Pa. Builders Ass'n v. Dep't of Labor & Indus.
| Decision Date | 26 October 2022 |
| Docket Number | 479 M.D. 2021,No. 479 M.D. 2021 |
| Citation | 284 A.3d 1287 |
| Parties | PENNSYLVANIA BUILDERS ASSOCIATION, Petitioner v. DEPARTMENT OF LABOR & INDUSTRY, Respondent |
| Court | Pennsylvania Commonwealth Court |
Kevin McKeon, Harrisburg, for Petitioner.
Matthew Skolnik, Deputy Attorney General, Philadelphia, for Respondent.
BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE STACY WALLACE, Judge
OPINION BY JUDGE COVEY
Before this Court in its original jurisdiction is Pennsylvania Builders Association's (PBA)1 Application for Judgment on the Pleadings (Application) and the Department of Labor and Industry's (Department) Answer thereto. After review, this Court grants the Application.
In 1999, the General Assembly enacted the Pennsylvania Construction Code Act (PCCA),3 the purpose of which was to "establish uniform and modern construction standards throughout the Commonwealth." Commonwealth v. Null , 186 A.3d 424, 427 n.1 (Pa. Super. 2018) (quoting Flanders v. Ford City Borough , 986 A.2d 964, 969 (Pa. Cmwlth. 2009) ). To that end, in Section 301(a)(1) of the PCCA, the General Assembly mandated that the Department shall "promulgate regulations adopting the [then-current] 1999 [Building Officials and Code Administrators, Inc. (]BOCA[)] National Building Code, Fourteenth Edition, as a Uniform Construction Code [(UCC).4 ]" 35 P.S. § 7210.301(a)(1). In Section 301(a)(2) of the PCCA, the General Assembly directed that the Department "shall include a provision that all detached one-family and two-family dwellings and one-family townhouses that are not more than three stories in height[,] and their accessory structures[,] shall be designed and constructed either in accordance with the" International Code Council's "[(]ICC[)] International One and Two Family Dwelling Code, 1998 Edition, or in accordance with the requirements of the [UCC]." 35 P.S. § 7210.301(a)(2). The ICC is a private, non-profit entity. See Petition for Review in the Nature of a Complaint in Equity Seeking Declaratory Relief and Injunctive Relief (Complaint) ¶ 9. BOCA later merged into the ICC codes.
Section 304(a)(3) of the PCCA further mandates:
The [D ]epartment shall promulgate regulations updating accessibility standards under Chapter 3 [(Uniform Construction Code )] by adopting by December 31 of the year of issuance of the accessibility provisions of the most recently published edition of the ICC codes and any other accessibility requirements which shall be specified in the regulations , or contained in or referenced by the [UCC ] relating to persons with disabilities .
35 P.S. § 7210.304(a)(3) (emphasis added). Importantly, Section 304(a)(2) of the PCCA adds that regulations promulgated thereunder are exempt from the requirements of Section 205 of what is commonly referred to as the Commonwealth Documents Law (CDL),5 45 P.S. § 1205 (), and Sections 204(b) and 301(10) of the Commonwealth Attorneys Act,6 71 P.S. §§ 732-204(b), 732-301(10) (). See 35 P.S. § 7210.304(a)(2).
On December 25, 2021, pursuant to Section 304(a)(3) of the PCCA, the Department amended Sections 403.21,7 403.26,8 and 403.289 of the Department's Regulations, 34 Pa. Code §§ 403.21, 403.26, 403.28, and certain definitions in Section 401.1 of the Department's Regulations, 34 Pa. Code § 401.1, to expressly adopt the ICC's 2021 amendments to accessibility provisions of the International Building Code, International Existing Building Code, and International Swimming Pool and Spa Code (collectively, 2021 Accessibility Regulations). See Complaint Ex. A, 51 Pa. B. 7981-84 (2021).
On December 29, 2021, PBA filed the Complaint, alleging therein that the General Assembly delegated unfettered legislative authority to a private entity to establish accessibility standards, and that PBA and its members are aggrieved as a result.10 Specifically, PBA asserted:
Complaint ¶¶ 26-27. PBA claimed that, in addition to adverse economic impacts, delays, or interpretive and enforcement difficulties PBA members will suffer as a result of the 2021 Accessibility Regulations, PBA and its members were denied the opportunity to provide meaningful comment during the promulgation process. See Complaint ¶¶ 18, 20.c, 23-24.
