The purpose of this article is expressly limited to analyzing the legality of Governor Tom Wolf’s Proclamation of Disaster Emergency and the subsequent actions thereafter. This article does not account for any societal responsibilities or moral obligations we may or may not have to one another in this very difficult time, not does this constitute legal advice. Pursuant to the Emergency Management Services Code[1], the Governor is tasked with the responsibility “for meeting the dangers to the Commonwealth and its people presented by disasters.”[2] A disaster is defined by the Code as “[a] man-made disaster, natural disaster or war-caused disaster.”[3] Although not specifically listed in its definition, a virus constitutes a natural disaster.[4] In the event the Governor finds that a disaster has occurred or that the occurrence or the threat of a disaster is imminent, he is authorized to declare a disaster emergency and issue, amend and rescind executive orders, proclamations and regulations, which shall have the force and effect of law.[5] However, this power is not without limits, as the proclamation of a disaster emergency may only last for ninety (90) days unless renewed by the Governor.[6] More so, the General Assembly has the power to terminate a state of disaster emergency at any time through the passage of a concurrent resolution.[7] On March 6, 2020, Pennsylvania Governor Tom Wolf issued his Proclamation of Disaster Emergency therein finding COVID-19 to be a disaster emergency throughout the Commonwealth. The effect of the Proclamation was primarily to activate Pennsylvania’s emergency management system and allocate funds to address the stated emergency, which are permitted by the Code.[8] The Proclamation also authorized “the Secretary of the Pennsylvania Department of Health, in her sole discretion, to suspend or waive any provision of law or regulation which the Pennsylvania Department of Health is authorized by law to administer or enforce, for such length of time as may be necessary to this emergency.” This will be discussed later below. On March 16, 2020, Governor Wolf ordered all restaurants and bars to close their dine-in facilities to help stop the spread of COVID-19 and strongly urged all non-essential businesses across the state to close for at least fourteen (14) days; the latter being strictly voluntary. On March 19, 2020, Governor Wolf then issued an Order prohibiting the operation of all businesses in the Commonwealth that do not constitute a “life sustaining business regardless of whether the business is open to members of the public.” An exception to that prohibition was provided for those who are able to work from home “so long as social distancing and other mitigation measures are followed in such operations”. Enforcement of this Order is to begin March 21, 2020 at 12:01 a.m. The Order also restated the previously issued limitations for all restaurants and bars, indicating enforcement of that provision began March 19, 2020 at 8:00 p.m. An extensive list was provided with the Order delineating life sustaining from non-life sustaining businesses; however, no explanation has been provided as to how the determinations therein were made. The ability of the Governor to close private businesses is not specifically provided for in the Code. However, the Code does grant the Governor the general powers to: (a) compel the evacuation of all or part of the population from any stricken or threatened area within the Commonwealth for the preservation of life or other disaster mitigation; (b) prescribe modes of transportation; (c) control ingress and egress to and from a disaster area, the movement of persons within the area and the occupancy of premises therein; and (d) suspend or limit the sale, dispensing or transportation of alcoholic beverages, firearms, explosives and combustibles.[9] The Governor makes reference to the foregoing, in part, as a basis for his Order. Unfortunately, case law provides little help on the scope of these powers due to the novelty of the issue. Contemporaneously, the Secretary of the Pennsylvania Department of Health issued her own Order. The mandates contained therein mirror those of the Governor citing authority under Pennsylvania’s Disease Prevention and Control Law of 1955, the Administrative Code and the Department of Health’s regulations, for purposes of protecting the public’s health, which arguably provide broader powers to enforce the mandates.[10] The Disease Prevention and Control Law grants to the Department of Health the power to carry out appropriate control measures in such manner and in such place as is provided by rule or regulation in the event a disease that is subject to isolation, quarantine, or any other control measure, is reported.[11] COVID-19 is a disease that is subject to the foregoing control measures. The Administrative Code provides that the Department of Health has the power to “protect the health of the people of this Commonwealth, and to determine and employ the most efficient and practical means for the prevention and suppression of disease.”[12] That Code further provides that the Department of Health has the power, and, perhaps more importantly, indicates that it is the Department’s duty, to establish such regulations for the prevention of the spread of such diseases as deemed necessary and appropriate.[13] In addition, the Code enables the Department to “establish and enforce quarantines, in such manner, for such period, and with such powers, as may now or hereafter be provided by law, to prevent the spread of diseases declared by law.”[14] It is in reliance upon the foregoing that the Department of Health has declared COVID-19 to be a threat to the public’s health, for which it may order general control measures, including, but not limited to, closure, isolation, and quarantine, and, in that vein, has directed the closure of non-life sustaining businesses in order to protect the public’s health. Based on the foregoing authority, it is likely that the current mandates placed upon non-life sustaining businesses is enforceable. Accordingly, businesses are encouraged to comply with the law. Businesses that are out of compliance face enforcement actions that can include citations, fines or license suspensions. Businesses currently deemed not life sustaining are reminded that an exception exists for those who are able to work from home so long as social distancing and other mitigation measures are followed in such operations. Also, Pennsylvania’s General Assembly is working on an exemption process, which is anticipated soon. Until the exemption is finalized, businesses are strongly encouraged to request an exemption by sending an email to the Pennsylvania Department of Community and Economic Development (RA-dcexemption@pa.gov). Be certain to copy both your state representative and state senator when requesting the exemption. You may also contact the Department of Community and Economic Development at RA-dcedcs@pa.gov with questions as to whether you need to close. There is no doubt that businesses will be greatly impacted by the disruption caused by these mandates. Many businesses may have legal remedies available to excuse them from performance or nonperformance of contractual obligations as a result of the government mandated closure, such as rental payments and delays, which otherwise could constitute a breach of contract. Contact Glenn J. Smith, Esquire today at glenn@marcrobertslaw.com or call 717-843-1639 to schedule an appointment to discuss your situation and understand your rights. [1] 35 Pa.C.S. § 7101, et seq. [2] 35 Pa.C.S. § 7301(a). [3] 35 Pa.C.S. § 7102. [4] Id., The definition of “Natural Disaster” specifically includes “or other catastrophe which results in substantial damage to property, hardship, suffering or possible loss of life.” Additionally, there are a myriad of scientific articles are available defining a virus as a natural disaster. [5] 35 Pa.C.S. § 7301(b)-(c). [6] 35 Pa.C.S. § 7301(c). [7] Id. [8] 35 Pa.C.S. § 7301, et seq. [9] 35 Pa.C.S. § 7301(f)(5)-(8). [10] Disease Prevention and Control Law, 35 P.S. §§ 521.1; 521.5, sections 2102(a) and 2106 of the Administrative Code of 1929, 71 P.S. § 532(a) and 536; Department of Health Regulations, 28 Pa. Code. §§ 27.60-27.68. [11] 35 P.S. § 521.5. [12] 71 P.S. 532(a). [13] 71 P.S. 536(a). [14] 71 P.S. 536(b).
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August 2021
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