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Allegheny Inspection Service, Inc. v. North Union Township

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT


February 20, 2009

ALLEGHENY INSPECTION SERVICE, INC. AND STEEL CITY INSPECTION AGENCY, INC., APPELLEES
v.
NORTH UNION TOWNSHIP AND K2 ENGINEERING, INC., APPELLANTS
ALLIED BUILDING INSPECTIONS,
v.
TOWNSHIP OF MILLCREEK AND BUILDING INSPECTION UNDERWRITERS OF PENNSYLVANIA, INC.,
v.
FAIRVIEW TOWNSHIP AND HARBORCREEK TOWNSHIP
APPEAL OF: BUILDING INSPECTION UNDERWRITERS OF PENNSYLVANIA, INC.
ALLIED BUILDING INSPECTIONS,
v.
TOWNSHIP OF MILLCREEK AND BUILDING INSPECTION UNDERWRITERS OF PENNSYLVANIA, INC.,
v.
FAIRVIEW TOWNSHIP AND HARBORCREEK TOWNSHIP
APPEAL OF: TOWNSHIP OF MILLCREEK, FAIRVIEW TOWNSHIP AND HARBORCREEK TOWNSHIP

Appeal from the Order of the Commonwealth Court entered December 6, 2006 at No. 922 CD 2006 reversing the Order of the Court of Common Pleas of Fayette County entered April 20, 2006 at No. 846 of 2005. 912 A.2d 380. Appeal from the Order of the Commonwealth Court entered December 6, 2006 at No. 42 CD 2006 reversing the Order of the Court of Common Pleas of Erie County entered December 22, 2005 at No. 14074-2004.

The opinion of the court was delivered by: Mr. Justice Baer

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.

ARGUED: March 3, 2008

OPINION

We granted review of these three related cases to consider whether municipalities that opt to enforce the Pennsylvania Construction Code Act (PCCA), 35 P.S. § 7210-101, et seq., may designate one entity to administer, enforce, and conduct all plan review and inspections mandated by the PCCA to the exclusion of other construction code officials. Trial courts in Erie and Fayette County determined that the plain language of the relevant PCCA provisions allowed municipalities to employ third-party agencies to perform all the inspections necessary for PCCA compliance, and thereby exclude other construction code officials from PCCA compliance inspections. The Commonwealth Court reversed the Fayette County trial court in a published decision and the Erie County court in an unpublished memorandum, concluding that the trial court decisions were inconsistent with a section of the PCCA that prohibited municipalities from preventing any construction code official from conducting inspections. We conclude that the plain language of the PCCA, as currently enacted, permits municipalities to employ a third-party agency to conduct all PCCA compliance inspections to the exclusion of other construction code officials. We observe, however, that the other construction code officials are not prevented from conducting inspections for purposes other than PCCA compliance.

The PCCA was adopted in 1999 with the purpose of insuring "uniform, modern construction standards and regulations throughout this Commonwealth," to address the lack of construction codes in some municipalities and conflicting codes in others. 35 P.S. § 7210.102. It became effective in April 2004 after the Department of Labor and Industry ("the Department") promulgated regulations adopting the Uniform Construction Code (UCC), 24 Pa. Code § 401.1 et seq.

As is relevant to this appeal, under Section 501 of the PCCA, 35 P.S. § 7210.501, municipalities were required to adopt the UCC as their municipal building code, and had several options regarding the administration and enforcement of the PCCA.*fn1 First, the municipality could designate an employee to serve as a municipal code official*fn2 to enforce the act, 35 P.S. § 7210.501(b)(1). Second, a municipality could "administer and enforce" the PCCA "[b]y the retention of one or more construction code officials or third-party agencies to act on behalf of the municipality for administration and enforcement of this act."

35 P.S. § 7210.501(b)(2) (hereinafter, "Third-Party Agency Administration Subsection").*fn3

Third, two or more municipalities could band together to provide for joint administration and enforcement. 35 P.S. § 7210.501(b)(3) (hereinafter, "Joint Administration Subsection"). Fourth, a municipality could contract with another municipality to use that municipality's enforcement authority, 35 P.S. § 7210.501(b)(4). Finally, a municipality could enter into an agreement with the Department of Labor and Industry to provide plan review, inspections, and enforcement of certain buildings. Conversely, a municipality could opt-out of the administration and enforcement of the PCCA so long as it notified an applicant for a construction permit of the statutory procedures for obtaining the necessary plan review and inspection services. 35 P.S. § 7210.501(e).*fn4 Municipalities had to choose an option within ninety days of the adoption of the regulations by the Department, pursuant to 35 P.S. § 7210.501(a)(2).

