Wade Clark Mulcahy LLP

<p style="text-align: justify;">In Pennsylvania, pursuant to executive orders and statutory authority, the Governor has ordered all non-essential physical businesses to close. However, it should not be a surprise that lawsuits are flying around, attempting to short-circuit the closure mandate. One such attempt has already reached the Pennsylvania Supreme Court – and the Pennsylvania Supreme Court, in <em>Friends of</em> <em>Danny DeVito v. Wolf</em>, upheld the State’s power in a split 4-3 decision.</p>
<p style="text-align: justify;">Specifically, Governor Wolf’s March 19, 2020 order compelled the closure of all non-life sustaining businesses to reduce the spread of COVID-19. A variety of businesses filed an emergency application 5 days later seeking to strike down the order as violating the due process clause. Utilizing archaic civil procedure techniques unique to Pennsylvania (“King’s Bench Jurisdiction”), this was filed directly at the Pennsylvania Supreme Court, raising a gamut of challenges ranging from statutory to constitutional. At issue is the Governor’s expansive emergency powers, which allow him to suspend any statute or rule in order to deal with the emergency. In the instant challenge, among other arguments, petitioners argued that the closure of businesses in locations where COVID-19 had not yet been detected (i.e., the place of business) was not necessary and exceeded the State’s powers. The Court, for now, rebutted this argument, holding, “[COVID-19] spreads because of person-to-person contact, as it has an incubation period of up to fourteen days and that one in four carriers of the virus are asymptomatic.”</p>
<p style="text-align: justify;">Although many other issues were presented to the Court, the takeaway – at least in Pennsylvania – is this: even if COVID-19 has not yet impacted your community, the nature of the virus is such that a piecemeal approach within a State is not constitutionally mandated.</p>
<p style="text-align: justify;">Thanks to Matt Care for his contribution to this post.  If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>