J.D. Mellott v. Dept. of L&I, Bureau of Occupational & Industrial Safety ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph D. Mellott, :
Petitioner :
: No. 798 C.D. 2022
v. :
: Submitted: April 28, 2023
Department of Labor and Industry, :
Bureau of Occupational and :
Industrial Safety, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVIT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: September 8, 2023
Joseph D. Mellott (Petitioner) petitions for review of the June 30, 2022
order of the Secretary of Labor and Industry (Secretary), adopting the proposed report
and order of the Bureau of Occupational and Industrial Safety (Bureau) of the
Department of Labor and Industry (Department), that denied Petitioner’s application
for a waiver of the testing requirements1 in the UCC training and certification of Code
1
Certification by the Department is required for individuals to perform plan review of
construction documents, inspect construction or equipment, or administer and enforce the Uniform
Commercial Code (UCC) in Pennsylvania. One requirement for certification is that the applicant
must pass an examination in the category in he wishes to be certified. 34 Pa. Code § 401.6(Certification categories and testing).
Administrators.2 It is Petitioner’s contention that the denial of his waiver application
constituted an unreasonable and unduly oppressive exercise of police powers and a
violation of his substantive due process rights. Upon review, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner previously held Pennsylvania UCC certifications in the
following disciplines: Commercial Building Inspector, Commercial Electrical
Inspector, Commercial Mechanical Inspector, Commercial Plumbing Inspector,
Commercial Energy Inspector, and Accessibility Inspector/Plans Examiner. After
moving to Montana in 2015, Petitioner let these Pennsylvania certifications lapse.
Upon returning to Pennsylvania in 2018, Petitioner applied for, and was denied,
renewal of his certifications under 34 Pa. Code § 401.8 and a new application for
certification under 34 Pa. Code § 401.4. Petitioner appealed from the Department’s
denial of his certification and renewal applications. See Mellot v. Department of Labor
and Industry, Bureau of Occupational and Industrial Safety, 261 A.3d 599 (Pa.
Cmwlth. 2021) (Mellot I). We affirmed.3
2
The UCC was promulgated by regulation by the Department pursuant to the mandate of
Section 301 of the Pennsylvania Construction Act (Act), Act of November 10, 1999, P.L. 491, No.
45, as amended, 35 P.S. § 7210.301.
3
The issue in Mellot I was whether a code administrator whose Pennsylvania certifications
have been expired for more than one year may re-apply for a renewal of his certifications under 34
Pa. Code § 401.8, or as a “new” applicant under 34 Pa. Code § 401.4, using the same certification test
results he used to obtain his original certifications, or whether the UCC requires him to retake and
pass the certification examinations. Similar to his arguments in this appeal, Petitioner, inter alia, took
issue with the UCC provisions which he claimed unfairly and unjustly permitted some applicants,
who were never certified in Pennsylvania, and who had taken exams prior to 1996, to obtain
certification without having to retake examinations, while compelling Petitioner, who was previously
certified in Pennsylvania, and had taken his exams in 2006, to retest, simply because he allowed his
certifications to expire. He argued that the disparity violated his right to equal protection. He also
(Footnote continued on next page…)
2
On December 4, 2019, while Mellot I was pending in this Court, Petitioner
applied for a waiver of the testing requirements pursuant to Section 401.5 of the UCC.
Under Section 401.5, the testing requirements of Section 401.6 may be waived if the
applicant meets any of the following criteria:
(1) Passed a test substantially similar to the testing categories
in Section 401.6 within the six years prior to July 12,
2002.