The question raised by this case is whether a municipality that opts to enforce and administer the PCCA through the Third-Party Agency Subsection can enter into a contract providing authority for a third-party agency to perform all PCCA compliance inspections, and thus to refuse to accept inspections for PCCA compliance purposes performed by construction code officials not working for or through the contracted-with third-party agency. The Commonwealth Court concluded that municipalities were prohibited from contracting with one third-party agency to the exclusion of all other construction code officials due to the PCCA's provision that "[n]othing in this act shall allow a municipality to prohibit a construction code official who meets the requirements of Chapter 7 and remains in good standing from performing inspections in the municipality." 35 P.S. § 7210.501(d), (hereinafter referenced by its title "Registration Subsection," see infra at 16 for full text).

In the cases at bar, the municipalities chose to contract with third-party agencies to administer and enforce the PCCA. In the Fayette County case, North Union Township enacted an ordinance adopting the UCC and, on July 14, 2004, entered into a contract with K2 Engineering, one of the Appellants herein, to administer and enforce the PCCA. Pursuant to the contract, the township specified that it would only recognize, for purposes of PCCA compliance, those inspections performed by K2 and not by other construction code officials, such as those employed by Appellees Allegheny Inspection Services, Inc. and Steel City Inspection Agency, Inc., hereinafter, "Fayette County Plaintiffs."

Fayette County Plaintiffs filed a declaratory judgment action in the Fayette County Court of Common Pleas seeking a declaration that the Registration Subsection forbids municipalities from excluding any construction code official from performing PCCA compliance inspections. The court bifurcated the liability and damages phases of the trial, and the parties submitted a joint stipulation of fact and then presented argument before the trial judge pertinent only to the liability phase. The trial court observed that the Third-Party Agency Administration Subsection specifically and unambiguously permits municipalities to retain "one or more construction code officials or third-party agencies to act on behalf of the municipality for administration and enforcement of this act." 35 P.S. § 7210.501(b)(2). Thus, the court opined that the words of the statute were clear and free from ambiguity and allowed the township to employ one third-party agency to administer and enforce the act, and concomitant thereto, to conduct all inspections incident to code compliance. Further, the court concluded that the agreement between the municipality and the third-party agency did not violate the Registration Subsection because the construction code officials, including the Fayette County Plaintiffs, could still perform inspections, just not inspections for purposes of code compliance.

Similarly, in Erie County in 2003, Millcreek Township entered into an agreement with Harborcreek Township and Fairview Township to contract with a single third-party agency to administer and enforce the PCCA for the three townships in conformance with the Third-Party Agency Administration Subsection and the Joint Administration Subsection. In April 2004, the townships requested proposals for the position of third-party agency to perform PCCA plan review, inspection, and administration and enforcement services for the townships. Both Building Inspection Underwriters of Pennsylvania, Inc. (BIU) and Allied Building Inspectors submitted proposals to be the third-party agency for the townships. In the summer of 2004, the townships enacted ordinances to adopt the UCC and indicate their intent to enforce and administer the PCCA through the use of a third-party agency.*fn5

Additionally, the townships chose BIU as their third-party agency No challenges were filed against the ordinances despite provisions affording the opportunity to challenge, 35 P.S. § 7210.503(j)(1).

Nevertheless, in November 2004, the losing agency, Allied Building (hereinafter, "Erie County Plaintiff"), filed a declaratory judgment action against Millcreek Township and BIU in the Erie County Court of Common Pleas seeking the same relief as the Fayette County Plaintiffs sought in Fayette County. Harborcreek and Fairview Township sought and were granted intervention as parties to the contract. The Townships and BIU then filed motions for summary judgment. The Erie County trial court, like the Fayette County trial court, concluded that the language of Third-Party Agency Administration Subsection clearly provided for the employment of a single third-party agency for administration and enforcement services that necessarily included inspections for code compliance, and that the provision did not conflict with the Registration Subsection because other construction code officials could perform other types of inspections. The court accordingly granted summary judgment to the Townships and to BIU.

The Erie and Fayette County Plaintiffs appealed to the Commonwealth Court. An unanimous en banc panel of that court addressed the Fayette County case in a published opinion, Allegheny Inspection Service, Inc. and Steel City Inspection Agency, Inc. v. North Union Township and K2 Engineering, Inc., 912 A.2d 380 (Pa. Cmwlth. 2006). The court resolved the Erie County case in an unpublished decision, relying upon the published Fayette County decision. Accordingly, we will address in detail only the published decision.

