By Matt Fair

Law360 (April 14, 2020, 5:38 PM EDT) -- The Pennsylvania Supreme Court shot down a lawsuit challenging Gov. Tom Wolf's authority under state law to order "non-life-sustaining" businesses to shut down on an emergency basis as a means of curbing the ongoing spread of COVID-19.

In a 4-3 ruling late Monday, the high court rejected arguments from a Republican political candidate, a Warren County golf course and a Lehigh Valley real estate agent that Wolf's sweeping order last month requiring the closure of nonessential businesses exceeded the scope of his police powers.

"We recognize the serious and significant economic impact of the closure of petitioners' businesses," the court ruled in a majority opinion penned by Justice Christine Donohue. "Faced with protecting the health and lives of 12.8 million Pennsylvania citizens, we find that the impact of the closure of these businesses caused by the exercise of police power is not unduly oppressive."

The minority in the case — which comprised Chief Justice Thomas Saylor, Justice Kevin Dougherty and Justice Sallie Updyke Mundy — indicated general support for Wolf's power to issue the executive order but said they didn't believe the high court should have examined the case so quickly.

Instead, the dissenters said the matter should have been brought before a lower court to more thoroughly develop an evidentiary record.

Wolf ordered the closure of certain enumerated "nonlife-sustaining" businesses in an executive order inked on March 19 as coronavirus infections began to spread steadily across Pennsylvania.

As the order went into effect, the governor provided a system for certain businesses to apply for waivers that would allow them to potentially continue operating throughout the duration of the emergency.

Less than a week later, the justices were presented with a petition asking that the order be struck down as an improper application of the governor's powers under the state's emergency code and as an infringement on certain constitutional rights.

The challengers in the case include the campaign of Republican state legislative candidate Danny DeVito, the Warren County-based Blueberry Hill Public Golf Course, and licensed realtor Kathy Gregory of Northampton County.

They argued that Wolf lacked authority to issue his executive order because the pandemic currently sweeping the globe did not fall under the list of natural disasters outlined in the state's emergency code.

The code points to specific disasters including floods, fires, explosions, snowstorms, and wind-driven events like hurricanes and tornadoes, but also includes a catchall for any "other catastrophe which results in substantial damage to property, hardship, suffering or possible loss of life."

While the challengers argued that pandemics couldn't be counted because they are too dissimilar to the other kinds of natural disasters specifically named under the code, the majority disagreed.

The opinion noted there was no commonality among the listed natural disasters as some were weather-related and others, like fires and explosions, were not.

"The only commonality among the disparate types of specific disasters referenced is that they all involve 'substantial damage to property, hardship, suffering or possible loss of life,'" the court said. "In this respect, the COVID-19 pandemic is of the same general nature or class as those specifically enumerated and thus is included, rather than excluded, as a type of 'natural disaster.'"

The majority similarly balked at arguments that the challengers shouldn't be subjected to mandatory closure where their operations hadn't been subject to any COVID-19 infections.

"COVID-19 does not spread because the virus is 'at' a particular location," the majority said. "Instead it 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."

Turning to the challengers' constitutional arguments, the majority rejected claims that the executive order's delineation between essential and nonessential businesses ran afoul of due process protections.

While the challengers claimed they'd been deprived of any notice before the executive order went into effect, the majority ruled that the rapid development of the coronavirus crisis made any such notice all but impossible.

"Under the circumstances presented here, namely the onset of the rapid spread of COVID-19 and the urgent need to act quickly to protect the citizens of the commonwealth from sickness and death, the governor was not in a position to provide for pre-deprivation notice and an opportunity to be heard," the court said.

The court also ruled that the waiver process implemented by Wolf to allow businesses to claim their status as providers of essential services satisfied due process requirements.

"While procedural due process is required even in times of emergency, we conclude that the waiver process provides sufficient due process under the circumstances presented here," the majority said.

The court also ruled that the temporary nature of the executive order undercut the arguments that the waiver process did not include a thorough enough opportunity for businesses to challenge their designation as nonessential businesses.

"The government interest in focusing on mitigation and suppression of the disaster outweighs the massive administrative burden of the additional procedural requirements demanded by petitioners," the court said. "These procedural requirements would overwhelm an entire department of government otherwise involved with disaster mitigation."

Chief Justice Thomas Saylor said in his dissent that, even though he agreed that "there is much to be said for treating the executive branch's actions as presumptively valid for now," he believed the court should have deferred taking action on the case.

He said he believed there were factual questions that required more exploration than was allowed through the high court exercising extraordinary jurisdiction to decide the case.

In particular, he pointed to the challengers' concerns regarding due process in the waiver process.

"To me, the majority allocates too much weight to temporariness to defeat developed allegations of a lack of due process in the executive branch's determination of which businesses must close and which must remain closed," he said. "There seems to be a factual dynamic that should not be dismissed out of hand."

Marc Scaringi, an attorney with Scaringi Law representing the challengers, told Law360 Tuesday he was troubled by the court's willingness to accept that the executive order was a temporary measure.

"The majority opinion leaves out the fact that Wolf stated the business closure order shall remain in place indefinitely," Scaringi said. "That 'indefinitely' doesn't sound too temporary to me. There is no end point to the word 'indefinitely.'"

He said he was considering appealing the case to the U.S. Supreme Court and was also weighing how to proceed with a parallel case he's pursuing over the governor's order before the state's Commonwealth Court.

Wolf spokeswoman Lyndsay Kensinger told Law360 the administration was pleased with the court's decision.

"The court made clear [the] governor has been acting responsibly in executing the extraordinary powers granted to him by law — powers he has exercised to address the COVID-19 emergency," she said Tuesday. "The governor's highest priority remains protecting Pennsylvanians' health and safety as the state works to mitigate the spread of COVID-19. The governor is as eager as anyone to see Pennsylvanians headed back to work, but reopening businesses too early will only extend the length of the economic hardships created by the pandemic."

The challengers are represented by Marc Scaringi and Brian Caffrey of Scaringi Law.

The commonwealth is represented by Gregory Schwab of the Office of General Counsel and J. Bart Delone, Daniel Mullen, Keli Neary and Karen Romano of the Office of Attorney General.

The case is Friends of Danny DeVito et al. v. Tom Wolf et al., case number 68 MM 2020, in the Pennsylvania Supreme Court.

--Editing by Janice Carter Brown.

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