The Pennsylvania state Supreme Court has decided not to weigh in on the legality of a defunct Pittsburgh landlord registry bill, deciding that the ordinance in question was already defunct. But as noted legal scholar and prog-rock drummer Neil Peart would have it, in choosing not to decide, the justices arguably still have made a choice.
And it’s one the city is less than thrilled by.
“We are disappointed with this result,” said a statement from Mayor Ed Gainey’s office, though it added, “We hold the Supreme Court and its Justices in the highest esteem.”
At issue were regulations to govern rental properties that date back to 2015. They included requirements that landlords register their properties with the city, that they pay an annual fee to cover the costs of a permitting program, and that they designate a representative to handle complaints.
While an Allegheny County Common Pleas Judge upheld the legality of such rules, the statewide Commonwealth Court reversed that decision, finding that the law did not give the city express power to impose such requirements. Months later, the city passed a scaled-back version of the bill, one with less-stringent inspection requirements that kept contact information for building representatives on hand but not available to the public.
In a page-long order issued Tuesday morning, the state’s top court determined that the legal dispute regarding the earlier provisions was moot because the 2023 ordinance “does not contain the Rental Ordinance provisions that the Commonwealth Court below found to violate” state law.
“[T]he City now seeks merely an advisory opinion,” the order ruled, and tossed the case aside based on precedents that courts don’t weigh in on laws that aren’t actually in effect.
The Gainey administration statement said that the city “intends to begin enforcement of [the 2023] ordinance to help make Pittsburgh an even greater place to live.”
That ordinance, too, is likely headed for a court fight of its own.
"As long as the city keeps doing it wrong, we will keep suing," said Craig Kostelac, who heads the Landlord Service Bureau, one of the plaintiffs in the case. "The new ordinance is just a tie-dyed version of the old one."
Kostelac said state law generally doesn't permit local officials to regulate businesses, and that any fees or permit requirements should be applied to everyone.
"This is a massively controlling ordinance about a particular group of people," he said. "And it imposes a tax, hidden as a fee, against that group. That is why they lost. And if they can't be big boys, we will paddle them until they see the light."
Because the city wasn’t enforcing the earlier legislation anyway, the court’s decision has little other immediate impact. But by choosing not to rule on the case, the court sided with landlords, who argued this past spring that the ordinance in question had been made a dead letter by the city’s newer legislation. That leaves the Commonwealth Court opinion, with its restrictive view of local government’s ability to regulate such matters, as the latest word.
The ruling was a per curiam order, issued by the court as a body rather than an opinion crafted by a specific judge or judges. But Justice David Wecht wrote a lengthy criticism of the move, joined by fellow Pittsburgher Christine Donohue.
Wecht acknowledged that the legislation itself had been effectively replaced. But he said the court should have ruled on the case anyway because of its broader implications for the public and local municipal officials.
“The degree to which local municipalities may regulate their rental markets is an issue of great importance to the public,” wrote Wecht, who said the lower-court ruling “severely hamstrings the ability of governments selected by hundreds of thousands if not millions of Pennsylvanians” to regulate them at all.
Moving forward, he said, if the court had addressed the matter head-on, local officials in Pittsburgh and “across the Commonwealth would have a far more nuanced understanding of what options are available to them.”
