Test to Determine Whether Local Ordinance Preempted by State Law
In Duff v. Northampton Twp., 110 Pa. Commw. 277, 532 A.2d 500 (Pa. Cmwlth. 1987), the Court applied a five-question test to determine whether the local ordinance was preempted by state law.
The Court asked:
(1) Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the legislature has permitted?
(2) Was the state law intended expressly or impliedly to be exclusive in the field?
(3) Does the subject matter reflect a need for uniformity?
(4) Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?
(5) Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the legislature? Duff, 532 A.2d at 505.
In Council of Middletown Twp. v. Benham, the Supreme Court stated that "the test for preemption in this Commonwealth is well established.
Either the statute must state on its face that local legislation is forbidden, or 'indicate an intention on the part of the legislature that it should not be supplemented by municipal bodies.'" 514 Pa. 176, 181, 523 A.2d 311, 313 (1987)(quoting Western Pennsylvania Rest. Ass'n v. Pittsburgh, 366 Pa. 374, 381, 77 A.2d 616, 620, 42 Mun. L Rep. 161 (1951)).
"If the General Assembly has preempted a field, the state has retained all regulatory and legislative power for itself and no local legislation is permitted." Id.