James J. Gory Mechanical Contracting, Inc. v. Philadelphia Housing Authority
James J. Gory Mechanical Contracting, Inc. v. Philadelphia Housing Authority
Dissenting Opinion
dissenting.
This Court has no authority to ignore the plain meaning of a statute in favor of tailoring an interpretation inconsistent with
In T & R Painting Co. v. Philadelphia Housing Authority, 466 Pa. 493, 353 A.2d 800 (1976), the issue was whether the PHA is an agency of the Commonwealth or a local agency. The court held that since the enabling statute allowed for local government involvement in PHA affairs, the statute was ambiguous and the court could ignore the specific language in favor of envisioning the General Assembly’s true meaning. T & R Painting, at 802. The court reasoned that to be an agency of the Commonwealth, the body must have statewide impact; absent this influence, an entity, even if delineated “an agency of the Commonwealth” by the General Assembly, was merely a local agency. Because the PHA dealt largely with Philadelphia concerns, the court stated it would be “absurd and unreasonable” to require an almost exclusive Philadelphia pool of litigants to travel and litigate its cases in Harrisburg’s Commonwealth Court; “‘[t]he General Assembly, of course, could not have intended such a result.’ ” Id. (citation omitted).
This reasoning was later rejected by this Court in Marshall v. Port Auth. of Allegheny County, 524 Pa. 1, 568 A.2d 931 (1990). The Marshall decision reviewed the enabling statute of the Port Authority of Allegheny County (PAT) and determined the “[ejxpress statutory language contained in the legislation which created PAT makes it eminently clear that PAT is an agency of the Commonwealth.” Id., at 933. “In
There are hereby created bodies corporate and politic in counties of second class, to be known as Port Authority of (insert name of county), which shall constitute public bodies corporate and politic; exercising the public powers of the Commonwealth as an agency thereof
55 P.S. § 553(a)(PAT) (emphasis added).
An Authority shall constitute a public body, corporate and politic, exercising public powers of the Commonwealth as an agency thereof [.]
Cf, 35 P.S. § 1550(PHA) (emphasis added). Why would the language of the Port Authority statute be so compelling as to make it “impossible” to conclude it was anything but an “agency of the Commonwealth,” and the almost identical language not compel the same result for the Housing Authority? PAT has no more statewide impact than PHA.
The Majority argues Marshall is irrelevant because the court was deciding whether PAT was entitled to sovereign immunity, from being a Commonwealth agency, or governmental immunity, which protects local agencies; we did not comment on PAT’s status for jurisdictional purposes. However, this Court framed the issue in Marshall as: “The question presented, therefore, is whether PAT is an ‘agency of the Commonwealth,’ rather than one of the types of local agencies excluded from the definition of ‘Commonwealth government.’ ” Marshall, at 933. The court abandoned T & R Painting’s agency impact analysis and determined that if the General Assembly designates an entity an appendage of the state government, it is just that.
In my judgment, this is the proper result. It is not necessary for courts to analyze whether something walks or quacks like a duck—the legislature has said “this is a duck,” and even if it looks and sounds like a goose, the legislature has the exclusive power to do so. We should not be saying “they
The Pennsylvania Constitution, Article V, § 4, states the Commonwealth Court’s jurisdiction “shall be provided by law.” Pa. Const, art. V, § 4. The General Assembly established its jurisdiction in 42 Pa.C.S. § 761; nowhere does the General Assembly provide for the judiciary to graft chameleon-like properties onto agencies, making them one type of agency for one purpose and another type for different purposes.
Once the “Commonwealth government” is sued, § 761 is mandatory; this Court has no authority to recast a statutorily-defined state agency into a local agency by critiquing its functions. We may not change the jurisdiction of our courts, whether more practical or located closer to the cause of action. The General Assembly earmarked the PHA an agency of the Commonwealth; we are bound to give effect to this directive.
