Pennsylvania Flag Act: One Flag Each, No Larger Than Five by Three Feet

The governing law is the American, Commonwealth and Military Flag Act, the Act of July 7, 2006, P.L. 608, No. 93, which took effect 30 days after enactment on August 6, 2006. It sits outside 68 Pa.C.S., so it is not part of the Uniform Planned Community Act or the Uniform Condominium Act, and it reaches farther than either. Section 2 defines a "common interest community" to include a cooperative, a condominium and a planned community where an owner is or may become obligated by covenant, easement or agreement to pay toward taxes, insurance, maintenance, repair, improvement, management, administration or regulation of real estate outside the portion the owner holds alone. A "unit owner" expressly includes a proprietary lessee in a cooperative as defined at 68 Pa.C.S. § 4103. If your community has an association that assesses you for shared property, the flag act applies.

Section 3(a) is written as a covenant override. It begins "Notwithstanding any provision in the association's declaration, covenants, bylaws, rules, regulations or other instruments or any construction of any of those instruments by an association's executive board," and then bars the association from prohibiting the outdoor display of one American flag, one Commonwealth flag and one military flag. The protected locations are the unit owner's property, property within the exclusive control of the unit owner, and the portion of an exterior wall directly attached to the unit. That last phrase is what lets a Pennsylvania townhouse or condominium owner with no yard mount a flag on the wall by the front door.

The three protected categories are narrow and defined by their own definitions in section 2. The American flag is the flag of the United States as defined at 4 U.S.C. § 1. The Commonwealth flag is the Pennsylvania flag described in section 1 of the Act of June 13, 1907, P.L. 560, No. 373. A military flag means a flag of any branch of the United States Armed Forces or the Pennsylvania National Guard, and POW/MIA flags. Nothing else is protected. A Pennsylvania association may still enforce a covenant against a first responder, thin blue line, historic, sports team, holiday, religious or political flag, because the 2006 act simply does not reach them.

The form of the flag matters as much as the design. All three definitions require a flag "made of fabric, cloth or paper displayed from a staff or flagpole or in a window," and all three expressly exclude a depiction or emblem of the flag "made of lights, paint, roofing, siding, paving materials, flora or balloons, or any other similar building, landscaping or decorative component." A flag painted on a garage door, spelled out in landscaping or built into a roof is not a flag under this act, and an association may prohibit it.

What the association keeps is real but bounded. It may adopt rules on the placement and manner of display of the American flag, provided those rules are consistent with 4 U.S.C. §§ 4 through 10, the federal flag customs on display and respect. It may adopt placement and manner rules for the Commonwealth flag and military flags without that federal constraint, and section 3(a) conditions the protection for those two on display in accordance with the association's rules. It may regulate the location, size and use of a flagpole. What it may not do is prohibit the use of wall brackets for any of the three flags, and it may not allow a flag larger than five feet by three feet, which is the statutory ceiling on the flag flown rather than a floor the association must permit.

Military flags get one further protection that no rule may erase. Any association rule about displaying a military flag must permit those flags to be flown, in a respectful way, on fifteen named days: President's Day, Iwo Jima Flag Raising Day, Vietnam Veterans Day, V-E Day, Armed Forces Day, Memorial Day, Flag Day, Independence Day, Korean War Veterans Armistice Day, V-J Day, Patriot's Day, POW/MIA Recognition Day, Veterans Day, Pearl Harbor Day, and the birthday of each branch of the United States Armed Forces. An association that limits military flags to Memorial Day and Veterans Day only is not complying with section 3(a).

Section 3(b) carries the same protection into a place most flag statutes ignore. A cemetery entity, meaning a person or entity that sells the ownership or right to use a cemetery lot or maintains lots within a cemetery, may not prohibit the outdoor display of one American flag, Commonwealth flag and military flag on lots, and must permit military flags on the same fifteen days. A cemetery may set rules on the size and location of flags on lots, but the statute says those rules "shall not be used as subterfuge to defeat the purposes of this act." A private family cemetery is excluded from the definition, and a lot owner or the owner's heirs may still limit or prohibit flags on that owner's own lot.

The 2006 act creates no fine, no penalty and no administrative complaint route. It does not name the Attorney General, the Bureau of Consumer Protection or any Commonwealth agency, and unlike the meetings and records provisions of 68 Pa.C.S. §§ 5308 and 5316 there is no § 5322 complaint to fall back on, because § 5322 lists only §§ 5308, 5309 and 5310. What the act does instead is void the covenant: an association rule banning a protected flag is unenforceable by operation of section 3(a), so a Pennsylvania owner who is fined or sent to violation proceedings for flying an American, Commonwealth or military flag defends on the ground that the association had no power to adopt the rule at all.

Practically, that plays out inside the association's own process first. A fine under 68 Pa.C.S. § 5302(a)(11) requires notice and an opportunity to be heard, so the hearing is where you put the statute in front of the board. If the association has an alternative dispute resolution procedure in its bylaws under § 5321, that is the next step, though § 5321(b)(2) makes ADR available only where all parties agree. Beyond that the remedy is a private action in the court of common pleas for declaratory and injunctive relief, which § 5321(c) preserves. Owners in the wrong should note the reverse exposure: an unpaid fine over an unprotected flag, a banner, a painted emblem or an oversized display becomes a lien on the unit under § 5315(a) from the date it comes due, and § 5315(g) sends costs and reasonable attorney fees to the prevailing party.