Argued February 11, 2015.
Appealed from No. July Term, 2009, No. 03055. Common Pleas Court of the County of Philadelphia. DiVito, J.
Patrick M. Northen, Philadelphia, for appellant.
Eleanor N. Ewing, Senior Attorney, Philadelphia, for appellees.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE LEAVITT. DISSENTING OPINION BY PRESIDENT JUDGE PELLEGRINI. DISSENTING OPINION BY JUDGE SIMPSON.
MARY HANNAH LEAVITT,
The Southeastern Pennsylvania Transportation Authority (SEPTA) seeks a declaratory judgment that as a Commonwealth agency it is not subject to the City of Philadelphia's anti-discrimination ordinance, but only to the provisions of the Pennsylvania Human Relations Act. The defendants, the City and the Philadelphia Commission on Human Relations (Philadelphia Commission), demurred to the complaint, and the Court of Common Pleas of Philadelphia County (trial court) sustained their preliminary objections. This Court reversed. The Supreme Court vacated our order and remanded the matter to this Court to do additional analysis. Concluding that the legislature did not intend SEPTA to be subject to a local anti-discrimination ordinance, we reverse.
In 1963, the General Assembly established SEPTA pursuant to the Metropolitan Transportation Authorities Act, 74 Pa. C.S. § § 1701-1785. That Act provides:
There is hereby authorized the creation of a separate body corporate and politic in each metropolitan area, to be known as the transportation authority of that metropolitan area, extending to and including all of the territory in the metropolitan area.
74 Pa. C.S. § 1711(a). A " metropolitan area" is defined as " [a]ll of the territory within the boundaries of any county of the first class and all other counties located in whole or in part within 20 miles of the first class county." 74 Pa. C.S. § 1701. Philadelphia is a " county of the first class." Consistent with Section 1701, SEPTA operates a mass-transit system in Philadelphia and the four contiguous counties of Bucks, Chester, Delaware and Montgomery. As a transportation authority, SEPTA
exercises the powers of a Commonwealth agency. Section 1711(a) further states:
An authority shall in no way be deemed to be an instrumentality of any city or county or other municipality or engaged in the performance of a municipal function, but shall exercise the public powers of the Commonwealth as an agency and instrumentality thereof.
74 Pa. C.S. § 1711(a) (emphasis added).
Philadelphia is a first class city that is governed under authority of the First Class City Home Rule Act. Consistent with that authority, the City has established the Philadelphia Commission to administer and enforce the Philadelphia Fair Practices Ordinance, which prohibits discrimination in the areas of employment, housing and public accommodations. The Fair Practices Ordinance forbids discrimination on the basis of race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, familial status, genetic information, or domestic or sexual violence victim status. Phila. Code § § 9-1103, 9-1106.
In 1955, the General Assembly enacted the Pennsylvania Human Relations Act, which forbids discrimination in the areas of employment, housing and public accommodations on the basis of " race, color, familial status, religious creed, ancestry, age, sex, national origin, handicap or disability, [or] use of guide or support animals because of the blindness, deafness or physical handicap of the user...." Section 2 of the Human Relations Act, 43 P.S. § 952. Its reach is statewide.
Both the Human Relations Act and the Fair Practices Ordinance forbid invidious discrimination. The protected classes in each legislation are nearly identical, but there are differences. The Fair Practices Ordinance forbids discrimination on the basis of a person's sexual orientation and gender identity, genetic information or domestic violence status, and the Human Relations Act does not. On the other hand, the Human Relations Act protects those who use support animals by reason of their deafness and blindness; the Fair Practices Ordinance does not.
Facts and Procedural History
Between July 2007 and April 2009, the Philadelphia Commission initiated seven separate complaints and investigations against SEPTA for alleged discrimination against its employees or customers in violation
of the Fair Practices Ordinance. Complaint, ¶ 14; Reproduced Record at 95a-96a (R.R. ). Two of the complaints involved alleged discrimination on the basis of gender identity and sexual orientation.  Id.; R.R. 95a. SEPTA responded that as a Commonwealth agency, the Philadelphia Commission lacked jurisdiction over it. SEPTA requested the Philadelphia Commission dismiss each of the administrative complaints or certify them for an interlocutory appeal to address the jurisdiction issue. The Philadelphia Commission denied SEPTA's requests.