The Third Circuit addressed the issue of the PHA’s status as either an agency of the Commonwealth or local agency and concluded that Marshall implicitly overruled T & R Painting. City of Philadelphia v. Lead Industries Assoc., Inc., 994 F.2d 112, 119 (1993). Applying Pennsylvania law, the federal court analyzed T & R Painting in light of Marshall and determined:
Marshall is controlling!, because t]he enabling statutes considered in Marshall and T & R Painting Co. contained virtually identical language ... and because, as a federal court sitting in diversity, we are bound to follow the pronouncement of a state’s highest court on an issue of state law, we hold that PHA is an agency of the Commonwealth .... ”
Id. The court rejected the argument that Marshall was inapplicable, noting: “the legislature’s designation of which entities are Commonwealth parties is dispositive for all governmental privileges.” Id.
In City of Philadelphia v. Philadelphia Parking Authority, 568 Pa. 430, 798 A.2d 161 (2002), we reversed an order of the
The uncertainty surrounding T & R Painting should be put to rest. This Court’s subsequent decisions have abandoned its holding in favor of the more prudent course of giving effect to the expressed words of the PHA statute. It is time to formally overrule that case and hold that when the General Assembly calls a body an “agency of the Commonwealth,” we must give meaning to that designation.
I would reverse the order of the Superior Court and remand this case to the Board of Claims for disposition on the merits.
. The Board of Claims Act was in effect at the commencement of this litigation and should have controlled the outcome. However, the General Assembly on December 3, 2002, repealed the Act and replaced it with a series of statutes further clarifying its exclusive jurisdiction and enumerating the requirements for resolving contract controversies involving a Commonwealth party. See Dec. 3, P.L. 1147, No. 142.
Opinion of the Court
OPINION OF THE COURT
We granted allowance of appeal in the instant case to resolve whether the Philadelphia County Court of Common Pleas (the “Trial Court”) had original jurisdiction over the underlying action brought against the Philadelphia Housing Authority (“PHA”). We hold that the Trial Court did indeed have original jurisdiction over the case and therefore affirm the Superior Court’s finding in that respect.
On February 9, 2000, Appellee James J. Gory Mechanical Contracting, Inc. (“Gory”) filed a complaint against the PHA in the Trial Court, alleging that PHA had breached a construction contract it had entered into with Gory (the “Contract”) by causing delays in Gory’s completion of its work and by failing to pay Gory for all of its work, including the extra days it had to work due to the delays.
On May 2, 2002, the Superior Court entered a memorandum opinion affirming the Trial Court’s order in favor of Gory. In its opinion, the Superior Court initially addressed the first issue raised by PHA in its appeal, which was “ ‘[wjhether the Court of Common Pleas of Philadelphia County had subject matter jurisdiction [over the case]?”
PHA subsequently filed a petition for allowance of appeal with this Court and we granted allocatur to address PHA’s claim that it is a Commonwealth agency for purposes of jurisdiction based on this Court’s decision in Marshall v. Port Auth. of Allegheny County, 524 Pa. 1, 568 A.2d 931 (1990), and our per curiam order in City of Philadelphia v. Philadelphia Parking Auth., 568 Pa. 430, 798 A.2d 161 (2002). Moreover, we agreed to consider PHA’s tangential claim that if it is a Commonwealth agency for jurisdictional purposes, Gory’s action should have been brought before the Board of Claims, rather than the Commonwealth Court. We now reaffirm our
Section 761 of the Judicial Code provides that the Commonwealth Court has original jurisdiction over all civil actions brought against the “Commonwealth government” unless one or more of four specific exceptions apply. 42 Pa.C.S. § 761. The “Commonwealth government” is defined for purposes of the Judicial Code as including, among other things, “the departments, boards, commissions, authorities and officers and agencies of the Commonwealth, but the term does not include any political subdivision, municipal or other local authority, or any officer or agency of any such political subdivision or local authority.”
As the Superior Court pointed out, this Court addressed the very issue of whether PHA is a Commonwealth agency for
1. Section 1543(g), which describes a housing authority’s field of operation as “[t]he area within the territorial boundaries of the city or county for which the particular housing authority is created.” 35 P.S. § 1543(g).