(2) Passed a test substantially similar to the testing categories
in Section 401.6 of the UCC before July 12, 1996, so
long as the applicant submits any of the following to the
Department:
i. Evidence of continued employment as a code
administrator in the related field.
ii. Current certification issued by a model code
organization.
argued that the one-year retesting rule for lapsed certifications is wholly arbitrary and serves no
practical purpose. Mellot I, 261 A.3d at 608. We ultimately concluded that the Department acted in
accordance with its regulations in requiring Petitioner to retest because his certifications lapsed, and
that the requirement that a code administrator retake his certification examinations if his certifications
have been expired for more than one year is consistent with the Act, the statute under which it was
promulgated, which was to provide standards for the protection of life, health, property and
environment, and for the safety and welfare of the consumer, general public, and the owners and
occupants of buildings and structures. We further held that requiring an applicant, whose certification
had expired for more than one year, to retest in order to renew his certification does not violate the
expired certification holder’s equal protection rights. Id. at 612-13. We explained that there are two
separate sets of requirements for two separately situated groups. We concluded that treating
applicants differently depending on whether they had previously used the test documentation to obtain
certification, and allowed their certification to lapse beyond one year, served the legitimate purpose
of ensuring individuals remain qualified to perform inspections. We further concluded that if Section
401.8(d) of the UCC was not given its full effect, applicants for UCC certification could repeatedly
submit the same test documentation without completing the continuing education requirements for
renewal. Id. at 613.
3
iii. Evidence of completion of 30 hours of continuing
education or a college degree program in an associated
field.
(3) Passed a certified building official examination.
34 Pa. Code § 401.5 (emphasis added).
In support of his waiver application, Petitioner submitted documentation
showing that he passed the examinations to be certified as a Commercial Building
Inspector, Commercial Electrical Inspector, Commercial Mechanical Inspector,
Commercial Plumbing Inspector, Accessibility Inspector/Plans Examiner, and
Commercial Energy Inspector on August 5, 2006, April 29, 2006, September 29, 2006,
December 15, 2006, June 20, 2009, and August 18, 2012, respectively. On January 16,
2020, Christina Slaybaugh, administrator of the Bureau’s Certification, Accreditation
and Licensing Division, notified Petitioner that his application for a waiver of the
testing requirements was denied because he had passed each of the examinations after
2002. Ms. Slaybaugh informed Petitioner that he was therefore required to take and
pass new examinations in order to obtain the desired certifications.
On January 30, 2020, Petitioner appealed the denial, arguing that the basis
for denying him a waiver of the testing requirements was “arbitrary and illogically
inconsistent” because individuals who passed examinations prior to 1996 were
permitted to forego testing while individuals, such as Petitioner, who passed tests after
1996, were required to retake the same examinations. (Reproduced Record (R.R.) at
2a-4a, 73a.) According to Petitioner, permitting individuals who passed older
examinations to forgo examinations while requiring individuals who passed newer
examinations to retake examinations does not achieve the purpose of the UCC
regulations to ensure that certified code administrators are competent and up to date
with the UCC standards. Id. at 4a.
4
A hearing was held before a hearing examiner on February 10, 2021.
Petitioner did not appear or testify. His counsel called the Chief Code Official for the
Pennsylvania Municipal Code Alliance, Clem Malot, to testify, in part, regarding the
Commonwealth’s need for qualified inspectors and Petitioner’s qualifications to
administer and enforce the UCC. Id. at 139a-40a. Mr. Malot testified that Petitioner
was a qualified candidate for certification with more than the required hours of
continuing education credits for each of the six disciplines in which he seeks to be
certified. Id. at 141a-42a. Mr. Malot testified that the citizens of Pennsylvania would
not be harmed if Petitioner was granted the certifications he seeks; but rather,
Pennsylvanians would benefit from Petitioner being certified and able to work as a
codes inspector in Pennsylvania again. Id. at 144a. Regarding Petitioner’s right to
waiver of the testing requirements, counsel argued that the waiver provisions, as
applied to Petitioner, have no rational relationship to the interest sought to be protected
and the purpose of the UCC’s training and certification program, and, therefore, they
should be struck down. He reasoned that the waiver regulations, which are based on
the date that examinations were passed, bear no rational relation to his competency.
He further argued that he should be permitted to waive the testing requirements because
they violate his substantive due process rights to practice his profession and that he
should not be deprived of practicing his profession based upon an irrational and
arbitrary requirement that he retest. Id. at 92a-93a.
