OPINION BY Judge 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.
In 1963, the General Assembly established SEPTA pursuant to the Metropolitan Transportation Authorities Act, 74 Pa. C.S. §§ 1701-1785.
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
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.
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.
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
On July 23, 2009, while the administrative complaints were pending, SEPTA filed the instant complaint against the City and the Philadelphia Commission (collectively, City).
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.
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, ___ Pa. ___, 101 A.3d 79 (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.
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
Noting that both government agencies were creatures of statute, the Supreme Court identified the Department's preemption claim as one of statutory construction:
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
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:
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 and agency. Section 1711(a) states:
74 Pa.C.S. § 1711(a) (emphasis added). The Metropolitan Transportation Authorities Act also established that SEPTA enjoys sovereign immunity. Section 1711(c) states, in relevant part, as follows:
74 Pa.C.S. § 1711(c)(3) (emphasis added). In turn, 1 Pa.C.S. § 2310 states:
1 Pa.C.S. § 2310 (emphasis added). In short, suits against the Commonwealth are "permissible only where the legislature has expressly waived immunity." Ebersole v. Southeastern Pennsylvania Transportation Authority, 111 A.3d 286, 289 (Pa. Cmwlth.2015) (emphasis added).
The Pennsylvania Human Relations Act prohibits discrimination in employment, housing and public accommodation by, inter alia, a person or employer. Pursuant to Section 4 of the Act, a "person" includes "the Commonwealth of Pennsylvania, and all political subdivisions, authorities, boards and commissions thereof," 43 P.S. § 954(a), and an "employer" includes "the Commonwealth or any political subdivision or board, department, commission or school district thereof." 43 P.S. § 954(b). It is beyond peradventure that SEPTA is subject to the Pennsylvania Human Relations Act.
In order to make SEPTA also subject to the Fair Practices Ordinance, the legislature would have had to "specifically" waive SEPTA's immunity from actions brought under local anti-discrimination ordinances. It did not do so.
The City relies upon the First Class City Home Rule Act as the basis for its authority to enforce the Fair Practices Ordinance against SEPTA. Our Supreme Court held that the Home Rule Act is not dispositive, explaining:
SEPTA v. Philadelphia II, 101 A.3d at 88. Simply, the Home Rule Act does not waive the immunity of Commonwealth agencies
The City also argues that the General Assembly has not prohibited its application of the Fair Practices Ordinance to SEPTA or other Commonwealth agencies. Commonwealth agencies must abide by the City's zoning and traffic ordinances. Likewise, it argues, they must abide by the City's anti-discrimination ordinance.
This argument overlooks two important points. First, the anti-discrimination law is unlike zoning and traffic ordinances. Philadelphia alone regulates zoning and traffic control within the City. Therefore, if SEPTA were not subject to the City's zoning and traffic ordinances, there would be a regulatory vacuum leaving SEPTA with carte blanche to do as it pleased in these important areas. This would produce an absurd result. On the other hand, the Fair Practices Ordinance is not the only anti-discrimination law applicable in Philadelphia. As discussed supra, SEPTA is subject to the Pennsylvania Human Relations Act, which prohibits SEPTA from discriminating against its employees and passengers. Second, the Fair Practices Ordinance authorizes private individuals to sue SEPTA for monetary damages, and SEPTA has been granted immunity from such damages.
Section 1122 of the Fair Practices Ordinance authorizes a private right of action in the Philadelphia County Court of Common Pleas for damages. PHILA. CODE § 9-1122. The ordinance also authorizes the Philadelphia Commission to award compensatory damages, punitive damages, attorneys' fees and payment of the Commission's own expenses. PHILA. CODE §§ 9-1105, 9-1107.