2. Section 1544, which states that housing authorities shall be created as “separate and distinct bodies, corporate and politic, one for each city, and one for each of the counties of the Commonwealth,” and also indicates that housing authorities shall be created if “[t]he governing body of any city or county ... find[s] and declare[s] that there is a need for an Authority to function within the ... city or county.” Id. § 1544.
3. Section 1544.1, which grants the governing body of any city the power to dissolve a city housing authority if the authority has no outstanding obligations and the governing body “find[s] and declare[s] by proper resolution that [the Authority’s] functions can be more properly carried out by a county authority.” Id. § 1544.1.
4. Section 1544.2, which grants the governing body of any county the power to dissolve a county housing authority if the authority has no outstanding obligations and the governing body “find[s] and declare[s] by proper resolution that there is no longer any need for the authority created for such county to function.” Id. § 1544.2.
5. Section 1545, which states that the city or county governing body that declared the need for a housing authority shall have the power to appoint county residents to be members of the authority. See id. § 1545.
6. Section 1546, which provides the local governing body with the power to fill vacancies on an authority’s board. See id. § 1546.
7. Section 1550(j), which grants the authority power “[t]o arrange with the Commonwealth, its subdivisions and agencies, and any county, city or other municipality of the State ... (1) to cause the services customarily provided by each of*34 them to be rendered for the benefit of such housing authority, or the occupants of any housing projects of the Authority; and (2) to provide and maintain parks, recreational centers, schools, sewerage, transportation, water, and other municipal facilities adjacent to, or in connection with, housing projects; and (3) to plan, replan, zone or rezone any part of the municipality in connection with any housing project of the Authority.” Id. § 1550(j).
8. Section 1562.1, which empowers a housing authority “to act as [an] agent of the State, or any of its instrumentalities or agencies, for the public purposes set out in this act.” Id. § 1562.1.10
After reviewing the above provisions, we concluded that because Section 1550 seemed to indicate that PHA was a Commonwealth agency while these other eight provisions indicated just the opposite, i.e., that PHA was a local agency, “[t]he language of the Housing Authorities Law does not specifically resolve the issue whether [PHA] is a local or state agency.” T & R Painting Co., 353 A.2d at 802.
Based on that finding, we determined that we had to discern whether the General Assembly intended lawsuits brought against PHA to be originally heard in the Commonwealth Court by looking beyond the language in the Appellate Jurisdiction Act and the Housing Law. See 1 Pa.C.S. § 1921 (“When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering [matters other than the statutory words].”). We then explained that “[t]he Commonwealth Court is intended to provide a judicial forum for the uniform and consistent resolution of questions of statewide impact.”
[T]o reach any other conclusion [than that the authority is a local agency which may be sued in the local court of common pleas rather than in the Commonwealth Court] would lead to the absurd and unreasonable result that a citizen would be required to pursue his [remedy] in Harrisburg even though the records were located in the community and the agency involved had been created by an individual city or county and the issues involved were matters strictly within the concern of a particular locality rather than a concern of the Commonwealth generally. The General Assembly, of course, could not have intended such a result.
T & R Painting Co., 353 A.2d at 802 (quoting Levine v. Redevelopment Auth. of the City of New Castle, 17 Pa.Cmwlth. 382, 333 A.2d 190, 192 (1975)) (internal citations omitted).
In reviewing our decision in T & R Painting Co., we find that it applies just as strongly today as it did twenty-eight years ago. The Housing Law remains for the most part unchanged and consequently, still does not clearly define whether a housing authority is a Commonwealth agency or a
PHA argues, however, that T & R Painting Co. is no longer controlling regarding a housing authority’s status because this Court implicitly overruled T & R Painting Co. in Marshall v. Port Auth. of Allegheny County, 524 Pa. 1, 568 A.2d 931, and City of Philadelphia v. Phila. Parking Auth., 568 Pa. 430, 798 A.2d 161. We disagree.
