The Pennsylvania Association of Building Code Officials (PABCO) has commissioned the preparation and filing of an Amicus (Friend of the Court) Brief with the State Supreme Court in its consideration of the appeal by North Union Township and K2 Engineering to overturn the Commonwealth Court ruling which reversed the Fayette County Court of Common Pleas ruling in the matter. The Commonwealth Court ruled in the Fayette County case in December 2006 that North Union Township was in violation of the Uniform Construction Code when they hired K2 Engineering as a third party contractor to perform inspections of their new commercial and residential buildings. Read an article from the Pittsburgh Tribune Review on the case
Pennsylvania's statewide building code, the Uniform Construction Code (UCC), allows municipalities that have elected to administer and enforce the UCC locally to use their own employees or certified third party agencies (private code enforcement agencies) for inspections. In these “opt-in” municipalities, the Pennsylvania Department of Labor and Industry has no code enforcement authority, except where the municipality lacks the services of a person certified as an "Accessibility Inspector/Plans Examiner." In an "opt-out" municipality, the Department of Labor and Industry is responsible for commercial code enforcement, and homeowners can choose whoever they wish to perform their inspections.
In its ruling, the Commonwealth Court agreed with two inspection companies that sued North Union Township, Allegheny Inspection Service of Karns City and Steel City Inspection Agency of Pleasant Hills. They argued that nothing in the law creating the UCC should allow municipalities to prohibit state-certified inspectors in good standing from doing work. The state Supreme Court has to decide whether or not to overturn the Commonwealth Court’s ruling and interpret the Uniform Construction Code to allow “opt-in” municipalities, where the Department of Labor and Industry have no code enforcement authority, to designate a third party to perform inspections.
Below is the position of PABCO, which is based on a memo sent to their members from the Board of Directors immediately following the filing of the Amicus Brief:
essence, the Commonwealth Court Ruling established two positions that PABCO and
its legal advisors believe to be incorrect interpretations of the Pennsylvania
Construction Code Act and the legislative history and intent of the
Act. The legal advisors for the Pennsylvania State Association of Township
Commissioners and Pennsylvania State Association of Township Supervisors are
supporting North Union as well. The brief that
has been filed by PABCO focuses on these two issues, and specifically, on
legislative history and records of legislative intent that they believe will
demonstrate that the Commonwealth Court erred in its ruling.
Those two issues are:
1. PABCO believes that the PA Construction Code Act assigns the responsibility and authority to each opt-in municipality to determine how the Act will be administered and enforced within its jurisdiction, relying upon one or more of the options outlined in the Act at Section 501 (b). One of those options is to retain ONE or more third party agencies for administration and enforcement. Therefore, PABCO believes the Act and the intent of the Act are very clear and that contracts with a single third party agency are one of the allowable options under the Act that opt-in municipalities may select for administration and enforcement.
2. The Commonwealth Court ruled that inspections are not part of the administration and enforcement function but rather, are a separate function, and furthermore, may be performed in any jurisdiction in the state by any appropriately certified inspector and that opt-in municipalities must accept any inspection report by any certified inspector.
PABCO believes the Court erred in its understanding of the inspection function as being separate from administration and enforcement and has provided the Supreme Court with clear and convincing evidence from the legislative history of the Act to demonstrate that the legislature intended that inspections were an integral element of the administration and enforcement functions of the Act by opt-in municipalities (as well as any third party agencies retained by those municipalities).
The PABCO Board of Directors has consistently taken the position that inspections are part of the administration and enforcement process and that opt-in municipalities have the responsibility and authority to choose how and by whom those inspections are to be conducted. The filing of this brief is completely consistent with all prior positions taken by the PABCO Board.
PABCO believes that the overwhelming majority of their members, whether employed by a municipality or a third party agency, would be adversely impacted, to the point of having their professional careers and livelihood threatened, if the Commonwealth Court Ruling stands.
According to Robert F. Loeper, Jr., President of PABCO, “If the ruling stands....that any certified inspector can perform inspections for contractors and property owners in all of the Commonwealth's municipalities and that opt-in municipalities have no choice but to accept those inspection reports....all opt-in municipalities will lose all control over the inspection process, creating absolute chaos, not to mention a system that would be ripe for corruption.”
PABCO believes that the court has erred in its decision and that all available resources must be brought to bear to convince the State Supreme Court of that reality. As of today, each opt-in municipality continues to decide who performs inspections within its jurisdiction.
If you would like an electronic copy of the brief that PABCO has filed, please email Bob Buddenbohn, Executive Officer, at