The City argues, nevertheless, that the Pennsylvania Human Relations Act expresses a waiver of sovereign immunity because it specifies that it does not repeal or supersede any municipal anti-discrimination ordinance. Section 12 of the Pennsylvania Human Relations Act states, in relevant part, as follows:
43 P.S. § 962(a), (b).
We disagree. The legislature has waived SEPTA's immunity from suit arising from discrimination by making it subject to the jurisdiction of the Pennsylvania Human Relations Commission. Exceptions to sovereign immunity are to be narrowly construed.
In sum, it is apparent from the language of the applicable statutes that the legislature did not intend to subject SEPTA to the Fair Practices Ordinance. Therefore, we need proceed no further in our legislative intent analysis. Nevertheless, for the sake of completeness, we will address the second prong of the Ogontz test.
The second prong of the Ogontz test discerns legislative intent by considering, inter alia, the consequences of a particular interpretation. SEPTA argues that to subject it to the Fair Practices Ordinance would add another layer of regulation in addition to that provided in federal and state civil rights laws.
On the other hand, finding in favor of SEPTA will protect the public fisc, a vital consideration. Exempting SEPTA from the Fair Practices Ordinance still leaves SEPTA subject to the Pennsylvania Human Relations Act. SEPTA cannot engage in invidious discrimination at will and does not wish to do so. It is up to the General Assembly, not the City, to amend the Pennsylvania Human Relations Act to enlarge the categories of citizens protected from invidious discrimination. The Fair Practices Ordinance expressly excludes religious employers and the United States government from its terms. Excluding Commonwealth agencies from its reach is consistent with the policy to exclude federal agencies.
We agree that the focus is on SEPTA in this prong of the Ogontz analysis and not on other persons the City has exempted from the Fair Practices Ordinance. However, we conclude that a consideration of the consequences of subjecting SEPTA to the Fair Practices Ordinance leads to the conclusion that the legislature did not intend this result.
SEPTA operates in Philadelphia, but also in Bucks, Chester, Delaware and Montgomery Counties. Each county contains numerous municipalities.
SEPTA receives its funding from state and federal sources, and to a much lesser extent, local sources in the areas it serves. A primary purpose of sovereign immunity is "protection of the public fisc." Frazier v. Workers' Compensation Appeal Board (Bayada Nurses, Inc.), 616 Pa. 592, 52 A.3d 241, 250 (2012). Spending these funds to ensure compliance with any potential number of different local anti-discrimination statutes would divert them away from SEPTA's core mission of providing public transportation.
Simply put, subjecting SEPTA to local anti-discrimination laws could prove overwhelming. Courts must presume that the legislature did not intend a result that is unreasonable or absurd where the legislature's intent is not clear. 1 Pa.C.S. § 1922(1). Thus, even if the intent of the legislature were not apparent from the language of the applicable statutes, we would conclude that the consequences of finding in SEPTA's favor are far less problematic than a ruling that SEPTA is subject to the Fair Practices Ordinance. SEPTA is still subject to federal and state anti-discrimination statutes.
In sum, we conclude that the legislature did not intend for SEPTA to be subject to the Philadelphia Fair Practices Ordinance or the jurisdiction of the Philadelphia Commission.
Accordingly, the order of the trial court sustaining the preliminary objections of the City and Philadelphia Commission is reversed. The matter is remanded for further proceedings consistent with this opinion.
AND NOW, this 7th day of August, 2015, the order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections filed by the City of Philadelphia and the Philadelphia Commission on Human Relations in the above-captioned matter is hereby REVERSED. The matter is REMANDED for further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
DISSENTING OPINION BY President Judge PELLEGRINI.
The question in this case is whether the Southeastern Pennsylvania Transportation Authority (SEPTA) is subject to the City of Philadelphia's (Philadelphia) anti-discrimination ordinances enacted pursuant to a grant of power in the First Class City Home Rule Act
In finding that SEPTA is not subject to those ordinances, as instructed on remand, the majority conducts an analysis as set forth in Department of General Services v. Ogontz Area Neighbors Association, 505 Pa. 614, 483 A.2d 448 (1984), to determine which entity prevails "[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
Employing a common set of tropes, the majority finds under the first prong of Ogontz that SEPTA has legislative priority because it is "an instrument of the Commonwealth" that leads the majority to what it considers a certain narrative inevitability that SEPTA's interests in running a "transportation system" are paramount over Philadelphia's interest in enacting and enforcing human relations ordinances specifically authorized by the General Assembly to root out invidious discrimination.
