Allegheny Inspection Service, Inc. v. North Union Township

OPINION BY

Allegheny Inspection Service, Inc. (AIS) and Steel City Inspection Agency, Inc. (SCI) (together, Appellants) appeal from the April 5, 2006, order of the Court of Common Pleas of Fayette County (trial court) entering judgment in favor of North Union Township (Township) and K2 Engineering, Inc. (K2) (together, Appellees). We reverse.

Concerned that many municipalities in the Commonwealth either had no construction codes or had a confusing multiplicity of construction codes, the General Assembly, in 1999, enacted the Pennsylvania Construction Code Act (PCCA), 1 to insure uniform, modern construction standards and regulations throughout the Commonwealth through the adoption of a Uniform Construction Code (UCC). 2 Section 102(a) of the PCCA, 35 P.S. § 7210.102(a). 3 The *382 PCCA applies generally to the construction, alteration, repair and occupancy of all buildings in the Commonwealth and governs inspections in various areas, including building, electrical, mechanical, plumbing, energy, fire, accessibility and elevator inspections. Section 104 of the PCCA, 35 P.S. § 7210.104(a); 34 Pa.Code § 401.7. The Township, a second class township in Fayette County, Pennsylvania, elected to administer and enforce the provisions of the PCCA by enacting an ordinance adopting the UCC as its municipal building code. 4 See section 501(a) of the PCCA, 35 P.S. § 7210.501(a); 34 Pa.Code § 403.102.

On July 14, 2004, the Township entered into a contract with K2 to administer and enforce the PCCA/UCC on behalf of the Township. (R.R. at 23-24.) The contract was authorized by subsection 501(b)(2) of the PCCA, which provides, “[t]his act may be administered, and enforced by municipalities ... [b]y the retention of one or more construction code officials or third-party agencies to act on behalf of the municipality for administration and enforcement of this act.” 5 35 P.S. § 7210.501(b)(2) (emphasis added). In section 103 of the PCCA, “[c]onstruction code official” is defined as “[a]n individual *383 certified by the Department of Labor and Industry [Department] in an appropriate category established pursuant to section 701(b) of this act to perform plan review of construction documents, inspect construction or administer and enforce codes and regulations in such code category under this act or related acts,” and “[t]hird-party agency” is defined as “[a] person, firm or corporation certified by the Department ... as a construction code official and contracted to perform plan review of construction documents, inspect construction or administer and enforce codes and regulations under this act.” 6 35 P.S. § 7210.103 (footnote omitted, emphasis added).

Appellants and K2 are Pennsylvania corporations engaged in the business of performing electrical inspections, and they all employ certified electrical . inspectors. Upon learning that the Township would only recognize inspections performed by K2 for purposes of determining compliance with the UCC, Appellants filed a declaratory judgment action seeking to have the trial court interpret the PCCA and declare that the Township’s refusal to recognize inspections by any qualified inspector other than K2 violated the express language of section 501(d) of the PCCA. (R.R. at 27-36.) That section provides:

(d) Registration. — Nothing in this act shall allow a municipality to prohibit a construction code official who meets the requirements of Chapter 7 and remains in good standing from performing inspections in the municipality. This section does not alter the power and duties given to municipalities under subsection (b)(1), (3) and (4).

35 P.S. § 7210.501(d) (emphasis added). Appellants contend that the agreement between the Township and K2 contravenes this section of the PCCA because it essentially prohibits Appellants, as registered, qualified construction code officials, from performing inspections in the Township.

Following argument on the matter, 7 the trial court entered judgment in favor of the Township and K2. In doing so, the trial court determined that the agreement between the Township and K2 did not contravene section 501(d) of the PCCA because, contrary to Appellants’ allegation, they were not prohibited from performing electrical inspections within the Township. In fact, the trial court noted that Appellants conceded as much in their stipulation of facts by stating that they could “perform electrical inspections for property owners or contractors in [the Township], even though these inspections are not used by [the Township] in determining compliance with the [UCC].” (Trial ct. Findings of Fact, No. 6, R.R. at 56) (emphasis added). The trial court reasoned that, rather than violate the PCCA, the agreement “simply facilitates the administration and enforcement of the [PCCA] as authorized by subsection (b)(2).” (Trial ct. op. at 6.) The trial court then stated:

Subsection (b)(2) plainly states that a municipality may retain “one or more construction code officials or third-party *384 agencies” to administer and enforce the [PCCA].... Administration and enforcement necessarily includes the performance of inspections. In that regard, [the Township] has retained K2 as its third-party agent, as authorized by the [PCCA], to administer and enforce the [PCCA] by performing inspections to determine compliance with the [UCC]. 35 P.S. § 7210.501(b)(2).

