May 9, 2020 5 min read

The promise that Gov. Tom Wolf made on Friday to businesses in most of Southwestern Pennsylvania counties is unlikely to mean the end of a federal lawsuit challenging the closure order he issued in March.

The attorney representing the four counties – Washington, Greene, Fayette and Butler – said he didn’t expect the local governments to drop their lawsuit, which seeks a permanent injunction barring Wolf and state Health Secretary Dr. Rachel Levine from enforcing the order “in the manner and fashion engaged by Defendants,” and ending “the arbitrary and capricious ‘waiver’ system,” which the administration made available for businesses that wanted to remain open.

“Changing to yellow (status of the counties) doesn’t resolve the issues that we raise,” said Thomas King III, the Butler County attorney who filed the injunction request on Thursday.

Wolf, a Democrat, announced plans to reopen the southwestern corner of the state, with the exception of Beaver County, the following day.

King said there was no “permanency” in the announcement that would guarantee Harrisburg won’t declare the affected counties “red” again, re-closing businesses deemed non-life-sustaining. Plaintiffs in the case include a number of businesses shuttered by Wolf’s order, plus GOP politicians whose districts include parts of Butler County – U.S. Rep. Mike Kelly and state Reps. Daryl Metcalf, Marci Mustello and Tim Bonner.

Wolf’s office didn’t provide comment on the lawsuit by press time. But late on Friday, the state Department of Community and Economic Development released information regarding the more than 6,000 waivers and other measures that allowed some businesses to operate.

“Pennsylvania is home to nearly one million small businesses, and while protecting public health and safety was our number one priority throughout this process, the administration recognized that businesses not identified as life-sustaining warranted the opportunity to operate in some capacity if they could offer life-sustaining services,” said DCED Secretary Dennis Davin. “Throughout this process, our primary focus was on reviewing exemption applications and assisting businesses with their questions and concerns, all in service of the goal of protecting public health in the face of an unprecedented and quickly evolving public health emergency.”

Separately from the lawsuit, Greene County District Attorney Dave Russo said on Thursday that he doesn’t intend to prosecute businesses that reopen starting Monday, if they use personal protective measures for employees and customers, practice social distancing and otherwise follow guidelines from public health officials.

“My policy decision is based on allowing these small businesses to practice the same procedures as the large conglomerates are,” Russo said.

Wolf urged businesses in the red areas to keep following the state order. He said during a press conference that he understood owners’ frustration.

“But the frustration has to be directed at the real enemy here: It’s the virus,” Wolf added. “It’s not the regulation. And anything we do to bring people together – whether it’s employees, or customers, or both – we’re making it easier for that virus to attack and infect people.”

Meanwhile, the lawsuit against the governor raises issues about the bounds of his authority in a situation without clear precedent in Pennsylvania and U.S. legal history. Like its counterparts across the country, the Wolf administration took steps in an emergency intended to limit new cases of the highly contagious and sometimes-fatal COVID-19.

King didn’t dispute the rationale for the state order.

“No one in this lawsuit intends to diminish the significance of the virus,” King said. “No one in this lawsuit is suggesting that anyone act in any way irrationally or not follow guidelines.”

But he wrote in a civil complaint that the Wolf administration violated business owners’ constitutional rights to equal protection under the law and against being deprived of their property without due process.

Paul Crawford, who owns Marigold Farm in Washington, is among the business owners King represents. Crawford sells products from his market-garden business at the city’s Main Street Farmer’s Market. Organizers of the weekly market won’t open until June 18, instead of May 21 as initially planned.

Also participating is Skyview Drive-In, an outdoor cinema in Carmichaels that serves food, including ice cream and pizza.

“The drive-in theater is located across the street from a Dairy Queen drive-in which was authorized to remain open and a pizza restaurant which likewise was authorized to remain open albeit on a limited basis,” according to the lawsuit. “At the same time, the Drive-In theater was not permitted to be open whatsoever and was the recipient of disparate treatment as well as the other constitutional violations asserted.”

Similarly, the counties assert that the process that the DCED used to evaluate tens of thousands of applications for businesses to remain open was flawed. People whose livelihoods were on the line weren’t allowed to present a case at a hearing, or to appeal denials of their waiver requests.

“People are making decisions that affect people’s lives here, and their businesses, and there’s no objective criteria,” King said.