On July 23, 2009, while the administrative complaints were pending, SEPTA filed the instant complaint against the City and the Philadelphia Commission (collectively, City). SEPTA sought a declaration that the Fair Practices Ordinance does not apply to SEPTA because it is a Commonwealth agency. SEPTA also sought an injunction against the Philadelphia Commission's exercise of jurisdiction over SEPTA.
The City filed preliminary objections demurring to SEPTA's complaint. On November 9, 2009, after briefing and argument, the trial court sustained the City's preliminary objections and dismissed SEPTA's complaint for the stated reason that SEPTA had failed to exhaust its administrative remedies and, further, was not exempt from the Fair Practices Ordinance. SEPTA appealed.
This Court, sitting en banc, reversed the trial court. See Southeastern Pennsylvania
Transportation Authority v. City of Philadelphia and Philadelphia Commission on Human Relations, 20 A.3d 558 (Pa.Cmwlth. 2011). This Court concluded that SEPTA is a Commonwealth agency for purposes of discrimination claims and, as such, subject only to the Pennsylvania Human Relations Act. We stated:
[T]he PHRC's [Pennsylvania Human Relations Commission] enabling legislation clearly gives the PHRC, not the [Philadelphia] Commission, jurisdiction over SEPTA as an instrumentality of the Commonwealth in matters involving discrimination. Furthermore, there is no comparable grant of explicit jurisdiction to the [Philadelphia] Commission through its enabling ordinance, and any such grant would clearly conflict with the PHRC's enabling statute.
Id. at 562. Because the Philadelphia Commission lacked jurisdiction over SEPTA, this Court held that the exhaustion of remedies doctrine did not preclude SEPTA's pursuit of declaratory and injunctive relief.
The Pennsylvania Supreme Court vacated this Court's order and remanded for further proceedings. See Southeastern Pennsylvania Transportation Authority v. City of Philadelphia and Philadelphia Commission on Human Relations, 101 A.3d 79 (Pa. 2014) ( SEPTA v. Philadelphia II). The Supreme Court agreed that SEPTA was not required to exhaust its administrative remedies before commencing its action, which presented a purely legal challenge. The Supreme Court also agreed that SEPTA is a Commonwealth agency. However, it concluded that this Court failed to do the legislative intent analysis announced in Department of General Services v. Ogontz Area Neighbors Association, 505 Pa. 614, 483 A.2d 448 (Pa. 1984), and used to determine when a state agency may be regulated by a local agency. The Supreme Court stated as follows:
In conclusion, although the Commonwealth Court correctly determined that SEPTA was not required in this instance to exhaust its administrative remedies before commencing this declaratory judgment action, it erred by not applying the Ogontz legislative intent analysis to determine whether SEPTA may properly be held to the provisions of the [Fair Practices Ordinance] and the jurisdiction of the Philadelphia Commission. We therefore vacate the Commonwealth Court's order and remand the case to that court for it to conduct that analysis.
SEPTA v. Philadelphia II, 101 A.3d at 90-91. Accordingly, we do that analysis here.
At issue in Ogontz was the Commonwealth's proposed construction of a mental health facility in a Philadelphia neighborhood
that was zoned residential. The Philadelphia Zoning Board of Adjustment denied the Department of General Services' permit application because the proposed use was not permitted in a residential district. The Department appealed, arguing that the Zoning Board could not impose any restrictions on the construction of a building authorized by a state statute. In considering that legal question, the Pennsylvania Supreme Court established the analysis to be used " [w]hen there is an apparent conflict in the use of ... powers" by two different governmental entities or agencies. Ogontz, 483 A.2d at 453-54 (quoting City of Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d 607, 612 (Pa. 1976)).
