By Matthew Santoni

Law360 (July 17, 2020, 8:23 PM EDT) -- Businesses, politicians and candidates for office in some of the counties surrounding Pittsburgh told a federal judge Friday that they received unfair treatment under Pennsylvania Gov. Tom Wolf's restrictions intended to slow the COVID-19 pandemic, as they advanced a lawsuit seeking to overturn the remaining restrictions.

The owners of several salons, two drive-in movie theaters, a furniture and appliance store and a horse-training business joined county commissioners and Republican politicians running for reelection to testify that the governor's coronavirus restrictions had been applied unevenly across state and county lines and had allegedly violated their constitutional rights.

"Some of our customers went to other counties or other states during the shutdown," said Chris Young, owner of Prima Capelli Salon in Butler. "I lost approximately 10% of my customer base … who I have not been able to get back into the salon."

Friday's testimony before U.S. District Judge William S. Stickman was the first part of a declaratory judgment hearing the court had granted in an effort to fast-track some of the plaintiffs' constitutional claims. Judge Stickman said he would reconvene the hearing Wednesday to hear several witnesses from the state.

More than a dozen plaintiffs claimed that the governor's orders — which originally closed all "non-essential" businesses in March but granted some waivers, and then gradually loosened restrictions on a county-by-county basis — violated their equal-protection rights because some counties or businesses were allowed to stay open or reopen sooner than others. The political candidates said their First Amendment rights were breached because they could not campaign under stay-at-home orders or limits on how many people can safely gather.

Because the case is seeking a declaratory judgment that the restrictions should be overturned rather than damages for prior problems, Judge Stickman pressed the parties to focus on current and future harms, though the businesses were allowed to discuss some of their past losses.

The plaintiffs said that with the governor's three-stage system for reopening still in place and further restrictions recently announced because of some areas seeing a spike in cases, it was still appropriate to focus on the restrictions under the old red, yellow and green categories.

"We're still living in a red-yellow-green world; the possibility of reverting is still very real," said Thomas King of Dillon McCandless King Coulter & Graham LLP, one of the attorneys representing the plaintiffs.

Lee McDonald, owner of R.W. McDonald & Sons Furniture in Butler County, said his business had been considered nonessential despite selling large home appliances and specialty furniture for nursing homes or people with limited mobility. Big-box hardware stores that sold appliances were allowed to stay open and steal some of his business, but his application for a waiver was denied, he said.

Chief Deputy Attorney General Karen Romano, representing Gov. Wolf and the state, emphasized in her cross-examination that many of the restrictions had since been lifted, and those still in place applied equally to all Pennsylvania businesses or residents. The counties that complained about the closures had been able to reopen their parks, pools and golf courses, though several big events and county fairs were still canceled, and government meetings were limited to 25 in-person attendees, county commissioners testified.

Romano said McDonald's application for a waiver hadn't mentioned the side of his business supplying nursing homes.

Several candidates for office, including U.S. Representative Mike Kelly and Pennsylvania Reps. Daryl Metcalfe, Tim Bonner and Marci Mustello, said the ongoing restrictions of indoor gatherings to 25 people or outdoor gatherings to 250 people made it difficult if not impossible to conduct rallies and fundraisers.

Romano noted that most of the candidates had continued their social media outreach, attending anti-closure protests and appearing in traditional media, but none said they had even considered conducting campaign events online. The limitations applied to the candidates and their opponents alike, Romano said, though during the earlier phases of reopening there were some parts of their districts that had looser restrictions than others.

Bonner said mailing campaign literature was expensive, but it was the only effective way to reach voters who did not even want to answer their doors while under the shadow of the pandemic.

"People did not want to talk politics or the election, under the conditions we were under at the time," he said.

Elizabeth Walker, co-owner of the Skyview Drive-In in Greene County, said she had sought to repurpose her business to host religious services and school graduations during the closure, but her request for a waiver was denied. She noted that while her concession stand's menu was more extensive than its neighbors', a nearby Dairy Queen and Fox's Pizza were allowed to stay open while she was not.

Beth Ghiesa, who owns the Starlight Drive-In in Butler County, said she got a similar denial and didn't learn until she was interviewed by a local news reporter that other drive-in theaters in the region had been allowed to host graduations.

Horse trainer Steve Schoeffel said harness racing at The Meadows in Washington County had ground to a halt during the red and yellow phases, and the purses that he could compete for were much smaller due to fewer people betting on the races or visiting the attached casino.

The plaintiffs are represented by Thomas W. King III, Ronald T. Elliott, Thomas E. Breth and Jordan P. Shuber of Dillon McCandless King Coulter & Graham LLP and Greene County Solicitor Robert E. Grimm.

The state is represented by Josh Shapiro, Keli M. Neary and Karen M. Romano of the state attorney general's office.

The case is County of Butler et al. v. Wolf et al., case number 2:20-cv-00677, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Jack Karp.

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