Schock, E., Aplt. v. City of Lebanon

• Court: Supreme Court of Pennsylvania
• Decided: May 31, 2019
• Docket: 79 MAP 2017
• Status: Published

Opinion

[J-88-2018] [MO: Saylor, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

EDWARD J. SCHOCK, : No. 79 MAP 2017 : Appellant : Appeal from the Order of the : Commonwealth Court at No. 40 CD : 2017 dated August 4, 2017 Affirming v. : the Order of the Lebanon County : Court of Common Pleas, Civil Division, : at No. 2016-00423 dated December CITY OF LEBANON, : 19, 2016. : Appellee : ARGUED: December 4, 2018

CONCURRING OPINION

JUSTICE WECHT DECIDED: May 31, 2019 Article 2, Section 1 of the Pennsylvania Constitution provides that “[t]he legislative

power of this Commonwealth shall be vested in a General Assembly[.]” 1 “Legislative

power is the power ‘to make, alter, and repeal laws.’”2 Embedded within the General

Assembly’s constitutionally vested lawmaking power is an implicit, concomitant

responsibility to exercise that power in a way that produces intelligible legislation.

In accordance with the Statutory Construction Act,3 this Court strives to “ascertain

and effectuate the intention of the General Assembly.” See 1 Pa.C.S. § 1921(a). In doing

so, we are guided by the principle that the best indication of the General Assembly’s intent

is the plain language of its statutes. Allstate Life Ins. Co. v. Commonwealth, 52 A.3d

1 PA. CONST. art. 2, § 1.

2 In re Marshall, 69 A.2d 619, 626 (Pa. 1949) (quoting O’Neil v. Am. Fire Ins. Co., 30 A. 943, 944 (Pa. 1895)).

3 1 Pa.C.S. §§ 1901-1991. 1077, 1080 (Pa. 2012). When the words of a statute are clear and unambiguous, we do

not look beyond its plain meaning “under the pretext of pursuing its spirit.” 1 Pa.C.S. §

1921(b). When those words are not clear, we endeavor to construe the law’s meaning

by means of interpretive tools and presumptions that the General Assembly has codified.

See id. §§ 1921(c)(1)-(8), 1922(1)-(5).

The dynamics of the relationship between the legislature’s power of lawmaking

and the judiciary’s function of statutory interpretation underscore the importance of

cohesive and thoughtful draftsmanship. Ambiguous and inconsistent statutes present

interpretive difficulties and waste judicial and legislative resources, often at considerable

taxpayer expense. Our tools of statutory construction—tools provided to us by the

General Assembly—can prove virtually useless when we confront a statute afflicted by

poor draftsmanship. Moreover, and of greater concern, courts run the risk of unwittingly

subverting legislative intent when forced to interpret a highly ambiguous statute.

In the Neighborhood Improvement District Act, 73 P.S. §§ 831-840 (“the Act”),

directly before us in this appeal, the General Assembly has failed in its duty to enact

coherent legislation. Rather than providing municipalities with a comprehensive roadmap

for the creation and administration of economic improvement districts, the lawmakers

have prescribed a hopeless muddle of maddening contradictions. Specifically at issue

here is the meaning of the term “affected property owner” in Subsection 835(f)(2), the

veto provision of the Act, which provides:

If 40% or more of the affected property owners within the proposed NID fail to register their disapproval of the final plan or amendment to the final plan in writing with the clerk of the governing body of the municipality in which the NID is proposed, the governing body of the municipality may, following the 45-day period, enact a municipal ordinance establishing an NID under this act or, in the case of an amendment to the final plan, adopt any amendments to the ordinance. 73 P.S. § 835(f)(2) (emphasis added).

[J-88-2018] [MO: Saylor, C.J.] - 2 The City of Lebanon maintains that the term “affected property owners” means all

property owners, while Edward Schock contends that the term refers only to assessed

property owners. In light of the statutory morass, I confess that both interpretations are

plausible. After careful consideration, I join in the learned Majority’s conclusion that the

phrase “affected property owners,” as used in the veto provision, means only assessed

property owners. Further, I concur unreservedly in the Majority’s suggestion that the

“statutory scheme merits revisiting and adjustment by the policy-making branch.” See

Maj. Op. at 28. I write separately to emphasize this latter point.

