Pennsylvania Supreme Court Weighs In: COVID-19 Shutdown Is Not an Unconstitutional Taking

On Monday, in Friends of Danny DeVito v. Wolf, a divided Pennsylvania Supreme Court rejected a constitutional challenge to Governor Tom Wolf’s executive order closing non-life sustaining businesses. Had the court stricken the order, businesses across the Commonwealth would have been free to re-open in the midst of the COVID-19 pandemic. In finding the order valid and not subject to appeal, the court settled the challenge as a matter of Pennsylvania law.

The court, in an opinion written by Justice Christine Donohue, invoked its rarely used King’s Bench jurisdiction to provide clarity concerning the Governor’s order, observing that the case “presents issues of immediate and immense public importance impacting virtually all Pennsylvanians and thousands of Pennsylvania businesses.” The plaintiffs had argued that “because the Executive Order prohibits them from using their property ‘at all,’ it resulted in a taking of private property for public use without the payment of just compensation,” in violation of the Fifth Amendment of the U.S. Constitution and Article I, Section 10 of the Pennsylvania Constitution.

However, relying on Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), the court held that the Governor’s shutdown order was not a taking because it was temporary in nature and a permissible exercise of the police power. Chief Justice Saylor’s concurring and dissenting opinion, on behalf of himself and two other justices, would have found the Governor’s Order “presumptively valid,” but would have reserved legal and factual issues for further review in Commonwealth Court.

While the decision is not binding on federal courts or courts of other states facing similar challenges, it previews the legal landscape for further litigation throughout the nation. What remains to be seen is the decision’s effect on other cases, such as the pending class action litigation for damages in federal court in the Eastern District of Pennsylvania. [Find out more about that case here]. There, plaintiffs accept the shutdown order as a valid exercise of the police power but seek damages for a taking and violations of substantive and procedural due process. DeVito upholds the order as a proper exercise of the police power, but it is unclear whether other courts, including the Eastern District of Pennsylvania, will accept DeVito as binding or persuasive on that question or on the damages claims. Fans of “It’s Always Sunny in Philadelphia” will be disappointed that this is a different Danny DeVito.

If you have questions about the decision, or need help with an Eminent Domain matter, please contact Team Leader Michael Sklaroff, or team members Ed Rogers or Paul Ort.

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