227 A.3d 872
Pa.2020Background
- Petitioners (Friends of Danny DeVito committee, Kathy Gregory, and Blueberry Hill Golf) challenged Governor Wolf’s March 19, 2020 Executive Order closing "non-life-sustaining" businesses to limit COVID-19 spread; some other petitioners were dismissed as moot.
- Governor invoked the Emergency Management Services Code (35 Pa.C.S. § 7101 et seq.), plus reliance on NAICS/CISA guidance, to classify businesses and mandate closures; virtual/telework remained permitted; a waiver/review process was created.
- Petitioners sought King’s Bench relief in the Pennsylvania Supreme Court, arguing the Governor lacked statutory authority and that the Order violated separation of powers, takings, due process, equal protection, and First Amendment rights.
- The Court exercised King’s Bench jurisdiction because the matter raised issues of immediate public importance affecting the whole Commonwealth.
- The Supreme Court found COVID-19 qualified as a "natural disaster" under the Emergency Code, examined the statutory grants and constitutional claims, and denied the requested relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statutory authority (Emergency Code) | Wolf lacked statutory power to order statewide business closures for a viral pandemic | Emergency Code vests Governor broad emergency powers (declare disaster, control ingress/egress, issue orders with force of law) | Court: COVID-19 is a "natural disaster" under the Code; Governor had authority to issue the Order |
| Police-power proportionality (means/necessity) | Mass closures unnecessary and unduly oppressive; less restrictive alternatives possible | Closures are necessary, tailored to enforce social distancing and protect public health | Court: closures are a reasonable, proper exercise of police power under the exigency |
| Separation of powers | Order essentially legislates which businesses may operate and thus usurps Legislature | Emergency Code expressly authorizes executive orders with force of law during disaster emergencies | Court: no separation violation; statutory delegation permits the Governor’s action |
| Takings / Just compensation | Prohibition on physical operations deprives owners of all economically beneficial use — a compensable taking | Action is an exercise of police power to protect public health, not eminent domain; deprivation is temporary | Court: temporary regulatory restriction under police power is not a compensable taking (relying on Tahoe‑Sierra approach) |
| Procedural due process / waiver | Businesses were deprived without pre-deprivation notice/hearing; waiver process is inadequate and lacks procedural safeguards | Emergency exigency makes pre-deprivation process infeasible; waiver provides sufficient post-deprivation review; administrative burden of full hearings would frustrate mitigation | Court: pre-deprivation process not required under Mathews v. Eldridge balancing; waiver/review is constitutionally adequate under the emergency; no Article V right to appeal executive decision |
| Equal protection | Unequal treatment (e.g., campaign office vs legislator’s office; private vs municipal golf courses) | Entities cited are not similarly situated; legislative offices are public functions; municipal variances reflect local control | Court: no equal protection violation — distinctions are legitimate and not arbitrary |
| Free speech / assembly | Closure prevents in-person campaign assembly and speech at physical office | Order is content-neutral time/place/manner restriction serving substantial interest; alternative channels (phone, online) remain available | Court: First Amendment rights not violated; Order is content neutral and allows alternative means of communication |
Key Cases Cited
- Lawton v. Steele, 152 U.S. 133 (1894) (articulates police-power two-part test for public-interest and reasonable means)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (categorical rule that permanent deprivation of all economically beneficial use is a taking)
- Tahoe‑Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002) (temporary moratoria differ from permanent takings; duration matters)
- Nat'l Amusements, Inc. v. Borough of Palmyra, 716 F.3d 57 (3d Cir. 2013) (temporary emergency closure as core police-power action not compensable)
- Appeal of White, 134 A. 409 (Pa. 1926) (distinguishes police power regulation from eminent domain compensation rules)
- Balent v. City of Wilkes‑Barre, 669 A.2d 309 (Pa. 1995) (regulatory restrictions under police power do not require compensation)
- Markham v. Wolf, 647 Pa. 642 (Pa. 2018) (executive orders that effectively create law exceed executive authority — cited as analytical background on executive order types)
- Manigault v. Springs, 199 U.S. 473 (1905) (police power includes measures to protect public health and safety)