Globally, the veto provision is part of a section of the Act entitled “Creation of

neighborhood improvement district.” See 73 P.S. § 835. To embark upon a virtual

journey through the legislative instructions for creation of an NID, as prescribed by the

General Assembly in the provisions of Section 835, is to confront the uncertainties that

befall municipalities contemplating engagement in this process.4

First, subsection (a) provides that either the governing body of the municipality or,

upon petition, residents or businesses within the municipality, may initiate action to

establish an NID. See id. §§ 835(a)(1)-(3). Next, subsection (b) sets forth the specific

procedures for initiating such action. Among these procedures is the requirement that a

copy of the preliminary plan and the date, location, and time of any public hearing “shall

be provided . . . to all property owners and lessees of property owners located in the

proposed NID[,]” at least thirty days prior to the public hearing. See id. § 835(b)(1). The

subsection immediately following this provision, however, states that the purpose of the

public hearing is for “receiving public comment from affected property owners within the

proposed NID[.]” See id. § 835(b)(2). The plain language thus requires that the

4 In the four textual paragraphs that follow, in order to highlight the inconsistency of the General Assembly’s use of qualifying adjectives for the phrase “property owners,” I will italicize relevant statutory language.

[J-88-2018] [MO: Saylor, C.J.] - 3 municipality provide all property owners with a copy of the preliminary plan and notice of

the public hearing, but that only the comments of affected property owners are sought.

The preliminary plan, which all property owners must receive, shall include, among

other things, a list of the properties to be assessed and the method for determining the

amount of the assessment fee. See id. §§ 835(c)(2)(iii), (x). Additionally, the plan shall

“[a]llow for and encourage tax-exempt property owners located within the NID to provide

in-kind services or a financial contribution to the NID [Management Association], if not

assessed, in lieu of a property assessment fee.” Id. § 835(c)(3)(iii). Of particular

relevance, the plan must also provide property owners with notice that “a negative vote

of at least 40% of the property owners within the NID proposed in the final plan shall be

required to defeat the establishment of the proposed NID[.]” Id. § 835(c)(3)(vii).

This brings us to the part of the process that involves the provision at issue in this

appeal. Following the last public hearing, affected property owners have forty-five days

to object to and disapprove the final plan. But if “40% or more of the affected property

owners within the proposed NID fail to register their disapproval[,]” the municipality may

enact an ordinance establishing the NID. Id. §§ 835(f)(1)-(2).5 Importantly, affected

property owners are required to object to the final plan pursuant to the requirements of

Subsection 835(b)(3), which states, in relevant part: “Any objections by property owners

within the proposed NID must be made in writing by persons representing the ownership

of 40%, in numbers, of the benefited properties with the NID.” Id. § 835(b)(3).6

5 The double-negative in Subsection 835(f)(2) alone renders the veto provision inherently confusing, compounding the incoherence of the Act as a whole.

6 The procedural veto provision, while beyond the scope of this appeal, is yet another example of inartful draftsmanship. This provision discusses the 40% threshold as a calculation of properties, whereas the substantive veto provision discusses the threshold in terms of property owners. By way of example, let us set aside the meaning of “affected,” or the distinction between tax-exempt and assessed properties, and

[J-88-2018] [MO: Saylor, C.J.] - 4 After the establishment of an NID, the municipality may seek to amend its terms.

Doing so requires “concurrence with 60% of the property owners within the NID.” Id. §

835(g)(1). Before approving any changes, however, the municipality must hold at least

one public hearing “to determine that such changes are in the public interest as it relates

to affected property owners within the NID.” Id. § 835(g)(2). Finally, any request for the

termination of an NID may be submitted to the municipality, so long it has the approval of

“40% of the assessed property owners, in numbers, located in the NID[.]” Id. § 838(b).

This last clause is the only one in the entire Act that uses the term “assessed property

owners.”

Within the three subsections that directly reference the veto process, the General

Assembly inexplicably uses three different phrases to characterize the properties or

property owners involved: “benefited properties,” “property owners within the NID,” and

“affected property owners.” See id. § 835(b)(3), (c)(3)(vii), and (f)(2), respectively. As the

Majority recognizes, it is “readily discernable [sic] that each of these terms cannot carry

a distinct meaning.” Maj. Op. at 17. The conundrum becomes even more perplexing

when we read these provisions within the context of the entire Act. Throughout the Act,

the General Assembly employs a potpourri of different phrasings: designated property

consider a district with 100 properties within a proposed NID. Imagine that one individual owned 50 of those properties, and the remaining 50 were owned by 50 separate individuals. Thus, there would be 100 properties, but only 51 property owners. Under the substantive veto provision, which states that objections by “40% or more of the affected property owners” are required to defeat the NID’s creation, at least 21 owners must object. See 73 P.S. § 835(f)(2). However, under the procedural veto provision, which states that objections must be made in writing by “persons representing the ownership of 40%, in numbers, of the benefited properties,” the one individual owning 50 properties alone could defeat the NID’s creation. See id. § 835(b)(3). Of course, these provisions could be read in pari materia in order to force consistency within the Act and avoid illogical results. But a more careful and studied approach to drafting by the General Assembly could achieve the same result without requiring judicial contortions of the Act’s language.

