The Governor's Executive Order compelling the closure of non-essential businesses to reduce the spread of coronavirus survived a challenge before the Pennsylvania Supreme Court. Friends of Devito v. Wolf, 2020 Pa. LEXIS 1987 (Pa. April 13, 2020). The case does not involve coverage issues, but the court's acknowledgment and description of the dangers of coronavirus may have an impact on future coverage litigation.
Petitioners were four businesses and one individual seeking extraordinary relief from the Governor's March 19, 2020 order compelling the closure of all non-life-sustaining business to reduce the spread of the coronavirus disease. The Petitioners contended that the Governor lacked any authority to issue the order, and, even if he did have authority, it violated their constitutional rights. Petitioners included a campaign committee, a licensed real estate agent, a public golf course, and a laundry service.
The order noted the possible increased threat from COVID-19 constituted a threat of imminent disaster to the health of the citizens of the state. The threat of imminent disaster had already caused the closure of schools and would likely prompt additional local measures, including affected county and municipal governments to declare local disaster emergencies because of COVID-19.
In challenging the order, petitioners contended that the COVID-19 pandemic was not a natural disaster as defined by the state's Emergency Code. The court disagreed and found the pandemic qualified as a "natural disaster" under the Emergency Code for two reasons. First, and of significance for future coverage litigation over coronavirus claims, the common theme among disasters described in the Code was that all involved substantial damage to property, hardship, suffering, and possible loss of life. Thus, COVID-19 was a type of "natural disaster" referred to in the Code.
Petitioners alternatively argued that even if the pandemic was a natural disaster, the Governor only had authority to act in the "disaster area," and there were no disasters in the areas in which their businesses were located. In another important statement for future coverage issues, the court found this argument ignored the nature of the virus and the manner in which it was transmitted. The virus spread primarily through person-to-person contact, had an incubation period of up to fourteen days, one in four carriers of the virus was asymptomatic, and the virus could live on surfaces for up to four days. Thus, any location (including Petitioner's businesses) where two or more people could congregate was within the disaster area.
The Petitioners' second argument, that there is no significant risk of the spread of COVID-19 in locations where the disease had not been detected (including at their places of business), was also unpersuasive. In another passage that of import for coverage battles to come, the court again stated that COVID-19 does not spread because the virus is "at" a particular location. Instead it spreads because of person-to-person contact, as it has an incubation period of up to fourteen days and that one in four carriers of the virus was asymptomatic.
The court went on to reject Petitioners' constitutional arguments: (1) the order violated the separation of powers doctrine; (2) the order constituted a taking requiring just compensation; (3) the Petitioners were not accorded procedural due process; (4) the order violated equal protection principles; (5) and the order interfered with the right of free speech and assembly.
Accordingly, the court found that the Governor had statutory authority to issue the Executive Order and the Petitioners failed to establish any basis for relief based upon their constitutional challenges. The request to vacate or strike the Executive Order was denied.
