City of Pittsburgh v. Commonwealth

EAGEN, Justice

(dissenting).

While I agree with the method of analysis employed by Mr. Justice Roberts, that is an analysis of the statutory grants of authority to the City of Pittsburgh [Hereinafter: City] and the Bureau of Corrections [Hereinafter: Bureau] is necessary, see Pemberton Appeal, 434 Pa. 249 , 252 A.2d 597 (1969) and School District of Philadelphia v. Zoning Board of Adjustment, 417 Pa. 277 , 207 A.2d 864 (1965), I do not agree that the statutory grant of authority to the Bureau instantly does not evidence an intent to override the City’s zoning authority with regard to the location of pre-release centers within the city. The statutory grant of authority expressly states such an intent and the wisdom of the Legislature in expressing such an intent is obvious from the nature of the centers the Bureau is duty bound to establish.

*188 The Act of July 16, 1968, P.L. 351, § 1, 61 P.S. § 1051 (Supp.1975-1976) provides:

“The Bureau . . . shall have the power and its duty shall be to establish . . . such prisoner pre-release centers at such locations throughout the Commonwealth as it may deem necessary to carry out effective prisoner pre-release programs therefrom.” [Emphasis supplied.]

This statute expressly grants the authority, indeed imposes a duty, not only to establish centers, but to establish them at such locations throughout the Commonwealth as the Bureau deems necessary. This express language clearly evidences an intent to override the zoning authority of the City; it serves no other purpose. Yet, despite this language, Mr. Justice Roberts states no such intent is indicated. The effect of Mr. Justice Roberts’ interpretation is to delete the words, “at such locations throughout the Commonwealth” from the statute. Such an interpretation clearly violates the Act of November 25, 1970, P.L. 707, No. 230, added December 6, 1972, § 3, 1 C.P.S.A. § 1921 (Supp.1975-1976) which requires this Court to follow the explicit language of statutes.

Once this expressed intent is properly recognized, whether a conflict between the Bureau’s statutory grant of authority and the City’s exists, or whether it does not exist, this Court should rule that the Bureau is not subject to the City’s zoning restrictions with regard to the location of pre-release centers within the city. Where an irreconcilable conflict exists special provisions must be construed as an exception to general provisions. Thus, since the Bureau’s grant of authority is clearly special and the City’s clearly general, the Bureau’s authority constitutes an exception to the City’s. Act of November 25, 1970, P.L. 707, No. 230, added December 6, 1972, P.L. 1339, No. 290, § 3, 1 C.P.S.A. § 1933. Where the conflict can be resolved by giving effect to both statutes, this Court is bound to rule such that both statutes are given *189 effect. Thus, this Court is bound to rule that the special provision granting authority to the Bureau is to be given effect along with the City’s general provision granting it zoning authority. Act of November 25, 1970, P.L. 707, No. 230, added December 6, 1972, P.L. 1339, No. 290, § 3, 1 C.P.S.A. § 1933 and Pemberton Appeal, supra. But, by ignoring the expressed intent of the Legislature, the opinion of Mr. Justice Roberts avoids these well-settled rules of construction which should control this appeal.

Not only is the opinion of Mr. Justice Roberts contrary to the express language of the statutes here involved, it is irreconcilable with this Court’s opinion in Pemberton Appeal, supra. In that case, this Court ruled that the locations of schools could not be controlled by the zoning power of a township. In so ruling, this Court relied on the specific grant of authority given to a school district. The statute granting the authority provided:

“The location and amount of any real estate required by any school district . . . shall be determined by the board of school directors. . . . ”

Public School Code of 1949, Act of March 10, 1949, P.L. 30, art. VII, § 702, 24 P.S. § 7-702. And see School District of Philadelphia v. Zoning Board of Adjustment, supra, which foreshadowed the result and reasoning of Pemberton Appeal, supra. While the language relied on in Pemberton Appeal, supra, may bé more explicit than that relied on by the Bureau instantly, the language instantly admits of no other rational interpretation than a grant of specific power to the Bureau to determine the location of pre-release centers.

Finally, not only does sound reasoning support the interpretation of this statute as granting such power to the Bureau, the wisdom in granting the Bureau such power is obvious. Undoubtedly one’s environment may foster either criminal or non-criminal behavior. So too, one’s environment may foster rehabilitation or the lack of it. *190 Zoning boards have no expertise in determining locations which will aid in the rehabilitation process, particularly at such a crucial stage as readjustment to a free environment. Such determinations are within the expertise of the Bureau. And while the Legislature recognized this fact and provided in express terms the power to the Bureau to control the environment of pre-release prisoners, the position taken by Mr. Justice Roberts, by ignoring the terms of the statute, destroys the effect of this wise decision.