The Department’s witness, Ms. Slayburgh, testified that none of the three
waiver categories in Section 405.1 address an individual who has taken a test more
recently than July 12, 2002. Id. at 119a-23a. She explained that the Department
enforces the UCC as written and has no discretion to deviate from the regulations to
create new waiver exceptions. Id. at 128a. Because Petitioner did not pass his
5
examinations “within the six years prior to July 12, 2002” or “before July 12, 1996,”
he was not eligible to waive the testing requirements under Section 401.5.
On April 22, 2022, the hearing examiner issued a proposed report,
recommending the denial of Petitioner’s application for waiver of the testing
requirements. The hearing examiner concluded that the waiver provisions in Section
401.5 bear a direct, substantial, and reasonable relationship to the practice of the code
enforcement profession and thus have a rational basis and do not violate Petitioner’s
due process rights. (Proposed Report, 4/22/22, at 11; R.R. at 179a.) On May 23, 2022,
Petitioner appealed to the Secretary. By order dated June 30, 2022, the Secretary
adopted the proposed report in its entirety and denied Petitioner’s application.
Petitioner now petitions for review in this Court.4 He contends that (1)
the waiver requirements in Section 401.5, based on the date of the test taking, violate
his due process because they are arbitrary and bear no reasonable relation to the
interests sought to be protected, i.e., his competency; and (2) the waiver of examination
requirements irrationally restrict his protected right to practice his profession.
II. DISCUSSION
The standard for reviewing regulations promulgated to implement a
statutory scheme where, as here, the empowering provision of the statute gives the
4
This Court’s scope of review of an administrative agency’s order is limited to a determination
of whether constitutional rights were violated, whether the decision was rendered in accordance with
the law, and whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. §
704; Bologna v. Pennsylvania Department of Labor and Industry, 816 A.2d 407, 410 n.3 (Pa. Cmwlth.
2003). The Commonwealth Court’s review is plenary over questions of law. Tomaskevitch v.
Specialty Records Corp., 717 A.2d 30 (Pa. Cmwlth. 1998). Considerations of constitutionality are
questions of law; thus, the Court’s standard of review is de novo and the scope of review is plenary.
Keystone RX LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Compservices
Inc./AmeriHealth Casualty Services), 265 A.3d 322, 329 n.4 (Pa. 2021).
6
agency broad powers to make such rules and regulations as may be necessary to carry
out the statute is whether the regulation is “reasonably related to the purposes of the
enabling legislation under which it was promulgated.” Thorpe v. Housing Authority of
Durham, 393 U.S. 268, 280-81 (1969); Mourning v. Family Publications Service, Inc.,
411 U.S. 356, 369 (1973); Pirillo v. Takiff, 341 A.2d 896 (Pa. 1975); Adler v.
Montefiore Hospital Association, 311 A.2d 634 (Pa. 1973). Where such regulations
are challenged, substantive due process requires:
A law which purports to be an exercise of the police power
must not be unreasonable, unduly oppressive or patently
beyond the necessities of the case, and the means which it
employs must have a real and substantial relation to the
objects sought to be attained. Under the guise of protecting
the public interests the legislature may not arbitrarily
interfere with private business or impose unusual and
unnecessary restrictions upon lawful occupations.
Gambone v. Commonwealth, 101 A.2d 634, 637 (Pa. 1954).
In discussing the overall UCC regulatory scheme, we have already held in
Mellot I that the waiver provisions of Section 401.5 do not apply to Petitioner’s
situation because he passed his examinations after July 12, 2002:
Chronologically, the first period concerns those who had
taken tests prior to July 12, 1996. Under section 401.5,
those individuals could have sought a waiver of testing
requirements if they submitted the proper evidence. The
second period is from July 12, 1996, through July 12,
2002. Those individuals could have been granted a waiver of
testing requirements if they passed a substantially similar test
to the testing categories in section 401.6. The third category
is the time period after July 12, 2002. The regulation does
not speak to this time period specifically, however, a plain
reading of section 401.4(a) indicates that individuals who do
not fall into either one of the previous time periods are
7
subject to the general language of the regulation and must
take and pass relevant testing.
