SEPTA v. City of Philadelphia, Aplts.

[J-87-2016] [OAJC: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SOUTHEASTERN PENNSYLVANIA : No. 10 EAP 2016 TRANSPORTATION AUTHORITY, :

: Appeal from the Order of the Appellee : Commonwealth Court at No. 2445 CD

: 2009 filed 8/7/2015 reversing and : remanding the Order, dated 11/10/2009

v. : in the Court of Common Pleas,

: Philadelphia County, Civil Division at : No. 03055, July Term, 2009.

CITY OF PHILADELPHIA AND :

PHILADELPHIA COMMISSION ON : ARGUED: September 13, 2016 HUMAN RELATIONS, :

:

Appellants :

CONCURRING OPINION

JUSTICE WECHT DECIDED: April 26, 2017

I concur in the result reached by the learned opinion announcing the judgment of the Court (“OAJC”). I write separately to endorse an alternative application of the Ogontz test. See Commonwealth, Dep’t of Gen. Servs. v. Ogontz Area Neighbors Ass’n, 483 A.2d 448 (Pa. 1984) (“Ogontz”).

In SEPTA v. City of Philadelphia, 101 A.3d 79, 88 (Pa. 2014) (“SEPTA III”), this Court recognized that, where a Commonwealth agency challenges a municipality‟s exercise of authority, the Ogontz test applies to resolve the conflict between the two instrumentalities of the state. See Ogontz, 483 A.2d at 452 (holding that conflict between Commonwealth agency and municipality is “not a contest between superior and inferior government entities, but instead a contest between two instrumentalities of the state.”). We have explained the test as follows:

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 . . . . 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 Area Sch. Dist. v. Zoning Hearing Bd., 778 A.2d 1205, 1210 (Pa. 2001) (quoting Ogontz, 483 A.2d at 455) (citations omitted). This two-part test embraces the process of statutory construction, with which this Court is deeply familiar. We look first to the legislation‟s plain language. If that language is ambiguous, we apply other principles embodied in our rules of statutory construction, which include a consideration of “[t]he consequences of a particular interpretation.” 1 Pa.C.S. § 1921.

In my view, the first prong of the Ogontz test requires the Court to look to the language of the enabling statutes of both SEPTA and the City of Philadelphia in order to determine only whether the General Assembly included in either statute an express statement that one entity or the other has priority in the event of a conflict. In this case, we would review the Metropolitan Transportation Authorities Act (“MTAA”), 74 Pa.C.S. §§ 1701-85, and the First Class City Home Rule Act (“Home Rule Act”), 53 P.S. §§ 13101-157, for a statement such as “SEPTA is exempt from local regulations,” or “Philadelphia may exercise jurisdiction over entities created by an act of the Commonwealth.” Because the statutes offer no such language, the first prong of the Ogontz test is inconclusive.

I respectfully disagree with the OAJC‟s conclusion that the sovereign immunity provision contained in the MTAA, 74 Pa.C.S. § 1711(c)(3), represents an explicit statement that SEPTA has priority over Philadelphia in the area of anti-discrimination legislation under the first prong of Ogontz. The OAJC agrees that “neither enabling statute contain[s] an explicit provision directly addressing the issue,” but concludes that the lack of an express directive, “[does] not preclude the possibility that an examination of the statutes as a whole [can] reveal such a clear intent.” Maj. Op. at 14. 1 I believe that the comparative assessment of the statutory scheme “as a whole” should occur at the second stage of the analysis. Otherwise, the inclusion of a sovereign immunity provision in an entity‟s enabling statute would always give the entity priority over a local authority as to any type of local regulation, an outcome this Court expressly rejected in SEPTA III. 101 A.3d at 89 n.13 (“[W]hen presented with two competing absolutes— here sovereign immunity and the authority of Philadelphia to enforce its ordinance, we employ the tools of statutory construction and interpretation to resolve the conflict.”). As explained in greater detail below, I believe that SEPTA‟s priority in this particular scenario stems from the fact that the local regulation in question, the Philadelphia Fair Practices Ordinance (“FPO”), directly undermines the General Assembly‟s intention to shield SEPTA from the hazards of litigation.