In Marshall, the Commonwealth Court held that a lawsuit could not be brought against the Port Authority of Allegheny County (“PAT”) because PAT was a local agency and thereby immune from liability based on the governmental immunity provisions in the Judicial Code, 42 Pa.C.S. §§ 8541-42 (providing governmental immunity for local agencies and limited number of exceptions to that immunity). On appeal, this Court affirmed the Commonwealth Court’s finding that PAT was immune from liability, but based that immunity on the sovereign immunity provisions of the Judicial Code, id.
We then found that the legislation that created PAT, the Second Class County Port Authority Act (the “Port Authority Act”),
There are hereby created bodies corporate and politic in counties of the second class, to be known as Port Authority of (insert name of county), which shall constitute public*38 bodies corporate and politic; exercising the public powers of the Commonwealth as an agency thereof.
Marshall, 568 A.2d at 933-34 (quoting 55 P.S. § 553(a) with emphasis). We determined that because this provision actually created second class county port authorities as well as empowered such authorities to act as Commonwealth agencies, it would be impossible to conclude that second class county port authorities were anything other than Commonwealth agencies.
PHA argues that we are required to find that it is a Commonwealth agency based on Marshall because the language in Section 553(a) of the Port Authority Act, which we relied on in Marshall in finding PAT to be a Commonwealth agency, mirrors that in Section 1550 of the Housing Law. While we acknowledge that Section 553(a) of the Port Authority Act and Section 1550 of the Housing Law use similar language to describe second class county port authorities and housing authorities and that Section 553(a) of the Port Authority Act strongly influenced our finding in Marshall that PAT was a Commonwealth agency, we disagree with PHA that our decision in Marshall mandates that it now be deemed a Commonwealth agency for jurisdictional purposes. Our decision in Marshall solely concerned whether PAT was a Commonwealth agency for sovereign immunity purposes rather than for purposes of jurisdiction. Moreover, as both this Court and the Commonwealth Court have made clear, an entity’s status varies “depending on the issue for which the determination is being made.” Pennsylvania State Univ. v. Derry Twp. Sch. Dist., 557 Pa. 91, 731 A.2d 1272, 1274 (1999); see also Safety, Agriculture, Villages and Environment, Inc. v. Delaware Valley Regional Planning Comm’n, 819 A.2d 1235, 1238 (Pa.Commw. 2003); Quinn v. Southeastern Pennsylvania Transp. Auth., 659 A.2d 613, 616 (Pa.Cmwlth. 1995);
It is important to note in this regard that the sovereign immunity provisions of the Judicial Code were enacted to insulate the Commonwealth and its agencies from liability except in certain specified circumstances so that state governmental assets are not subject to depletion through multiple lawsuits. See Jones v. Southeastern Pennsylvania Transp. Auth., 772 A.2d 435, 438-40 (Pa. 2001). Thus, in determining whether an entity is a Commonwealth agency for sovereign immunity purposes, the important factors to be considered are whether the entity was created by the state to perform a state function so that a judgment against it would, in essence, injure the state.
As mentioned above, PHA also argues that our per curiam order in City of Philadelphia mandates that it be deemed a Commonwealth agency for jurisdictional purposes. According to PHA, our order in City of Philadelphia is controlling here as “it seems apparent” that the order was entered because a majority of this Court found that the Philadelphia Parking Authority (“PPA”) was a Commonwealth agency for jurisdictional purposes based on a provision in the Parking Authority Law
. Pursuant to the Contract, Gory was to complete plumbing and sprinkler work in a public housing development that PHA owned and was remodeling.