Mellot I, 261 A.3d at 614 (emphasis added). Thus, Petitioner’s testing documentation
falls into the third category discussed by this Court in Mellot I, and he must submit new
test documentation to obtain the desired certifications.
Petitioner nevertheless argues that the periods of time in Section 401.5
governing who must retake previously passed examinations in order to be certified
based on a chronology of when those examinations were taken are completely arbitrary.
He contends that by requiring individuals who passed examinations more recently than
July 12, 2002, to retake the same examinations to be certified, the Department is not
achieving the legislative purpose of the regulations to ensure that certified code
administrators are competent and up to date with the UCC standards. He submits that
it is unreasonable to disqualify him from a waiver because he passed his tests “too
recently.”
In support of his argument, Petitioner relies on State Board of Podiatry
Examiners v. Lerner, 245 A.2d 669 (Pa. Super. 1968), to contend that the Department’s
decision to deny his request for a waiver of the UCC’s testing requirements was not
related to the state’s interest in establishing that licensees are competent. In Lerner, an
individual practiced podiatry from 1936 to 1952 and was registered annually during
that time. Id. at 670. In 1953, he notified the state board that he no longer practiced
podiatry and filed an affidavit of non-practice in 1955. Id. In 1956, the legislature
passed an act requiring those who had previously been licensed under the old standards
to submit an application and pay a fee before December 31, 1956, to be licensed under
the newly passed statute. Id. If an applicant missed the window to apply, he or she
would have to take and pass an examination to receive a podiatry license. Id. at 671.
Because he missed the timeframe to apply for a license under the statute, the State
8
Board of Podiatry Examiners determined that Lerner must take a new examination to
be licensed to practice podiatry. Id. at 670. In upholding the lower court’s reversal of
the Board of Podiatry Examiners’ determination, the Superior Court found that the
registration deadline in the statute bore “no discernible relationship to the maintaining
of competence” because the application for renewal of registration required only that
the applicant provide basic information and enclose a check. Id. at 673.
We find Lerner to be inapposite because the statute in Lerner and the
regulation at issue here are not sufficiently analogous such that Lerner can guide our
analysis. The statute at issue in Lerner essentially deprived a podiatrist of the ability
to practice his profession simply because he missed an arbitrary filing deadline. That
is, timely registration was merely a ministerial function which in no way affected the
applicant’s license or his suitability for practice.
Unlike the statute at issue in Lerner, the UCC’s waiver regulations in
Section 401.5 were designed to allow the Department to waive the testing requirement
for individuals who had taken examinations and had been practicing code
administrators prior to the enactment of the UCC.5 In Mellot I, we stated:
The UCC contains several provisions that allowed current
code administrators to continue their profession, after the
effective date of the UCC, without having to meet newly
established qualifications to engage in code inspection
activities. For example, then-current code administrators
5
Section 701(d) of the Act authorizes the Department to
establish a procedure for the consideration of requests for waivers of
the initial training and certification requirements for individuals who
present documentation that they have previously satisfied substantially
similar training, testing and certification requirements. The
[D]epartment may also consider past work experience as an inspector
when deciding a request for a waiver. Any waiver shall not apply to
continuing education requirements.
35 P.S. § 7210.701(d).
9
were given time to meet the training and certification
requirements under section 401.15 of the UCC, 34 Pa. Code
§ 401.15 (Registration of current code administrators).
Specifically, then-current code administrators engaged in
plan review or inspection of one-family or two-family
residential property could continue to engage in inspection
activities for three years from the effective date of the
adoption of the final form regulations, i.e., until July 12,
2005. 34 Pa. Code § 401.15(a). After three years, if they
wished to continue to engage in such activities, they were
required to meet the certification and training requirements
of section 401.4. Id. Current code administrators engaged in
plan review or inspection of other buildings and structures
that were not one-family or two-family residential structures
could continue to engage in inspection activities for five
years from the effective date of the adoption of the final form
regulations, i.e., until July 12, 2007. 34 Pa. Code § 401.15(b).