The second Ogontz prong requires the Court to assess the consequences of each party‟s proffered interpretation of the statutes. Although particular circumstances may require the development of a factual record in order to apply the second prong, this is not necessary in every case. For instance, in Ogontz itself, this Court considered the consequences of allowing the Commonwealth to build a mental health facility on Commonwealth property in contravention of a local zoning ordinance. The Court concluded as a matter of law that allowing the facility to be built in the proposed location, a residential zone, would frustrate the purpose of the local law, while upholding the zoning ordinance would not prohibit the Commonwealth from constructing the facility elsewhere. The Court did not need a developed factual record to assess these consequences and to reach the conclusion that enforcing the zoning ordinance caused less disruption to each statutory scheme.

Likewise, in the present case, we can apply the second prong of Ogontz without remanding the case for fact-finding. We can evaluate the purely legal consequences of each party‟s suggested interpretation of the MTAA and the Home Rule Act, which includes an appraisal of their overall statutory schemes. With regard to Philadelphia‟s argument that SEPTA‟s core transportation function will not be upset by requiring it to comply with the FPO, we need not consider how much it will cost SEPTA to comply with the ordinance and to defend itself from claims of discrimination. Rather, we can look to the MTAA‟s provisions and ascertain the extent to which those provisions would be upset by subjecting SEPTA to the FPO. Similarly, we can consider the effect that exempting SEPTA from the FPO will have on Philadelphia‟s Home Rule authority and the efficacy of the FPO.

By including Subsection 1711(c)(3) in the MTAA,2 the General Assembly expressed its will to shield SEPTA from most types of lawsuits, absent a specific waiver, ostensibly so that SEPTA could provide public transportation without enduring the financial and temporal costs of litigation. See Sci. Games Int’l, Inc., v. Commonwealth, 66 A.3d 740, 755 (Pa. 2013) (“The constitutionally-grounded, statutory doctrine of sovereign immunity obviously serves to protect government policymaking prerogatives and the public fisc.”); Mullin v. Commonwealth, Dep’t of Transp., 870 A.2d 773, 779 (Pa. 2005) (“[I]mmunity provisions were enacted to insulate the Commonwealth and its agencies from liability except in certain specified circumstances, so that state governmental revenues are not subject to unnecessary depletion.”) (citation omitted); Stackhouse v. Commonwealth, Pa. State Police, 892 A.2d 54, 62 (Pa. Cmwlth. 2006) (“The purpose of absolute sovereign immunity [is] to insulate state agencies and employees not only from judgments but also from being required to expend the time and funds necessary to defend suits.”). Were we to interpret the FPO to apply to SEPTA with full force, we would frustrate the General Assembly‟s intent that SEPTA be subject to only certain types of litigation, inasmuch as the FPO provides for an individual private right of action accompanied by damage awards. See Phila. Code § 9-1122.

Conceding that the MTAA‟s sovereign immunity provision bars individuals from bringing private suits against SEPTA, Philadelphia claims that it nonetheless may selectively enforce the FPO against SEPTA by seeking only injunctive and collaborative remedies. However, even such selective enforcement involves administrative investigations and hearings, which may result in cease and desist orders, injunctive relief, attorneys‟ fees, and costs for expenses incurred by the Philadelphia Commission on Human Relations (“the Commission”). See Phila. Code § 9-1107. The FPO also establishes criminal penalties for non-compliance with orders of the Commission. Phila. Code § 9-1121(1)-(2). Although these latter proceedings and remedial orders may not result from a lawsuit or implicate damage awards,3 they nonetheless present the burdens associated with litigation that the General Assembly sought to preclude by granting SEPTA sovereign immunity.4 The inclusion of a sovereign immunity provision in SEPTA‟s enabling statute, in the absence of any other relevant statutory language, evinces the legislative will to minimize SEPTA‟s litigation-related burden. The question presented in this case is whether the General Assembly intended that Philadelphia exercise authority over SEPTA in the manner prescribed by the FPO. Selective enforcement or severability of the FPO is impossible because the General Assembly has either given Philadelphia such authority or it has not.