Rejecting the analysis of the trial courts, which concluded that the third-party agency could exclusively perform all inspections for PCCA compliance because inspection was encompassed within "administration and enforcement," as used in Third-Party Agency Administration Subsection, the Commonwealth Court concluded that the statutory duties of "administration and enforcement" were distinct from the duty of inspection. Allegheny Inspection Service, Inc., 912 A.2d at 384. Focusing on the word "or," the Commonwealth Court noted that the PCCA provides that a "third-party agency" may "perform plan review of construction documents, inspect construction or administer and enforce codes and regulations under this act." 35 P.S. § 7210.103 (emphasis added). The Commonwealth Court then observed that the Third-Party Agency Administration Subsection, granting the municipality the authority to hire a third-party agency, provided that the third-party agency could perform administration and enforcement, without mention of inspection. Accordingly, the Commonwealth Court rejected the conclusions of the trial court that "administration and enforcement" in Third-Party Agency Administration Subsection necessarily included the performance of compliance inspections.

Instead, in order to give effect to both the Third-Party Agency Administration Subsection, which provides for the employment of a single third-party agency for administration and enforcement of the PCCA, and the Registration Subsection, which forbids municipalities from prohibiting construction code officials from performing inspections, the Commonwealth Court concluded that "administration and enforcement" does not include "inspection." Rather than considering the terms in light of the subject matter of the statute, the court turned to generic dictionary definitions of administration, enforcement, and inspection and determined that they constituted different functions.*fn6 The court concluded,

[The Third-Party Agency Administration Subsection] of the PCCA authorizes a municipality to retain a particular construction code official or third-party agency to act on its behalf only for "administration and enforcement" of the PCCA; at the same time, [the Registration Subsection] of the PCCA provides that a municipality may not prohibit a qualified construction code official from performing "inspections" in the municipality. Thus, read together, these sections of the PCCA necessarily disallow the present agreement between the Township and K2.

Allegheny Inspection Service, Inc., 912 A.2d at 385 (internal citations and footnotes omitted, emphasis in original). Accordingly, the court rejected the trial court's plain language analysis: "By failing to recognize that construction inspections for purposes of the UCC are a function separate and distinct from the administration and enforcement of UCC regulations, the trial court misinterprets [the Registration Subsection] of the PCCA and renders the express prohibition in that section a nullity." Id. at 385 (emphasis in original).

The court found "wholly illusory" the trial courts' determination that other construction code officials could perform other types of inspections: "Because an electrical inspection that is unacceptable for the purpose of issuing a municipal permit is meaningless, and a permit applicant with such an inspection still must obtain and pay for the inspection services of [the third-party agency], it follows that, realistically, no person or contractor will hire and pay [Plaintiffs and others similarly situated] to perform such inspections." Id. at 385-386 (footnotes omitted). The Commonwealth Court then looked to the intent and purpose of the PCCA to protect the public through uniform construction standards, and rejected the argument that the public would not be protected if the municipality did not designate the third-party agency to perform all the compliance inspections:

Contrary to [the Townships and Third-Party Agencies'] assertion, accepting inspections performed by any certified inspector for purposes of compliance with the UCC fully satisfies the PCCA's purpose, even if that inspector is a "total stranger." In fact, where the General Assembly voiced its intent to insure the integrity of building inspections for the purpose of issuing municipal permits, allowing a municipality to establish a single entity to serve both as inspector for purposes of compliance with the UCC and as enforcer of UCC standards would run counter to that intent.

Id. at 386 (internal footnote and citations omitted).

The Townships and the Third-Party Agencies filed petitions for allowance of appeal, which this Court granted. As the parties filed extensive briefs supported by numerous amici curiae, we will summarize the arguments on each side without distinguishing the individual briefs.*fn7

The Appellant Townships and Third-Party Agencies argue that the Commonwealth Court erred in determining that the interaction of the Third-Party Agency Administration Subsection and the Registration Subsection prohibit a municipality from retaining a third-party agency to perform all code compliance inspections to the exclusion of other construction code officials. In contrast, they propose that the plain language of the Third-Party Agency Administration Subsection permits municipalities to employ "one ... third-party agenc[y] to act on behalf of the municipality for administration and enforcement," 35 P.S. § 7210.501(b)(2), which, they contend, includes the performance of inspections for code compliance purposes. Moreover, Appellants reject the significance that the Commonwealth Court placed on the word "or" in the definition of a third-party agency. Rather than signifying mutually exclusive activities of plan review, inspection, and administration/enforcement, the Townships and Third-Party Agencies assert that the functions are intrinsically intertwined because enforcement cannot occur without inspection.

