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Allegheny Inspection Service, Inc. v. North Union Township

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The Commonwealth Court reversed the Fayette County trial court in a published decision and the Erie County court in an unpublished memorandum, concluding that the trial court decisions were inconsistent with a section of the PCCA that prohibited municipalities from preventing any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 ...


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