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Pennsylvania Builders Association v. Department of Labor and Industry

August 25, 2010

PENNSYLVANIA BUILDERS ASSOCIATION; MURRY DEVELOPMENT CORP.; WILLIAM MURRY & SON, INC.; WOODS EDGE BUILDERS, INC.; THE MURRY COMPANIES/ SHER-WAL, INC. JOINT VENTURE; TOA PA IV, LP; TOA PA V, LP; TOA PA VI, LP; TOA PA VII, LP; AND TOA PA XIII, LP, SUSQUEHANNA BUILDERS OF LYCOMING COUNTY, INC., PETITIONERS
v.
DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



The opinion of the court was delivered by: Judge Butler

Argued: June 23, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

Before this Court en banc are the preliminary objections filed by the Commonwealth of Pennsylvania, Department of Labor & Industry (L&I), to the amended petition for review filed by: the Pennsylvania Builders Association; Murry Development Corp.; William Murry & Son, Inc.; Woods Edge Builders, Inc.; The Murry Companies/Sher-Wal, Inc. Joint Venture; TOA PA IV, LP; TOA PA V, LP; TOA PA VI, LP; TOA PA VII, LP; and TOA PA XIII, LP, Susquehanna Builders of Lycoming County, Inc. (Petitioners). Also before this Court is an application for summary relief filed by Petitioners. The issues are: (1) whether the pleadings state a claim upon which relief may be granted to Petitioners, and (2) whether Petitioners are entitled to summary relief. Based on the following, we sustain L&I's preliminary objections, and dismiss Petitioners' motion for summary relief.

Petitioner, Pennsylvania Builders Association (PBA), is a non-profit, professional trade organization representing over 9,000 Pennsylvania member companies involved in the building industry as builders, remodelers, material suppliers, subcontractors and consultants. It brings this action on its behalf, and on behalf of its members engaged primarily in residential construction. Petitioners, Murry Development Corp. and William Murry & Son, Inc. are builder and owner, respectively, of Crossgates, a residential development in Lancaster County. Petitioners, Woods Edge Builders, Inc. and The Murry Companies/Sher-Wal, Inc. Joint Venture are, respectively, builder and owner of Sutherland, a residential development in Lancaster County. Both Crossgates and Sutherland developments include single family and townhouse configurations. Petitioner, TOA is general manager for development and construction of five communities for persons 55 and older in Pennsylvania, which consist of single family and garden homes in joined doubles, triples and quadruples, in various stages of completion, contract and development. Petitioner, Susquehanna Builders of Lycoming County, Inc. is a seller and builder of log homes. PBA's members build primarily under the International Residential Code, but some build under the International Building Code.

The Pennsylvania Construction Code Act (PCCA)*fn1 was enacted by the General Assembly in 1999, and applies to construction, alteration, repair and occupancy of all buildings in Pennsylvania.*fn2 According to Section 301(a) of the PCCA, 35 P.S. § 7210.301(a), within 180 days, L&I was to promulgate regulations to establish as Pennsylvania's Uniform Construction Code (UCC) the then-current 1999 Building Officials and Code Administrators International, Inc. (BOCA) National Building Code, 14th Ed. (IBC), and the International Code Council's (ICC)*fn3 International One and Two Family Dwelling Code, 1998 Ed. (IRC).*fn4 This was done in an effort to insure uniform, modern construction standards and regulations, and to promote safety, health and sanitary construction throughout the Commonwealth.

Pursuant to Section 304(a) of the PCCA, 35 P.S. § 7210.304(a),L&I was mandated to promulgate regulations by December 31st of each year the IBC and IRC model codes are modified, in order to likewise update the Pennsylvania UCC. By regulations effective in April of 2004, L&I adopted the 2003 versions of the IBC and IRC as Pennsylvania's UCC. Then, late in 2006, L&I amended its regulations to adopt the 2006 editions of those codes as Pennsylvania's UCC. L&I adopted the 2006 codes without going through notice-and-comment rulemaking, stating that the changes made were mandated by the PCCA or reflected numerous statutory amendments to the PCCA, and that it was in the public interest to expedite the regulations. See 36 Pa.B. 7548.

