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COVID-19 Shutdown Showdown in Pennsylvania
May 12, 2020
Lawmakers and citizens across the country are engaged in disputes over the breadth and duration of shutdown orders intended to slow the spread of the novel coronavirus. Pennsylvania was the first state, however, to have a case reach the U.S. Supreme Court where, despite a setback for the petitioners when their application for stay was denied, it remains pending. And, Pennsylvania may have the distinction of the most contentious dispute, as well.
In the past several days, for instance, Governor Wolf has identified 37 counties that he will permit to move to a less restrictive yellow phase. But, a number of local officials have announced that they intend to loosen restrictions in their jurisdictions without waiting for Governor Wolf’s permission. Others, including sheriffs and district attorneys, have stated they will not arrest or prosecute persons or businesses violating those restrictions. And businesses, both those within and outside these dissenting jurisdictions, have made plans to reopen in spite of Governor Wolf’s orders.
In response, Governor Wolf and his administration announced a number of measures intended to secure businesses and local officials’ compliance with his orders:
  • Counties that would otherwise be eligible for a share of the federal stimulus discretionary funds awarded to the Commonwealth will lose their eligibility if they deviate from the Governor Wolf’s orders;
  • Businesses that reopen without authorization may lose their eligibility for business liability insurance coverage;
  • Restaurants that reopen for dine-in service without authorization may lose their liquor licenses; and
  • Employees will not be required to return to work, and may continue to draw unemployment, if their employers reopen without authorization.
In the meantime, however, the Pennsylvania Senate continues to press Governor Wolf and Department of Commerce and Economic Development Secretary Davin on the development and administration of a waiver program for non-life-sustaining businesses that were required to shut down. On behalf of himself and Secretary Davin, Governor Wolf refused to respond to subpoenas served by the Senate’s Veterans Affairs and Emergency Preparedness Committee, asserting both a Chief Executive Privilege and a privacy claim on behalf of the many 40,000+ businesses that submitted waiver requests. The Committee’s response was to sue the Governor and Secretary Davin in the Commonwealth Court of Pennsylvania, where the legal argument almost certainly will focus on the scope of the Governor’s privilege claims against the Committee’s asserted oversight powers. Yet, as an indication of how contentious these issues have become, the Committee referenced its statutory authority under 46 P.S. § 61 to enforce its subpoena power through arrest and detention.
The showdown over shutdown orders in Pennsylvania thus remains among the foremost to watch. Spilman’s COVID-19 Task Force is closely monitoring this situation and is available to answer any questions.