ARGUED: September 13, 2016
from the Order of the Commonwealth Court at No. 2445 CD 2009
filed 8/7/2015 reversing and remanding the Order, dated
11/10/2009 in the Court of Common Pleas, Philadelphia County,
Civil Division at No. 03055, July Term, 2009.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
case comes to us for a second time to determine if the
Southeastern Pennsylvania Transportation Authority (SEPTA) is
exempted from the jurisdiction of the City of Philadelphia
(the City) via the Philadelphia Commission on Human Relations
(Philadelphia Commission) and the provisions of the
Philadelphia Fair Practices Ordinance (FPO). We previously
remanded this case to the Commonwealth Court to ascertain the
legislative intent regarding this issue by employing the
analysis set forth by this Court in Dep't of Gen.
Serv. v. Ogontz Area Neighbors Ass'n, 483 A.2d 448
(Pa. 1984). See Southeastern Pennsylvania Transp. Auth.
v. City of Philadelphia, et al., 101 A.3d 79, 90-91 (Pa.
2014) (SEPTA III). On remand, the Commonwealth Court
determined that, applying the Ogontz test, the
language and statutory scheme of the relevant statutes
revealed the legislature's intent to exempt SEPTA from
actions brought under the FPO. Southeastern Pennsylvania
Transp. Auth. v. City of Philadelphia, et al., 122 A.3d
1163, 1173 (Pa. Cmwlth. 2015) (SEPTA IV). For reasons that
follow, we affirm the decision of the Commonwealth Court.
Court recounted the early procedural history of this case in
our SEPTA III opinion, which we set forth again here.
This case has its origins in seven administrative proceedings
against SEPTA that individuals instituted with the
Philadelphia Commission from July 2007 through April 2009,
alleging violations of the FPO.2 At least two of the
administrative complaints included claims of types of
discrimination against which the FPO offers protection, but
that the Pennsylvania Human Relations Act ("PHRA")3
does not cover. SEPTA filed a motion to dismiss each of the
administrative cases for lack of jurisdiction, and the
Philadelphia Commission denied the motions.
While all seven administrative proceedings were still
pending,  SEPTA instituted this civil action against
Appellants seeking both declaratory and injunctive relief.
SEPTA maintained in its complaint that because it is a
Commonwealth agency, and Appellants are a political
subdivision and a municipal agency, respectively, the FPO
does not apply to it, and the Pennsylvania Constitution
barred Appellants from exercising jurisdiction over it.
Appellants filed preliminary objections demurring to
SEPTA's complaint. Appellants argued that because
Philadelphia's powers under the First Class City Home
Rule Act7 [(FCCHRA)] extend to enacting and enforcing
anti-discrimination laws, the FPO applied to SEPTA and the
Philadelphia Commission had jurisdiction over it. Appellants
further contended that an original action for declaratory and
injunctive relief was inappropriate because SEPTA had to
await final agency decisions in the individual administrative
cases against it before it could seek appellate review in
court. In response, SEPTA pointed out that the statute
authorizing the creation of metropolitan transportation
authorities, such as SEPTA, provides that such an authority
"shall exercise the public powers of the Commonwealth as
an agency and instrumentality thereof, " 74 Pa.C.S.
§ 1711(a), and asserted that Philadelphia's
authority as a home-rule jurisdiction extends only to the
regulation of its municipal affairs. In its brief in
opposition to the preliminary objections, SEPTA did not rely
upon, or refer to in any manner, the section of its enabling
legislation pertaining to sovereign and official immunity. 74
Pa.C.S. § 1711(c)(3). The trial court sustained the
preliminary objections and dismissed SEPTA's complaint.
SEPTA appealed to the Commonwealth Court, which reversed.
SEPTA v. City of Philadelphia, 20 A.3d 558 (Pa.
Cmwlth. 2011) (en banc) [(Septa II)]. A majority of
the court concluded that the Philadelphia Commission lacked
jurisdiction because SEPTA is an "agency and
instrumentality" of the Commonwealth and therefore
within the jurisdiction of the Pennsylvania Human Relations
Commission (the "State Commission"). The majority
noted that the State Commission is responsible for the
administration of the PHRA, which bans any
"employer" from engaging in certain forms of
discrimination. 43 P.S. §§ 955, 956(a). Because the
PHRA defines "employer" as including "the
Commonwealth or any political subdivision or board,
department, commission or school district thereof, "9
and because neither the PHRA nor the FPO explicitly grants
the Philadelphia Commission jurisdiction over SEPTA, the
majority concluded the State Commission-and not the
Philadelphia Commission-had jurisdiction over SEPTA. The
Commonwealth Court did not base any portion of its reasoning
upon the section of SEPTA's enabling legislation
pertaining to sovereign and official immunity. 74 Pa.C.S.