In October of 2008, Section 107 was added to the PCCA,*fn5 35 P.S. § 7210.107,thereby establishing the UCC Review and Advisory Council (RAC), a 19-member group consisting of industry members (such as contractors, engineers, inspectors and architects) appointed by the Governor, whose responsibility is to gather information relative to the UCC and proposed changes thereto, evaluate it, and make recommendations to the Governor concerning it. Under Sections 107(b)(3) and 304(d)(1)-(2) of the PCCA, 35 P.S. §§ 7210.107(b)(3), 7210.304(d)(1)-(2), RAC is authorized to make determinations as to whether any new or amended provisions of ICC's codes are not consistent with the PCCA, or are inappropriate for inclusion in Pennsylvania's UCC, and RAC is to notify L&I of the same by May 1st of the issuing year. Where that is the case, L&I must exclude the offending provisions when adopting the UCC, thereby leaving the corresponding provisions of the prior UCC version in effect.

At its September 2008 meeting, ICC adopted 2009 codes. During April of 2009, RAC held four public meetings about ICC's 2009 codes, and accepted testimony from stakeholders but, on April 30, 2009, notified L&I that it had no exclusions to recommend. Thereafter, by notice published on December 26, 2009, L&I promulgated final form regulations adopting the 2009 versions of the codes to replace the existing 2006 codes as the UCC in the Commonwealth, again stating that it was mandated and in the public's best interest to do so. See 39 Pa.B. 7196. The 2009 IBC and IRC were effective as the Commonwealth's UCC as of December 31, 2009.*fn6 Compliance with these codes is required in order to obtain occupancy permits for residential construction in Pennsylvania.

On January 19, 2010, Petitioners filed a petition for review in this Court's original jurisdiction seeking a declaration that the 2009 UCC and other related codes are null and void as violative of Article II, Section 1 of the Pennsylvania Constitution, Pa. Const. art. II, § 1,and seeking to enjoin L&I from enforcing the codes, plus costs, attorney's fees and other relief this Court deems necessary and proper. On February 16, 2010, Petitioners amended their petition for review to add Susquehanna Builders, and to assert specific facts related to it.

Petitioners claim that the new and amended provisions of the 2009 codes, especially the sprinkler requirements, have the effect of increasing the cost of an average newly-constructed home by approximately $15,000.00. Petitioners aver that the additional costs will have a significant impact on the demand for their home building and remodeling services, and will adversely affect the availability of financing of homes. In their amended petition for review, Petitioners added that the 2009 UCC revised the International Energy Conservation Code (IECC), thereby eliminating certain energy conservation trade-offs that had been included in the 2006 UCC, and making it nearly impossible for a log home to satisfy the UCC. Petitioners aver that, since the 2009 codes reflect important public policy determinations to which there are substantial and legitimate arguments, the changes to the PCCA should be made by the General Assembly, rather than L&I which follows ICC; otherwise, legislative authority is being vested in ICC, rather than the General Assembly, in violation of Article II, Section 1 of the Pennsylvania Constitution.

Simultaneously with their original petition for review, Petitioners filed an application for preliminary injunction to enjoin L&I from enforcing regulations adopting the 2009 version of the ICC IRC as the UCC in the Commonwealth (leaving the 2006 version in effect), and from advising municipalities and others of such action pending a final decision in this case. L&I opposed Petitioners' application.*fn7

After a hearing, by order dated March 10, 2010, this Court denied Petitioners' application for preliminary injunction on the basis that Petitioners failed to meet all of the requirements for a preliminary injunction to be issued, namely that the relief requested must be reasonably suited to abate the offending activity.*fn8

On March 18, 2010, Petitioners filed an application for summary relief, which L&I opposed. On April 7, 2010, L&I filed preliminary objections to the amended petition for review, which Petitioners opposed. Both raise the same central issue, i.e., whether the PCCA improperly delegates to L&I and, by extension ICC, law-making authority in violation of Article II, Section 1 of the Pennsylvania Constitution.

Preliminary objections to an original jurisdiction petition for review are permissible under Pa.R.A.P. 1516(b). Our review of matters before this Court on preliminary objections is limited to the pleadings. Pennsylvania State Lodge, Fraternal Order of Police v. Dep't of Conservation & Natural Res., 909 A.2d 413 (Pa. Cmwlth. 2006), aff'd, 592 Pa. 304, 924 A.2d 1203 (2007).

[This Court is] required to accept as true the well-pled averments set forth in the [pleadings*fn9 ], and all inferences reasonably deducible therefrom. Moreover, the [C]court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and, where any doubt exists as to whether the ...


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