After the expiration of five years, if they wished to continue
to engage in such activities, they were required to meet the
certification and training requirements of section 401.4. Id.Also, under section 401.5, certain applicants could
request a “waiver” of the testing requirements if they met
certain conditions. Specifically, the Department could
waive the testing requirements if the applicant passed a
substantially similar certification examination within the
six year period prior to July 12, 2002. 34 Pa. Code §
401.5(a). The UCC regulations were adopted on July 12,
2002. Six years prior to July 12, 2002, is July 12, 1996.
Thus, the phrase “within the [six] years prior to July 12,
2002” covers the period from July 12, 1996, to July 12,
2002. This exemption provision allowed inspectors who
passed a test at any time within the six-year period prior
to the effective date of the UCC (July 12, 2002) to
continue to engage in inspection activities without having
to meet the testing requirements of section 401.6 of the
UCC.
Contrariwise, if an applicant passed a substantially
similar examination during a period that exceeded six
10
years from the effective date of the regulations, i.e.,
before July 12, 1996, the Department could waive the
testing requirements only if the applicant submitted
evidence of continued employment in related fields,
current certification from a model code organization, or
substantial education in related fields. 34 Pa. Code §
401.5(b).
261 A.3d at 613-14 (emphasis added).
As intimated in Mellot I, Section 401.5 operates essentially as a
grandfather clause designed to provide an exception to the testing requirements of the
UCC set out in Section 401.6 for certain individuals. In other words, Section 401.5
was intended to protect those individuals who were actively practicing as code
administrators, who did not hold the qualifications required for certification. The
grandfather provision was intended to be utilized by those current code administrators
immediately prior to and after the implementation of the UCC. The purpose of the
exception was obviously to protect the jobs of certain persons who had worked as code
administrators before the enactment of the UCC regulations, but who could not
otherwise meet the newly enacted requirements. Such grandfather provisions are
common in the law as a way of ameliorating the harshness of applying new standards
to persons already serving successfully in a particular position.
In Allen v. Department of State, Bureau of Professional and Occupational
Affairs, 595 A.2d 771 (Pa. Cmwlth. 1991), we upheld, as constitutional, a grandfather
provision in the context of Section 3(a) of the Certified Public Accountant Law (Law).6
In that case, Robert Allen (Allen), a self-employed accountant, applied to the State
Board of Accountancy for a certificate to practice as a certified public accountant
(CPA). His application was denied due to his failure to fulfill a 1-year supervised
6
Act of May 26, 1947, P.L. 318, as amended, 63 P.S. § 9.3(a).
11
experience requirement, even though the Board of Accountancy granted licenses to
self-employed public accountants who had not met the supervision requirements under
a grandfather provision of the Law, which allowed those persons who held themselves
out to the public as public accountants at any time within the six-year period prior to
December 8, 1976 (the date of the 1-year supervised experience requirement
amendments) to register and obtain a license to practice as a public accountant without
examination or supervision requirements. This provision allowed registration with the
board as a public accountant during a limited period of 12 months following publication
of the one-year supervised experience requirement in the Pennsylvania Bulletin. Allen
appealed his denial, arguing that persons who came within the grandfathering provision
could take the required CPA examination and, without proof of work supervision or
the requisite education, be certified as CPAs. Raising an equal protection claim, he
argued that the board inconsistently and unfairly required proof of work supervision
for his certification with no similar prerequisite for public accountants who sought
certification as CPAs. Id. at 773. Rejecting Allen’s argument, we reasoned,
Allen’s argument fails because he places licensed public
accountants who received their licenses under the
grandfathering provision within the same category as persons
who never held themselves out to the public as public
accountants prior to the change in the Law. The public
accountants in practice prior to the amendments would have
suffered substantial deprivation of their rights if no provision
was instituted to allow them to continue their profession.
However, no such right exists when the right to practice a
particular occupation or profession has not yet been acquired.
Brady v. State Board of Chiropractic Examiners, [471 A.2d
572 (Pa. Cmwlth.), appeal dismissed, 483 A.2d 1376 (Pa.
