., 739 A.2d 127(Pa. 1999). Moreover, the General Assembly has provided no exception that would
allow the City to subject SEPTA to civil rights ordinances adopted by political
subdivisions imposing obligations over and above the General Assembly’s state-wide
civil rights provisions.
Notwithstanding the statutory language and significant body of caselaw
confirming the immunity from suit that SEPTA holds in this Commonwealth absent
applicable exception, the City’s position is that SEPTA is subject to adjudication before
the Commission under the City’s FPO. In my view, the City plainly has overstepped its
authority, and no newly clarified two-step process credited exclusively in the past to land
use cases is necessary to reach that determination. Indeed, a review of Ogontz and its
progeny, and review of the relied-upon statutory construction rules cited therein, all
point to the same conclusion: where the intent of the General Assembly is clear from a
plain reading of applicable statutes, there is no need for a statutory construction
analysis considering the supposed consequences of proffered interpretations in order to
ascertain and effectuate legislative intent. What is required, simply stated, is application
of the relevant statutory language as written.
In my view, the Commonwealth Court sufficiently accomplished that below,
notably, by way of a 6-1 en banc decision that assessed legislative intent by not only
[J-65-2013] [MO: McCaffery, J.] - 8
looking to SEPTA’s enabling legislation, but also to that of the Pennsylvania Human
Relations Commission, to make two specific points which relate to legislative intent.
First, referencing the Pennsylvania Human Relations Act, the court observed that the
General Assembly granted jurisdiction over Commonwealth employers to the
Pennsylvania Human Relations Commission for adjudication of matters concerning
Commonwealth laws that prohibit discrimination. Then, referencing SEPTA’s enabling
legislation, the MTAA, the court observed the statutory language setting forth the
General Assembly’s declaration that SEPTA shall in no way be deemed an
instrumentality of any municipality, and the legislative determination that SEPTA instead
exists as an agency and instrumentality of the Commonwealth. The court concluded:
“Clearly then, as an agency and instrumentality of the Commonwealth, SEPTA qualifies
as an ‘employer’ for purposes of the [Human Relations] Act, subject to the jurisdiction of
the [Pennsylvania Human Relations Commission]. . . . ” SEPTA v. City of Philadelphia,
20 A.3d 558, 561 (Pa. Cmwlth. 2011). The court further stated:
For purposes of discrimination cases covered under the
[Human Relations] Act, SEPTA is a Commonwealth agency.
As stated, the [Pennsylvania Human Relations
Commission]’s enabling legislation clearly gives the
[Pennsylvania Human Relations Commission], not the
[Philadelphia] Commission, jurisdiction over SEPTA as an
instrumentality of the Commonwealth in matters involving
discrimination.
Id. at 562. In my view, this straightforward analysis is obviously correct. No remand to
assess legislative intent is called for in this matter because the Commonwealth Court
appropriately ascertained and effectuated the General Assembly’s intent by looking to,
and applying, the plain language of the relevant statutory provisions. As this Court
demonstrated in Board of Revision of Taxes, the Ogontz analysis identified by the
Majority here is neither required, nor necessary; and the fact that the local legislation at
[J-65-2013] [MO: McCaffery, J.] - 9
issue strikes some as socially or politically progressive does not change the Court’s
interpretive duty.
In Board of Revision of Taxes, a case decided nearly twenty years after Ogontz,
ten years after County of Venango and two years after Hazleton Area School District,
this Court resolved the issue of whether property owned by SEPTA and leased to
commercial tenants is immune from local taxation by the Board of Revision of Taxes of
the City of Philadelphia, and did so without reference to the Ogontz/Venango/Hazleton
test that the Majority now promotes as mandatory. The Court noted that as a general
matter, property owned by a Commonwealth agency such as SEPTA is immune from
local taxation absent express statutory authority to tax. The Court further explained:
It cannot be presumed that general statutory provisions
giving local subdivisions the power to tax local real estate,
were meant to include property owned by the
Commonwealth, since to allow such taxation would upset the
orderly processes of government. Thus, in order to tax
property owned by the Commonwealth, a local subdivision
must establish that it has the authority to tax such property.
Board of Revision of Taxes, 833 A.2d at 713 (citation omitted). The Court further
explained that absent such express statutory authority, property owned by SEPTA
remains immune from local taxation so long as SEPTA’s action with respect to the
property is within SEPTA’s legislatively authorized purposes and powers, and the actual
use of the property is within the scope of SEPTA’s immunity. Notably, Board of
Revision of Taxes does not reference an Ogontz/Venango/Hazleton test. Nonetheless,
the Majority here implausibly concludes that: “Board of Revision of Taxes is consistent
with our application of the Ogontz/Venango/Hazleton test here[, as in] both instances,
we have sought to enforce the legislature’s allocation of authority.” Maj. Op. at 14. All
cases are alignable if the test is that sort of meaningless generality. Notably, the
Commonwealth Court’s majority opinion below likewise does not reference an
[J-65-2013] [MO: McCaffery, J.] - 10
Ogontz/Venango/Hazleton test; however; just like this Court in Board of Revision of
Taxes, the court below obviously sought to enforce the General Assembly’s intent by
identifying and giving meaning to the plain wording of relevant statutes to reach the
conclusion that the Commission simply does not have jurisdiction to impose and enforce
the FPO against SEPTA. The fact that the Commonwealth Court did not employ the
magic words -- sovereign immunity -- is of no consequence, as the court clearly
recognized SEPTA’s enabling statute and its existence as a Commonwealth Agency
subject to jurisdiction for discrimination cases within the Commonwealth only as
permitted by the General Assembly.
Although the Commonwealth Court correctly noted that nothing in the Human
Relations Act grants the City authority to subject SEPTA to the City’s FPO, the City
insists that this fact is irrelevant because the source of the City’s power to enact and
enforce its FPO is its general home rule police power. That position obviously lacks
merit. The City is not the Commonwealth sovereign, even within its borders. The fact
remains that the General Assembly has provided that SEPTA exists within the
sovereignty of the Commonwealth, thus remaining immune from liability, particularly vis-
à-vis laws enacted under the authority of the Commonwealth, absent some exception
established by the General Assembly.1 Because the General Assembly has provided
no exception that would allow the City to subject SEPTA to civil rights ordinances
conferring rights which extend over and above the General Assembly’s state-wide
provisions, I would affirm the Commonwealth Court’s decision rather than torture plain
statutory language to achieve a desired result.
1
Vis-à-vis federal causes of action, we have observed that statutory enactment alone is
insufficient to confer immunity upon Commonwealth agencies. Goldman.
[J-65-2013] [MO: McCaffery, J.] - 11