Rosen v. Bureau of Professional and Occupational Affairs

• Decision Date: 13 December 2000
• Citation: 763 A.2d 962
• Parties: Robert R. ROSEN, d/b/a Robert R. Rosen Associates and Harold Murray, d/b/a Murray Drafting Services, Petitioners, v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE ARCHITECTS LICENSURE BOARD, Respondent.
• Court: Pennsylvania Commonwealth Court

763 A.2d 962

Robert R. ROSEN, d/b/a Robert R. Rosen Associates and Harold Murray, d/b/a Murray Drafting Services, Petitioners, v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE ARCHITECTS LICENSURE BOARD, Respondent.

Commonwealth Court of Pennsylvania.

Argued March 7, 2000.

Decided December 13, 2000.

Sheldon L. Albert, Philadelphia, for petitioners.

Leonidas Pandeladis, Harrisburg, for respondent.

Before DOYLE, President Judge, KELLEY, Judge, and NARICK, Senior Judge.

DOYLE, President Judge.¹

Robert R. Rosen (Petitioner Rosen), d/b/a Robert R. Rosen Associates,² and Harold Murray (Petitioner Murray), d/b/a Murray Drafting Services (collectively "Petitioners"), appeal from an order of the Bureau of Professional and Occupational Affairs (Bureau), State Architects Licensure Board (Board), enjoining Petitioners from engaging in the practice of architecture without a license and imposing civil penalties on Petitioner Rosen in the amount of $1,000.00 and on Petitioner Murray in the amount of $300.00.

The sole issue before the Court is whether the Architects Licensure Law (Architects' Law)³ and the Engineer, Land Surveyor and Geologist Registration Law (Engineers' Law)⁴ are in pari materia,⁵ requiring that they be construed together so as to achieve a consistent result.

The relevant facts are as follows. Charles Bowser, Esq., a prominent Philadelphia lawyer, owns a four-story building in Philadelphia that was previously used as a private club. He sought to renovate the structure into law offices and hired Murray to survey the building and create a set of drawings based on Bowser's conception of the renovation project. The project called for the conversion of the first three floors into law offices and the conversion of the fourth floor into an apartment. The most substantial aspect of the renovation involved the addition of an elevator shaft to the rear of the building and reinforcement of the first floor to accommodate a law library. The renovation would leave the facade of the building substantially unaltered, and ingress and egress to the building unchanged.

Satisfied with the proposed plans, Bowser notified Murray that he desired to proceed with construction, but was informed by Murray that he would have to hire a licensed design professional to approve the structural integrity of the proposed alterations and to affix a professional seal to the drawings so that the City would issue the necessary building permits. Bowser then contacted Charles Lomax, a licensed professional architect, who reviewed the renovation plans and agreed to manage the project. Bowser subsequently declined to hire Lomax because his fee was too high, and requested that Murray recommend another design professional who could review, approve, and seal the drawings. Murray contacted Rosen, owner of a professional engineering firm, who reviewed the drawings, and agreed to manage the project for a fee acceptable to Bowser. Following Rosen's application of his professional seal on the plans, the City issued the necessary permits to renovate the building. Upon learning that an engineer had sealed the design documents, Lomax filed a complaint with the Architects Licensure Board asserting that Petitioners had engaged in the practice of architecture without a license in violation of section 18(a) of the Architects' Law. 63 P.S. § 34.18(a).

Acting on Lomax's complaint, the Bureau issued a rule to show cause why civil penalties should not be imposed against Petitioners. Following Petitioners' answer, the Board appointed a hearing examiner who conducted a hearing wherein the parties presented expert testimony addressing the degree to which the project involved the disciplines of architecture and engineering. The Bureau presented the testimony of its own investigating officer and two registered architects, Lomax and Harry Rutledge. Both Petitioners, Rosen and Murray, testified, but the hearing examiner excluded the testimony of their expert witness. Following an appeal to the Board by the Petitioners, the Board remanded the matter to the hearing examiner with instructions to admit the expert's testimony after reaching the conclusion that the testimony was improperly precluded on procedural grounds. On remand, Petitioners presented the testimony of Artis T. Ore, a contractor, and Barton Klingerman, a registered professional engineer. The Board's expert witnesses and Petitioners' expert witness all testified that the project at issue was simultaneously "architectural" and "engineering" in nature, differing only as to the estimated percentage that they allocated to each field. Thereafter, the hearing examiner credited the Bureau's expert testimony, which indicated that the project was 80% architectural and 20% engineering work. The hearing examiner discredited Petitioners' witnesses and issued a proposed adjudication concluding that Petitioners had violated Section 18(a) of the Architects' Law governing the unauthorized practice of architecture. The Board adopted the hearing examiner's proposed adjudication and imposed a civil penalty of $1,000 against Rosen and $300 against Murray. This appeal ensued.⁶