Indeed, Appellants argue a municipality cannot perform the enforcement function unless it can designate and supervise those who perform the inspections for code compliance.*fn8

Appellants next consider the Registration Subsection. The Townships and Third-Party Agencies interpret the Registration Subsection not to require third-party agencies to accept any construction code officials' inspections for purposes of code compliance, but instead to forbid municipalities from prohibiting construction code officials from performing other types of inspections. Noting that the Registration Subsection is entitled "Registration," they assert that the subsection is aimed at preventing municipalities from imposing residency, training, or other eligibility requirements on code officials certified by the Department. Rather than requiring municipalities to accept inspections for code compliance purposes from any construction code official, the Townships and Third-Party Agencies view the Registration Subsection as prohibiting the intrusion of municipalities into the registration functions of the Department.

The Townships and Third-Party agencies highlight that the legislature is considering an amendment to the Registration Provision that would clearly provide for the Commonwealth Court's conclusion. The proposed amendment changes the title from "Registration" to "Inspections" and explicitly requires third party agencies to accept inspection reports of any construction code official: "(d) Inspections. - Any third party agency which is administering and enforcing the Uniform Construction Code for a municipality shall accept the inspection reports of any construction code official."*fn9 House Bill 1763 of 2007, P.N. 2359 (referred to committee on local government, July 17, 2007). Appropriately, the Townships and Third-Party Agencies emphasize that this language has not been adopted, and instead, serves as a stark contrast to the current language, which they argue does not prevent the third-party agency from performing all inspections for code compliance. See McDowell v. Good Chevrolet-Cadillac, Inc., 154 A.2d 497, 501 (Pa. 1959) (holding failure to enact amendment significant to construing act).

Finally, addressing the public policy implications of allowing third-party agencies to conduct all code compliance inspections, the Townships and Third-Party Agencies assert that their contract furthers the purposes of the Act by ensuring a speedy inspection system through a contractual mandate that all inspections occur within twenty-four hours of a request for an inspection. The Townships and Third-Party Agencies contend that their interpretation furthers the purpose of providing safe construction across the Commonwealth, whereas under the Commonwealth Court's interpretation, safety might be sacrificed if the third-party agency had to accept and "rubber-stamp" any inspections performed by independent construction code officials. Appellants allege that the Commonwealth Court's analysis would result in inspectors being on the payroll of the builder rather than the municipality, which would create the potential for biased inspectors and dangerous construction. It contends that prior to the passage of the PCCA, the building inspectors employed by the municipality were public employees subject to the State Ethics Act, which prevented building inspectors from inspecting work performed by the inspector individually or the inspector's family or where the inspector and builder have a similar relationship. See 65 Pa.C.S. §§ 1102, 1103. The same ethical requirements, however, do not bind independent construction code officials, and under the Commonwealth Court's interpretation, a third-party agency would be forced to accept potentially biased inspections. Conversely, under the Townships and Third-Party Agencies' interpretation, the third-party agency would have supervisory control over its own inspectors, thus reducing the likelihood of biased inspections and thereby insuring the public's safety.

The Townships and Third-Party Agencies also note that 35 P.S. § 7210.503 allows municipalities to adopt more stringent standards, so long as they meet or exceed the standards set by the PCCA. Therefore, to enforce the higher standards that a municipality may require, it makes sense that the municipality would not accept any state certified construction code official, but instead would only accept inspections performed by its chosen inspectors who have been trained in the municipality's code. It cannot be, they argue, that a state licensed inspector with no knowledge of the enhanced local construction code should be allowed to inspect for code compliance and that the municipality be forced to accept it. Accordingly, the Townships and Third-Party Agencies assert that the Commonwealth Court erred in concluding that the Registration Subsection prevented a third-party agency from performing all code compliance inspections for a municipality.

Conversely, Appellee Plaintiffs adopt the argument set forth in the Commonwealth Court's opinion. Plaintiffs contend that nothing in the PCCA allows the third-party agency to be the exclusive inspector for purposes of code compliance, even though the Third-Party Agency Administration Subsection provides authority for a third-party agency to be the sole administrative and enforcement entity. Instead, Plaintiffs assert that the terms administration and enforcement implies the supervision of inspectors, but not the conducting of inspections themselves.