. Section 762 of the Judicial Code.lists those cases over which the Commonwealth Court has appellate jurisdiction. While Section 762 grants the Commonwealth Court appellate jurisdiction over contract cases involving the Commonwealth government and their officers, see 42 Pa.C.S. § 762(a)(1), and contract cases involving not-for-profit corporations, see id. § 762(a)(5), it does not grant the Commonwealth Court appellate jurisdiction over contract claims in other circumstances. See 42 Pa.C.S. § 762(a)(7); id. § 8542; Brady Contracting Co., Inc. v. West Manchester Twp. Sewer Auth., 338 Pa.Super. 144, 487 A.2d 894, 896-97 (1985). Therefore, in finding that it lacked jurisdiction over Gory's contract claims, the Commonwealth Court must have determined that PHA was neither a part of the Commonwealth government nor a not-for-profit corporation.
. In considering this issue, the Superior Court initially found that although PHA had raised the issue for the first time in its appeal, the issue was not waived because an issue concerning subject matter jurisdiction cannot be waived. See Super. Ct. Op., 5/2/2002, at 2 (citing In re Adoption of N.M.B., 564 Pa. 117, 764 A.2d 1042 (2000)). PHA does not contest the Superior Court's finding in this respect in its appeal to this Court.
. Likewise, the Superior Court stated that T & R Painting Co. was consistent with this Court's decision in Marshall v. Port Auth. of Allegheny County, 524 Pa. 1, 568 A.2d 931 (1990), on which the Battle court relied, because Marshall, like Battle, only addressed the issue of whether an entity was a Commonwealth agency for sovereign immunity purposes.
. The Superior Court also summarily rejected the remaining issues PHA raised in its appeal, stating the "comprehensive and well-reasoned July 12, 2001 opinion by the Honorable John W. Herron carefully and correctly responds to the balance of the issues raised by PHA.” Super. Ct. Op., at 6-7.
. The definition, in full, defines the Commonwealth government as: "The government of the Commonwealth, including the courts and other officers or agencies of the unified judicial system, the General Assembly and its officers and agencies, the Governor, and the departments, boards, commissions, authorities and officers and agencies of the Commonwealth. ..." 42 Pa.C.S. § 102.
. The Judicial Code defines a ‘/Commonwealth agency” as any executive or independent agency. See 42 Pa.C.S. § 102. Meanwhile, executive and independent agencies are each separately defined as "the departments, boards, commissions, authorities and other officers and agencies of the Commonwealth government.” Id. Executive agencies differ from independent agencies only insofar as they are subject to the Governor's supervision and control whereas independent agencies are not. See id. Notably, the Judicial Code does not define the terms political subdivision, municipal authority, local authority, or local agency.
. At the time we decided T & R Painting Co., the Appellate Jurisdiction Act governed when the Commonwealth Court had jurisdiction over a case. See Act of July 31, 1970, P.L. 673, No. 223, art. I, § 102, (17 P.S. § 211.101 et seq.), repealed and replaced by Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978 (42 Pa.C.S. § 701 et seq.). In 1976, however, the General Assembly repealed the Appellate Jurisdiction Act and reenacted its provisions as part of the Judicial Code. Thus, the provisions in the Judicial Code are, for the most part, identical to the provisions that existed in the Appellate Jurisdiction Act. One difference is that the Appellate Jurisdiction Act provided that the Commonwealth Court had original jurisdiction over all civil actions or proceedings "against the Commonwealth," 17 P.S. § 211.401(a)(1) (Supp.1978-79) (repealed) (emphasis added), and the Judicial Code now states that the Commonwealth Court has original jurisdiction over all civil actions or proceedings "[ajgainst the Commonwealth government." 42 Pa.C.S. § 761 (emphasis added). In the end, however, this change in no way modified the Commonwealth Court's original jurisdiction because the Appellate Jurisdiction Act defined the term "Commonwealth” exactly like the Judicial Code defines the term "Commonwealth government." See 17 P.S. § 211.102(a)(2) (Supp. 1978-79) (repealed) (defining the term "Commonwealth” as including any "departments, departmental administrative boards and commissions, officers, independent boards or commissions, authorities and other agencies of this Commonwealth, but shall not include any political subdivision, municipal or other local authority, or any officer or agency of any such political subdivision, municipal or local authority ”) (emphasis added).
. Act of May 28, 1937, P.L. 955 (35 P.S. § 1541-68).
