Friends of Devito v. Wolf, 041320 PASC, 68 MM 2020

Docket Nº:68 MM 2020
Opinion Judge:DONOHUE, JUSTICE
Party Name:FRIENDS OF DANNY DEVITO, KATHY GREGORY, B&J LAUNDRY, LLC, BLUEBERRY HILL PUBLIC GOLF COURSE & LOUNGE, AND CALEDONIA LAND COMPANY, Petitioners v. TOM WOLF, GOVERNOR, AND RACHEL LEVINE, SECRETARY OF PA DEPARTMENT OF HEALTH, Respondents
Judge Panel:SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. Justices Baer, Todd and Wecht join the opinion. Chief Justice Saylor files a concurring and dissenting opinion in which Justices Dougherty and Mundy join. SAYLOR, CHIEF JUSTICE Justices Dougherty and Mundy join this concurring and di...
Case Date:April 13, 2020
Court:Supreme Court of Pennsylvania

FRIENDS OF DANNY DEVITO, KATHY GREGORY, B&J LAUNDRY, LLC, BLUEBERRY HILL PUBLIC GOLF COURSE & LOUNGE, AND CALEDONIA LAND COMPANY, Petitioners

v.

TOM WOLF, GOVERNOR, AND RACHEL LEVINE, SECRETARY OF PA DEPARTMENT OF HEALTH, Respondents

No. 68 MM 2020

Supreme Court of Pennsylvania

April 13, 2020

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

DONOHUE, JUSTICE

Petitioners are four Pennsylvania businesses and one individual seeking extraordinary relief from Governor Wolf's March 19, 2020 order (the "Executive Order") compelling the closure of the physical operations of all non-life-sustaining business to reduce the spread of the novel coronavirus disease ("COVID-19"). The businesses of the Petitioners were classified as non-life-sustaining.1 In an Emergency Application for Extraordinary Relief (the "Emergency Application") filed on March 24, 2020, Petitioners raise a series of statutory and constitutional challenges to the Executive Order, contending that the Governor lacked any statutory authority to issue it and that, even if he did have such statutory authority, it violates various of their constitutional rights. Petitioners assert that the exercise of this Court's King's Bench jurisdiction is not only warranted but essential given the unprecedented scope and consequence of the Executive Order on businesses in the Commonwealth. Petitioners' Brief at 12-13. They request further that this Court issue an order vacating or striking down the Executive Order. Respondents, Governor Tom Wolf ("Governor") and Rachel Levine, the Secretary of the Pennsylvania Department of Health ("Secretary") (collectively, "Respondents") respond that the Petitioners rely on an unduly narrow interpretation of the Commonwealth's inherent police powers and a flawed reading of the specific statutory provisions that the General Assembly enacted to supplement that power. Respondents' Brief at 2. Respondents further argue that the Executive Order comports with all constitutional requirements. Respondents agree with Petitioners that the circumstances warrant the exercise of this Court's King's Bench jurisdiction and urge this Court to exercise that jurisdiction to decide the issues presented. Respondents' Brief at 7.

For the reasons discussed in this opinion, we hereby exercise our King's Bench jurisdiction. After consideration of the arguments of the parties, we conclude that Petitioners are not entitled to relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. COVID-19, and the Executive Proclamation and the Order of the Governor

A novel coronavirus began infecting humans in China in December 2019. As of March 11, 2020, the World Health Organization ("WHO") announced that the coronavirus, which had spread into at least 144 countries including the United States, had infected at least 118, 000 people, and had killed more than 4, 000 people, was officially a pandemic. WHO Director-General, "WHO Director-General's opening remarks at the media briefing on COVID-19," World Health Organization, https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020. In the midst of the emerging crisis, on March 6, 2020, Governor Wolf issued the following proclamation:

PROCLAMATION OF DISASTER EMERGENCY

WHEREAS, a novel coronavirus (now known as "COVID-19") emerged in Wuhan, China, began infecting humans in December 2019, and has since spread to 89 countries, including the United States; and

WHEREAS, the World Health Organization and the Centers for Disease Control and Prevention ("CDC") have declared COVID-19 a "public health emergency of international concern," and the U.S. Department of Health and Human Services ("HHS") Secretary has declared that COVID-19 creates a public health emergency; and WHEREAS, the Commonwealth of Pennsylvania ("Commonwealth") has been working in collaboration with the CDC, HHS, and local health agencies since December 2019 to monitor and plan for the containment and subsequent mitigation of COVID-19; and

WHEREAS, on February 1, 2020, the Commonwealth's Department of Health activated its Department Operations Center at the Pennsylvania Emergency Management Agency's headquarters to conduct public health and medical coordination for COVID-19 throughout the Commonwealth; and