§ 1711(c)(3). Because the majority considered the State
Commission's jurisdiction over SEPTA to be clear, and a
Commonwealth instrumentality's challenge to "the
scope of a governmental body's action pursuant to
statutory authority" through a declaratory judgment
action to be proper, the majority also concluded that SEPTA
had no duty to exhaust its administrative remedies before
seeking relief in court. SEPTA [II], supra at 563.
 Judge Dante Pellegrini dissented. He concluded that SEPTA
is not a Commonwealth agency, and even if it were, it would
still be subject to the provisions of the FPO and the
jurisdiction of the Philadelphia Commission. The dissent
stated that the General Assembly had enacted the portion of
SEPTA's enabling act that provides that a metropolitan
transportation authority such as SEPTA is "an agency and
instrumentality thereof" merely to avoid constitutional
and statutory questions, such as limitations on local
governments' acquisition of debt. 74 Pa.C.S. §
1711(a). The dissent opined that the cited language was not
intended to render SEPTA a state agency for all purposes.
The dissent then concluded that even if SEPTA were part of
the Commonwealth government, it nonetheless would be subject
to the jurisdiction of the Philadelphia Commission under
Commonwealth v. Ogontz Area Neighbors Association,
505 Pa. 614, 483 A.2d 448, 452 (1984). In that case, the
Department of Public Welfare ("DPW")-which we
characterized as "an agency of the
Commonwealth"-applied to the City of Philadelphia for
the permits needed to build a facility for the mentally
handicapped. Id. at 449-50. The City denied the
permits on the ground that the proposed facility did not
comply with use and other restrictions under the Philadelphia
Zoning Code. On review in this Court, we rejected the notion
that DPW was immune from local land regulations because it
had the power to condemn property to establish the facility
it sought to construct. We reasoned that because the General
Assembly had established both the City and DPW, and had fixed
the extent of each entity's powers, we would need to
examine the enabling act of each entity to determine which
entity's authority the legislature had intended to
prevail for purposes of the parties' controversy. Because
the applicable statutes did not clearly state which entity
the legislature had intended to be "preeminent, "
we applied the rule of statutory construction that a court
may determine legislative intent by considering "the
consequences of a particular interpretation."
Id. at 455 (citing 1 Pa.C.S. § 1921(c)(6)).
Because Philadelphia's zoning scheme would have been
frustrated if DPW were to have prevailed, while subjecting
DPW to local zoning rules and restrictions would not
necessarily have frustrated DPW's mandate to establish
mental health facilities, we concluded that the legislature
had intended the City to have priority in the circumstances
The dissent here applied the principles we set forth in
Ogontz and concluded that, as in Ogontz,
the relevant statutes were ambiguous as to which entity was
intended to have priority. The dissent therefore considered
the effect of holding each entity preeminent and determined
that ruling in SEPTA's favor would frustrate the
legislature's intended scheme. Characterizing the PHRA as
granting the State and Philadelphia Commissions'
"concurrent jurisdiction, " the dissent explained
that deeming SEPTA "preeminent" over Appellants
would thwart the legislatively established system of shared
jurisdiction. The dissent explained that, on the other hand,
treating Appellants as "preeminent" would not
interfere with SEPTA's purpose of providing public
transportation. The dissent stated, "All the consequence
of the City's and the [State Commission's]
preeminence means is that SEPTA would still have to respond
to complaints, like private companies, of those choosing to
file their claims of unlawful discrimination with [the
Philadelphia Commission]." SEPTA [III], supra
at 569 (Pellegrini, J., dissenting).
2 In general terms, the FPO protects against
discrimination: in employment based upon a person's 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; in public accommodations based
upon race, ethnicity, color, sex, sexual orientation, gender
identity, religion, national origin, ancestry, disability,
marital status, familial status, or domestic or sexual
violence victim status; and in housing accommodation,
commercial property and other real estate opportunities based
upon race, ethnicity, color, sex, sexual orientation, gender
identity, religion, national origin, ancestry, disability,
marital status, age, source of income, familial status, or
domestic or sexual violence victim status. Phila. Code
§§ 9-1103, 1106, 1108.