. We noted that this last section particularly indicated that a housing authority was a local agency rather than a Commonwealth agency as "otherwise there would be no reason specifically to grant it the authority to do what an agency of the state may do as a matter of course.” T & R Painting Co., 353 A.2d at 802.
. Of course, we were referring to the Commonwealth Court's original jurisdiction. See 17 P.S. § 211.401(a)(1) (Supp. 1978-79) (repealed).
. In Levine, the Commonwealth Court held that actions brought against the New Castle Redevelopment Authority must be heard in the trial court despite the language in Section 4 of the Urban Redevelopment Law, which provided that redevelopment authorities exercise "public powers of the Commonwealth as an agency thereof.” See 333 A.2d at 192 (citing 35 P.S. § 1709).
. As noted above, for a housing authority to be created in a city or county, the governing body in that county or city ordinarily needs to pass a resolution declaring that there is a need for such an authority in the county or city. See 35 P.S. § 1544. Further, once a housing authority is created, its members are appointed by the county or city governing bodies. See id. § 1545. Moreover, the county and city governing bodies have the power to dissolve the housing authorities. See id. §§ 1544.1, 1544.2.
. Act of April 6, 1956, P.L. 1414 (55 P.S. §§ 551-563.4).
. In reaching this conclusion, we found it inconsequential that the governing boards of the second class county port authorities were appointed by the local county officials. See id.
. Accordingly, in Marshall, we found that PAT was undoubtedly a Commonwealth agency for sovereign immunity purposes because Section 553(a) of the Port Authority Act made clear that PAT was created by the state to act on its behalf in establishing and maintaining a transit system to serve the citizens in Allegheny County.
. Act of June 5, 1947, P.L. 458 (53 P.S. §§ 341-56), amended by Act of June 19, 2001, P.L. 22, § 1 (recodified as amended, 53 Pa.C.S. §§ 5501-IV).
. In his concurring statement. Justice Saylor stated that he believed that the Commonwealth Court had jurisdiction over the case solely because PPA is a Commonwealth agency and not because the Governor was an indispensable party. See 798 A.2d at 171-72. Notably, while Justice Saylor relied on the language in Section 5105(a) of the Parking Law in finding PPA to be a Commonwealth agency, he also relied heavily on the fact that the Governor has the power to appoint all of PPA's members. See id. at 171 ("The reconstituting of the governing body of PPA [to give the Governor the sole power to appoint its members] is the predominate factor in my assessment here.”). Meanwhile, in Justice Castille's concurring statement, which I joined, Justice Castille agreed with Justice Saylor’s position that PPA constitutes a Commonwealth agency, but also stated that he believed that the Commonwealth Court had jurisdiction over the case because the Governor
PHA nevertheless argues that our per curiam order had to have been based on a majority of the Court finding that PPA was a Commonwealth agency because Chief Justice Zappala indicated as much in his dissenting opinion. See id. at 183 ("In reversing the Commonwealth Court's order, the majority has implicitly overruled longstanding precedent [establishing that authorities similar to PPA are local agencies, not Commonwealth agencies]’’). However, a full review of Chief Justice Zappala's dissent indicates that he himself was unclear as to whether a majority of the Court had decided to remand the case to the Commonwealth Court because PPA was a Commonwealth agency or because the Governor was an indispensable party. See id. at 172 ("The majority has not proffered an opinion to explain its reasoning for reversing the Commonwealth Court’s order, leaving the parties and the lower court without any guidance as to how to proceed. Indeed’, I am at a loss to understand the majority's decision myself."). Therefore, contrary to PHA's assertion, Chief Justice Zappala’s dissent in no way provides insight into the determinative rationale of those Justices who did not write or join an opinion in the case.
Reference
- Full Case Name
- JAMES J. GORY MECHANICAL CONTRACTING, INC., Appellee, v. PHILADELPHIA HOUSING AUTHORITY, Appellant
- Cited By
- 32 cases
- Status
- Published