Pittsburgh, PA

Breaking Ground

(By Max Junker and Anna Hosack)

Since the 1999 enactment of the Pennsylvania Construction Code Act (“PCCA”), Pennsylvania has sought to establish uniformity for construction standards throughout the Commonwealth.  In pursuit of uniformity the PCCA embraced the adoption of standards drafted by the International Code Council (“ICC”), a private non-profit entity, and directed the Department of Labor & Industry (“Department”) to promulgate certain ICC standards under the Uniform Construction Code (“UCC”).  The directive to adopt standards originating from a non-governmental entity such as the ICC implicates a legal concept known as the non-delegation doctrine.  The Commonwealth Court recently invoked the non-delegation doctrine to enjoin the enforcement of the 2021 accessibility regulations promulgated by the Department in Pennsylvania Builders Association v. Department of Labor & Industry, No. 479 M.D. 2021, 2022 WL 14668728 (Pa. Cmwlth. Oct. 26, 2022).

The non-delegation doctrine is embodied in Article II, Section 1 of the Pennsylvania Constitution where it states: “The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.”  Together with Article III, Section 1 of the Pennsylvania Constitution addressing the passage of laws, the non-delegation doctrine constrains the General Assembly so that it cannot delegate its lawmaking power to any other branch of government, another body, or some other authority.  Christ the King Manor v. Dep’t of Pub. Welfare, 911 A.2d 624 (Pa. Cmwlth. 2006), aff’d 951 A.2d 255 (Pa. 2008).

The Commonwealth Court’s recent decision in Pennsylvania Builders Association is the culmination of litigation filed by the Pennsylvania Builders Association (“PBA”) against the Department alleging that the ICC accessibility provisions adopted pursuant to Section 304(a)(3) of the PCCA (“Accessibility Regulations”) constituted an unconstitutional delegation of legislative authority.

On December 25, 2021, pursuant to Section 304(a)(3) of the PCCA, the Department amended Sections 403.21, 403.26, and 403.28 of the Department’s regulations and certain definitions in Section 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.  On December 29, 2021, PBA filed a complaint in the Commonwealth Court’s original jurisdiction alleging that the General Assembly delegated unfettered legislative authority to a private entity, the ICC, to establish accessibility standards, and that PBA and its members were aggrieved as a result.  PBA claimed that the association and its members were denied the opportunity to provide meaningful comment during the promulgation process in addition to suffering future adverse economic impacts, delays, as well as foreseeable interpretive and enforcement difficulties.  Section 304(a)(3) of the PCCA directs: “The Department shall promulgate regulations updating accessibility standards under Chapter 3 [Uniform Commercial 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).  PBA argued that Section 304(a)(3) is a directive that in its essence requires the Department to rubber-stamp into law whatever accessibility standards the ICC publishes, without a process to consider any alterations to those standards.  Furthermore, that the General Assembly failed to provide any mechanism for the Department to question, modify, reject, or even independently review and concur with the accessibility standards the ICC creates.

This is not the first time that PBA has accused the Department of violating the non-delegation doctrine.  The General Assembly’s previous solution to complying with the non-delegation doctrine while still upholding the purpose of the PCCA was to establish the UCC Review and Advisory Council (“RAC”).  Established in 2008, RAC is charged with making recommendations to the Governor, the General Assembly, and the Department regarding proposed changes to the PCCA.  Additionally, RAC is responsible for reviewing the most recent building code updates published by the ICC.  RAC is authorized to make determinations as to whether any new or amended provisions of ICC’s codes are not consistent with the PCCA, or are inappropriate for inclusion in Pennsylvania’s UCC, and RAC is to notify the Department of the same by May 1 of the issuing year.  When that happens, the Department must exclude the challenged provisions when adopting the UCC, thereby leaving the corresponding provisions of the prior UCC version in effect.  In late 2010, PBA filed a petition for review seeking a declaration that the 2009 UCC and other related codes are null and void as violative of the non-delegation doctrine.  However, the Commonwealth Court held that the 2009 UCC amendments were valid because the inclusion of RAC in the Department’s process to adopt the Pennsylvania UCC afforded oversight and input by industry members and meant that the Department could no longer adopt ICC’s codes “sight unseen.”  Pennsylvania Builders Ass’n v. Dept. of Labor & Indus., 4 A.3d 215, 222 (Pa. Cmwlth. 2010).

As noted by the Commonwealth Court, the distinguishing factor in the current case challenging the Accessibility Regulations was that RAC was uninvolved in the process.  Section 106(b) of the PCCA specifies that “the Accessibility Advisory Board shall review all proposed regulations under [the PCCA] and shall offer comment and advice to the [Department’s] secretary on all issues relating to accessibility by persons with physical disabilities, including those which relate to the enforcement of the accessibility requirements.”  35 P.S. § 7210.106(b) (emphasis added).  On July 15, 2021, the Department sought input from the Accessibility Advisory Board which “expressed no concern with the proposed changes.”  However, the Department must only consider the Accessibility Advisory Board’s comments and advice in contrast with the binding determinations that are issued by RAC.  The General Assembly has not expressly authorized the Department to alter ICC’s accessibility standards based on input from the Accessibility Advisory Board.  Therefore, the Court found that due to the General Assembly’s statutory mandate that the Department must adopt the ICC’s accessibility codes without modification, the Accessibility Advisory Board’s review process does not in any way guide or restrain the ICC’s control over Pennsylvania’s UCC and the Department’s regulations.

Judge Covey, writing for the majority, stated: “The non-delegation doctrine prohibits the General Assembly from incorporating sight unseen, subsequent modifications to such standards without also providing adequate criteria to guide and restrain the exercise of the delegated authority.”  Without the oversight of RAC in the promulgation process, the Accessibility Regulations were being adopted sight unseen and without any subsequent modification by the legislature.  Therefore, the Commonwealth Court determined that Section 304(a)(3) of the PCCA contains valid provisions inseparable from invalid provisions, struck Section 304(a)(3) in its entirety from the PCCA, and permanently enjoined the Department from its enforcement.

After the Commonwealth Court’s ruling, it is likely that review of the ICC accessibility provisions will be referred to RAC and therefore avoid non-delegation doctrine issues in the future.  Although it might seem like a short-lived win for PBA because the PCCA could utilize RAC to avoid the non-delegation doctrine, there is a crucial argument to be made following the recent decision.  Because Section 304(a)(3) of the PCCA was declared unconstitutional, there is a strong argument that the Commonwealth Court also rendered invalid all accessibility regulations previously promulgated pursuant to that provision; not just the 2021 Accessibility Regulations at issue in the case.  Although some accessibility provisions have been promulgated under Section 301 of the PCCA, a great deal of the accessibility provisions were promulgated by adopting a successor or revised code under the authority granted by Section 304(a)(3).  Furthermore, if Section 304(a)(3) is unconstitutional, as ruled by the Commonwealth Court, by necessary implication those previous accessibility provisions adopted as regulations should be invalid as well.

The Department did not file an appeal with the Supreme Court so the Commonwealth Court’s decision stands.  We will continue to follow developments in this area of the law and its intersection with the design, construction, and inspection activities of the Master Builders’ Association of Western Pennsylvania’s members.

Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101-7210.1103; See Commonwealth v. Null, 186 A.3d 424, 427 (Pa. Super. 2018) (quoting Flanders v. Ford City Borough, 986 A.2d 964, 969 (Pa. Cmwlth. 2009)).

Max Junker is a shareholder at Babst Calland. He can be reached at rjunker@babstcalland.com. Anna Hosack is an attorney at Babst Calland. She can be reached at ahosack@babstcalland.com.

To view the full article, click here.

Reprinted from the January/February 2023 edition of Breaking Ground magazine with permission from the publisher Tall Timber Group. All rights reserved.