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U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:20-cv-00677-WSS

APPEAL

COUNTY OF BUTLER et al v. THOMAS W. WOLF et Date Filed: 05/07/2020

al

Jury Demand: None

Assigned to: Judge William S. Stickman

Nature of Suit: 440 Civil Rights:

Case in other court: Third Circuit, 20-02936

Other

Cause: 42:1983 Civil Rights Act

Jurisdiction: Federal Question

Plaintiff
COUNTY OF BUTLER TERMINATED: 09/14/2020

represented by Thomas W. King , III Dillon, McCandless, King, Coulter & Graham L.L.P. 128 West Cunningham Street Butler, PA 16001 (724) 283-2200 Fax: (724) 283-2298 Email: tking@dmkcg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan P. Shuber Dillon McCandless King Coulter & Graham LLP 128 West Cunningham Street Butler, PA 16001 724-283-2200 Fax: 724-283-2298 Email: jshuber@dmkcg.com ATTORNEY TO BE NOTICED

Ronald T. Elliott Dillon, McCandless, King, Coulter & Graham 128 West Cunningham Street Butler, PA 16001 (724) 283-2200 Email: relliott@dmkcg.com ATTORNEY TO BE NOTICED

Thomas E. Breth

Plaintiff COUNTY OF FAYETTE TERMINATED: 09/14/2020
Plaintiff COUNTY OF GREENE TERMINATED: 09/14/2020
Plaintiff COUNTY OF WASHINGTON TERMINATED: 09/14/2020

Dillon, McCandless, King, Coulter & Graham 128 West Cunningham Street Butler, PA 16001 (724) 283-2200 Email: tbreth@dmkcg.com ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address)

Plaintiff NANCY GIFFORD
Plaintiff MIKE GIFFORD husband and wife doing business as DOUBLE IMAGE STYLING SALON

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED

Plaintiff PRIMA CAPELLI, INC. a Pennsylvania Corporation
Plaintiff MIKE KELLY
Plaintiff MARCI MUSTELLO

Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber

Plaintiff DARYL METCALFE
Plaintiff TIM BONNER

(See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff STEVEN SCHOEFFEL
Plaintiff PAUL F. CRAWFORD trading and doing business as MARIGOLD FARM
Plaintiff CATHY HOSKINS trading and doing business as CLASSY CUTS HAIR SALON

represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED

Plaintiff R.W. MCDONALD & SONS, INC.
Plaintiff STARLIGHT DRIVE-IN, INC. a Pennsylvania Corporation
Plaintiff

Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED

SKYVIEW DRIVE-IN, LLC a Pennsylvania Limited Liability Company

represented by Thomas W. King , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan P. Shuber (See above for address) ATTORNEY TO BE NOTICED
Ronald T. Elliott (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Breth (See above for address) ATTORNEY TO BE NOTICED

V. Defendant THOMAS W. WOLF in his official capacity as Governor of the Commonwealth of Pennsylvania
Defendant RACHEL LEVINE MD, in her official capacity as Secretary of the Pennsylvania Department of Health Amicus EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND

represented by Karen Mascio Romano Pennsylvania Office of Attorney General Strawberry Square 15th Floor Harrisburg, PA 17120 7177872717 Fax: 7177724526 Email: kromano@attorneygeneral.gov ATTORNEY TO BE NOTICED
represented by Karen Mascio Romano (See above for address) ATTORNEY TO BE NOTICED
represented by Lawrence J Joseph Lawrence J. Joseph 1250 Connecticut Avenue, NW Suite 700-1A Washington, DC 20036 202-355-9452 Fax: 202-318-2254 Email: ljoseph@larryjoseph.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/07/2020
05/07/2020 05/08/2020
05/08/2020
05/08/2020
05/16/2020

