In 1999, the Pennsylvania General Assembly adopted the Pennsylvania Construction Code Act (the Act), with the purpose of insuring uniform, modern construction standards and regulations throughout the Commonwealth. Since the Act became effective in 2004, Pennsylvania’s appellate courts have often been tasked with interpreting the Act and its regulations promulgated by the Department of Labor and Industry (the Department). In 2010 and the first several months of 2011, several significant cases regarding the Act were decided by the Supreme Court of Pennsylvania and the Commonwealth Court of Pennsylvania. In addition, during that same time period, the General Assembly enacted legislation affecting the Act, and is currently considering an amendment to the Act. Below is a summary of the judicial and legislative highlights of the Act since January 2010:

  1. Pennsylvania Builders Associations v. Department of Labor and Industry, 4 A.3d 215 (Pa. Cmwlth. 2010).

In this much-publicized matter, the Pennsylvania Builders Association (PBA) along with a collection of developers and home builders challenged the adoption of the International Code Council’s 2009 codes (the 2009 ICC Code) as Pennsylvania’s Uniform Construction Code (UCC). Although PBA’s substantive objection was to the 2009 ICC Code’s sprinkler requirements, which the PBA claimed would increase the cost of an average newly constructed home by approximately $15,000, PBA’s legal argument centered on the Department’s constitutional rule-making authority. PBA argued that the Act allowed the Department to adopt the 2009 ICC Code "sight unseen," and by doing so, the Act improperly delegates to the Department law-making authority in violation of Article II, Section 1 of the Pennsylvania Constitution.

Although the cited portion of the Pennsylvania Constitution vests all legislative power in the General Assembly, the Commonwealth Court noted that the General Assembly may delegate rule-making authority to an executive agency such as the Department. To be constitutionally valid, the source of the rule-making authority must set forth a definite and reasonable standard for such authority.

Applying this constitutional principle to the Act, the Commonwealth Court held that the Department’s rule-making authority, specifically its authority to adopt the 2009 ICC Code, was subject to definite and reasonable standards. The Commonwealth Court noted that in 2008 the Act was amended to create the 19-member UCC Review and Advisory Council (RAC), which was charged with reviewing the ICC Codes after their promulgation and, if appropriate, directing the Department to exclude provisions within the ICC Codes from being adopted as the UCC. With regard to the adoption of the 2009 ICC Code as the UCC, the RAC was established, held hearings and received comments from those affected, including the PBA. The Commonwealth Court stated that "[t]he fact that RAC made no recommendations for exclusions to [the Department] does not mean that the process did not work as intended." Accordingly, the Commonwealth Court dismissed PBA’s challenge to the adoption of the 2009 ICC Code as the UCC.

  1. Schuylkill Township v. Pennsylvania Builders Association, 7 A.3d 249 (Pa. 2010).

In 2005, Schuylkill Township adopted a sprinkler ordinance requiring all new construction and additions or alterations of 1,000 square feet or more to be equipped with a fully operational automatic fire suppression system. Because the ordinance exceeded the UCC’s sprinkler requirements (even those under the 2009 ICC Code), the Department of Labor and Industry reviewed the ordinance as required under the Act. The Secretary of the Department invalidated the ordinance finding that "[t]he Township has failed to establish clear and convincing local climatic, geologic, topographic or public health and safety circumstances and conditions in the Township to justify the enactment of [the ordinance]," and invalidated the ordinance. The Township unsuccessfully appealed the Secretary’s determination to the Court of Common Pleas and to the Commonwealth Court. The Township then appealed to the Supreme Court.

In affirming the Secretary’s determination, the Supreme Court recognized the substantial deference granted to an agency’s interpretation of a statute that the agency is charged with implementing and enforcing. Then, looking to the substance of the Township’s claim that it satisfied the necessary criteria to justify the more rigorous ordinance, the Supreme Court compared the facts presented by the Township to the Department to those presented by two other municipalities that were granted the ability to enact sprinkler ordinances. Noting the contrast between the Township’s claimed justification for the sprinkler ordinance and the very unique circumstances in the two other municipalities, and acknowledging that the Act was adopted based upon a legislative intent to keep building codes uniform, the Supreme Court affirmed the Secretary’s decision to invalidate the ordinance.

