Schock, E., Aplt. v. City of Lebanon

[J-88-2018] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
EDWARD J. SCHOCK, : No. 79 MAP 2017
:
Appellant : Appeal from the Order of the
: Commonwealth Court at No. 40 CD
: 2017 dated August 4, 2017 Affirming
v. : the Order of the Lebanon County
: Court of Common Pleas, Civil Division,
: at No. 2016-00423 dated December
CITY OF LEBANON, : 19, 2016.
:
Appellee : ARGUED: December 4, 2018
CONCURRING OPINION
JUSTICE WECHT DECIDED: May 31, 2019
Article 2, Section 1 of the Pennsylvania Constitution provides that “[t]he legislative
power of this Commonwealth shall be vested in a General Assembly[.]” 1 “Legislative
power is the power ‘to make, alter, and repeal laws.’”2 Embedded within the General
Assembly’s constitutionally vested lawmaking power is an implicit, concomitant
responsibility to exercise that power in a way that produces intelligible legislation.
In accordance with the Statutory Construction Act,3 this Court strives to “ascertain
and effectuate the intention of the General Assembly.” See 1 Pa.C.S. § 1921(a). In doing
so, we are guided by the principle that the best indication of the General Assembly’s intent
is the plain language of its statutes. Allstate Life Ins. Co. v. Commonwealth, 52 A.3d
1 PA. CONST. art. 2, § 1.
2 In re Marshall, 69 A.2d 619, 626 (Pa. 1949) (quoting O’Neil v. Am. Fire Ins. Co.,
30 A. 943, 944 (Pa. 1895)).
3 1 Pa.C.S. §§ 1901-1991.
1077, 1080 (Pa. 2012). When the words of a statute are clear and unambiguous, we do
not look beyond its plain meaning “under the pretext of pursuing its spirit.” 1 Pa.C.S. §
1921(b). When those words are not clear, we endeavor to construe the law’s meaning
by means of interpretive tools and presumptions that the General Assembly has codified.
See id. §§ 1921(c)(1)-(8), 1922(1)-(5).
The dynamics of the relationship between the legislature’s power of lawmaking
and the judiciary’s function of statutory interpretation underscore the importance of
cohesive and thoughtful draftsmanship. Ambiguous and inconsistent statutes present
interpretive difficulties and waste judicial and legislative resources, often at considerable
taxpayer expense. Our tools of statutory construction—tools provided to us by the
General Assembly—can prove virtually useless when we confront a statute afflicted by
poor draftsmanship. Moreover, and of greater concern, courts run the risk of unwittingly
subverting legislative intent when forced to interpret a highly ambiguous statute.
In the Neighborhood Improvement District Act, 73 P.S. §§ 831-840 (“the Act”),
directly before us in this appeal, the General Assembly has failed in its duty to enact
coherent legislation. Rather than providing municipalities with a comprehensive roadmap
for the creation and administration of economic improvement districts, the lawmakers
have prescribed a hopeless muddle of maddening contradictions. Specifically at issue
here is the meaning of the term “affected property owner” in Subsection 835(f)(2), the
veto provision of the Act, which provides:
If 40% or more of the affected property owners within the proposed NID fail
to register their disapproval of the final plan or amendment to the final plan
in writing with the clerk of the governing body of the municipality in which
the NID is proposed, the governing body of the municipality may, following
the 45-day period, enact a municipal ordinance establishing an NID under
this act or, in the case of an amendment to the final plan, adopt any
amendments to the ordinance.
73 P.S. § 835(f)(2) (emphasis added).
[J-88-2018] [MO: Saylor, C.J.] - 2
The City of Lebanon maintains that the term “affected property owners” means all
property owners, while Edward Schock contends that the term refers only to assessed
property owners. In light of the statutory morass, I confess that both interpretations are
plausible. After careful consideration, I join in the learned Majority’s conclusion that the
phrase “affected property owners,” as used in the veto provision, means only assessed
property owners. Further, I concur unreservedly in the Majority’s suggestion that the
“statutory scheme merits revisiting and adjustment by the policy-making branch.” See
Maj. Op. at 28. I write separately to emphasize this latter point.
