The opinion of the court was delivered by: President Judge Leadbetter
SUBMITTED: February 13, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
The Ballroom, LLC (Ballroom) appeals from an order of the Court of Common Pleas of Erie County that sustained the preliminary objections of the Commonwealth of Pennsylvania and dismissed Ballroom's civil action against the Commonwealth, Erie County District Attorney, Erie County Department of Health and Millcreek Township Police Department (collectively, defendants) for lack of jurisdiction. In the amended complaint, Ballroom, an operator of a bingo hall in Erie, Pennsylvania, sought an injunction prohibiting the defendants from enforcing the recently enacted Clean Indoor Air Act (Act), Act of June 13, 2008, P.L. 182, 35 P.S. §§ 637.1 - 637.11.
Under the Act, which became effective on September 11, 2008, it is a violation of the Act to smoke or to permit smoking in a "public place" where smoking is prohibited. Section 6(a)(2) and (3) of the Act, 35 P.S. § 637.6(a)(2) and (3). The Act defines a "public place" as "[a]n enclosed area which serves as a work place, commercial establishment or an area where the public is invited or permitted." Section 2, 35 P.S. § 637.2. The Act exempts certain facilities, such as a tobacco shop, a cigar bar, a private club and a drinking establishment, from the smoking ban. Section 3(b), 35 P.S. § 637.3(b). One who violates the Act is subject to administrative and criminal penalties set forth in Section 6(c), (d) and (e), 35 P.S. § 637.6(c), (d) and (e).
Section 5(b) of the Act, 35 P.S. § 637.5(b), places responsibilities for enforcing the Act upon state and local agencies as follows:
(1) Except as provided under paragraphs (2) and (3), upon receipt of a complaint by the department [defined in § 637.2 as the Commonwealth Department of Health], the following apply:
(i) Except as set forth under subparagraph (ii), the department shall investigate the complaint and enforce this act.
(ii) If the public place is subject to licensure by the Commonwealth, in such case, the department shall refer the complaint to the appropriate licensing agency for investigation and enforcement of this act.
(2) If a complaint is made to the department regarding a public place located in a county under subsection (c) [allowing a county to elect to have its board of health enforce the Act], the department shall notify the county board of health. The county board of health shall investigate the complaint and enforce this act.
(3) If the complaint is made to a law enforcement agency regarding a public place, the agency shall investigate the complaint and enforce this act.
On September 8, 2008, Ballroom filed a civil action against the Commonwealth, seeking to enjoin the Commonwealth from enforcing the Act. Ballroom alleged that the Act is unconstitutional because it imposes excessive penalties and discriminates against bingo halls such as Ballroom. On September 15, the Office of Attorney General entered its appearance for the Commonwealth and filed preliminary objections demanding dismissal of the action. The Commonwealth alleged that the trial court lacked jurisdiction because this Court has original and exclusive jurisdiction over the action. The Commonwealth also raised improper service of original process, lack of Ballroom's standing to bring the action, insufficient specificity of the pleading, legal insufficiency of the pleading (demurrer) and the sovereign immunity defense. In response, Ballroom amended the complaint on September 16 to characterize the defendant as follows:
2. The defendant, the Commonwealth of Pennsylvania, whose Office of Attorney General is located at 564 Forbes Avenue, Pittsburgh, Pa. 15219, with telephone at (412) 565-7680 is named herein pursuant to the requirements of PRCP 235, as a comprehensive or blanket reference to its local instrumentalities which are charged with the enforcement of the Clean Indoor Air Act, which local instrumentalities would consist of additional defendants, as follows:
a. Erie County District Attorney, Erie County Court House, 140 West Sixth Street, Erie, ...