What Is the Test for Preemption In Pennsylvania ?
In Council of Middletown Township v. Benham, 514 Pa. 176, 181, 523 A.2d 311, 313 (1987) the Supreme Court addressed the question of whether the state preempted all local zoning ordinances that dealt with sewage and sewers.
The Supreme Court announced in Council of Middletown that "total preemption is the exception and not the rule." Id. at 184, 523 A.2d at 315.
The court reiterated the meaning of state preemption:
The state is not presumed to have preempted a field merely by legislating in it.
The General Assembly must clearly show its intent to preempt a field in which it has legislated. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960).
See also United Tavern Owners v. Philadelphia School District, 441 Pa. 274, 272 A.2d 868 (1971) (Opinion Announcing the Judgment of the Court).
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." Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 381, 77 A.2d 616, 620, 42 Mun. L Rep. 161 (1951).
See also Harris-Walsh, Inc. v. Dickson City Borough, 420 Pa. 259, 216 A.2d 329 (1966).
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. Western Pennsylvania Restaurant Association, supra. Council of Middletown, 514 Pa. at 180-181, 523 A.2d at 313.