Globally, the veto provision is part of a section of the Act entitled “Creation of
neighborhood improvement district.” See 73 P.S. § 835. To embark upon a virtual
journey through the legislative instructions for creation of an NID, as prescribed by the
General Assembly in the provisions of Section 835, is to confront the uncertainties that
befall municipalities contemplating engagement in this process.4
First, subsection (a) provides that either the governing body of the municipality or,
upon petition, residents or businesses within the municipality, may initiate action to
establish an NID. See id. §§ 835(a)(1)-(3). Next, subsection (b) sets forth the specific
procedures for initiating such action. Among these procedures is the requirement that a
copy of the preliminary plan and the date, location, and time of any public hearing “shall
be provided . . . to all property owners and lessees of property owners located in the
proposed NID[,]” at least thirty days prior to the public hearing. See id. § 835(b)(1). The
subsection immediately following this provision, however, states that the purpose of the
public hearing is for “receiving public comment from affected property owners within the
proposed NID[.]” See id. § 835(b)(2). The plain language thus requires that the
4 In the four textual paragraphs that follow, in order to highlight the inconsistency of
the General Assembly’s use of qualifying adjectives for the phrase “property owners,” I
will italicize relevant statutory language.
[J-88-2018] [MO: Saylor, C.J.] - 3
municipality provide all property owners with a copy of the preliminary plan and notice of
the public hearing, but that only the comments of affected property owners are sought.
The preliminary plan, which all property owners must receive, shall include, among
other things, a list of the properties to be assessed and the method for determining the
amount of the assessment fee. See id. §§ 835(c)(2)(iii), (x). Additionally, the plan shall
“[a]llow for and encourage tax-exempt property owners located within the NID to provide
in-kind services or a financial contribution to the NID [Management Association], if not
assessed, in lieu of a property assessment fee.” Id. § 835(c)(3)(iii). Of particular
relevance, the plan must also provide property owners with notice that “a negative vote
of at least 40% of the property owners within the NID proposed in the final plan shall be
required to defeat the establishment of the proposed NID[.]” Id. § 835(c)(3)(vii).
This brings us to the part of the process that involves the provision at issue in this
appeal. Following the last public hearing, affected property owners have forty-five days
to object to and disapprove the final plan. But if “40% or more of the affected property
owners within the proposed NID fail to register their disapproval[,]” the municipality may
enact an ordinance establishing the NID. Id. §§ 835(f)(1)-(2).5 Importantly, affected
property owners are required to object to the final plan pursuant to the requirements of
Subsection 835(b)(3), which states, in relevant part: “Any objections by property owners
within the proposed NID must be made in writing by persons representing the ownership
of 40%, in numbers, of the benefited properties with the NID.” Id. § 835(b)(3).6
5 The double-negative in Subsection 835(f)(2) alone renders the veto provision
inherently confusing, compounding the incoherence of the Act as a whole.
6 The procedural veto provision, while beyond the scope of this appeal, is yet
another example of inartful draftsmanship. This provision discusses the 40% threshold
as a calculation of properties, whereas the substantive veto provision discusses the
threshold in terms of property owners. By way of example, let us set aside the meaning
of “affected,” or the distinction between tax-exempt and assessed properties, and
[J-88-2018] [MO: Saylor, C.J.] - 4
After the establishment of an NID, the municipality may seek to amend its terms.
Doing so requires “concurrence with 60% of the property owners within the NID.” Id. §
835(g)(1). Before approving any changes, however, the municipality must hold at least
one public hearing “to determine that such changes are in the public interest as it relates
to affected property owners within the NID.” Id. § 835(g)(2). Finally, any request for the
termination of an NID may be submitted to the municipality, so long it has the approval of
“40% of the assessed property owners, in numbers, located in the NID[.]” Id. § 838(b).
This last clause is the only one in the entire Act that uses the term “assessed property
owners.”
Within the three subsections that directly reference the veto process, the General
Assembly inexplicably uses three different phrases to characterize the properties or
property owners involved: “benefited properties,” “property owners within the NID,” and
“affected property owners.” See id. § 835(b)(3), (c)(3)(vii), and (f)(2), respectively. As the
Majority recognizes, it is “readily discernable [sic] that each of these terms cannot carry
a distinct meaning.” Maj. Op. at 17. The conundrum becomes even more perplexing
when we read these provisions within the context of the entire Act. Throughout the Act,
the General Assembly employs a potpourri of different phrasings: designated property
consider a district with 100 properties within a proposed NID. Imagine that one individual
owned 50 of those properties, and the remaining 50 were owned by 50 separate
individuals. Thus, there would be 100 properties, but only 51 property owners.