(Trial ct. op. at 6-7, R.R. at 59-60) (italics in original, underlining added). The trial court concluded that the words of the PCCA were clear and free of all ambiguity; therefore, in interpreting the statute, it could not disregard that clear language under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). (Trial ct. Conclusions of Law, Nos. 1-3.) Following the trial court’s denial of their motion for post-trial relief, Appellants now appeal to this court. 8

On appeal, Appellants argue that the trial court employed flawed reasoning and, therefore, erred in determining that the PCCA permits a municipality to designate, appoint or contract with a single person or entity to act as the municipality’s exclusive inspector for purposes of determining UCC compliance. We agree.

In its opinion, the trial court finds no violation of section 501(d) of the PCCA, which expressly prohibits a municipality from preventing qualified construction code officials from performing inspections in the municipality, concluding that the Township imposed no such prohibition. The trial court then focuses on the plain language of subsection 501(b)(2) of the PCCA, which expressly allows a municipality to retain one or more construction code officials or third-party agencies to act on behalf of the municipality for administration and enforcement of the PCCA. Based on the premise that administration and enforcement necessarily includes the performance of inspections, the trial court holds that the Township acted appropriately in retaining K2 to administer and enforce the PCCA by performing all required inspections. Although we recognize that administration and enforcement of the PCCA unquestionably demands that inspections be performed, we agree with Appellants that, in construing the PCCA, the terms “administer and enforce” must be considered separately from the term “inspect.” Only in this way is it possible to give effect to both statutory provisions. 9

This position is supported by the markedly different dictionary definitions of the terms “administration,” “enforcement” and “inspection.” 10 Moreover, it is evidenced *385 in the definition section of the PCCA itself, which delineates three distinct services that may be performed by a “construction code official,” “municipal code official” or “third-party agency.” Specifically, these entities are qualified to: (1) perform plan review of construction documents; (2) inspect construction or (3) administer and enforce codes and regulations. Section 103 of the PCCA, 35 P.S. § 7210.103. Subsection 501(b)(2) of the PCCA authorizes a municipality to retain a particular construction code official or third-party agency to act on its behalf only for “administration and enforcement” of the PCCA, 11 35 P.S. § 7210.501(b)(2); at the same time, section 501(d) of the PCCA provides that a municipality may not prohibit a qualified construction code official from performing “inspections” in the municipality, 35 P.S. § 7210.501(d). Thus, read together, these sections of the PCCA necessarily disallow the present agreement between the Township and K2. 12

By failing to recognize that construction inspections for purposes of the UCC are a function separate and distinct from the administration and enforcement of UCC regulations, the trial court misinterprets section 501(d) of the PCCA and renders the express prohibition in that section a nullity. 13 To deny this effect by concluding that Appellants technically are not prevented from performing electrical inspections in the Township is wholly illusory. No one disputes that Appellants must be allowed to perform electrical inspections in the Township by virtue of their certification, and the trial court is correct in stating that the Township’s contract with K2 does not expressly prohibit Appellants from performing such inspections. However, the parties have stipulated that any such inspection would not be accepted as an official UCC inspection, so that “if a non-K2 inspector did a final inspection and found that all [UCC] requirements had been met and reported the same to the Township, then K2 would perform its own inspection to abate or not abate the permit.” (Joint Stipulation of Facts, ¶ 10.) Because an electrical inspection that is unacceptable for the purpose of *386 issuing a municipal permit is meaningless, and a permit applicant with such an inspection still must obtain and pay for the inspection services of K2, 14 it follows that, realistically, no person or contractor will hire and pay Appellants to perform such inspections.

The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). As stated, the purpose of the PCCA is to protect the public health, safety and welfare by setting uniform construction standards. To that end, the PCCA requires that those who approve construction plans and inspect the various aspects of construction be properly trained and certified with respect to those standards. See section 701 of the PCCA, 35 P.S. § 7210.701. Contrary to Appellees’ assertion, accepting inspections performed by any certified inspector for purposes of compliance with the UCC fully satisfies the PCCA’s purpose, even if that inspector is a “total stranger.” (See Township’s brief at 16.) In fact, where the General Assembly voiced its intent to insure the integrity of building inspections for the purpose of issuing municipal permits, allowing a municipality to establish a single entity to serve both as inspector for purposes of compliance with the UCC and as enforcer of UCC standards would run counter to that intent. 15

Accordingly, for these reasons, we reverse.

ORDER

AND NOW, this 6th day of December, 2006, the order of the Court of Common Pleas of Fayette County, dated April 5, 2006, is hereby reversed.