Mr. Justice Roberts states that the position set forth in this dissent is not persuasive for three reasons. Opinion of the Court, n. 7.

First, he states that there is no legislative history and that the relevant statute indicates no intention to override the City’s zoning authority. Undoubtedly there is no legislative history, but the lack of one adds nothing to the determination this Court must make and has absolutely nothing to do with the persuasiveness of the position adopted in this dissent. Additionally, as indicated supra and discussed in more detail infra, the statute not only expressly grants the Bureau the power to override local zoning and thereby reveals the legislative intent, it also expressly states, and thereby reveals, the purpose of the Legislature in granting this power to the Bureau.

Second, Mr. Justice Roberts states the Legislature could have been more clear and explicit if it wished to grant the Bureau this power or could have granted the Bureau eminent domain power. Undoubtedly the Legislature could have explicitly stated that the Bureau’s determinations as to locations shall not be subject to local zoning. If it had done so, this Court would not now be confronted with this issue. However, the lack of such explicit language in the grant of authority to school boards did not deter this Court from ruling contrary to the position adopted by Mr. Justice Roberts when it decided Pemberton Appeal, supra. See Public School Code *191 of 1949, Act of March 10, 1949, P.L. 30, art. VII, § 702, 24 P.S. § 7-702. Moreover, the presence or absence of eminent domain power is not a valid consideration. In Pemberton Appeal, supra, this Court did not mention or in any way rely on the power of school boards to exercise eminent domain in deciding that case. Furthermore, additional power to force a sale, rather than purchase from willing sellers the locations for pre-release centers, is not a relevant consideration.

Third, Mr. Justice Roberts reasons that since other statutes, which establish much larger institutions than those involved instantly, such as prisons, designated locations for those institutions, the Legislature by the language relied on in this dissent was merely designating the Bureau, as opposed to the Department of Supplies, as the authority to select locations for pre-release centers. If this were a correct interpretation of the statute, then the Legislature need only have stated:

“The Bureau . . . shall have the power . to establish . . . pre-release . . . centers . throughout the Commonwealth.”

Such language would have clearly designated the Bureau. Yet, the Legislature included the words:

“at such locations . . . as it [the Bureau] may deem it necessary to carry out effective programs.” [Emphasis supplied.]

Act of July 16, 1968, P.L. 351, § 1, 61 P.S. § 1051 (Supp.1975-76). This language not only expresses an intent to override zoning but it also reveals the reason why the Legislature did so, that is, only the Bureau has the expertise to determine locations which will effectively implement the programs established by this Act.

Mr. Justice Roberts states this case is distinguishable from Pemberton Appeal supra, because, as this dissent indicates, the language there involved was more explicit. Opinion of the Court n. 9. That the language there was *192 more explicit is correct, but it does not follow that the language involved in this appeal is not explicit enough to determine the legislative intent to override local zoning. Moreover, in Pemberton Appeal, supra, the Legislature did not state why it was granting to school boards the power to override local zoning. Instantly, it did. The statute states that the power is granted to insure that effective programs will be implemented. And contrary to Mr. Justice Roberts’ assertion that this dissent confuses the issue into whether today’s decision results in prerelease centers being less conducive to rehabilitation, this dissent clearly recognizes the issue as one of ascertaining the legislative intent in order to determine if the specific power was intended to be granted to the Bureau to override local zoning in locating pre-release centers. The reference to conducive locations is made because it reveals the legislative wisdom in granting the Bureau this power, because the statute expressly reveals this as the purpose in granting this power when it states the Bureau has the power in order to carry out effective programs, and because ascertaining the legislative purpose in order to determine its intent is a well-established rule of statutory construction, particularly, where, as here, the purpose is revealed in express terms.

Finally, Mr. Justice Roberts’ concern that the Bureau will locate pre-release centers in the courtyard of the Philadelphia City Hall, Opinion of the Court n. 7, assumes the City would be a willing seller and that the Bureau would determine such a location would be conducive to rehabilitation. Perhaps the majority of this Court when it decided Pemberton Appeal, supra, overlooked the possibility that a school board would locate a school in that courtyard even absent the willingness of that City to sell the location because of the school board’s eminent domain powers.

Suffice it to say, that the position adopted by Mr. Justice Roberts is contrary to our prior determinations, *193 Pemberton Appeal, supra, contrary to the express language of the statute, contrary to the intent revealed by that express language, and contrary to the underlying purpose of the statute which purpose is expressly stated in the statute.

I dissent.

JONES, C. J., and NIX, J., join in this dissent.