Even if Philadelphia‟s enforcement of the FPO was limited to prohibitory injunctive relief, Philadelphia nonetheless constructively could usurp SEPTA‟s authority over its core transportation mission and burden SEPTA substantially. For example, SEPTA might plan to change its routing to severely diminish services to a particular neighborhood with an unusually high concentration of riders protected by the FPO but not protected by the Pennsylvania Human Relations Act (“PHRA”). Absent some legal bar, Philadelphia then could seek a prohibitory injunction alleging discrimination based upon the disparate provision of services. Under the FPO, Philadelphia, if it prevailed, could obtain an injunction preventing SEPTA from rerouting or rescheduling certain buses or trains away from that neighborhood, effectively telling SEPTA how to fulfill its mandate.5 Thus, subjecting SEPTA to the FPO would undermine the MTAA. The MTAA, and particularly its sovereign immunity provision, evinces the General Assembly‟s intent to allow SEPTA to avoid litigation, an intent that would be frustrated if SEPTA is subjected to the jurisdiction of the Commission under the FPO.6

The learned Dissent maintains that the PHRA reveals some policy on the part of the General Assembly to disfavor all types of discriminatory conduct, not just those enumerated in that statute, and that “SEPTA‟s core mission is to provide public transportation without engaging in discriminatory conduct.” Dissenting Op. at 9 (emphasis removed). The Dissent goes on to argue that SEPTA impliedly is prohibited from discriminating against those classes protected by the FPO but not by the PHRA because “[n]o language in any of the relevant legislation suggests an intent by the General Assembly to permit SEPTA to engage” in such discrimination. Id. at 10. No legal authority supports this prohibition-by-implication approach to statutory interpretation. We are bound to glean the General Assembly‟s intent from its words when those words are clear. In unmistakable terms, the PHRA protects from discrimination only those classes enumerated therein. Expressio unius est exclusio alterius.7

The Dissent correctly interprets my position as “amount[ing] to an assertion that the General Assembly intended to require SEPTA to comply with some anti- discrimination laws (i.e., those in the PHRA relating to discrimination based upon, inter alia, race, color, religious creed, ancestry, age or sex, 43 P.S. § 956(a)), but to be free from any obligation to comply with other anti-discrimination laws (i.e., those in the FPO relating to discrimination based upon, inter alia, gender identity or sexual orientation, Phila. Code § 9-1103(1)).” Id. at 9-10. I am compelled to draw that conclusion because I fail to see how we can take the liberty of inferring any other legislative intent. Speaking generally, and relative to the instant context, state action that is not prohibited by the federal or state constitution, or by binding statute or precedent, necessarily is permitted.8 In the PHRA, the General Assembly affirmatively chose to prohibit certain types of discrimination while affirmatively declining to prohibit others.

The deliberation behind the General Assembly‟s conspicuous omission of protections for those discriminated against based upon gender identity and sexual orientation is thrown into stark and glaring relief when viewed in a national context. Numerous other states have enacted legislation that, in relevant part, differs from our own PHRA only in the particular that, like Philadelphia‟s FPO and markedly unlike Pennsylvania‟s PHRA, these states prohibit discrimination on the basis of gender identity and sexual orientation.9 This distinction cannot have been lost upon our legislature, which as recently as 2015 has considered and declined to pass proposed legislation that would bring Pennsylvania into step with those states that have added the LGBT community to the classes protected against discrimination.10 This Court may not override that choice by seeking to improve upon or read into the PHRA what cannot fairly be inferred under our rules of statutory construction.11 Absent further developments in constitutional or federal law, only our General Assembly has the power to align Pennsylvania with Philadelphia and our numerous sister states that have chosen to provide legal protections to persons who suffer discrimination on the basis of their gender identity or sexual orientation.

