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SMALLER MANUFACTURERS COUNCIL v. COUNCIL CITY PITTSBURGH AND CITY PITTSBURGH AND SUPPORT OUR NEIGHBORHOODS ACTION COALITION (10/24/84)

decided: October 24, 1984.

SMALLER MANUFACTURERS COUNCIL, A PENNSYLVANIA NON-PROFIT CORPORATION; HANLON-GREGORY INDUSTRIES, A PENNSYLVANIA CORPORATION; PITTSBURGH COMMERCIAL HEAT TREATING CO., A PENNSYLVANIA CORPORATION; AND BRAUNLICH-ROESSLE COMPANY, A PENNSYLVANIA CORPORATION AND GREATER PITTSBURGH CHAMBER OF COMMERCE, A PENNSYLVANIA NON-PROFIT CORPORATION
v.
COUNCIL OF THE CITY OF PITTSBURGH AND THE CITY OF PITTSBURGH AND SUPPORT OUR NEIGHBORHOODS ACTION COALITION, A PENNSYLVANIA UNINCORPORATED ASSOCIATION AND ALLEGHENY COUNTY LABOR COUNCIL, A PENNSYLVANIA UNINCORPORATED ASSOCIATION. SUPPORT OUR NEIGHBORHOODS ACTION COALITION AND THE ALLEGHENY COUNTY LABOR COUNCIL, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Smaller Manufacturers Council, a Pennsylvania non-profit corporation; Hanlon-Gregory Industries, a Pennsylvania corporation; Pittsburgh Commercial Heat Treating Co., a Pennsylvania corporation; and Braunlich-Roessle Company, a Pennsylvania corporation v. The Council of the City of Pittsburgh and the City of Pittsburgh, a Home Rule Municipality, No. GD 83-11245.

COUNSEL

Jon Pushinsky, with him, D. R. Pellegrini, for appellants.

James B. Brown, with him, David F. Toal, Baskin and Sears, P.C., for appellees, Smaller Manufacturers Council, Hanlon-Gregory Industries, Pittsburgh Commercial Heat Treating Company, and Braunlich-Roessle Company.

David L. McClenahan, with him, Stephen M. Olson and Carolyn L. Marchetti, Kirkpatrick, Lockhart, Johnson & Hutchison, for appellee, Greater Pittsburgh Chamber of Commerce.

Jacques M. Wood, with him, Stephen C. Kunkle, Berkman, Ruslander, Pohl, Lieber & Engel, for Amicus Curiae, Tristate Industrial Association, Inc.

Harold I. Goodman, with him, Lorrie McKinley, for Amici Curiae, The Philadelphia Unemployment Project and The Delaware Valley Coalition for Jobs.

Michael R. Feinberg, for Amicus Curiae, Economic Rights Taskforce of the National Lawyers Guild.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Barry and Colins. Opinion by Judge Barry. Concurring Opinion by Judge Colins.

Author: Barry

[ 85 Pa. Commw. Page 535]

This appeal results from an order of the Court of Common Pleas of Allegheny County which invalidated Ordinance 21 passed by the Council of the City of Pittsburgh (City). Subsequent to the passage of Ordinance 21, the solicitor for the City filed a petition for declaratory judgment to test the validity of the ordinance. Appellees, Smaller Manufacturers Council, a Pennsylvania non-profit corporation, Hanlon-Gregory Industries, a Pennsylvania corporation, Pittsburgh Commercial Heat Treating Co., a Pennsylvania corporation, Braunlich-Roessle Company, a Pennsylvania corporation and the Greater Pittsburgh Chamber of Commerce, filed petitions to intervene in order that they might file petitions for declaratory judgment challenging the validity of the ordinance. Appellants, the City of Pittsburgh and its city council were joined by intervenors Support Our Neighborhoods Action Coalition, The Allegheny County Labor Council, the Philadelphia Unemployment Project and Delaware Valley Coalition for Jobs. An en banc panel of the Court of Common Pleas of Allegheny County held that Ordinance 21 was invalid for three reasons. The court held that (1) the City lacked the authority to enact the ordinance, (2) the ordinance was preempted by

[ 85 Pa. Commw. Page 536]

    federal labor law and (3) the ordinance contained a void penalty provision. This appeal followed.