As to the second prong, the majority succumbs and blindly accepts SEPTA's baseless claims, without any evidence, that if subject to local human relations ordinances, SEPTA somehow could not carry out its transportation responsibilities because it would be required to know what each local human relations ordinance provides in the 100 different municipalities in which it operates, again, "without proof" that each of those municipalities has a human relations ordinance.
I respectfully dissent because, under the first prong of Ogontz, SEPTA is subject to charges of discrimination brought under Philadelphia's anti-discrimination ordinances because it is clear under the Constitution and the legislative scheme that Philadelphia's interests in eliminating discrimination are paramount under the grants of power given to it as compared to the powers given to SEPTA by the General Assembly. If we even need to get to the second prong, both mandates of both agencies would not be impeded if SEPTA is made subject to Philadelphia's anti-discrimination ordinances because Philadelphia would be able to carry out its legislative mandate without in any way impeding SEPTA's ability to provide public transportation.
Moreover, the consequences subjecting SEPTA to Philadelphia's anti-discrimination ordinances as well as any other relevant local laws is no more than an inconvenience that any multi-jurisdictional private business is subject to in order to operate. However, the consequence of failing to apply those anti-discrimination ordinances is that Philadelphia residents would not be protected by the anti-discrimination ordinances which, in addition to the local enforcement of the traditional subjects of discrimination, also forbid discrimination on the basis of a person's sexual orientation and gender identity which are classes not protected by the state PHRA. The majority acknowledges this "is at the heart of the current controversy" because it was not until after those types of claims of anti-discrimination were raised that SEPTA claimed that it was not subject to Philadelphia's anti-discrimination ordinances.
Under the first prong of the Ogontz test, we must examine the legislative scheme to determine which governmental entity has priority. In this case, this prong is particularly important because this is the first case involving an authority, SEPTA, an entity that is not directly controlled by elected officials.
SEPTA, headquartered in Philadelphia, was created in 1963 pursuant to the Metropolitan Transportation Authorities Act, 74 Pa.C.S. §§ 1701-1785, to provide public transportation in the area commonly known, as the SEPTA name suggests, the five counties commonly identified as Southeastern Pennsylvania — Philadelphia, Bucks, Chester, Delaware and Montgomery counties. 74 Pa.C.S. § 1713. When operating outside those counties, SEPTA is treated just like any private common carrier and must obtain a certificate of public convenience from the appropriate regulatory agency. 74 Pa.C.S. § 1711.
SEPTA is governed by a 15-member Board. Uniquely, while Philadelphia appoints only two members to the Board, those two members can veto any item that is approved by the full SEPTA Board unless that veto is overridden with the vote of at least 75% of the full Board within 30 days. The other four counties appoint two members each. Of the remaining five members on the Board, the Governor and majority and minority leaders of the two houses of the Pennsylvania State Legislature appoint one member each.
Though the Commonwealth does not have power to appoint a majority of its Board members, Section 1711(a) further states that "[a]n 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).
Notwithstanding that language, SEPTA is not considered to be the same as the Commonwealth. In Southeastern Pennsylvania Transportation Authority v. Union Switch & Signal, Inc., 161 Pa.Cmwlth. 400, 637 A.2d 662, 665, appeal denied, 538 Pa. 662, 648 A.2d 792 (1994), we stated the difficulty in determining the status of SEPTA or, for that matter, any authority, is directly related to the reasons behind its creation and authorization by the General Assembly. We explained:
Id.