3 43 P.S. §§ 951-963. The PHRA protects
most, but not all, of the categories of individuals covered
by the FPO. In general terms, the PHRA protects against
discrimination in employment, housing, and public
accommodation because of race, color, familial status,
religious creed, ancestry, handicap or disability, age, sex,
and national origin. In addition, it prohibits discrimination
based upon the use of a guide or support animal because of
the blindness, deafness or physical handicap of the user or
because the user is a handler or trainer of support or guide
7 53 P.S. §§ 13101-13157.
9 43 P.S. § 954.
SEPTA III, 101 A.3d at 82-84 (some citations and
reviewing the Commonwealth Court's SEPTA II
decision, we held that the Commonwealth Court's reliance
on the status of SEPTA as a Commonwealth agency, was not
dispositive of the issue of preemption. Citing
Ogontz, County of Venango v. Borough of
Sugarcreek, 626 A.2d 489, 490 (Pa. 1993), and
Hazleton Area Sch. Dist. v. Zoning Hearing Bd., 778
A.2d 1205, 1210 (Pa. 2001), we explained that a governmental
entity, that derives its existence from the legislature, does
not possess inherently superior powers over another such
legislatively created entity by virtue of its type or the
entity's respective designation as
"Commonwealth" or "municipal." SEPTA
III at 87. Rather, the question must be resolved through
an inquiry into the legislative intent as revealed by the
pertinent enabling legislation. Thus, we rejected SEPTA's
structure-based argument that for a Municipal Authority to
exercise jurisdiction over a Commonwealth agency, it was
necessary for the legislature to expressly so provide.
Id. at 87-88. We similarly rejected the
Appellants' argument that the presumed validity afforded
Home Rule enactments resolved the issue of legislative
intent. Id. at 88. We, therefore, held that the
Commonwealth Court should have pursued an inquiry into the
legislative intent in accordance with the stepped analysis
first enunciated in Ogontz.
As identified in Hazleton, our opinion in
Ogontz, supra sets forth the analytical process a
court is to follow to determine which entity the legislature
intended to have preeminent powers over a given area of
The first step requires the reviewing court to determine,
through examination of the statutes, which governmental
entity, if any, the General Assembly expressly intended to be
preeminent. Id. In the event there is no such
express legislative mandate, the second step requires the
court "to determine legislative intent as to which
agency is to prevail . . . . turn[ing] to the statutory
construction rule that legislative intent may be determined
by a consideration, inter alia, of the consequences
of a particular interpretation."
Hazleton, supra at 1210 (quoting Ogontz,
supra at 455 (citing in turn 1 Pa.C.S. §
1921(c)(6))) (emphasis omitted).
Id. at 87. In essence, we rejected the Commonwealth
Court's status-based analysis and remanded for it to
ascertain the legislative intent by applying the
Ogontz test to the entities' respective enabling
remand, a majority of the Commonwealth Court sitting en banc
addressed the first prong of the Ogontz test, which
it phrased as "determin[ing] whether one legislative
scheme was intended to have priority over the other."
SEPTA IV, 122 A.3d at 1168. Looking at the
respective legislative schemes, the Majority noted the
Metropolitan Transportation Authorities Act (MTAA)
established that SEPTA is a Commonwealth agency and
instrumentality. Id. at 1169 (quoting 74 Pa.C.S.
§ 1711(a)). It further noted the MTAA afforded SEPTA
sovereign and official immunity. Id. at 1169-70
(quoting 74 Pa.C.S. § 1711(c)). The Majority observed
that 1 Pa.C.S. § 2310 provides that agencies with
sovereign immunity may only be sued "where the
legislature has expressly waived immunity."
Id. at 1170 (quoting Ebersole v. Southeastern
Pennsylvania Transp. Auth., 111 A.3d 286, 289 (Pa.
Cmwlth. 2015) (emphasis added in SEPTA IV)). The
Commonwealth Court then reviewed the PHRA, which expressly
waives immunity of Commonwealth agencies from actions
initiated under it. Id. (citing 43 P.S. § 954).
In contrast, the Majority concluded the FCCHRA, which is the
source for the City's authority to enact the FPO, does
not contain an express waiver of the immunity accorded to
Commonwealth agencies. Id. at 1171. The Majority
explained that the FPO authorizes private claims, including
potential awards for compensatory damages, punitive damages
and attorney fees. Id., (citing PHILA. CODE
§§ 9-1105, 9-1107). It, therefore, distinguished
the provisions of the FPO from the land use and traffic
regulation enforcement disputes that were the subjects of
earlier cases. Id. at 1171-1172. "The penalties
authorized by the [FPO] require an express waiver of
sovereign immunity, and none has been expressed by the
General Assembly." Id. at 1172.
