# Council 13, American Federation of State, County & Municipal Employees ex rel. Fillman v. Commonwealth > Supreme Court of Pennsylvania · December 28, 2009 · 604 Pa. 352 URL: https://www.frixlaw.com/law-library/cases/4964366 ## Case - **Full name:** COUNCIL 13, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO by its Trustee Ad Litem, David R. FILLMAN and Richard Conway Samuel Deitch Randy Lash Robenna Mitchell and Pennsylvania Social Services Union, Local 688 of the Service Employees International Union, by its Trustee Ad Litem, Kathy Jellison and Federation of State Cultural and Educational Professionals, AFT, Local 2382, by its Trustee Ad Litem, Stephen Fisher v. Commonwealth of Pennsylvania The Honorable Edward G. RENDELL, Governor of the Commonwealth of Pennsylvania Naomi Wyatt, Secretary of Administration Mary A. Soderberg, Secretary of Budget and Robin L. Wiessmann, Treasurer of the Commonwealth of Pennsylvania, Appellees Council 13, American Federation of State, County And Municipal Employees, AFL-CIO by its Trustee Ad Litem, David R. Fillman and Richard Conway Samuel Deitch Randy Lash Robenna Mitchell and Pennsylvania Social Services Union, Local 688 of the Service Employees International Union, by its Trustee Ad Litem, Kathy Jellison and Federation of State Cultural and Educational Professionals, AFT, Local 2382, by its Trustee Ad Litem, Stephen Fisher v. Commonwealth of Pennsylvania The Honorable Edward G. Rendell, Governor of the Commonwealth of Pennsylvania Naomi Wyatt, Secretary of Administration Mary Soderberg, Secretary of Budget and Robin L. Wiessmann, Treasurer of the Commonwealth of Pennsylvania. Cross Appeal of Commonwealth of Pennsylvania, The Honorable Edward G. Rendell, Governor of the Commonwealth of Pennsylvania Naomi Wyatt, Secretary of Administration Mary A. Soderberg, Secretary of Budget - **Court:** Supreme Court of Pennsylvania - **Decided:** December 28, 2009 - **Citations:** 604 Pa. 352; 986 A.2d 63; 15 Wage & Hour Cas.2d (BNA) 1270; 2009 Pa. LEXIS 2771 - **Precedential status:** Published - **Opinion:** Concurring in part by Saylor - **Judges:** Baer, Castille, Eakin, Greenspan, McCaffery, Saylor, Todd - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4964366 ## How later opinions describe it (automated extraction) - holding that an irreconcilable conflict existed between a federal law and a section of the Pennsylvania Constitution because the former required the timely payment of wages to state employees, but the latter barred the expenditure of monies from the state treasury during a bud… - recognizing that the judicial branch has the power and EC - 11 authority “‘to determine whether the Constitution or laws of the Commonwealth require or prohibit the performance of certain acts’” ## Opinion text Justice SAYLOR, concurring and dissenting. I join Parts I, II, and 111(A) of the majority opinion, as I agree with the holdings that the present controversy is justiciable and that the FLSA and its wage provisions apply to the Commonwealth by virtue of Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 , 105 S.Ct. 1005 , 83 L.Ed.2d 1016 (1985). I respectfully disagree, however, with the majority’s conclusion that the FLSA absolutely requires the Commonwealth to pay wages in a timely manner, without consideration of the existence of a budgetary impasse and the resulting fiscal limitations imposed by Article III, Section 24. See Majority Opinion, at 79-81. I find persuasive the Executive Parties’ position that, “in obedience to the constitutional command of federalism to respect the sovereignty of the states, the presumption against preemption must be employed in determining not only whether Congress intended preemption at all, but also in service of striving to achieve the most ‘narrow interpretation’ plausible to avoid preemption of state law.” Brief for Executive Parties at 31 (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 , 116 S.Ct. 2240, 2250 , 135 L.Ed.2d 700 (1996)). In this regard, and as the majority recognizes, the FLSA does not contain an express provision dictating a timeframe for the payment of wages; thus, the imposition of a timely payment requirement arises from judicial interpretation. See Council 13, AFSCME v. Rendell, 954 A.2d 706, 714 (Pa.Cmwlth.2008) (Leavitt, J.) (collecting cases). While this interpreta *84 tion may be reasonable in the context of private employers, see, e.g., Calderon v. Witvoet, 999 F.2d 1101, 1108 (7th Cir. 1998), its application to states that are operating in a state of fiscal crisis, in my view, implicates circumstances not contemplated by Congress in its enactment of the FLSA and fails to account for the fact that a sovereign must continue to provide services to its citizens, even without a present means of appropriation. That being the case, the Executive Parties convincingly advocate that a comparison of the FLSA’s silence as to the question of prompt payment with the “explicit and unforgiving” mandate of Article III, Section 24, when considered in conjunction with a presumption against federal preemption, supports the conclusion that this Court should not “infer that Congress intended to require a State government, its officials and agencies to ignore a foundational pillar of its constitutional form of government by withdrawing State funds to pay wages without approval of its Legislature.” Brief for Executive Parties at 34 (emphasis in original). This interpretation also supports Appellants’ position that the Governor’s approach to furlough is within his discretionary prerogative as Chief Executive Officer, as opposed to being mandatory. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4964366. Public record. Not legal advice.