SEPTA was created to take over the business of providing transportation that was formerly provided by private transportation companies such as the Philadelphia Transportation Company, Philadelphia Suburban Transportation, Schuylkill Valley Lines and/or the Penn Central and Conrail. See Application of Philadelphia Suburban Transportation Co., 216 Pa.Super. 803, 264 A.2d 180 (1970); Southeastern Pennsylvania Transportation Authority v. Philadelphia Transportation Co., 38 Pa. D. & C. 2d 653, 654-55 (Pa.Com.Pl. 1965). In short, SEPTA is in the transportation business, not in the business of governing.
While it is often said that "municipalities are creatures of the General Assembly,"
Philadelphia is a home rule municipality authorized by the General Assembly by the First Class City Home Rule Act.
Unlike SEPTA, which is truly a mere creature of statute whose existence could be extinguished by the General Assembly and which is likely to occur if a private concern would offer to take over its transportation responsibilities, Philadelphia is a creature of the constitution charged with governance at the local level. It is for this reason that the General Assembly provided in a clear and unequivocal statement its intent that a quasi-governmental agency like SEPTA is predominant and is exempt from local regulation.
When the Philadelphia Home Rule Charter was adopted in 1951, it created the Philadelphia Commission on Human Relations to hear and enforce the Philadelphia Fair Practices Ordinance. It prohibits discrimination in the areas of: employment; housing and public accommodations; 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. Philadelphia Code §§ 9-1103, 9-1106.
In 1955, the General Assembly enacted the PHRA, 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, use of guide or support animals because of the blindness, deafness or physical handicap of the user...." Section 2 of the PHRA, 43 P.S. § 952. Its reach is statewide.
However, when enacting the PHRA, the General Assembly did not preempt local
In Hartman v. City of Allentown, 880 A.2d 737 (Pa.Cmwlth.2005), we said that the grant of power extended to local commissions to forbid discrimination against other groups because the grant of power by the General Assembly was to allow local governments to address matters of local concern at the local level and to devote additional resources that the Commonwealth may not have to address a more immediate concern. Addressing invidious discrimination is a matter of heightened concern for Philadelphia because a substantial number of its citizens are African-Americans and gay, not to mention that a majority of SEPTA's riders are African-Americans and women.
There is nothing in the legislative scheme that would suggest that SEPTA's interests should predominate over the Commonwealth's; everything suggests that Philadelphia's governmental interest predominates. Philadelphia is a home rule municipality that has police powers to address invidious discrimination, and the General Assembly has given it the power and encouraged it to enact its own human relations ordinances and to enforce them. There is no conflict in the legislative scheme between Philadelphia's enforcement of its Fair Practices Ordinance and SEPTA's legislative scheme to carry on its transportation business. Under the first prong of the Ogontz test, the relevant statutes express a clear legislative directive that Philadelphia has priority to enforce its Fair Practices Ordinance so that SEPTA cannot engage in invidious discrimination.
The majority does not seem to disagree that under the legislative scheme alone, Philadelphia has priority to enforce its Fair Practices Ordinance. Apparently, it would hold that SEPTA is subject to Philadelphia's zoning and traffic laws, but for the reasons outside the first prong of Ogontz, it finds that SEPTA is not subject to the Philadelphia Fair Practices Act.
The first reason that the majority posits as to why Philadelphia's legislative scheme predominates in zoning and traffic but not in anti-discrimination ordinances is that there would be a regulatory vacuum leaving SEPTA to do as it pleased in these important areas if SEPTA is not subject to Philadelphia's zoning and traffic ordinances. It goes on to say that because SEPTA is subject to the jurisdiction of the Pennsylvania Human Relations Commission, then even if not subject to Philadelphia's Fair Practices Ordinance, SEPTA is, nevertheless, prohibited by law from discriminating against its employees and customers. It seems to be suggesting that "a no harm-no foul" rationale applies.