Majority rejected the City's argument that Section
12 of the PHRA accomplishes a waiver of
sovereign immunity relative to the FPO. It noted that the
legislature waived SEPTA's immunity only as to the
jurisdiction of the State Commission, and that such waivers
are to be narrowly construed. Id., at 1172-73
(citing Dean v. Dept. of Transp., 751 A.2d 1130,
1134 (Pa. 2000)).
Pellegrini filed a dissent in which he argued an
interpretation of the statutory language as revealing the
intent of the legislature to subject SEPTA to the
jurisdiction of the FPO. Id. at 1176 (Pellegrini, J.
dissenting). Judge Pellegrini argued that the designation of
SEPTA as a Commonwealth agency does not afford it equivalency
with the Commonwealth for all purposes, citing cases holding
SEPTA's status as a Commonwealth agency is related to the
reasons for its creation. Id. at 1177. He notes
SEPTA is an "authority" tasked with providing a
commercial service. Id. He noted the subject matter
in question here, anti-discrimination enforcement, is removed
from SEPTA's fundamental transportation function. That
is, SEPTA provides a service, not the governing function that
appertains to municipalities. Id. Judge Pellegrini
viewed the authority afforded the City through the FCCHRA,
and section 12 of the PHRA, which permits local governments
to concurrently promulgate and enforce anti-discrimination
ordinances, as revealing a statutory scheme where the City
predominates over SEPTA in the arena of enforcing
anti-discrimination laws. Id. at 1183. He concluded
"[t]here is nothing in the legislative scheme that would
suggest that SEPTA's interests should predominate over
the Commonwealth's; everything suggests [the City's]
governmental interest predominates." Id. at
1179. Judge Pellegrini also argued that, to the extent SEPTA
may be protected by sovereign immunity, such was limited to
monetary damages but does not extend to other forms of relief
the Philadelphia Commission has at its disposal. Id.
contend that, in SEPTA III, this Court resolved the
first prong of the Ogontz test in their favor, and
that the Commonwealth Court erred in ignoring that holding.
Appellants' Brief at 24. Appellants argue that the
Commonwealth Court Majority "revives the very
presumption in favor of SEPTA that this Court directed that
it avoid." Id. at 25. In line with its
arguments in the prior appeal, Appellants emphasize that the
FCCHRA grants the City authority to legislate for its
municipal functions as fully as could the Commonwealth's
legislature, absent an explicit or implicit preemption by the
General Assembly. Id., (citing Warren v. City of
Philadelphia, 115 A.2d 218, 221 (Pa. 1955)). This
includes the authority to enact the FPO. Id. at 26
(citing Devlin v. City of Philadelphia, 862 A.2d
1234 (Pa. 2004)). Appellants also rely on the provisions and
history of the PHRA, which contemplates concurrent, and
perhaps more stringent, local regulation and enforcement in
the anti-discrimination arena. Id. at 27.
Additionally, Appellants reference the presumptive validity
of a municipality's enactments under the Home Rule
powers. Id. at 28. Appellants assert that the FCCHRA
contains no indication that SEPTA should be excluded from the
purview of the Philadelphia Commission's jurisdiction.
dispute the Commonwealth Court Majority's conclusion that
the language and statutory scheme of the MTAA evinces an
intent that SEPTA is excluded from the jurisdiction of the
Philadelphia Commission and the FPO. Appellants assert that
the MTAA's provisions conferring sovereign immunity upon
SEPTA "do not speak to the authority of a municipality
to enforce validly-enacted and generally applicable local
anti-discrimination legislation against SEPTA, " or to
legislative intent on the issue. Id. at 31.
Appellants claim the Commonwealth Court's reasoning
adopts the rationale in Chief Justice Castille's dissent,
which they assert we rejected in SEPTA III.
Id. at 31-32. Appellants argue that relying upon the
grant of sovereign immunity in this instance essentially
resurrects the presumption and status-based approach favoring
Commonwealth agencies that this Court disapproved. Appellants
note that the fact SEPTA enjoyed sovereign immunity was not
dispositive in Ogontz, where we held SEPTA was not
exempt from the City's enforcement of its zoning
regulations. Id. at 33-34.
next argue that the fact that the legislature expressly
waived SEPTA's immunity in the PHRA is unavailing to
SEPTA because legislative intent as to priority is not
discerned by a determination of whether or not a third entity
has a role to play, and because the scope of protections
afforded by the FPO are greater than those afforded by the
PHRA. Id. at 34-35. Finally, Appellants suggest
that, to the extent SEPTA's sovereign immunity acts as a
bar to enforcement of the FPO against it, it does not
implicate all of the enforcement tools available to the
Philadelphia Commission. Id. at 37. Sovereign
immunity, they point out, has been held to pertain to awards
of monetary damages, but not other forms of equitable and
declaratory relief. Id. at 38-39. "To
argue, based on sovereign immunity, that the General Assembly
has expressly abrogated all of the [Philadelphia]
Commission's jurisdiction, ignores that the bulk of the
[Philadelphia] Commission's work is essentially
investigatory and administrative." Id. at 40.
