Appeal from the Order of the Court of Common Pleas of Northampton County in case of Franklin E. Skepton, t/a Franklin E. Skepton, General Contractor, and Northampton Area School District v. Borough of Northampton, No. 1982-C-7939.
Mark S. Refowich, Fishbone, Refowich & Scheer, for appellant.
Judith A. Dexler, with her, Martin J. Karess, Karess & Reich Law Offices, for appellee, Borough of Northampton.
Judges Williams, Jr., Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.
Franklin E. Skepton, a general contractor, contracted with Northampton Area School District to renovate an elementary school building situate in the Borough of Northampton. On August 6, 1982, the borough commenced an equity action seeking to prohibit work on the project pending Skepton's payment of $3710 for a building permit as required by local ordinance. Ordinance No. 915, entitled "Building Code of the Borough of Northampton," requires that a permit be obtained prior to beginning construction work. By agreement of the parties, the school district,
which was not a participant in the equity proceeding, placed $3710 in escrow with the Court of Common Pleas of Northampton County, and the work continued.
Skepton and the school district then instituted a declaratory judgment action in the common pleas court to determine whether the Commonwealth had pre-empted local regulation of the school construction project, especially regarding building permit fees and site inspections. After trial, the chancellor issued an adjudication and decree nisi which provided that the building code ordinances were not pre-empted and directed that the $3710 was to be paid to the borough. This appeal ensued from the entry of the final decree, which followed dismissal of Skepton's exceptions.
The borough is statutorily authorized to enact and enforce building ordinances that provide for, inter alia, prior approval of building plans, the appointment of inspectors and on-going inspections of work sites. Section 1202(24) of the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46202(24). The borough may further prescribe reasonable fees for its officers' services and enforce payment. Pursuant to this authority the borough enacted a series of ordinances which adopted the "BOCA Basic Building Code," created a code inspection and enforcement office, and required -- prior to the initiation of work -- the purchase of building permits at $3.00 for each $1000 of construction costs.
Skepton primarily argues that three statutes -- the Fire and Panic Act,*fn1 the Public School Code of 1949*fn2
and The Administrative Code of 1929*fn3 -- pre-empt local regulation of school construction projects, thereby negating the building permit fee requirement.*fn4 State pre-emption of municipal regulation of local activities can be either explicit or, if the statute is silent on supercession, implicit, upon state and local regulatory powers actually and materially conflicting. Holland Enterprises, Inc. v. Joka, 64 Pa. Commonwealth Ct. 129, 439 A.2d 876 (1982). A local ordinance is therefore superceded to the extent it contradicts or is inconsistent with a statute that is not explicitly pre-emptive. Id. Municipalities, however, pursuant to ...