PBA attached to the Complaint copies of the Regulatory Analysis Form (Analysis Form) that the Department submitted to the Independent Regulatory Review Commission (IRRC) on November 5, 2021, in support of the 2021 Accessibility Regulations’ final-omitted rulemaking,12 and the December 25, 2021 Pennsylvania Bulletin publication of the 2021 Accessibility Regulations, including the information the Department supplied to IRRC in the Analysis Form. See Complaint Exs. A, B. PBA requests from this Court: (1) a declaration that the 2021 Accessibility Regulations unlawfully delegate legislative power to the ICC in violation of article II, section 1 of the Pennsylvania Constitution ; and (2) an order permanently enjoining enforcement of the 2021 Accessibility Regulations.
On January 31, 2022, the Department filed an Answer and New Matter to the Complaint. Therein, the Department admitted that it promulgated the 2021 Accessibility Regulations as Section 304(a)(3) of the PCCA mandates. See Department Answer & New Matter ¶ 6; see also Complaint Ex. C. The Department acknowledged that it made representations in the Analysis Form that the PCCA required it to adopt the ICC's updated accessibility regulations without analysis or change, see Department Answer & New Matter ¶ 16; see also Complaint Ex. C at 2, 4, 8-10, and that "[t]he regulated community is required to absorb the cost of compliance with the new or altered standards mandated by th[e 2021 Accessibility Regulations]." Complaint Ex. C at 5. The Department denied that PBA or its members are aggrieved by any economic impact, delay, or interpretive and enforcement difficulties from the promulgation of the 2021 Accessibility Regulations. See Department Answer & New Matter ¶¶ 18, 20c., 23-24.
In addition, in its New Matter, the Department asserted: PBA failed to join a necessary party; PBA lacks standing to bring this action; PBA's members failed to exhaust their administrative remedies; the Complaint fails to comply with the Declaratory Judgments Act (DJA);13 if granted, declaratory judgment would prejudice rights of persons not parties to this proceeding; one or more of PBA's claims is barred by consent, has been waived, or is barred by public policy; the requested relief would cause undue hardship, or unfairly prejudice members of the public who need greater accessibility to commercial buildings and/or Type B Dwelling Units;14 and, at all times relevant hereto, the Department has applied applicable laws and its Regulations reasonably and in good faith. See id. ¶¶ 32-41. On February 8, 2022, PBA filed a Reply to New Matter, denying the Department's New Matter. At that point, the pleadings were closed.
On February 28, 2022, PBA filed the Application, declaring that there are no issues of material fact and that PBA is entitled to judgment in its favor as a matter of law. On March 28, 2022, the Department filed the Answer claiming that PBA is not entitled to judgment as a matter of law, and that whether PBA had the opportunity to conduct meaningful review and comment before the 2021 Accessibility Regulations were promulgated is a disputed issue of material fact precluding judgment on the pleadings. The parties filed briefs in support of their respective positions.
Initially, Pennsylvania Rule of Appellate Procedure 1532(b) provides that, "similar to the type of relief envisioned by the Pennsylvania Rules of Civil Procedure regarding judgment on the pleadings[,]" Pa.R.A.P. 1532(b), Note, "[a]t any time after the filing of a petition for review in an ... original jurisdiction matter, the court may on application enter judgment if the right of the applicant thereto is clear." Pa.R.A.P. 1532(b). This Court has expounded:
A motion for judgment on the pleadings is in the nature of a demurrer; all of the opposing party's allegations are viewed as true and only those facts which have been specifically admitted by him may be considered against him. In reviewing a motion for judgment on the pleadings, the court may only consider the pleadings themselves and any documents properly attached thereto. A motion for judgment on the pleadings should be granted by a [ ] court only when the pleadings show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Trib Total Media, Inc. v. Highlands Sch. Dist. , 3 A.3d 695, 698 n.2 (Pa. Cmwlth. 2010) (citations omitted).
"[T]he burden is on the moving party to prove the non-existence of any genuine issue of fact[,] and ... all doubts as to the existence of a genuine issue of a...
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