[J-88-2018] [MO: Saylor, C.J.] - 5 owners, all property owners, affected property owners, benefited property owners,

property owners within the proposed NID, assessed property owners, and tax-exempt

property owners.

The General Assembly’s language choices force interpretive decisions upon us.

We must pick and choose among and between principles of statutory construction as we

search for legislative intent. To apply one canon of construction invalidates our ability to

rely upon another because to do so would yield a contradictory result. Thus the question

becomes—upon which canon do we rely? Upon which do we place controlling weight?

For example, on the one hand, “it is not for the courts to add, by interpretation, to

a statute, a requirement which the legislature did not see fit to include. Consequently, [a]s

a matter of statutory interpretation, although one is admonished to listen attentively to

what a statute says; one must also listen attentively to what it does not say.”

Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011) (internal quotations and

citations omitted). The Act does not expressly exclude tax-exempt property owners from

participating in the process of creating an NID. To the contrary, certain provisions

implicitly suggest that the General Assembly intended to include those property owners.

All property owners, including tax-exempt property owners, must receive the preliminary

plan and are invited to attend a public hearing and provide comment. See 73 P.S. §

835(b)(1). Additionally, the Act encourages tax-exempt property owners to provide

monetary contributions or in-kind services in lieu of assessment fees, thereby implying

that tax-exempt property owners have a stake in the NID’s implementation. See id. §

835(c)(3)(iii). Curiously, the term “assessed property owners” is absent from all relevant

provisions of Section 835 regarding the creation and veto processes and, in fact, appears

only once in the Act. Thus, if this Court interprets the veto provision as limiting

involvement only to assessed property owners, we arguably add a requirement “which

[J-88-2018] [MO: Saylor, C.J.] - 6 the legislature did not see fit to include,” and, in so doing, contravene this rule of statutory

construction.

However, on the other hand, “[i]n construing a statute, the courts must attempt to

give meaning to every word in a statute, as we cannot assume that the legislature

intended any words to be mere surplusage.” City of Phila. Fire Dep’t v. W.C.A.B. (Sladek),

195 A.3d 197, 207 (Pa. 2018) (internal citation omitted). The veto provision applies to

“affected property owners.” To conclude that tax-exempt property owners are “affected”

would be to read the word “affected” out of the provision, effectively reducing its meaning

to “all.” And, again, we would be contravening a rule of statutory construction.

Adhering strictly to yet another rule would require a conclusion that “affected”

means neither “all” nor “assessed.” Under the principle expressio unius est exclusio

alterius, if the General Assembly includes specific language in one section of a statute

but excludes it from another section, that language should not be implied where excluded.

See Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1223 (Pa. 2002). Here, the

General Assembly used the phrases “all property owners” and “assessed property

owners” in different provisions of the Act, demonstrating its ability to choose between

those phrases where it intended. Therefore, applying the expressio principle, because

the General Assembly chose not to qualify “property owners” in the veto provision with

either “all” or “assessed,” we cannot necessarily imply the meaning of the other. Around

and around we go. The process is confounding.

Balancing the competing principles, and reading the Act in its entirety, as we must,

the Majority concludes that, on balance, the veto provision is intended to apply only to

assessed property owners. See Trust Under Agreement of Taylor, 164 A.3d 1147, 1155

(Pa. 2017) (“When construing one section of a statute, courts must read that section not

by itself, but with reference to, and in light of, the other sections.”). I find the Majority’s

[J-88-2018] [MO: Saylor, C.J.] - 7 reasoning persuasive, especially given the overwhelming ambiguity created by the

General Assembly. However, I observe that, in light of the fact that certain principles of

statutory construction weigh in favor of the opposite (or perhaps some entirely different)

interpretation, it would not be beyond this Court’s authority to reach a contrary conclusion.

I acknowledge this reality frankly, in the hope that our General Assembly will engage in

careful draftsmanship when it discharges its constitutionally vested legislative power. Not

least among the costs of its failure to do so is the risk that courts will undermine the

General Assembly’s true intentions notwithstanding faithful and diligent application of the

rules of statutory construction.

[J-88-2018] [MO: Saylor, C.J.] - 8