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Building Owners and Managers Association of Pittsburgh v. City of Pittsburgh

December 28, 2009

BUILDING OWNERS AND MANAGERS ASSOCIATION OF PITTSBURGH, CB RICHARD ELLIS/PITTSBURGH L.P., WINTHROP MANAGEMENT, L.P., 110 GULF ASSOCIATES, L.P., FRICK LENDERS ASSOCIATES, L.P.
v.
CITY OF PITTSBURGH AND COUNCIL OF THE CITY OF PITTSBURGH, SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 3, AND THE SERVICE EMPLOYEES INTERNATIONAL UNION, CLC
APPEAL OF: SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 3 AND SERVICE EMPLOYEES INTERNATIONAL UNION, CLC



Appeal from the Order of the Commonwealth Court entered July 19, 2007 at Nos. 2311 CD 2006 and 2334 CD 2006, affirming the Order of the Court of Common Pleas of Allegheny County entered November 27, 2006 at No. GD05-: 032096. 929 A.2d 267 (Pa. Commw. 2007).

The opinion of the court was delivered by: Madame Justice Greenspan

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

ARGUED: March 2, 2009

OPINION

This Court granted allocatur in order to determine whether the City of Pittsburgh exceeded its authority as a home rule municipality when it passed an ordinance requiring employers with new service contracts to keep the employees of the prior contractor for at least 180 days. For the reasons that follow, we hold that the City of Pittsburgh exceeded its power and violated the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2962(f). We affirm the order of the Commonwealth Court.

On November 30, 2004, the Pittsburgh City Council enacted the Protection of Displaced Contract Workers Ordinance ("Ordinance") as Chapter 769 of the Pittsburgh Code.*fn1 The Ordinance is intended to protect certain non-supervisory workers in the City of Pittsburgh who lose their jobs when their employer's service contract is awarded to a new contractor. The Ordinance applies to contractors with five or more employees who provide janitorial, security, or building maintenance services to large commercial buildings within the City of Pittsburgh.*fn2 Pursuant to the Ordinance, any contractor that is awarded a new service contract must retain most employees of the previous contractor for a 180-day transition period.*fn3 During the transition period, retained employees may not be terminated except for cause, which is based on performance or conduct of the particular employee.*fn4 A

contractor who violates the Ordinance is subject to fines, and displaced employees are given a private right of action to enforce the Ordinance.*fn5

On December 7, 2005, Building Owners and Managers Association of Pittsburgh, CB Richard Ellis/Pittsburgh, L.P., Winthrop Management, L.P., 110 Gulf Associates, L.P., and Frick Lenders Associates, L.P. ("Appellees") filed a complaint in equity and action for declaratory judgment against the City of Pittsburgh and the City Council. Appellees sought a declaration that the Ordinance was ultra vires under 53 Pa.C.S. § 2962(f). The Service Employees International Union ("SEIU") intervened as an additional defendant on behalf of more than 1,000 janitorial workers in Pittsburgh. Appellees and SEIU then filed cross motions for judgment on the pleadings.*fn6

On November 20, 2006, the Court of Common Pleas of Allegheny County held that the Ordinance violated 53 Pa.C.S. § 2962(f), granted Appellees' motion for judgment on the pleadings, and denied SEIU's motion. On July 19, 2007, the en banc Commonwealth Court affirmed and held that "the Ordinance at issue in the present case imposes affirmative duties on certain businesses and employers in the City of Pittsburgh." Building Owners and Managers Ass'n of Pittsburgh v. City of Pittsburgh, 929 A.2d 267, 271 (Pa. Commw. 2007). SEIU filed a Petition for Allowance of Appeal. On September 24, 2008, this Court granted allocatur in order to determine:

Whether the Commonwealth Court's opinion conflicts with the Home Rule Law's intent to liberally construe the broad powers provided to those municipalities that adopt Home Rule? More specifically, whether the Commonwealth Court erred in affirming the trial court's ruling that "The Protection of Displaced Contract Workers Ordinance," Pittsburgh City Code of Ordinances 22-2004, Chapter 769, Janitorial, Building Maintenance and Security Contractors ("PDCWO") is ultra vires pursuant to 53 Pa.C.S. § 2962(f)?

Municipalities adopting a home rule charter--such as the City of Pittsburgh--are given broad authority subject to certain enumerated limitations. See 53 Pa.C.S. §§ 2961-2962.*fn7

Section 2962(f) of the Home Rule Charter and Optional Plans Law limits a home rule municipality's regulation of businesses and provides that:

A municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers, including the duty to withhold, remit or report taxes or penalties levied or imposed upon them or upon persons in their employment, except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of ...


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