Returning to the issue at bar, while subjecting SEPTA to the FPO is at odds with the MTAA‟s sovereign immunity provision, prohibiting Philadelphia from exercising jurisdiction over SEPTA under the FPO would not upset Philadelphia‟s local authority or the purposes of the FPO generally. Philadelphia‟s contention that SEPTA—as the city‟s largest transportation provider—is a major public accommodation and target of the FPO is well taken. However, it is hardly the only public accommodation in the city. Our ruling does not prohibit Philadelphia from enforcing the FPO against any number of public and private entities that serve the public. As in Ogontz, where we explained that the Commonwealth could effectuate its goal by constructing the mental health facility in a different location, Philadelphia can carry out the purpose of the FPO by enforcing it against numerous other individuals and entities located within the city.12

Comparing the consequences of each party‟s proffered interpretation of the statutes, SEPTA‟s interpretation more effectively harmonizes the MTAA and Philadelphia‟s Home Rule Authority to enforce the FPO. As the OAJC emphasizes, the sovereign immunity provision expressly limits any entity from bringing suit against SEPTA. Maj. Op. at 17. Although sovereign immunity does not prohibit any and all local regulation of SEPTA, in purporting to subject SEPTA to an administrative scheme that mimics the rigors of litigation, the FPO contradicts the General Assembly‟s choice to immunize SEPTA from suit.

Finally, like the OAJC, I reject Philadelphia‟s claim that the PHRA waives SEPTA‟s sovereign immunity as to claims brought under the FPO. It is well-established and undisputed that sovereign immunity must be waived specifically by the General Assembly, 1 Pa.C.S. § 2310 (“[T]he Commonwealth . . . shall . . . remain immune from suit except as the General Assembly shall specifically waive the immunity . . . .”), and that we must construe exceptions to sovereign immunity narrowly. See Dean v. Dep’t of Transp., 751 A.2d 1130, 1132 (Pa. 2000) (“[T]he exceptions to immunity are to be strictly construed.”). Notably, the PHRA specifically waives sovereign immunity for claims brought before the Pennsylvania Human Relations Commission (“PHRC”). See 43 P.S. § 954(a) (defining “person” to include “the Commonwealth of Pennsylvania, and all political subdivisions, authorities, boards and commissions thereof”); 43 P.S. § 954(b) (defining “employer” to include “the Commonwealth or any political subdivision or board, department, commission or school district thereof”). The PHRA also provides that “[t]he legislative body of a political subdivision may, by ordinance or resolution, authorize the establishment of membership in and support of a Local Human Relations Commission,” 43 P.S. § 962.1(a), and 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 [PHRC] under the provisions of [the PHRA].” 43 P.S. § 962.1(d). Philadelphia argues that, by granting local authorities “powers and duties similar to those” of the PHRC, the General Assembly effectively expanded the PHRA‟s waiver of sovereign immunity to the FPO and PHRC. However, the language of Section 962.1 does not speak specifically to waiver of sovereign immunity. As I read and consider Section 962.1, I am unable to discern the specific and clear language required to allow for importing the PHRA‟s waiver to the jurisdiction of local authorities. Should the General Assembly wish to enact such language, it may do so. We may not engraft such language onto a statute that lacks it through an act of judicial fiat.

As I survey the statutory landscape, I do not find the lawmakers‟ express will that SEPTA be subject to Philadelphia‟s jurisdiction under the FPO or equivalent local regulations. Similarly, I cannot locate any legislative mandate to exempt SEPTA from all forms of local regulation. The statutes are ambiguous. Accordingly, to ascertain the General Assembly‟s intent, we are constrained to fall back upon our familiar rules of statutory construction. Relying upon Ogontz‟s formulation, I conclude that the intent of the General Assembly to shield SEPTA from litigation by granting it sovereign immunity is incompatible with subjecting SEPTA to Philadelphia‟s FPO. On this basis, I would affirm the order of the Commonwealth Court prohibiting Philadelphia from enforcing the FPO against SEPTA.