However, under the first prong of Ogontz, we just look to see if there is a legislative priority of one agency over the
The second reason that the majority gives for failing to give Philadelphia priority over SEPTA is that the Fair Practices Ordinance would authorize third parties to sue SEPTA for monetary damages, including compensatory damages, punitive damages, attorneys' fees and payment of the Commission's own expenses. Philadelphia Code §§ 9-1105, 9-1107. It does so because employing its favorite trope that SEPTA, as an agency and instrumentality of the Commonwealth, is immune from any such actions under 1 Pa.C.S. § 2310, which provides:
Equating SEPTA with the Commonwealth itself, the majority then reasons that because suits against the Commonwealth are permissible only where the legislature has expressly waived immunity, SEPTA is immune from actions brought under Philadelphia's Fair Practices Law because the General Assembly has not waived immunity under Section 2310. I disagree for a number of reasons.
First, just because it has been determined that SEPTA is an "agency and instrumentality of the Commonwealth" does not mean that it is the Commonwealth. The courts determine an authority's status based on the statute under consideration, and we have looked to the legislative intent to determine whether the General Assembly intended that type of authority to be considered "the Commonwealth." In Fisher v. Southeastern Pennsylvania Transportation Authority, 60 Pa.Cmwlth. 269, 431 A.2d 394, 397 (1981), we stated:
In Union Switch & Signal, Inc., a claim was brought by a contractor against SEPTA before the Board of Claims on the basis that, as an agency of the Commonwealth, jurisdiction had to be before the Board of Claims because the Board was designated as having exclusive jurisdiction over contract claims when immunity was waived for such claims. Over SEPTA's objection that the Board of Claims did not have jurisdiction, the Board of Claims refused to dismiss the appeal. SEPTA then appealed to this Court, and we held that the Board of Claims lacked jurisdiction to entertain contract claims against SEPTA because SEPTA is not the "Commonwealth." Union Switch & Signal, Inc., 637 A.2d at 668-69. See also Quinn v. Southeastern Pennsylvania Transportation Authority, 659 A.2d 613 (Pa.Cmwlth. 1995) (holding that SEPTA was a local agency and not an agency of the Commonwealth for jurisdictional purposes and, thus, the court of common pleas had jurisdiction over the appeal); Fraternal Order of Transit Police By and Through Lamb v. Southeastern Pennsylvania Transportation Authority, 668 A.2d 270 (Pa.Cmwlth. 1995) (same); Bolden v. Southeastern Pennsylvania Transportation Authority, 953 F.2d 807 (3rd Cir.1991), cert. denied, 504 U.S. 943, 112 S.Ct. 2281, 119 L.Ed.2d 206 (1992) (holding that SEPTA was not the "Commonwealth" and not entitled to immunity under the Eleventh Amendment to the United States Constitution).
Second, even if it was the Commonwealth, the General Assembly has waived immunity for actions against SEPTA brought under local human relations ordinances. To determine whether the General Assembly intended SEPTA to be immune from actions brought under local human relations ordinances, the majority acknowledges that the General Assembly has waived SEPTA's immunity from suits arising from discrimination by making it subject to the jurisdiction of the Pennsylvania Human Relations Commission.
As mentioned before, Section 12.1(d) of the PHRA states that "legislative bodies of political subdivisions shall have the authority to grant to local commissions powers and duties similar to those now exercised by the Pennsylvania Human Relations Commission under the provisions of this act." 43 P.S. § 962.1(d). Under this provision, similar powers and duties that are exercised by the Pennsylvania Human Relations Commission can be exercised by the Philadelphia Commission on Human Relations. Part of the power given under this provision to local human relations commissions is jurisdiction over Commonwealth agencies to root out invidious discrimination.