As the second prong of their analysis, the Plaintiffs focus on the Registration Subsection:

Registration. - Nothing in this act shall allow a municipality to prohibit a construction code official who meets the requirements of Chapter 7 and remains in good standing from performing inspections in the municipality. This section does not alter the power and duties given to municipalities under subsection (b)(1), (3) and (4).

35 P.S. § 7210.501(d). Again, echoing the Commonwealth Court, Plaintiffs assert that the Registration Subsection requires a municipality to allow all state certified construction code officials to perform inspections, which it interprets to mean inspections for code compliance purposes. They propose that the Registration Subsection's use of the term "inspections" necessarily references PCCA compliance inspections given that construction code officials are certified by the state under the PCCA for no purpose other than PCCA compliance. See 35 P.S. § 7210.701.

Next, observing the cannon of construction that the mention of one thing implies the exclusion of all others (expression unius est exclusio alteruis), Plaintiffs recognize that the Registration Subsection expressly exempts from its application a municipality's power under three of the methods of municipal administration in 35 P.S. § 7210.501(b), supra at 3-4, n.1, specifically subsection (1) relating to administration and enforcement through an employee of the municipality, subsection (3), relating to joint administration between multiple municipalities, and subsection (4) relating to a contract with another municipality to utilize the other municipality's enforcement authority. By default, the Registration Subsection therefore applies to subsection (2), the Third-Party Agency Administration Subsection, and subsection (5), the use of the Department of Labor for plan review, inspection, and enforcement. Accordingly, Plaintiffs argue that while the three exempted methods of municipal administration could allow for the exclusion of construction code officials from performing compliance inspections, the Registration Subsection prohibits municipalities who have contracted with a third-party agency from preventing construction code officials from performing code compliance inspections.*fn10

Plaintiffs reject as illusory the Townships and Third-Party Agencies' argument that the Registration Subsection merely forbids the townships from prohibiting construction code officials from performing other types of inspections, unrelated to code compliance. Plaintiffs observe that the powers of municipalities are limited to those expressly granted by statute. See Schrier v. Kisselback, 879 A.2d 834 (Pa. Cmwlth. 2005). Thus, they assert that municipalities have no power to regulate private business absent statutory authorization. They argue that a municipality's authority to prohibit all inspections (rather than merely inspections for code compliance) would result in the regulation of the inspection industry. As regulation of business is already prohibited under municipal law generally, the Plaintiffs assert that interpreting the Registration Subsection to mean the same thing would be mere surplusage, and thus the interpretation is contrary to the rules of statutory construction requiring courts to give effect to all the provisions of a statute.

Addressing the Townships and Third-Party Agencies' argument that the third-party agency's lack of authority over the independent inspectors could lead to chaos and bias, Appellees argue that a municipality could require inspectors to register with the municipality and could even require testing.*fn11 Moreover, they observe that there are methods by which the third-party agency or the townships could supervise the independent inspectors, including by seeking to have the official decertified by the state for performing unsatisfactory inspections, by preparing a checklist to be completed by any inspector, or by requiring proof of insurance prior to the performance of inspections. In contrast, Plaintiffs contend that their reading of the PCCA serves the purpose of the Act because it ensures an ample supply of construction code officials available to perform inspections, rather than limiting the pool of inspectors to those employed by the chosen third-party agency. This, in turn, they propose, would reduce the costs of inspections and construction through competition.

As is evident from the arguments of the parties, the issue in this case is a pure question of statutory interpretation governed by our rules of statutory construction. "When the words of a statute are clear and free from all ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit." Middletown Township v. Lands of Stone, 939 A.2d 331, 337 (Pa. 2007)(citing 1 Pa.C.S. § 1921). Moreover, we acknowledge that our standard of review of this pure question of law is de novo and our scope of review is plenary. Id. at 335 n.4.

