March 23, 2020

Christopher T. Michelone,

Effective March 19, 2020, Governor Wolf ordered all non-life sustaining business in Pennsylvania to close. In issuing this order, Governor Wolf relied on a handful of statutory authorities. The two principal laws Governor Wolf relied on are the Disease Prevention and Control Law of 1955 and the Emergency Management Services Code.

The Emergency Management Services Code

Under the Emergency Management Services Code (the “EMSC”), the Governor has specific powers when a “disaster” has occurred or its occurrence or threat is imminent. The EMSC defines “disaster” as “[a] man-made disaster, natural disaster or war-caused disaster.” These three classifications are further defined in the EMSC.

• A “man-made disaster” is defined as:

[a]ny industrial, nuclear or transportation accident, explosion, conflagration, power failure, natural resource shortage or other condition, except enemy action, resulting from man-made causes, such as oil spills and other injurious environmental contamination, which threatens or causes substantial damage to property, human suffering, hardship or loss of life.

• A ”natural disaster” is defined as:

[a]ny hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe which results in substantial damage to property, hardship, suffering or possible loss of life.

• A “war-caused disaster” is defined as:

[a]ny condition following an attack upon the United States resulting in substantial damage to property or injury to persons in the United States caused by use of bombs, missiles, shellfire, nuclear, radiological, chemical or biological means, or other weapons or overt paramilitary actions, or other conditions such as sabotage.

As evidenced from the above, the General Assembly went through great lengths to define what a “disaster” is under the EMSC. This may be significant if Governor Wolf’s order is challenged because under Pennsylvania law, courts must construe statutes so that the General Assembly’s intent is ascertained and effectuated. If the General Assembly defines words in a statute, those definitions are binding and they must be accepted. In other words, the specific definition used by the General Assembly is indicative of its intent, and courts cannot substitute or ignore those definitions—even if they think doing so embodies the spirit of that law.

If this argument is raised, the interpretation of the EMSC most faithful to the language of the statute is that COVID-19 is outside of its definition of disaster. Consequently, under such an interpretation, because the authority claimed by Governor Wolf in his order only arises when there is a disaster, he could not rely on the EMSC as a basis for closing all non-life sustaining businesses.

The Disease Prevention and Control Law of 1955

Governor Wolf also cites the Disease Prevention and Control Law of 1955 (the “DPCL”) as giving him and the Pennsylvania Secretary of Health the authority to shut down businesses that are not life sustaining.

Under the DPCL, if the Pennsylvania Department of Health receives a “report of a disease” that is subject to isolation, quarantine, or any other “control measure,” it must carry out the appropriate control measures in the manner and place specified by rule or regulation. A reportable disease is a “communicable disease” declared reportable by regulation or any unusual or group expression of illness which, in the opinion of the Secretary of Health, may be a public health emergency. The DPCL defines a “communicable disease” as “an illness due to an infectious agent . . . which is transmitted, directly or indirectly, to a well person from an infected person.” This likely includes COVID-19.

The DPCL’s regulations provide that disease control measures include the following:

• “Isolation of a person . . . with a communicable disease or infection.”
• “Surveillance, segregation, quarantine or modified quarantine of contacts of a person . . . with a communicable disease or infection.”
• “Any other disease control measure the Department [of Health] . . . considers to be appropriate for the surveillance of disease, when the disease control measure is necessary to protect the public from the spread of infectious agents.”

With respect to isolation, the regulations provide that the Department of Health has the authority to isolate a “person . . . that is suspected of harboring an infectious agent.” As it pertains to quarantine, in addition to a person that has been exposed to a communicable disease, the regulations say that the Department of Health only has authority to order the quarantining of “contacts,” which are defined as “[a] person . . . known to have had an association with an infected person . . . which presented an opportunity for acquiring the infection.”

Another control measure under the regulations concerns the movement of persons subject to isolation or quarantine. But that control measure appears to be expressly limited to “[a] person . . . subject to isolation or quarantine,” which would mean only a person that has been exposed to a communicable disease or contacts.

Lastly, there is the catchall provision, which authorizes “any other disease control measure the Department [of Health] . . . considers to be appropriate for the surveillance of disease, when the disease control measure is necessary to protect the public from the spread of infectious agents.” This appears to be where Governor Wolf and the Secretary of Health are grounding the authority for their orders.

Putting aside the catchall, none of the control measures outlined in the regulations appear to clearly authorize the closure of non-life sustaining businesses. Thus, a litigant may be able to challenge Governor Wolf’s order on that basis. But even an interpretation of the catchall provision, which appears on its face to authorize the closure of non-life sustaining business, may rest on shaky ground. For example, under Pennsylvania law, catchall phrases are not to be construed in the widest context possible. Instead, general words and phrases, such as “any other disease control measure,” must be construed to take their meanings and be restricted by the particular words that precede them. If this is done, it may be that the Pennsylvania Supreme Court would conclude that the catchall provision cannot be construed as including the closure of non-life sustaining businesses as part of a disease control measure. The rationale for that conclusion would be that the preceding disease control measures all deal with actions directed at a person with a communicable disease or infection or the contacts of a person with a communicable disease or infection. Thus, because the closure of non-life sustaining businesses is neither directed at a person with a communicable disease or infection nor directed at the contacts of a person with a communicable disease or infection, it is not similar to the other control measures authorized under the DPCL.

Challenges to Governor Wolf’s Order

As this piece is being written, there have been at least two challenges to Governor Wolf’s order. In response to one of those challenges, which appears to have raised the argument that COVID-19 is not a disaster under the EMSC, the Commonwealth responded as follows: “Petitioners’ argument that the global COVID-19 pandemic is somehow not a disaster demonstrates the dangerous level of myopathy about the effect this pandemic could have on the citizens of the commonwealth and our health care system if the spread of this disease in not arrested.” Under a traditional statutory analysis, as presented earlier, the Commonwealth’s response misses the mark. That is, although no one disputes the dangerous effects that are threatened by COVID-19, the dangers it poses and threatens do not transform it into a “disaster” under the EMSC.

We anticipate a decision from the Pennsylvania Supreme Court regarding the current challenges to Governor Wolf’s order will be issued in the coming days.