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PENNSYLVANIA BUREAU CORRECTIONS v. BOARD STANDARDS AND APPEALS (05/22/86)

decided: May 22, 1986.

PENNSYLVANIA BUREAU OF CORRECTIONS
v.
BOARD OF STANDARDS AND APPEALS, CITY OF PITTSBURGH, ALLEGHENY COUNTY, PENNSYLVANIA. CITY OF PITTSBURGH, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Pennsylvania Bureau of Corrections v. Board of Standards and Appeals, City of Pittsburgh, No. S.A. 941 of 1983.

COUNSEL

Kellen McClendon, Assistant City Solicitor, with him, D. R. Pellegrini, City Solicitor, for appellant.

Jose Hernandez-Cuebas, Senior Deputy Attorney General, with him, Allen C. Warshaw, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for appellee.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 97 Pa. Commw. Page 408]

The City of Pittsburgh appeals an order of the Court of Common Pleas of Allegheny County which sustained the Pennsylvania Bureau of Corrections' (Bureau) appeal, and directed the Board of Standards and Appeals of the City of Pittsburgh (Board) to issue a variance permitting the omission of sprinklers from the cells of the Western State Penitentiary. We affirm.

This case involves the question of whether the Board has the power to enforce its regulations concerning fire provisions against the Bureau of Corrections.

In an expansion and renovation program of the Western State Penitentiary, the Bureau filed floor plans for approval by the Board. This program included, inter alia, the construction of two new cell housing buildings. Under the operative Building Officials and Code Administrators Basic Building Code of 1981 (BOCA Code) provisions, which are incorporated into the Building Title of the Pittsburgh Code of Ordinances, various institutions are classified into groups according to use. One of the groups includes "all buildings designed for the detention of people under restraint, including

[ 97 Pa. Commw. Page 409]

    among others, jails, prisons, reformatories, insane asylums and similar uses." Section 306.2 of the BOCA Code. The fire protection system for this group requires water sprinkler systems.

The Board, in reviewing the plans, indicated that the water sprinkler system requirement meant that the Bureau must install sprinkler heads in each inmate's cell. The Board denied the Bureau's request for a variance. The trial court sustained the Bureau's appeal. The Bureau contends that it is not subject to Pittsburgh's Code of Ordinances, and in the alternative, it is entitled to a variance.

Since the legislature has the power to regulate both of these governmental agencies, this is not a contest between superior and inferior governmental entities, but instead a contest between two instrumentalities of the state. Department of General Services v. Ogontz Area Neighbors Association, 505 Pa. 614, 483 A.2d 448 (1984). Our task is to determine which entity has pre-eminent powers. In attempting to determine the intent of the legislature in this connection, our Supreme Court in Ogontz, in reviewing the various tests that had previously been used, finally concluded that intent shall be determined by a consideration, inter alia, of the consequences of a particular construction.

The consequences of a determination that the Bureau should prevail would certainly frustrate the Board in the duty of the City of Pittsburgh to provide for the welfare and safety of its inhabitants. On the other hand, the function of the Commissioner of Corrections is to maintain and administer a penal institution. Where, as here, the Bureau feels that its function may be hampered by building or fire regulations causing undue hardships, it has the power to seek relief by ...


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