Noting that both government agencies were creatures of statute, the Supreme Court identified the Department's preemption claim as one of statutory construction:
[T]he conflict that arises when a Commonwealth agency seeks to utilize real property in a manner that conflicts with a municipal corporation's zoning regulations is not a contest between superior and inferior governmental entities, but instead a contest between two instrumentalities of the state. The legislature has the power to regulate both of these governmental entities, enlarging or restricting their authority to act; and generally, the task of courts in these cases is to determine, through an examination of the enabling statutes applicable to each of the governmental entities, which the legislature intended to have preeminent powers. The problem, essentially, is one of statutory interpretation.
Ogontz, 483 A.2d at 452 (internal citation omitted) (emphasis added). The Supreme Court adopted a two-part test for resolving this statutory construction problem. First, a reviewing court must determine whether one legislative scheme was intended to have priority over the other. Second, where that priority cannot be discerned, the court must
turn to the statutory construction rule that legislative intent may be determined by a consideration, inter alia, of the consequences of a particular interpretation. Statutory Construction Act, 1 Pa. C.S.A. § 1921(c)(6).
Id. at 455.
Concluding that the statutes relevant to the proposed mental health facility did not provide a clear answer on priority, the Ogontz court considered the consequences of having the Department or the City prevail in the controversy. It concluded that upholding the zoning ordinance would not frustrate the Commonwealth's ability to build mental health facilities. The Court reasoned as follows:
The consequences of deciding that the Commonwealth should be preeminent in this matter are that Philadelphia's zoning scheme would be frustrated in this case and in every other case where a Commonwealth land use plan conflicted with the city plan. On the other hand, if the city were to prevail, the Commonwealth's mandate to establish mental health facilities at various locations in the state would not necessarily be frustrated, for the loss of one location might well be compensated for by substitution of another. Thus, deciding that the city's zoning authority supersedes that of the Commonwealth agency to establish a mental health facility in a particular geographical location arguably would give effect to the legislative mandates of both governmental entities, a consequence which, absent more certain legislative direction, seems advisable. Accordingly, we hold that [the Department] is subject to the jurisdiction of the Zoning Board and that in the case of a
conflict between [the Department's] land use plans and the zoning use regulatory scheme of Philadelphia, the zoning scheme shall prevail.
Id. (emphasis added).
Thus, Ogontz teaches that if there is a clear legislative directive as to which agency should be preeminent in a given situation, that directive controls. If there is no clear expression of legislative intent, courts must try to glean legislative intent in a way that gives effect to the mandates of both agencies, if possible. As instructed by the Supreme Court in its remand order, we consider the two-part test announced in Ogontz, beginning with whether the relevant statutes express a clear legislative directive on priority.
SEPTA argues that the applicable statutes demonstrate a legislative intent not to subject SEPTA to the Fair Practices Ordinance. This is because SEPTA's enabling statute grants SEPTA immunity from suit, except where sovereign immunity has been expressly waived. The legislature has waived SEPTA's sovereign immunity for discrimination under the Pennsylvania Human Relations Act but nowhere else, including in the First Class City Home Rule Act. SEPTA urges that because legislative intent is clear, there is no need to analyze the consequences of a particular statutory interpretation.
The City responds that SEPTA's enabling act does not answer the question of legislative intent. If it did, there would have been no need for the Supreme Court to remand for this Court to perform an Ogontz analysis. The City argues that enforcement of its Fair Practices Ordinance does not conflict with SEPTA's enabling act. The Pennsylvania Human Relations Act specifies that it was not intended to repeal or supersede a municipality's anti-discrimination ordinance. The City believes this expresses the legislative intent that local municipalities may operate concurrently with the Pennsylvania Human Relations Commission, with overlapping jurisdiction.
The Metropolitan Transportation Authorities Act, as noted supra, confirmed that SEPTA is a Commonwealth instrumentality ...