Finally, even if it was true that SEPTA is immune under 1 Pa.C.S. § 2310 from monetary damages, that does not mean that SEPTA is not subject to the jurisdiction of the Philadelphia Commission on Human Relations. If it were so, then it is subject to the local human relations ordinance; a complainant could not get monetary damages but that does not mean that other relief is not available. 1 Pa.C.S. § 2310 does not make the state immune from prohibitory injunctions to restrain a state agency from engaging in unlawful conduct. See Stackhouse v. Pennsylvania State Police, 892 A.2d 54 (Pa.Cmwlth.), appeal denied, 588 Pa. 760, 903 A.2d 539 (2006). For example, in City of Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d 607 (1976), our Supreme Court held that the Department of Corrections had to comply with local zoning; if the Department of Corrections did not comply, then the municipality could seek an injunction to force it to comply. Similarly, if SEPTA has a practice of not hiring gay people, then under Section 1105(a) of the Fair Practices Ordinance, Philadelphia Code § 9-1105(a), the Philadelphia Commission on Human Relations could bring an equity action to cease and desist such an employment practice.
From the foregoing, it is clear from the legislative scheme that the Philadelphia
Under the second prong of Ogontz, if the legislative priority cannot be discerned, courts must try to glean legislative intent in a way that "would give effect to the legislative mandates of both governmental entities." Id. at 455. The majority adopts SEPTA's argument that it would not be able to carry out its legislative mandate if it was subject to the Philadelphia Fair Practices Ordinance because it would add another layer of regulation provided in federal and state civil rights laws, and its legal obligation would change in the course of a single bus trip because its service area extends beyond Philadelphia. The majority also buys SEPTA's argument that it will be required to expend scarce resources on a daunting legal investigation of what it can do and where it can do it, and not on its central mission of providing public transportation services. The majority concludes that subjecting SEPTA to local anti-discrimination laws could prove overwhelming and damage the public "fisc."
I agree with Judge Simpson that there is nothing on the record to support these conclusions and would join in his dissent of the need to remand to the trial court for factual findings. However, the majority's reasons are so specious that they can be rejected out of hand thereby obviating the need for a remand. Let's look at those reasons proffered by the majority.
First, as to the majority's assumption that it would be a daunting task to keep track of the applicable local human relations ordinance and impede its ability to carry out its public transportation responsibilities. Trucking companies, airlines and private bus companies are subject to these types of regulations in every city that they serve but they still manage to conduct their business, mostly at a profit. If they can do it, SEPTA can do it if it wants to.
Second, the idea that SEPTA cannot keep track of the local human relations ordinance of each municipality in which it operates is ludicrous. This premise is built on the notion that "SEPTA" just travels through these communities in hermetically-sealed tubes letting passengers on and off, and has no contact at all with the local officials in communities in which they operate. However, it has facilities such as tracks, stations, bus shelters, switches, maintenance stations, vending machines and electric lines in each of those communities, yet it somehow manages to keep track of each of those facilities. This is much more difficult than getting an ordinance from the 100 or so municipalities in which SEPTA operates, even if each of them has enacted one.
Not only that, SEPTA manages to know and comply with all the traffic and zoning codes of the various municipalities through which it travels, but the task somehow becomes "daunting" when it involves obtaining the relevant local human relations
Third, the idea that SEPTA's compliance with all of these ordinances would be so overwhelming that, as a consequence, its ability to provide transportation services would be impeded because it would require constant monitoring to remain current and all employees would have to be trained accordingly to such an extent belies common sense. Comcast is located in Philadelphia, but operates in certainly more than 100, and probably more than 10,000 communities, and yet, somehow, manages to keep track of these types of ordinance and understands its obligations in each community in which it serves. Moreover, aside from all of these human relation ordinances being similar, instructing all of your employees to act in a fair and non-discriminatory manner should be instilled from the moment of employment. This should not be considered to be a burden, but an opportunity for an "instrumentality of the Commonwealth" to advance the public policy of the Commonwealth. If Comcast can do it, certainly SEPTA can do it if it wants to.
