In a 4-3 decision on April 13, 2020, the Supreme Court of Pennsylvania upheld Governor Tom Wolf’s March 19, 2020 Executive Order requiring the closure of the physical operations of all non-life-sustaining businesses to slow the spread of COVID-19. The Court’s Opinion is among the first to address the legality of business closure orders currently in place across the nation in response to the pandemic. Similar legal challenges are pending in California, Michigan, New Mexico, and Texas, with more sure to follow. In order to reach a swift resolution–in less than a month after the Pennsylvania petitioners filed their challenge to Governor Wolf’s Executive Order–the Pennsylvania Supreme Court used its rarely invoked King’s Bench authority to hear the case.

King’s Bench jurisdiction, which was imported from England when the Pennsylvania courts were established in the 17th century, is reserved for very significant cases of immediate public importance that must be handled extremely quickly. When invoked, it enables the Pennsylvania Supreme Court to hear any case, without waiting for the case to make its way through the trial and appellate process.

Here, the petitioners, which included an Allegheny County political candidate committee, a Northampton County real estate agent, and a Warren County public golf course, filed an Emergency Application in the Pennsylvania Supreme Court on March 24, 2020. They argued that Governor Wolf lacked the statutory authority to issue his Executive Order, and that even if he had such authority, the Executive Order violated their federal and state due process rights and other constitutional rights. The City of Philadelphia and the City of Pittsburgh filed amicus briefs supportive of the Executive Order, urging the Court to use its King’s Bench power to protect the well-being of Pennsylvania citizens during the COVID-19 pandemic. The Court elected to invoke its King’s Bench power to adjudicate the petition because it raised “issues of immediate and immense public importance impacting virtually all Pennsylvanians and thousands of Pennsylvania businesses.” Ultimately, in its April 13th Opinion authored by Justice Christine Donohue and joined by Justices Max Baer, Debra Todd and David Wecht, the Court rejected each of the statutory and constitutional arguments levied by petitioners, and upheld the Governor’s Executive Order.

In so doing, the Court concluded that Pennsylvania’s Emergency Code, originally passed in 1977, vests the Governor with far-reaching emergency management powers during a declared state of disaster emergency. According to the Court, because the COVID-19 pandemic qualifies as a “natural disaster” under the Emergency Code, and because the Governor justifiably declared the entirety of the Commonwealth a disaster area under the Emergency Code, the Governor’s Executive Order closing non-life-sustaining businesses was within the scope of his expansive statutory authority under the Emergency Code.

The Court also held that the Governor acted within the scope of his authorized police power by ordering closure of all non-life-sustaining businesses, given the ability of COVID-19 to spread readily and exponentially. While acknowledging “the serious and significant economic impact of the closure of Petitioners’ businesses,” the Court nevertheless concluded that “[f]aced with protecting the health and lives of 12.8 million Pennsylvania citizens,” the impact of the closure was not an unduly oppressive use of the Governor’s police power and that “[t]he protection of the lives and health of millions of Pennsylvania residents is the sine qua non of a proper exercise of police power.”

The petitioners also unsuccessfully raised a series of constitutional challenges to the Executive Order, including deprivation of procedural due process. In this regard, petitioners argued that the Order took effect without advance notice or opportunity to be heard as to the categorization of non-life-sustaining business subject to closure. The Court concluded that the petitioners were not entitled to pre-deprivation notice or a hearing in light of the rapid spread of COVID-19 and the “urgent need to act quickly to protect the citizens of the Commonwealth from sickness and death.” The Court further held that the procedural safeguard of the waiver process put in place in conjunction with the Executive Order, creating the ability to challenge the placement of a business on the non-life-sustaining list, afforded sufficient due process under the circumstances, even without the ability to appeal denials of waiver applications. In so concluding, the Court explained that “[t]he government interest in focusing on mitigation and suppression of the disaster outweighs the massive administrative burden of the additional procedural requirements demanded by Petitioners. These procedural requirements would overwhelm an entire department of government otherwise involved with disaster mitigation.” The Court also rejected petitioners’ constitutional arguments that the Executive Order constituted a taking of private property for public use without just compensation, and also that it violated the separation of powers doctrine, equal protection principles, and First Amendment guarantees of free speech and peaceful assembly.

The concurring and dissenting opinion, authored by Chief Justice Thomas Saylor and joined by Justices Kevin Dougherty and Sallie Updyke Mundy, acknowledged that “there is much to be said for treating the executive branch’s actions as presumptively valid for now,” and supported the majority’s conclusion that COVID-19 may properly be regarded as a “disaster emergency” authorizing the Governor’s actions. Chief Judge Saylor disagreed, however, with the exercise of King’s Bench jurisdiction to decide the case before orderly fact-finding could proceed in the Commonwealth Court, particularly as to alleged inconsistencies and irrationality in the waiver process. Chief Judge Saylor also opined that the majority relied too heavily on the temporary nature of the Governor’s Executive Order to defeat petitioners’ allegations of lack of procedural due process, observing that even if business closures pursuant to the Order are temporary, “this may in fact not be so for businesses that are unable to endure the associated revenue losses.”

While the Pennsylvania Supreme Court’s ruling concluded that Governor Wolf’s Executive Order should not be vacated or struck down, Pennsylvania businesses forced to close are attacking the Order and seeking redress on a variety of other fronts. The Executive Order is the subject of several other lawsuits, including a class action filed in federal court in Philadelphia on March 26, 2020, captioned Schulmerich Bells, LLC et al. v. Thomas W. Wolf, et al., levying a host of constitutional challenges to the Executive Order. On the congressional front, last week, the Pennsylvania legislature voted to send Senate Bill 613 to Governor Wolf’s desk, which would override the Executive Order’s list of non-life-sustaining businesses and require Governor Wolf to follow federal guidelines issued by the Centers for Disease Control and the Cybersecurity and Infrastructure Security Agency as to businesses allowed to remain open or to reopen. On April 20, 2020, Governor Wolf vetoed Senate Bill 613, and in so doing, stated that any move to reopen “tens of thousands of businesses too early will only increase the spread of the virus, place more lives at risk, increase the death tolls and extend the length of the economic hardships created by the pandemic.” Earlier the same day, thousands of protesters gathered for a rally outside the Pennsylvania State Capitol complex in Harrisburg, calling upon Governor Wolf to lift restrictions imposed by the Executive Order and reopen businesses across the Commonwealth.