  1. Samsel v. Uniform Construction Code Board of Appeals of Jefferson Township, ___ A.2d ___ (Pa. Cmwlth. 2010).

Samsel commenced building a stable for race horses without receiving a building permit. The Township issued a Stop Work Order, and Samsel appealed to the Township’s UCC Board of Appeals arguing that the stable constituted an agricultural building, which is exempt from the need for a building permit under the Act and the Department’s regulations. The Board of Appeals upheld the Stop Work Order, but on further appeal, the Court of Common Pleas agreed with Samsel’s contention that the stable was an agricultural building, and thus statutorily exempt from the permitting requirement under the Act. The Township appealed the Court of Common Pleas’s order to the Commonwealth Court.

The Commonwealth Court reviewed the definition of "agricultural building" provided in the Act and noted that a structure used to house livestock or other farm animals is embraced by the definition. However, neither "livestock" nor "farm animals" are further defined in the Act or its regulations. The Commonwealth Court looked to an unemployment compensation case wherein it found that the term "livestock" included horses for the purpose of determining whether persons engaged in raising, breeding and caring for horses were agricultural laborers. Accordingly, the Commonwealth Court agreed with Samsel and ruled that a building permit was not necessary to construct the race horse stable under the Act.

  1. Township of Derry v. Department of Labor and Industry, ___ A.2d ___ (Pa. Cmwlth. 2011).

In this case, the Commonwealth Court was called upon to determine whether new construction at the Milton S. Hershey Medical Center, a subsidiary of the Pennsylvania State University, was subject to review and inspection by building officials in Derry Township, where the construction occurred, or by the Department. The Department, through the Act and its regulations, retains plan specification review and inspection authority over all "State-owned buildings," and, since 2004, the Department has reviewed and approved construction at the medical center to the exclusion of the Township.

The Commonwealth Court rejected the Township’s argument that the Department’s embrace of the medical center’s buildings within the definition of "State-owned buildings" constituted an overly broad interpretation of the regulations. Central to the Commonwealth Court’s holding was the General Assembly’s 2005 amendment to the Act, which provided a statutory definition of "State-owned buildings" that plainly included buildings of state-related institutions such as the university.

  1. Act 46 of 2010.

The recent economic recession had a devastating effect upon the residential and commercial construction industries. In an apparent response to the recession and as part of a long, budget-related bill (Act 46 of 2010), the Pennsylvania General Assembly enacted legislation that automatically suspended the expiration date of approvals from government agencies (including building permits issued under the Act) during the period beginning on December 31, 2008, and ending on July 2, 2013. In other words, if a building permit (or other approval as defined within Act 46) is set to expire between those two dates, the permit’s expiration is automatically suspended until July 2, 2013. Moreover, any change in law, regulation or policy during the extension period cannot have the effect of prohibiting or limiting an existing approval during the extension period. Act 46 also provides a method for a holder of an approval to verify its extension in writing from the government agency.

  1. House Bill No. 377, Session of 2011.

Introduced on January 31, 2011, this proposed legislation would amend the Act in several aspects, most significantly by statutorily removing the 2009 ICC Code’s requirement that all one- and two-family dwellings be equipped with automatic fire sprinkler systems. Instead a residential builder is required, when entering into a building contract, to (1) offer to install an automatic fire sprinkler system at the buyer’s expense, (2) provide information on the cost of an automatic fire sprinkler system, and (3) provide the buyer with information on the possible benefits of installing an automatic fire sprinkler system.

The Bill was passed by the House of Representatives on March 7, 2011, and is currently before the Senate Committee on Labor and Industry.