The second dire consequence that the majority identifies is that it would divert resources away from SEPTA's core mission of providing public transportation if it is made subject to local human relations ordinances and must handle and pay damages for those claims. Again, this argument is specious. SEPTA is subject to damages under the PHRA, so even if it was not subject to Philadelphia's Fair Practices Ordinance, the public fisc would not be substantially harmed. In any event, the General Assembly wanted the public fisc to be harmed if governmental agencies engaged in invidious discrimination.
Finally, nothing in the Metropolitan Transportation Authorities Act evidences any intent that SEPTA has priority over Philadelphia's interest in making SEPTA the subject of Philadelphia's Fair Practices Ordinance or the jurisdiction of the Philadelphia Commission on Human Relations. To the contrary, the General Assembly made it clear that local governments are authorized to enact local human relations ordinances to carry out the announced policy of the Commonwealth to root out invidious discrimination and to supplement its efforts which would have priority over the legislative grant to provide public transportation, a function that it assumed from private companies.
Accordingly, I respectfully dissent and would affirm the decision of the trial court.
DISSENTING OPINION BY Judge SIMPSON.
I believe this case should be remanded to the Court of Common Pleas of Philadelphia County (trial court) for the receipt of evidence and initial fact-finding regarding the consequences of subjecting the Southeastern Pennsylvania Transportation Authority (SEPTA) to the City of Philadelphia's (City) anti-discrimination ordinance. Because I would vacate and remand, I respectfully dissent.
In this case, the trial court sustained preliminary objections. The pleadings are not closed, and no evidence has been adduced to resolve factual issues raised by the preliminary objections. After subsequent appeals, our Supreme Court clarified the analysis which is to be undertaken in resolving the preliminary objections. That analysis includes a consideration of the consequences of subjecting SEPTA to the City's anti-discrimination ordinance. See Se. Pa. Transp. Auth. v. City of Philadelphia, ___ Pa. ___, 101 A.3d 79 (2014).
Questions regarding the consequences cannot be resolved by an examination of the current complaint. See Reproduced Record at 96a. Therefore, I would afford the parties an opportunity to make a record on this issue, and I would allow the respected trial court to make initial factual determinations.
PHILA. CODE § 9-1103.
PHILA. CODE § 9-1106.
PHILA. CODE § 9-1105.
PHILA. CODE § 9-1107.
43 P.S. § 962.1. Section 12.1 was added by the Act of January 24, 1966, P.L.(1965) 1523.
Ogontz did not cite facts in its consequences analysis. The only case where the Ogontz test was applied outside the context of land use is Saucon Valley School District v. Robert, 785 A.2d 1069 (Pa.Cmwlth.2001). In Saucon, this Court posited the consequences without reference to record evidence.
In the half century that the 1922 Amendment was in effect, only one city, Philadelphia, was granted home rule status by the General Assembly. In 1968, the Constitution was amended to require the General Assembly to grant more local municipalities home rule power.
Acknowledging that because local governments can expand the protected classes set forth in Section 12(b) of the PHRA because the General Assembly only said that local governments could enact similar and not identical human relations ordinances, the majority then goes on to state that because it is not limited by PHRA, that somehow takes away Philadelphia's power over SEPTA. Implicit in that argument is that if the General Assembly had provided that restricted local human relations ordinances to having identical provisions, Philadelphia would have jurisdiction over SEPTA.
A more expansive grant of power by the General Assembly does not lead to the conclusion that it did not want the same people and organizations that are subject to PHRA, then not to be subject to local human relations ordinances. Quite the contrary, the General Assembly, by not limiting local human relations ordinances to identical subjects of discrimination, evidenced that it gave local governments the additional power to add provisions necessary to protect suspect classes and, like in PHRA, wanted SEPTA to be made subject to local ordinances just like every other person and business.
Philadelphia has expanded the classes from those set forth in that provision to include sexual orientation, gender identity, marital status, genetic information or domestic or sexual violence victim status. Philadelphia Code §§ 9-1103, 9-1106. Under the majority view, SEPTA is free to discriminate against those classes of people without any recourse anywhere.
