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PA Supreme Court Upholds Executive Order Closing Non-Life-Sustaining Businesses

In a 4-3 decision dated April 13, 2020, the Pennsylvania Supreme Court decided against three plaintiff/petitioners: Friends of Danny DeVito (a Pennsylvania political candidate committee in Allegheny County), Kathy Gregory (a licensed real estate agent . in Northampton County), and Blueberry Hill Public Golf Course & Lounge (a public golf course and restaurant in Warren County). 

Petitioners argued that Governor Wolf did not have the statutory authority to issue his March 19, 2020 Executive Order, closing all businesses deemed to be non-life-sustaining, and even if he did, the Executive Order violates various constitutional rights.  Specifically, Petitioners argued the Executive Order placed Pennsylvania businesses at extreme risk of financial hardship, threatened hundreds of thousands of jobs, and was unnecessary as COVID-19 prevention and mitigation practices could be employed by any business during the course of continued operation.  The Supreme Court disagreed and ruled that the Petitioners were not entitled to any relief.  Key determinations from the Court's opinion include:

  • The Emergency Code provides the authority for the Governor's issuance of the Executive Order.  Consequently, the Court did not address the authority of the Department of Health under the Administrative Code and the Disease Act.
  • The COVID-19 pandemic qualifies as a "natural disaster" under the Emergency Code because it (1) may cause substantial damage to property, hardship, suffering, or possible loss of life; and (2) is a catastrophe of massive proportions of the type for which the legislature intended to grant the Governor authority.
  • The Executive Order was within the scope of Governor Wolf's authority under the Emergency Code.  In fact, the Court noted that the Emergency Code provided the Governor with authority for more extreme measures than the closure of non-essential businesses.  Further the Executive Order was for the public's interest; COVID-19 can spread regardless of mitigation and prevention efforts, and the closure of businesses is not unduly oppressive when weighed against the goal of protecting the citizens of Pennsylvania.
  • The Executive Order did not violate Petitioners' constitutional rights under the separation of powers doctrine.  The Emergency Code allows the Governor to issue Executive Orders that have the full force of law.
  • The Executive Order did not constitute a taking without compensation because the non-life-sustaining business closure is not permanent.
  • The Executive Order did not violate Petitioners' constitutional rights of procedural due process given the onset of the rapid spread of COVID-19 and the urgent need to act to protect Pennsylvania citizens, which negated the need for pre-deprivation notice. 
  • There is no right to judicial review of a denial of waiver application.  Neither the Governor nor the Secretary of Health are administrative agencies, and there is no right to appeal an executive decision. The Pennsylvania Department of Community and Economic Development's (DCED) review is not the work of an administrative body, but rather the work of approximately fifty DCED employees.
  • The Executive Order did not violate Petitioners' constitutional rights under the theory of equal protection because the Petitioners and those they attempted to compare themselves to were not similarly situated.
  • Finally, the Executive Order did not violate Petitioners' First Amendment rights to free assembly because the Executive Order does not limit alternative avenues of communication, and the containment and suppression of COVID-19 is a substantial government interest.

The majority exercised the Court's "King's Bench jurisdiction," meaning it heard the matter originally and not on appeal from a lower court due to the public concern and need for immediate judicial resolution.  A concurring and dissenting opinion by three members of the Court would have declined to exercise jurisdiction and allowed the factual disputes to proceed in the lower court.  The three Justices agreed  that Governor Wolf had the authority to issue the Executive Order, but disagreed that it was not subject to judicial review.  Specifically, they opined the alleged arbitrariness in the waiver process should be left to the initial determination of the Commonwealth Court.

Our office is closed pursuant to the Governor’s Business Closure Order, but MacDonald Illig attorneys are working remotely.  We are available by e-mail or cell phone at any time to assist you with any legal matters.