Class Action Criticizes Pennsylvania Governor’s ‘Unconstitutional’ COVID-19 Reopening Plan

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A group of Pennsylvania counties, small business operators, and government representatives have filed a proposed class action challenging several executive orders issued by Governor Tom Wolf and the state’s Department of Health Secretary in relation to the COVID-19 crisis.

According to the suit, both Governor Wolf’s mid-March shutdown of non-“life sustaining” businesses and “arbitrary and capricious” plan to reopen the state have infringed upon businesses’ and individuals’ Constitutional rights. The lawsuit claims the plaintiffs—which include operators of hair salons, drive-in movie theaters and several other businesses; U.S. Rep. Mike Kelly (R-PA) and several members of the state house who are up for re-election; and four Pennsylvania counties—have been unable to use their private property as a result of the shutdown orders despite being provided no prior notice, opportunity to be heard, or just compensation for their losses.

Likewise, the governor’s phased reopening plan, announced May 1, 2020, unfairly allows some businesses and counties to ease restrictions while keeping others closed, the case argues. As the complaint puts it:

The lawsuit alleges that after Governor Wolf mandated the closure of most of Pennsylvania’s economy in response to the COVID-19 crisis, businesses deemed non-life-sustaining were permitted to apply for waivers to remain open. Although thousands of such requests were denied or remain unanswered, some businesses were granted waivers based on seemingly arbitrary factors, the case argues. Among the companies allowed to operate was the governor’s family-owned business, Wolf Home Products, which continues to operate even after its waiver was revoked in response to “widely publicized” criticism, per the suit.

The governor’s reopening plan similarly deprives some counties of their “fundamental property rights” without due process of law, the suit alleges. According to the case, the plan has allowed some counties to relax stay-at-home orders beginning on May 8 while others remain restricted. The lawsuit argues that the “arbitrary and capricious” plan is inconsistent with available data and health precautions recommended by the Centers for Disease Control and Prevention.

“It is clear that the Coronavirus does not stop at or respect arbitrary boundaries such as County dividing lines,” the lawsuit scathes, adding that the plaintiff counties border other counties and even states that have eased restrictions.

The plaintiff businesses further claim that Governor Wolf’s reopening plan unfairly allows some non-essential businesses to reopen while similar businesses, and even direct competitors in the same area, remain shuttered. As the complaint tells it:

Some of the plaintiff businesses point out that many of their customers live in other counties yet have been barred from the plaintiffs’ properties due in part to their geographic location. Moreover, the individual government representatives have been hindered in their re-election efforts due to bans on door-to-door campaigning, rallies, and other Constitutionally protected activities, the case says.

The lawsuit claims the defendants’ orders have “so deprived” the plaintiff businesses and individuals of the use of their properties that the financial impact of the decision could threaten their entire livelihood and future ability to operate.

According to the case, there is “no reasonable or substantial basis” for Governor Wolf and Secretary Levine’s insistence that some counties and businesses must continue to be robbed of the value and use of their private property—without receiving just compensation—while others are allowed to operate.

“Defendants have taken [the plaintiffs’] private property without due process of law,” the complaint states.

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