Pa. Top Court Ditches Challenge To COVID-19 Eviction Order

By Elise Hansen
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Law360 (July 31, 2020, 9:29 PM EDT) -- Pennsylvania's Supreme Court on Friday declined to hear landlords' challenge to Gov. Tom Wolf's COVID-19 eviction restrictions, drawing a blistering dissent from one justice who decried the move as a "decision to abscond" that "beggars belief."

The court on Friday dismissed the property owners' challenge as "improvidently granted" without providing further comment, months after exercising an unusual power to take up the case and receiving briefs on an expedited schedule.

The per curiam decision elicited a sharp dissent from Justice David N. Wecht, who said the court was "abruptly wash[ing] its hands" of the dispute, despite ongoing uncertainty about the governor's decision to effectively suspend evictions during the outbreak.

"When this court took jurisdiction and directed briefing, we signaled our intention to review and decide the legal merit of a constitutional dispute of enormous consequence to [the landlords], hundreds or thousands of other landlords, and likely thousands of tenants who are behind on their rent because of continuing COVID-19-related hardships," Justice Wecht said. "To dismiss this case as improvidently granted, implying that this court simply erred in granting … review to begin with, is to leave roiling uncertainty in our wake as we drift out of sight."

Pennsylvania property owners Private Properties LLC and Chester Properties LLC and state-wide landlords' association Pennsylvania Residential Owners Association brought their request for extraordinary relief in May.

They challenged a May 7 executive order from Wolf that largely suspended evictions by pausing landlords' ability to start the clock on eviction proceedings. The landlords sued the governor and Attorney General Josh Shapiro on constitutional grounds, citing separation of powers concerns, court documents show.

The high court took up the case in late May using so-called "King's Bench" jurisdiction, a pre-Revolutionary War power that Justice Wecht characterized as "rarely exercised." The court set an expedited briefing schedule and accepted a range of amicus briefs on the issue.

In July, Wolf renewed the eviction measures with some modifications. Justice Wecht argued that the changes to the prohibition's scope and the legal authority cited were "minor differences with no obvious bearing on the broad dispute before us."

The measures remain in effect and could be renewed in the future, the dissent noted. The preservation of the status quo and the possibility of its continuation could prompt "materially identical" court challenges later, Justice Wecht said.

"The only question is how far down the road we have kicked the can," he said.

Justice Wecht excoriated the 18-word order dismissing the case as inadequate.

"Petitioners and similarly situated landlords deserve more. Tenants suffering economic hardship in a state of enduring confusion deserve more. The Pennsylvania bench and bar, and the governor himself, deserve more," the judge wrote. "Someone must answer the difficult constitutional questions this case presents. If not us, then who? If not now, when?"

Representatives for Wolf and the attorney general's office and counsel for the landlords did not immediately respond to requests for comment on Friday.

The landlords are represented by Bradley Scott Dornish and Mary Elizabeth Fischman of Dornish Law Offices PC and by Lee A. Stivale of Stivale Law Offices PLLC.

Gov. Tom Wolf is represented by Gregory George Schwab of the Pennsylvania Office of General Counsel, and both the governor and the attorney general are represented by John Bartley Delone, Sean Andrew Kirkpatrick and Keli Marie Neary of the Pennsylvania Office of Attorney General.

The case is Private Properties LLC et al. v. Tom Wolf et al., case number 90 MM 2020 in the Supreme Court of Pennsylvania.

--Editing by Kelly Duncan.

For a reprint of this article, please contact reprints@law360.com.

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