Ordinance 21 was adopted for the stated purpose of reducing the economic disruption caused by plant closings and relocations in the Pittsburgh area. The ordinance requires an employer, when a plant closes, relocates or reduces its operations so that there is a loss of employment of 15% of employees, to notify in writing a Bureau of Business Security created under the terms of the ordinance.*fn1 The notice required is as follows:

(1) Employers of 50-100 employees shall give 90 days prior notification;

(2) Employers of 101-500 employees shall give 180 days prior notification; and,

(3) Employers of 501 or more shall give 270 days prior notification.*fn2

The Bureau has the right to determine a proper notice that is less than that required under the ordinance. Section 5(B) also provides "the Bureau shall develop written criteria for such determinations" (a salutary provision which does not delegate absolute power to the Bureau).

Section 5(C) relating to what is required to be included in the written notice, Section 6 "Investigation", Section 7 "Report of Investigation", Section 8 "Duties of the Bureau" and Section 9 "Exclusions" are attached to this opinion as an appendix. Section 11 of the ordinance creates a Commission for Jobs and Commerce

[ 85 Pa. Commw. Page 537]

    to advise City Council on the actions and decisions of the Bureau.

As previously mentioned, the trial court invalidated the ordinance on three distinct grounds. First, the court held that the ordinance violated Section 302(d) of the Home Rule and Optional Plans Law.*fn3 Second, the court held that the ordinance was preempted by federal labor law. Finally, the court ruled that the ordinance contained a void penalty provision. We will discuss the court's rulings in reverse order.

The trial court was correct when it found that the penalty provision in Section 10(B) of the ordinance was void as it was contrary to Section 302(a)(9) of the Home Rule and Optional Plans Law, 53 P.S. § 1-302(a)(9) which provides:

(a) The home rule charter adopted in accordance with the provisions of this Act shall not give any power or authority to the municipality contrary to, or in limitation of powers granted by acts of the General Assembly which are applicable to a class or classes of municipalities on the following subjects:

(9) defining or providing for the punishment of any felony or misdemeanor.

As Section 10(B) of the ordinance makes it a misdemeanor to fail to comply with various of the provisions of the ordinance, that provision is obviously void. However, the trial court erred when it held that the entire ordinance was void because there was no severability provision in the ordinance. 1 Pa. C.S. § 1925 provides:

The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance

[ 85 Pa. Commw. Page 538]

    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 statutes 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 the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

We believe that voiding the penalty provisions of the ordinance in no way invalidates the remainder of the ordinance.

We likewise disagree with the trial court's holding that federal labor law preempts the present ordinance. It is true that some areas of the field of labor management relations are certainly preempted by the National Labor Relations Act, although the federal courts more often than not do not use the term "preemption", but speak in various ways of the primacy of the federal government and the NLRB in certain areas of this complicated field. Surely there is not such a broad preemption that the state courts cannot prohibit mass picketing, enjoin violent acts by management or labor or, indeed, listen to the pronouncements of the Pennsylvania Labor Relations Board. We believe that Ordinance 21 addresses peripheral concerns that are not directly involved in labor-management relations, and hence within the exclusive sphere of the federal government's responsibility. The City has a proper concern for the failure of businesses, the loss of jobs and the deterioration of neighborhoods, concerns about

[ 85 Pa. Commw. Page 539]

    which, we believe, it can legitimately legislate if it is not otherwise prohibited by state law from doing so. To hold otherwise would be to look askance at plant closing laws in four other states*fn4 and to telegraph to our General Assembly that it has no power to adopt a state plant closing law that presently is the subject of hearings throughout the Commonwealth. We believe that Justice Frankfurter in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 241, (1959), uses language which is particularly applicable to this case, and which indicates that there is not a general preemption in this area.

In determining the extent to which state regulation must yield to subordinating federal authority, we have been concerned with delimiting areas of potential conflict; potential conflict of rules of law, of remedy, and of administration. The nature of the judicial process precludes an ad hoc inquiry into the special problems of labor-management relations involved in a particular set of occurrences in order to ascertain the precise nature and degree of federal-state conflict there involved, and more particularly what exact mischief such a conflict would cause. Nor is it our business to attempt this. Such determinations inevitably depend upon judgments on the impact of these particular conflicts on the entire scheme of federal labor policy and administration. Our task is confined to dealing with classes of situations. To the National Labor ...


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