WHEREAS, on March 4, 2020, the Director of the Pennsylvania Emergency Management Agency ordered the activation of its Commonwealth Response Coordination Center in support of the Department of Health's Department Operations Center, to maintain situational awareness and coordinate the response to any potential COVID-19 impacts across the Commonwealth; and

WHEREAS, as of March 6, 2020, there are 233 confirmed and/or presumed positive cases of COVID-19 in the United States, including 2 presumed positive cases in the Commonwealth; and

WHEREAS, while it is anticipated that a high percentage of those affected by COVID- 19 will experience mild influenza-like symptoms, COVID-19 is a disease capable of causing severe symptoms or loss of life, particularly to older populations and those individuals with pre- existing conditions; and

WHEREAS, it is critical to prepare for and respond to suspected or confirmed cases in the Commonwealth and to implement measures to mitigate the spread of COVID-19; and

WHEREAS, with 2 presumed positive cases in the Commonwealth as of March 6, 2020, the possible increased threat from COVID-19 constitutes a threat of imminent disaster to the health of the citizens of the Commonwealth; and

WHEREAS, this threat of imminent disaster and emergency has already caused schools to close, and will likely prompt additional local measures, including affected county and municipal governments to declare local disaster emergencies because of COVID-19; and

WHEREAS, this threat of imminent disaster and emergency situation throughout the Commonwealth is of such magnitude and severity as to render essential the Commonwealth's supplementation of emergency resources and mutual aid to the county and municipal governments of this Commonwealth and to require the activation of all applicable state, county, and municipal emergency response plans.

NOW THEREFORE, pursuant to the provisions of Subsection 7301(c) of the Emergency Management Services Code, 35 Pa. C.S. § 7101, et seq., I do hereby proclaim the existence of a disaster emergency throughout the Commonwealth.

Governor Wolf, "Proclamation of Disaster Emergency," (Mar. 6, 2020), Commonwealth of Pennsylvania Office of the Governor, https://www.governor.pa.gov/wp- content/uploads/2020/03/20200306-COVID19-Digital-Proclamation.pdf ("Governor's Proclamation").

Thereafter, on March 19, 2020, Governor Wolf issued the following Executive Order, closing all businesses deemed to be non-life-sustaining:

ORDER OF THE GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA REGARDING THE CLOSURE OF ALL BUSINESSES THAT ARE NOT LIFE SUSTAINING

WHEREAS, the World Health Organization and the Centers for Disease Control and Prevention ("CDC") have declared a novel coronavirus ("COVID-19") a "public health emergency of international concern," and the U.S. Department of Health and Human Services ("HHS") Secretary has declared that COVID-19 creates a public health emergency; and

WHEREAS, as of March 6, 2020, I proclaimed the existence of a disaster emergency throughout the Commonwealth pursuant to 35 Pa. C.S. § 7301(c); and

WHEREAS, I am charged with the responsibility to address dangers facing the Commonwealth of Pennsylvania that result from disasters. 35 Pa. C.S. § 7301(a); and

WHEREAS, in addition to general powers, during a disaster emergency I am authorized specifically to control ingress and egress to and from a disaster area and the movement of persons within it and the occupancy of premises therein; and suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, and combustibles. 35 Pa. C.S. § 7301(f); and

WHEREAS, in executing the extraordinary powers outlined above, I am further authorized during a disaster emergency to issue, amend and rescind executive orders, proclamations and regulations and those directives shall have the force and effect of law. 35 Pa. C.S. § 7301(b); and

WHEREAS, in addition to my authority, my Secretary of Health has the authority to determine and employ the most efficient and practical means for the prevention and suppression of disease. 71 P.S. § 532(a), 71 P.S. 1403(a); and

WHEREAS, these means include isolation, quarantine, and any other control measure needed. 35 P.S. § 521.5.

NOW THEREFORE, pursuant to the authority vested in me and my Administration by the laws of the Commonwealth of Pennsylvania, I do hereby ORDER and PROCLAIM as follows:

Section 1: Prohibition on Operation of Businesses that are not Life Sustaining

All prior orders and guidance regarding business closures are hereby superseded.

No person or entity shall operate a place of business in the Commonwealth that is not a life sustaining business regardless of whether the business is open to members of the public. This prohibition does not apply to virtual or telework operations (e.g., work from home), so long as social distancing and other mitigation measures are followed in such operations.

Life sustaining businesses may remain open, but they must follow, at a minimum, the social distancing practices and other mitigation measures defined by the Centers for Disease Control to protect workers and patrons.

A list of life sustaining businesses that may remain open is attached to and incorporated into this Order.

Enforcement actions will be taken against non-life sustaining businesses that are out of compliance effective March 21, 2020,...

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