After careful consideration of the arguments of both sides and their amici curiae, we conclude that the plain language of the Third-Party Agency Administration Subsection provides authority for a municipality to employ a single third-party agency to be the exclusive administration and enforcement authority for the PCCA: "This act may be administered and enforced by municipalities ... [b]y the retention of one or more construction code officials or third-party agencies to act on behalf of the municipality for administration and enforcement of this act." 35 P.S. § 7210.501(b)(2). Moreover, we conclude that the performance of PCCA compliance inspections is encompassed by the term enforcement, and thus provides the third-party agency the exclusive authority to perform PCCA compliance inspections as an integral aspect of their enforcement authority. As noted by the Erie and Fayette County trial courts, the PCCA cannot be enforced without the performance of inspections. Common sense dictates that an entity charged with the enforcement of the specific requirements of a construction code cannot fulfill those duties without physically observing whether the requirements have been met. Although the generic definitions of the terms enforcement, administration, and inspection could be read as distinct one from the other, in the application of the PCCA, they are so intertwined that enforcement simply must encompass inspection. Accordingly, the grant of sole authority in the Third-party Agency Administration Subsection to administer and enforce the PCCA for a municipality gives the third-party agency the authority to decide whether to perform all inspections itself or to accept the inspections performed by unaffiliated construction code officials.

Moreover, the Registration Subsection as written does not require the third-party agencies to accept any construction code official's inspection for code compliance purposes, despite the fact that it could have so provided. Instead, the subsection entitled Registration, as currently enacted, is read most properly as preventing the non-exempted municipalities from intruding on the Commonwealth's registration authority by imposing other conditions on construction code officials to prevent them from performing inspections generally: "Nothing in this act shall allow a municipality to prohibit a construction code official who meets the requirements of Chapter 7 and remains in good standing from performing inspections in the municipality." 35 P.S. § 7210.501(d). If the legislature had intended to require third-party agencies administering and enforcing the PCCA to accept construction code officials' inspections for code compliance purposes, it could have provided language indicating that intent. Indeed, as the proposed amendments demonstrate, the General Assembly is considering the value of such a requirement. Until the General Assembly alters the language of the statute to require the third-party agency to accept all inspections for code compliance purposes, however, we will not alter the language of the statute, which as enacted merely prevents a municipality from prohibiting code officials from performing inspections for purposes other than code compliance.

Our conclusion based on the plain language of the Third-Party Agency Administration Subsection and the Registration Subsection is buttressed by policy considerations. The purpose of the PCCA was to improve the safety of construction throughout Pennsylvania by providing a uniform construction code. Safety would be undermined by a system that allows builders to handpick inspectors and then requires the entity charged with enforcement to accept the inspections without question. Indeed, we credit the argument of the Townships and the Third-Party Agencies that it is contrary to reason to impose liability and contractual obligations on the third-party agency to enforce and administer the PCCA without also allowing the third-party agency the choice to control those performing the inspections for code compliance, which are the primary tool of enforcement.

Accordingly, we reverse the decision of the Commonwealth Court, and hold that 35 P.S. § 7210.501 of the PCCA does not require third-party agencies under contract with a municipality for enforcement and administration of the PCCA to accept for PCCA compliance purposes inspections performed by any construction code official.

Mr. Chief Justice Castille, Mr. Justice Eakin, Madame Justice Todd and Mr. Justice McCaffery join the opinion.

Mr. Justice Saylor files a dissenting opinion.

DISSENTING OPINION

MR. JUSTICE SAYLOR

I respectfully differ with the majority's position that Section 501 of the PCCA is subject to a straightforward, plain-meaning interpretation favorable to Appellants' position. Instead, I find inherent tension between the enactment's authorization of administration and enforcement by a municipality's retention of one or more non- employee construction code officials or third-party administrators, see 35 P.S. §7210.501(b)(2), and the provision of the statute which facially appears to be designed to account for the broader professional interests of all construction code officials certified by the Department of Labor and Industry, see 35 P.S. §7210.501(d) ("Nothing in this act shall allow a municipality to prohibit a construction code official who meets the requirements of Chapter 7 and remains in good standing from performing inspections in the municipality.").*fn12 In my view, this conflict is most readily resolved by reference to the General Assembly's explicit direction that, subject to exceptions not applicable here, Section 501(d) applies notwithstanding other provisions of the Act. See id.*fn13

In terms of the policy arguments, in light of the certification process and other checks referred to in the majority's discussion of Appellee's arguments, see Majority Opinion, slip op. at 17-18, I believe the social policy aspect is best left to the political branch. In this regard, I differ with the majority's supposition that municipalities and third-party administrators were left without recourse under the Commonwealth Court's holding, see Majority Opinion, slip op. at 20, as well as its conclusion that it would be unreasonable for the Legislature to factor broader interests of construction code officials into the overall compliance scheme. See id.

For the above reasons, I would affirm the order of the Commonwealth Court based on somewhat different reasoning.


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