State Commission filed an amicus brief in support of
Appellants. It advances the argument that the PHRA expressly
provides for concurrent jurisdiction and liberal
construction. The State Commission's Amicus Brief at 2.
It argues SEPTA meets the definition of a local employer
under the PHRA and notes that cases favor "robust"
application of anti-discrimination laws. Id. at 4-5.
The State Commission argues that its interpretation of the
PHRA is entitled to deference as the agency charged with
implementing the statute. Id. at 6-7 (citing
Office of Admin. v. Pa. Labor Rels. Bd., 916 A.2d
541, 549 (Pa. 2007)).
Civil Liberties Union of Pennsylvania (ACLU) and the Mazzoni
Center Legal Services (Mazzoni Center) filed a joint Amicus
brief. They reiterate the provisions of the PHRA allowing
local ordinances to provide concurrent and greater
enforcement. ACLU and Mazzoni Center's Amicus Brief at
22-23. They note that the PHRA and the FCCHRA predate the
MTAA which created SEPTA. They argue the enactment of the
MTAA did not alter the dual jurisdiction paradigm.
Id. at 24. They further argue the MTAA did not meet
the criteria under the Statutory Construction Act for
repealing those earlier enactments, because it did not
constitute a revision of all statutes on a subject, or
purport to establish a uniform and mandatory system over the
subject matter at issue. Id. at 25-26.
refutes Appellants' argument that the Commonwealth Court
Majority did not properly apply the Ogontz test to
the pertinent statutes in this case. SEPTA's Brief at 10.
It argues that the Commonwealth Court did not resurrect a
status-based priority of SEPTA over the City. Rather, it
asserts the Commonwealth Court focused on the intent of the
legislature relative to the City's exercise of
jurisdiction over SEPTA. Id. at 10-11. SEPTA
counters Appellants' assertion that the broad powers
afforded the City under the FCCHRA support an inference of
the legislative intent respecting preemption. SEPTA argues it
ignores our holding in SEPTA III, where we stated
the presumption of validity is relevant to the authority to
act, and not "whether the municipality may enforce
ordinances and regulations against a Commonwealth agency or
instrumentality." Id. at 16 (quoting SEPTA
III, 101 A.3d at 88). SEPTA argues that the MTAA plainly
establishes that SEPTA is afforded sovereign immunity.
Id. at 18. It notes such immunity must be expressly
waived to permit suits against it. Id. at 19 (citing
Powell v. Drumheller, 653 A.2d 619, 621 (Pa. 1995);
Tork-Hiis v. Com., 735 A.2d 1256, 1258 (Pa. 1999)).
SEPTA notes such a specific waiver is present in the PHRA,
but not in the FCCHRA. Id. at 20.
argues that, contrary to Appellants' assertions, the
Commonwealth Court did view the Ogontz test
"through the lens of the specific municipal ordinance. .
. sought to be enforced, " and did not hold that
sovereign immunity creates a per se exemption from all
municipal jurisdiction. Id. at 21-22. Thus, SEPTA
asserts the distinction drawn by the Commonwealth Court
between the land use issues, applicable in Ogontz,
and the regulations present in the FPO, which include rights
of private action and the award of damages, is valid.
Id. at 24-25. SEPTA argues Appellants' parsing
of the potential enforcement remedies available under the FPO
to support an inference of legislative intent to permit the
Philadelphia Commission's partial jurisdiction over it is
inapposite. Id. at 33-34.
sought allowance of appeal, which we granted for decision on
the following question, as framed by Appellants:
Did the General Assembly, when it gave Philadelphia general
police powers as expansive as [those] of the General Assembly
and specific authority to enact local anti-discrimination
laws, intend to exempt SEPTA from compliance with those laws,
when the consequence of compliance would not
materially disrupt SEPTA's core transportation function
and the consequence of non-compliance would leave
hundreds of thousands of Philadelphia passengers and
employees without a remedy against many forms of
SEPTA v. City of Phila., 133 A.3d 292 (Pa.