Under the substantive veto provision, which states that objections by “40% or more
of the affected property owners” are required to defeat the NID’s creation, at least 21
owners must object. See 73 P.S. § 835(f)(2). However, under the procedural veto
provision, which states that objections must be made in writing by “persons representing
the ownership of 40%, in numbers, of the benefited properties,” the one individual owning
50 properties alone could defeat the NID’s creation. See id. § 835(b)(3). Of course, these
provisions could be read in pari materia in order to force consistency within the Act and
avoid illogical results. But a more careful and studied approach to drafting by the General
Assembly could achieve the same result without requiring judicial contortions of the Act’s
language.
[J-88-2018] [MO: Saylor, C.J.] - 5
owners, all property owners, affected property owners, benefited property owners,
property owners within the proposed NID, assessed property owners, and tax-exempt
property owners.
The General Assembly’s language choices force interpretive decisions upon us.
We must pick and choose among and between principles of statutory construction as we
search for legislative intent. To apply one canon of construction invalidates our ability to
rely upon another because to do so would yield a contradictory result. Thus the question
becomes—upon which canon do we rely? Upon which do we place controlling weight?
For example, on the one hand, “it is not for the courts to add, by interpretation, to
a statute, a requirement which the legislature did not see fit to include. Consequently, [a]s
a matter of statutory interpretation, although one is admonished to listen attentively to
what a statute says; one must also listen attentively to what it does not say.”
Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011) (internal quotations and
citations omitted). The Act does not expressly exclude tax-exempt property owners from
participating in the process of creating an NID. To the contrary, certain provisions
implicitly suggest that the General Assembly intended to include those property owners.
All property owners, including tax-exempt property owners, must receive the preliminary
plan and are invited to attend a public hearing and provide comment. See 73 P.S. §
835(b)(1). Additionally, the Act encourages tax-exempt property owners to provide
monetary contributions or in-kind services in lieu of assessment fees, thereby implying
that tax-exempt property owners have a stake in the NID’s implementation. See id. §
835(c)(3)(iii). Curiously, the term “assessed property owners” is absent from all relevant
provisions of Section 835 regarding the creation and veto processes and, in fact, appears
only once in the Act. Thus, if this Court interprets the veto provision as limiting
involvement only to assessed property owners, we arguably add a requirement “which
[J-88-2018] [MO: Saylor, C.J.] - 6
the legislature did not see fit to include,” and, in so doing, contravene this rule of statutory
construction.
However, on the other hand, “[i]n construing a statute, the courts must attempt to
give meaning to every word in a statute, as we cannot assume that the legislature
intended any words to be mere surplusage.” City of Phila. Fire Dep’t v. W.C.A.B. (Sladek),
195 A.3d 197, 207 (Pa. 2018) (internal citation omitted). The veto provision applies to
“affected property owners.” To conclude that tax-exempt property owners are “affected”
would be to read the word “affected” out of the provision, effectively reducing its meaning
to “all.” And, again, we would be contravening a rule of statutory construction.
Adhering strictly to yet another rule would require a conclusion that “affected”
means neither “all” nor “assessed.” Under the principle expressio unius est exclusio
alterius, if the General Assembly includes specific language in one section of a statute
but excludes it from another section, that language should not be implied where excluded.
See Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1223 (Pa. 2002). Here, the
General Assembly used the phrases “all property owners” and “assessed property
owners” in different provisions of the Act, demonstrating its ability to choose between
those phrases where it intended. Therefore, applying the expressio principle, because
the General Assembly chose not to qualify “property owners” in the veto provision with
either “all” or “assessed,” we cannot necessarily imply the meaning of the other. Around
and around we go. The process is confounding.
Balancing the competing principles, and reading the Act in its entirety, as we must,
the Majority concludes that, on balance, the veto provision is intended to apply only to
assessed property owners. See Trust Under Agreement of Taylor, 164 A.3d 1147, 1155
(Pa. 2017) (“When construing one section of a statute, courts must read that section not
by itself, but with reference to, and in light of, the other sections.”). I find the Majority’s
[J-88-2018] [MO: Saylor, C.J.] - 7
reasoning persuasive, especially given the overwhelming ambiguity created by the
General Assembly. However, I observe that, in light of the fact that certain principles of
statutory construction weigh in favor of the opposite (or perhaps some entirely different)
interpretation, it would not be beyond this Court’s authority to reach a contrary conclusion.
I acknowledge this reality frankly, in the hope that our General Assembly will engage in
careful draftsmanship when it discharges its constitutionally vested legislative power. Not
least among the costs of its failure to do so is the risk that courts will undermine the
General Assembly’s true intentions notwithstanding faithful and diligent application of the
rules of statutory construction.
[J-88-2018] [MO: Saylor, C.J.] - 8