Initially we must look at Section 3 of the Architects' Law, which defines the practice of architecture as follows:

"Practice of Architecture." The rendering or offering to render certain services, hereinafter described, in connection with the design and construction of a structure or group of structures which have as their principal purpose human habitation or use, and the utilization of space within and surrounding such structures. The services referred to in the previous sentence include planning, providing preliminary studies, designs, drawings, specifications, and other design documents, construction management and administration of construction contracts. The foregoing shall not be deemed to include the practice of engineering as such, for which separate registration is required under the provisions of the [Engineers' Law], excepting only engineering work incidental to the practice of architecture.

63 P.S. § 34.3 (emphasis added).

We are then obliged to consider Section 2 of the Engineers' Law, which defines the practice of engineering as:

(a)(1) "Practice of Engineering" shall mean the application of the mathematical and physical sciences for the design of public or private buildings, structures, machines, equipment, processes, works or engineering systems, and the consultation, investigation, evaluation, engineering surveys, construction management, planning and inspection in connection therewith, the performance of the foregoing acts and services being prohibited to persons who are not licensed under this act as professional engineers unless exempt under other provisions of this act.

* * * *

(3) The forgoing shall not be deemed to include the practice of architecture as such, for which separate registration is required under [the Architects' Law], excepting only architectural work incidental to the "practice of engineering."

63 P.S. § 149(a)(1), (3) (emphasis added).

The instant appeal represents, in our view, an ongoing turf war between these two learned professions over the application of their professional disciplines to the design of buildings, and to the construction and renovation of buildings and structures within the Commonwealth of Pennsylvania. On appeal, Petitioners concede that while these two professional disciplines are different, there are substantial areas which overlap relating to the design, construction and renovation of structures. Petitioners further maintain that the purpose of the two professional regulatory statutes is to protect the public safety rather than to protect the private interests of one discipline over the other. Petitioners argue that, as a matter of statutory construction, sections of the Architects' Law, essentially 63 P.S. § 34.3, and the Engineers' Law, essentially 63 P.S. § 149, should be read in pari materia, thus harmonizing each statute's relevant provisions to give a uniform effect to each. Petitioners assert that such a construction would preclude sanctions in the instant matter because the services rendered on the renovation project in this case may legitimately be regarded as within the reach of both the architectural and engineering disciplines. The Board, on the other hand, asserts that it properly applied the Architects' Law to the record evidence and that substantial evidence supports its findings and conclusions.

We conclude that these two statutes should be read in pari materia because each statute explicitly recognizes that there is indeed an overlapping of the professions, and neither one establishes a clear, mutually exclusive, delineation between the two.

The primary purpose of the Architects' Law is to protect "the health, safety and property of the people of the Commonwealth...,"⁷ and this goal is to be accomplished by allowing no one to practice architecture unless that person has the qualifications and competency required by the statute. See, i.e., Baker v. Chambers, 183 Pa.Super. 634, 133 A.2d 589 (1957) (awarding compensation to a licensed architect employed by an engineering firm); Rudy v. Friedman, 54 D. & C.2d 628 (1971) (denying compensation to the estate of an individual who performed architectural services without being registered as an architect).

Likewise, the primary purpose of the Engineers' Law is also to "safeguard life, health or property...." 63 P.S. § 150(a). See, i.e., Lindholm v. Mount, 163 Pa.Super. 36, 60 A.2d 422 (1948) (denying compensation to an individual who performed engineering services without being registered as an engineer). Therefore, the primary purpose of both licensing laws is to protect the lay public and their property by assuring, subject to limited exceptions, that a licensed architect or a licensed engineer will be retained when the client requires their professional services to guarantee the structural integrity of...