1984)].
12
“When enacting legislation affecting substantial rights, the
Legislature need do no more than enact and publish the law,
and afford the citizenry a reasonable opportunity to
familiarize themselves with its terms and to take action to
preserve their rights.” Heckert v. Department of State,
Bureau of Professional and Occupational Affairs, [476 A.2d
481, 483 (Pa. 1984)]. The one-year period in which public
accountants could become licensed was reasonable as it
pertained to licensing public accountants in practice prior to
the amendments. However, Allen is not in that class. He
obtained his “experience” subsequent to the Law’s
enactment and, therefore, cannot claim he is in the same class
with licensed public accountants.
Id. at 773-74.
Here, Petitioner raises a substantive due process claim, arguing that it is
arbitrary and irrational to limit the applicability of the grandfather provision to
individuals who worked as code administrators prior to the enactment of the UCC.
There is no merit to this contention. The limitation is reasonable because it seeks to
limit the grandfather provision to individuals who had recently been employed for a
significant amount of time as code administrators. Limiting the grandfather provision
in this way was clearly related to carrying out the rest of the UCC by restricting the
number of persons who could avoid the regulation’s main testing requirements. This,
in turn, was reasonably related to the Act itself by helping “[t]o assure that officials
charged with the administration and enforcement of the technical provisions of this act
are adequately trained and supervised.” 35 P.S. § 7210.102(b)(6).
Testing Section 401.5 against the principles of substantive due process,
therefore, we cannot conclude that Section 401.5 is wholly unreasonable and arbitrary
and bears no rational relation to the public’s interest in ensuring that there was a
sufficient number of code administrators that were competent to ensure the safety of
our buildings and structures in the few years following the enactment of the UCC. As
13
explained in Mellot I, the waiver of testing requirements was one of the provisions that
“allowed current code administrators to continue their profession, after the effective
date of the UCC [July 12, 2002], without having to meet newly established
qualifications to engage in code inspection activities.” Mellot I, 261 A.3d at 613-14.
As in Allen, the waiver provisions of Section 401.5 simply do not apply
to Petitioner. We do not find that to be irrational or arbitrary. Petitioner passed the
examinations for the categories he wished to be certified in as outlined in Section 401.6
of the UCC in 2006. Because Petitioner passed the tests in which he wished to be
certified after the effective date of the UCC regulations, he is ineligible for a waiver
and instead falls under the UCC’s general provisions for obtaining and renewing
certifications. See 34 Pa. Code §§ 401.4, 401.6, 401.8, 401.9. In other words, those,
such as Petitioner, who took and passed the required examinations after the passage
of the UCC in 2002, do not need a waiver of the testing requirement because the factual
reality of those applicants’ situations would be covered by the UCC regulations
governing testing for and renewal of certifications. The waiver regulations envelop an
additional criterion – that the applicant already be working as a code administrator prior
to the UCC’s enactment, thereby protecting the rights of those who are already
established in the practice of code enforcement to continue their occupation when the
UCC took effect. That privilege under Section 401.5 does not extend to those, such as
Petitioner, who did not hold certifications in Pennsylvania prior to the establishment of
the waiver criteria.
Accordingly, we conclude that the application of Section 401.5 to
Petitioner does not violate Petitioner’s substantive due process rights. In light of our
holding, we need not address Petitioner’s second argument that the Department’s
14
action in this case violates his right under article 1 section 1 of the Pennsylvania
Constitution7 to pursue his chosen profession.
The order of Secretary is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
7
Article 1 Section 1 of the Pennsylvania Constitution provides: “All men are born equally
free and independent, and have certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness.” PA. CONST. art. 1, § 1.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph D. Mellott, :
Petitioner :
: No. 798 C.D. 2022
v. :
:
Department of Labor and Industry, :
Bureau of Occupational and :
Industrial Safety, :
Respondent :
ORDER
AND NOW, this 8th day of September, 2023, the June 30, 2022 order
of the Secretary of Labor and Industry is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge