In 2001, the Pennsylvania General Assembly divested the Mayor of Philadelphia of appointment authority for members of the governing body of the Philadelphia Parking Authority and placed such prerogative with the Governor of Pennsylvania. In 2004, the Legislature allocated to the Authority certain regional regulatory functions pertaining to taxi and limousine services. This Court has previously determined that the Parking Authority is a Commonwealth agency for purposes of such regulation. The Authority has maintained, nonetheless, that, in light of the primarily local focus of its regulatory concern, it should not be held to statutory rulemaking procedures and requirements generally applicable to other Commonwealth agencies, but which the Authority considers to be inapposite and burdensome as applied to it. In a unanimous, en banc decision, the Commonwealth Court disagreed, and, presently, we affirm.
Appellees, Germantown Cab Company and Sawink, Inc., suffered fines and suspensions for violations of regulations promulgated by the Philadelphia Parking Authority (the "Authority" or the "PPA"), including those pertaining to driver licensure, currency of vehicle inspection, and tire tread wear. The companies pursued declaratory relief and appellate remedies, claiming, solely, that the Authority's regulations were invalid, since they were not filed with the Legislative Reference Bureau in accordance with the Commonwealth Documents Law,
The Commonwealth Court ultimately sustained the appeals. See, e.g., Germantown Cab Co. v. PPA, 993 A.2d 933, 936 (Pa.Cmwlth.2010) (en banc).
Complementing this analysis, the Commonwealth Court reviewed the Authority's history, including: its creation upon the enactment of the 1947 Parking Authorities Law;
In terms of taxicab and limousine services regulation, the Commonwealth Court explained that, prior to Act 94, the Pennsylvania Public Utility Commission (the "PUC") bore this responsibility throughout the Commonwealth, with the specific measures pertaining to Philadelphia directed by the Medallion Act.
The Commonwealth Court then undertook a broad review of the laws governing the promulgation of regulations by Commonwealth agencies, developing that agencies generally must comply not only with the CDL, but also with the Commonwealth Attorneys Act,
Against this backdrop, the Commonwealth Court rejected the Authority's arguments that, as "a unique hybrid agency with a local focus,"
The Commonwealth Court further differed with the Authority's position that the specificity requirement reposed in Section 508 of the CDL did not extend to the CDL's separate, unconsolidated portions reflecting some of the statute's core requirements. See supra note 1 (referencing both the Consolidated CDL and the Unconsolidated CDL). According to the court, the consolidated and unconsolidated portions of the CDL are inextricably linked, such that Section 508 has general application to the promulgation of all Commonwealth agency regulations. See Germantown Cab, 993 A.2d at 941 n. 19.
The PPA also claimed that the terms of Act 94 and the Parking Authorities Law
Id. at 938-39 (quoting 53 Pa.C.S. § 5722) (emphasis in original).
Germantown Cab, 993 A.2d at 941 (emphasis in original).
Additionally, the Authority gleaned support for its position from its express exemption from the requirements of the Commonwealth Attorneys Act,
The intermediate court also differed with the PPA's position that the advisory committee created under Act 94 comprised a substitute rulemaking structure. See 53 Pa.C.S. § 5702(a) ("There is hereby established an advisory committee to be known as the City of the First Class Taxicab and Limousine Advisory Committee."). In this regard, the court observed that the statute was indefinite in terms of what must be submitted to this committee, and the committee's actions were "strictly advisory" in any event. Germantown Cab, 993 A.2d at 939 n. 15 (quoting 53 Pa.C.S. § 5702(a)); see also id. (remarking that "[t]he advisory
Turning to the Authority's claim that a regulatory void would occur were it deemed to lack the ability to implement regulations very quickly, the Commonwealth Court cited to Section 22(2) of Act 94, which provided that salient rules and regulations of the PUC would remain in effect until specifically amended, rescinded, or altered by the Authority. See 53 Pa.C.S. § 5701 (Historical and Statutory Notes) (quoting Act 94, § 22). The court reasoned that:
Germantown Cab, 993 A.2d at 943 (footnote omitted and alterations in original).
The Commonwealth Court's ultimate holding reflected that, because the Authority's regulations were not deposited with the Legislative Reference Bureau per Section 207 of the Unconsolidated CDL, 45 P.S. § 1207, Section 208 dictated that they were not valid for any purpose, id. § 1208. See Germantown Cab, 993 A.2d at 942-43.
Presently, the PPA elaborates on the contentions it advanced before the Commonwealth Court, arguing, principally, that Act 94 specifically replaced the statutory rulemaking procedure applicable to statewide agencies with a streamlined process tailored to the agency's more local mission and focus. It is the Authority's position that this state of affairs is amply reflected in terms of its delegated authority to promulgate regulations "notwithstanding any other provision or law." Brief for the PPA at 17 (quoting 53 Pa. C.S. § 5722 and contending that "[t]his language shows the intention of the General Assembly to exempt the PPA from the traditional Commonwealth rulemaking process, including the Commonwealth Documents Law and the Regulatory Review Act").
Indeed, according to the Authority, the notwithstanding-other-law term has no
The Authority acknowledges that an explicit statutory reference to the CDL would have been "a more precise method" of creating an exemption to the statutory rulemaking procedures. Brief for the PPA at 30. It nevertheless provides a lengthy refutation to the position of the Commonwealth Court and Appellees that an express exemption is required, under Section 508 of the Consolidated CDL. See 45 Pa.C.S. § 508. In its first point along these lines, the Authority sets out to prove that Section 508 simply does not extend to the Unconsolidated CDL (and in particular, its Sections 207 and 208, upon which the Commonwealth Court's opinion was grounded). In this regard, the PPA accurately explains that Section 508's language is keyed to "the provisions of this part," which is Part II of Title 45 of the Pennsylvania Consolidated Statutes, entitled "Publication and Effectiveness of Commonwealth Documents." Thus, the Authority urges, Section 508 has no application to Chapter 5 of Title 45 of the Pennsylvania Statutes, where the unconsolidated portion of the CDL is reposited (since said chapter is not within "the provisions of this part" specified in Section 508).
In its next line of argument, the Authority posits that the General Assembly must have intended to create a streamlined rulemaking procedure for its use, since compliance with the burdensome and time consuming procedures required under the CDL would have resulted in a regulatory void. The Authority acknowledges, as it must, that the Legislature specifically addressed the transition of regulatory authority from the PUC, inter alia, as follows:
Act 94, § 22(2). Nevertheless, the PPA asserts that "nothing indicates that Section 22(2) was intended to continue the validity of the PUC's regulations, orders, programs and policies after the transfer of regulatory oversight and the corresponding repeal of the PUC's statutory authorization under the Medallion Act." Brief for the PPA at 38 (emphasis in original).
The Authority's next main line of contention posits that the Legislature's affordance of an express exemption from the Commonwealth Attorneys Act, see 53 Pa. C.S. § 5505(d)(25), demonstrates that the Assembly also meant to grant an exemption from the CDL. In developing this argument, the PPA observes that, within the provisions of the Commonwealth Attorneys Act delineating responsibilities of the Pennsylvania Attorney General, the enactment specifies that "[t]he Attorney General shall review for form and legality, all proposed rules and regulations of Commonwealth agencies before they are deposited with the Legislative Reference Bureau as required by section 207 of the [CDL]." 71 P.S. § 732-204(b). According to the Authority, by exempting it from the Commonwealth Attorneys Act, the Legislature thus "eliminated a level of review" generally required within the Commonwealth rulemaking process. Brief for the PPA at 18. The PPA takes issue with the Commonwealth Court's position that the Legislature meant only to permit the Authority to appoint its own legal staff, both because the exemption from the Commonwealth Attorneys Act is broadly phrased in Section 5505(d)(25), see Brief for the PPA at 44 ("Importantly, Section 5505(d)(25) of the Parking Authority Law cites to the entire Commonwealth Attorneys Act."), and because the Commonwealth Attorneys Act internally authorizes independent agencies, such as the Authority, to appoint their own legal staff in any event. See 71 P.S. § 732-401; compare id. § 732-301 (providing for the appointment, by General Counsel, of such chief counsel and assistant counsel as are necessary for the operation of each executive agency).
In its arguments pertaining to the Commonwealth Attorneys Act, the PPA stresses the statute's interrelationship with the CDL. In this respect, the Authority urges an in pari materia construction to support the conclusion that, when the Legislature said "the Commonwealth Attorneys Act," it also meant "the Commonwealth Documents Law." See, e.g., Brief for the PPA at 48 ("The Commonwealth Court failed to recognize that both statutes are related intrinsically to each other, and are fundamental components of the statewide regulatory review process for Commonwealth agencies[;] ... [i]n short, you cannot have one without the other.").
Underlying all of the Authority's arguments is its belief that there simply is no practical reason to subject it to a cumbersome regulatory review process. In the PPA's view, its practices of providing notice and of conferring with its advisory
Finally, the Authority explains that, in an abundance of caution, it has moved forward with a proposed rulemaking in compliance with the statutory rulemaking regime generally applicable to Commonwealth agencies.
Appellees, for their part, place prime emphasis on Section 508 of the Consolidated CDL, which, again, provides that "[n]o subsequent statute shall be held to supersede or modify the provisions of this part except to the extent that such statute shall do so expressly." 45 Pa.C.S. § 508. They regard the bulk of the PPA's arguments as distracting, prolix, and ineffectual attempts to divert focus from this controlling requirement of an express exemption. Thus, for instance, Appellees maintain that there is no relevance to the Authority's status as a "hybrid agency" or relationship with an advisory committee. Appellees also do not regard Section 5722's notwithstanding-other-law proviso as supplying the necessary, express exemption. Consistent with the Commonwealth Court's analysis, Appellees express confidence that the General Assembly knows how to craft an express exemption from the CDL when it wishes to do so.
Appellees further take issue, on their terms, with most of the implications the PPA derives from Act 94 and its other enabling legislation. For example, Appellees highlight that the salutary purpose of the CDL is to promote public participation in the promulgation of Commonwealth agency regulations. See Germantown Cab, 993 A.2d at 937. To that end, Appellees do not regard the Authority's non-specified notice procedures and the potential conferral with a "strictly advisory" committee as any kind of an adequate substitute. 53 Pa.C.S. § 5702(a).
As to the Commonwealth Attorneys Act, Appellees view the statutory exemption in Section 5505(d)(25) as confined thereto and not as extending to the CDL. Appellees explain that the cross-reference to the CDL relied upon by the PPA appears within a portion of the Commonwealth Attorneys Act addressing the duties of the Attorney General, and thus, it does not concern the type of requirement from which the Authority might be exempted. Moreover, Appellees do not believe that generally exempting an agency from the Commonwealth Attorneys Act has the corollary effect of alleviating the Attorney
Appellees further develop that the regulatory review process pertaining to Commonwealth agency rulemaking evolved on account of the General Assembly's concern with the large number of regulations being promulgated without undergoing effective review concerning cost benefits, duplication, inflationary impact, and conformity to legislative intent. See 71 P.S. § 745.2. In terms of the Regulatory Review Act, Appellees indicate:
Brief for Appellees at 17.
Appellees also highlight that, generally, when the Legislature has granted exemptions from the CDL, the purpose is to allow the agencies to fill the regulatory gap that would otherwise have existed between the effective date of their enabling acts and the date the agencies completed the normal statutory rulemaking process. See supra note 23 (reflecting examples of statutes representative of the drafting technique used toward such end). It is Appellees' position that a similar exemption was unnecessary in the PPA's circumstance, since the Legislature specifically addressed the potential for a regulatory gap in Act 94's Section 22, via PUC regulations already in place and adopted by that agency in accordance with the required rulemaking procedures. See Act 94, § 22. In this regard, Appellees stress that the PPA's allusions to a regulatory void squarely contradict Act 94's clear and unambiguous language. See supra notes 19-20.
Resolution of these appeals requires us to interpret the CDL and the enabling statutes governing the PPA. As to such matters of law, our review is plenary. See, e.g., Alekseev v. City Council of Phila., 607 Pa. 481, 484, 8 A.3d 311, 313 (2010).
The en banc Commonwealth Court has amply laid the groundwork for addressing the Authority's present challenge,
Indeed, in its reply brief, the PPA recognizes that "the effectiveness of any exemption from the 1976 part [of the CDL, i.e., the Consolidated CDL] is dependent on naming or citing thereto." Reply Brief for the PPA at 6 n. 16. In light of this understanding—which is common among the prior reviewing court and now the litigants—the Authority has gone to great lengths to attempt to portray a firewall between the consolidated and unconsolidated portions of the CDL to insulate itself from Section 508's reach. We are unable to credit the PPA's perspective in this regard, however, since, as the Commonwealth Court recognized, the two facets of the CDL are inextricably interwoven.
Initially, we appreciate that the process of attempting to consolidate statutes into a unified framework is a difficult, time-consuming, and exacting undertaking, which requires a sustained combination of painstaking effort, meticulous detail orientation, and political will and consensus. There are many examples of success in the undertaking, but the experience with the statutory rulemaking requirements applicable to Commonwealth agencies demonstrates that desired outcomes may be more difficult to achieve than may be hoped.
At least at one time, the General Assembly appears to have contemplated that these procedures would be reposited in Chapter 3 of Title 2 of the Pennsylvania Consolidated Statutes (encaptioned, "Promulgation of Regulations"). Chapter 3, however, presently remains empty, serving only as a placeholder bearing a "reserved" designation. See 2 Pa.C.S., Ch.3.
The Legislature's intentions for this chapter can be gleaned from the 1976 legislation embodying the Codified CDL, since, in various locations, this statute makes reference to Chapter 3. See, e.g., 45 Pa.C.S. §§ 722, 901, 905. Of course, such references were aspirational in character, as the chapter did not exist at the time (as it still does not), nor did the broader Title 2. To compensate for such otherwise empty references, the General Assembly provided translational instructions, as follows:
Act of July 9, 1976, P.L. 877, No. 160, § 4.
While these instructions seem straightforward enough, a difficulty arises from the fact that Title 2 was enacted in 1978, but it did not contain the contemplated scheme of regulation for Commonwealth agency rulemaking (i.e., a Chapter 3). See 2 Pa.C.S., Ch. 3 (reserved) (entitled "Promulgation of Regulations"). Nevertheless, at least on their face, the translational instructions would appear to have expired (since they were designed to be effective only until the enactment of Title 2).
A provision of Title 2 appears to have been designed to account for this lapse. In Section 103(b), the Legislature provided a shorthand version, as follows:
2 Pa.C.S. § 103(b). This provision, however, also appears to suffer from a drafting oversight, since the "Administrative Agency Law" is defined in the preceding subsection as encompassing only Subchapters A of Chapters 5 and 7 of Title 2, which concern practice and procedure of Commonwealth agencies and judicial review of agency action, but do not concern themselves with agency rulemaking. See id. § 103(a).
In this landscape, the Consolidated CDL and the Unconsolidated CDL have been read in the only way in which they can be sensibly understood, that is, according to the original translational directions (and consistent with the apparent purpose of Section 103(b)), so that the Consolidated CDL materially incorporates the Unconsolidated CDL.
For example and of substantial relevance here, Section 722(c) of the Consolidated CDL provides:
45 Pa.C.S. § 722(c) (emphasis added). Under the original translational instructions, the reference to "2 Pa.C.S. § 308" is plainly directed to Section 208 of the Unconsolidated CDL, 45 P.S. § 1208. Moreover, given that the contemplated consolidation of rulemaking procedures within Chapter 3 of Title 2 did not come to pass, this is the only rational way in which the statute can be read to this day.
Notably, the integral interrelationship between the consolidated and unconsolidated portions of the CDL works in both directions. For example, various passages of the Unconsolidated CDL make material references to its own Section 409 as providing for the manner in which agency regulations were to be deposited with the Legislative Reference Bureau. See, e.g., id. §§ 1207, 1208. Section 409, however, was repealed upon the enactment of the
The Authority's own arguments appear to reflect an appreciation that references to Title 2 contained in the Consolidated CDL must be read as being directed to the Unconsolidated CDL.
Presently, it is also meaningful that the Consolidated CDL overlaps with the Unconsolidated CDL in material respects. For example, several provisions of the Consolidated CDL reflect the requirement of deposit with the Legislative Reference Bureau as the essential prerequisite to such codification. See 45 Pa.C.S. §§ 509 ("Format of documents"), 722 ("Deposit of documents required"); see also supra note 25. Furthermore, and as noted, the Consolidated CDL itself also delineates the consequences of a failure to follow the prescribed procedures in terms of invalidity. See 45 Pa.C.S. § 722(c). Accordingly, the Authority's argument that Section 508's requirement of an express exemption does not extend beyond the terms of the Consolidated CDL cannot insulate the Authority from the CDL's core regulatory requirements. At best, the Authority's main argument turns on the tenuous proposition that Appellees and/or the Commonwealth Court failed to select the correct passages from within an inextricably interrelated statutory scheme in support of their positions (i.e., a passage such as Section 722(c), as to which Section 508's requirement of an express exemption would apply most directly).
As developed above, however, there simply is no firewall between the Consolidated CDL and the Unconsolidated CDL. Thus, whether the Commonwealth Court and Appellees may have cited Section 207 and 208 of the Unconsolidated CDL or to Section 722(c) of the Consolidated CDL, a Commonwealth agency is required to deposit regulations with the Legislative Reference Bureau as a prerequisite to their effectiveness. Moreover, Section 508 reflects that, when the General Assembly wishes to afford exemptions from such requirement, it will make its intentions express.
In summary, the PPA has acknowledged that an express exemption, as contemplated
In light of the above, the Authority's remaining arguments might reasonable be viewed as being collateral. To the degree that the Authority did not intend that such arguments would be displaced by its acceptance that an express exemption under Section 508 requires naming or citation to the CDL, we take this opportunity to comment briefly on the alternative contentions.
In terms of the Authority's arguments centered on the notwithstanding-other-law language employed in the conferral of its rulemaking power, see 53 Pa.C.S. § 5722, we have substantial reservations about reading too much into such language. As reflected in the discussion above, in the process of legislative drafting, the General Assembly is faced with a complex landscape of existing statutes, many of which are amenable to differing interpretations by litigants and have yet to be finally interpreted or construed by the courts. Against such a background, the notwithstanding-other-law language serves to emphasize the priority the Legislature places on a contemporaneous pronouncement. In the PPA's case, in terms of statutes with which the Legislature may have been concerned, one need look no further than the Parking Authorities Law, which appears on its face to center the regulatory decision-making of most municipal parking authorities around "fix[ing], alter[ing], charg[ing], and collect[ing] rates and other charges." 53 Pa.C.S. § 5505(d)(9). As such, the Authority simply is asking too much in seeking a construction of the Assembly's unprecedented decision to vest a parking authority with broad regulatory powers over certain carriers and imbue it with concomitant rulemaking authority "notwithstanding any other provision or law" as necessarily subsuming material corollaries beyond what is manifested in the enabling language.
The same can be said about the exemption from the "Commonwealth Attorneys Act," id. § 5505(d)(25), in that the Authority asks us to read far too much into said exemption, effectively translating it into one from "the Commonwealth Attorneys Act, the Commonwealth Documents Law, and the Regulatory Review Act." The legislative shorthanding involved in broadly exempting an agency from a statute which covers far more ground than the mere delineation of agency responsibilities is bound to yield some degree of ambiguity. Since, however, an ambiguity is not tantamount to an express exemption, we reject the PPA's invitation to discern a derivative exemption from the salient requirements of the CDL. See 45 Pa.C.S. § 508.
The exemption from provisions of the Administrative Code discussed by the Authority is not express on the face of Act 94 or the Parking Authorities Law,
The Authority's allusions to a regulatory void raise legitimate public policy concerns, but these are not persuasive in terms of the requirement to comply with the CDL for the reasons we have discussed above. See supra notes 19-20. As explained, the General Assembly took pains to assure that the PUC's rules and regulations would remain extant until the Authority provided differently, apparently contemplating that the Authority would do so in an orderly and lawful fashion. See Act 94, § 22. To the extent that a regulatory void has unfolded, this reasonably may be viewed as a result of the PPA's failure to take protective measures to maintain the integrity of the regulatory framework it inherited from the PUC throughout the years during which it has been contesting its Commonwealth agency status, see Blount, 600 Pa. at 277, 965 A.2d at 226, then litigating the fallback position that it was otherwise exempted from the rulemaking requirements applicable to Commonwealth agencies. In any event, it is the terms of the material statutes—and not the ensuing anecdotal experience— which governs the statutory interpretation. Moreover, since that the PPA's presently promulgated regulations cannot be deemed valid for any purpose, see 45 P.S. § 1208; 45 Pa.C.S. § 722(c), those regulations themselves, at least, do not serve as an impediment to enforcement by the Authority of the prior regulatory regime until it can comply with its rulemaking responsibilities as a non-exempt Commonwealth agency.
Finally, we recognize the practical considerations the Authority wishes us to rely upon to allow for an exemption. Certainly, the formalism of the CDL inhibits such practicalities in many agency rulemaking scenarios where expediency otherwise might be desirable. Nevertheless, the Legislature has settled on a more global approach to Commonwealth agency rulemaking which prioritizes regularity and formality over those sorts of considerations, at least as the general rule.
The order of the Commonwealth Court is affirmed.
Chief Justice CASTILLE, Justices EAKIN, BAER, TODD, McCAFFERY and ORIE MELVIN join the opinion.
53 Pa.C.S. § 5505(d)(25) (emphasis added).
By its terms, however, Section 5508.1 pertains only to cities of the first class (i.e., Philadelphia). See 53 Pa.C.S. § 5508.1(a). Thus, the Authority's argument, in this regard, is not well considered.
Indeed, the statutory provision immediately preceding Section 22(2) makes clear that the Legislature intended to shift the PUC's regulatory powers to the Authority for its prospective use in regulating taxicabs and limousines. See Act 94, § 22(1) ("The [PUC's] ... powers, duties, contracts, rights and obligations which are utilized or accrue in connection with the functions under [the Medallion Act] and in connection with limousine regulation in cities of the first class shall be transferred to the Philadelphia Parking Authority in accordance with an agreement between the commission and the authority." (emphasis added)). Section 22(1) dovetails with Section 22(2)'s extension of the validity of PUC regulations, orders, programs, and policies indefinitely into the Authority's tenure. In light of these explicit transfer-related provisions, it is difficult to afford any credence to the PPA's repeated refrain that it "was not explicitly empowered to enforce any of the PUC's regulations[,] orders, programs and policies or the Public Utility Code itself." Brief for the PPA at 39.