Analysis: PA Supreme Court Rejects Latest Challenge to Gov. Wolf’s Business Shutdown Order

By Robert C. Jefferson, Esq.

Four Pennsylvania businesses and one individual sought relief from Governor Wolf’s March 19, 2020 order compelling the closure of the physical operations of all non-life-sustaining businesses in an effort to reduce the spread of the coronavirus disease (“COVID-19”).  The Petitioner’s businesses fell into the category of “non-life-sustaining” and were forced to close in the wake of the global pandemic.  In an Emergency Application for Extraordinary Relief, the Petitioners raised numerous statutory and constitutional challenges to the Governor’s order, contending the Governor lacked the authority to issue his order, and that, even if he did have such statutory authority, it violates various constitutional rights. On April 13, 2020, the Pennsylvania Supreme Court ruled on the Emergency Application.

In its opinion, the Pennsylvania Supreme Court held that the Governor had statutory authority to issue the Executive Order and noted that the Governor derives broad authority from the Pennsylvania Constitution, as it vests the Governor with supreme executive power.  The Supreme Court determined that the Emergency Code provided authority for the Governor’s issuance of the Executive Order, and as a result, the Supreme Court did not address the implications within the Administrative Code nor the Disease Act.

In addition to the statutory challenges, constitutional challenges were raised. Specifically, the Emergency Application contended that the Executive Order violated: (1) the Separation of Powers Doctrine, (2) the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution, (3) Procedural Due Process, (4) Equal Protection of the United States and Pennsylvania Constitutions, and (5) the First Amendment to the United States Constitution and Article I, Sections 7 and 20 of the Pennsylvania Constitution. The Supreme Court addressed each constitutional challenge in turn.

In holding that the constitutional challenges did not form a basis for relief, the Supreme Court determined that: (1) the Governor had the authority to issue the Executive Order under the auspices of the Emergency Code; (2) a regulatory taking had not occurred, in part, because of the temporary nature of the Executive Order; (3) the waiver process instituted by the Governor provided sufficient due process after the entry of the Executive Order; (4) no violation of the equal protection clauses occurred after analyzing each of the challengers’ situations; and (5) the rights to free speech and assembly are not absolute and that states may place content neutral time, place, and manner regulations on speech and assembly so long as the regulations are designed to serve a substantial governmental interest.

What does all of this mean? Governor Wolf’s Executive Order, which compelled the closure of all non-life-sustaining businesses to reduce the spread of COVID-19, remains in effect.  The matter appears settled for now, but there will likely be additional challenges in the future as the opinion was determined by a narrow 4 to 3 vote.

Gawthrop Greenwood and its team of lawyers will continue to review legislation and governmental decisions as they unfold, as we are committed to providing guidance to our clients. If you have any questions, please do not hesitate to call us at 610-696-8225.