# Docket Text
1 COMPLAINT against RACHEL LEVINE, THOMAS W. WOLF (Filing fee, including Administrative fee, $400, receipt number 0315-5599356), filed by R.W. MCDONALD & SONS, INC., MIKE GIFFORD, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, TIM BONNER, COUNTY OF BUTLER, MARCI MUSTELLO, MIKE KELLY, CATHY HOSKINS, COUNTY OF FAYETTE, SKYVIEW DRIVE-IN, LLC, NANCY GIFFORD, DARYL METCALFE, PRIMA CAPELLI, INC., STARLIGHT DRIVE-IN, INC., STEVEN SCHOEFFEL, COUNTY OF
GREENE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet, # 4 Summons, # 5 Summons) (ma) (Entered: 05/07/2020)
2 Summons Issued as to RACHEL LEVINE, THOMAS W. WOLF (Attachments: # 1 Summons) (ma) (Entered: 05/07/2020)
3 NOTICE of Appearance by Ronald T. Elliott on behalf of TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Elliott, Ronald) (Entered: 05/08/2020)
4 NOTICE of Appearance by Jordan P. Shuber on behalf of TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Shuber, Jordan) (Entered: 05/08/2020)
5 NOTICE of Appearance by Thomas E. Breth on behalf of TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Breth, Thomas) (Entered: 05/08/2020)
FINAL NOTICE: In preparation of the Court's conversion to NextGen, our Court's CM/ECF system will be unavailable from 12:00

05/19/2020 05/19/2020 05/19/2020
05/20/2020 05/20/2020

p.m. (Noon) on Friday, May 22, 2020, until 11:59 pm. Monday, May 25, 2020. Please plan accordingly. Complete information, including a checklist of actions regarding the WDPA NexGen CM/ECF implementation, can be found here. Preparing for NextGen is a two-step process. The first step is to upgrade any legacy PACER accounts. The second step is to link that upgraded PACER account with your WDPA CM/ECF account after the Court goes live with NextGen. To link your account, you will need your current e-filing credentials from our Court. If your CM/ECF login contains any special characters (anything other than a letter or number), you will need to change it as logins with those characters will be unable to link to PACER accounts. No later than Thursday, May 21, 2020, you should log into both PACER and the current version of CM/ECF to review and record your current e-filing credentials for both, as you will need to know them in order to e-file after May 23, 2020. Please consult the Court's administrative order for additional information on deadlines and alternative filing options during this period. (Administrator, ) (ADI) (Entered: 05/16/2020)
6 NOTICE of Appearance by Karen Mascio Romano on behalf of RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 05/19/2020)
7 WAIVER OF SERVICE Returned Executed by RACHEL LEVINE, THOMAS W. WOLF. RACHEL LEVINE waiver sent on 5/7/20; answer due on 7/7/20. THOMAS W. WOLF waiver sent on 5/7/20, answer due on 7/7/20. (Romano, Karen) Modified text on 5/21/2020. (ma) (Entered: 05/19/2020)
8 Disclosure Statement identifying None as corporate parent or other affiliate, by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (King, Thomas) (Entered: 05/19/2020)
Update Answer Deadline: Answer due from RACHEL LEVINE on 7/7/2020; THOMAS W. WOLF on 7/7/2020 (ma) (Entered: 05/20/2020)
9 MOTION for Declaratory Judgment (Speedy Hearing Pursuant to Rule 57) by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Proposed Order) (King, Thomas) (Entered: 05/20/2020)

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10 BRIEF in Support re 9 Motion for Declaratory Judgment, (Speedy Hearing Pursuant to Rule 57) filed by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (King, Thomas) (Entered: 05/20/2020)
11 SCHEDULING ORDER. Response to 9 Motion for Declaratory Judgment due by 5/26/2020. Telephonic Oral Argument set for 5/27/2020 at 3:00 PM before Judge William S. Stickman. Page limitations and call parameters outlined herein. Signed by Judge William S. Stickman on 05/21/20. (eca) (Entered: 05/21/2020)
12 RESPONSE to Motion re 9 MOTION for Declaratory Judgment (Speedy Hearing Pursuant to Rule 57) filed by RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 05/26/2020)
13 BRIEF in Opposition re 9 Motion for Declaratory Judgment, filed by RACHEL LEVINE, THOMAS W. WOLF. (Attachments: # 1 Appendix Unpublished Opinions) (Romano, Karen) (Entered: 05/26/2020)
14 Minute Entry for proceedings held before Judge William S. Stickman: Telephonic Oral Argument held on 5/27/2020. (Court Reporter: Deborah Betzler) (eca) (Entered: 05/28/2020)
15 MEMORANDUM OPINION and ORDER GRANTING IN PART AND DENYING IN PART 9 Motion for a Speedy Hearing of Declaratory Judgment Action Pursuant to Rule 57. The Court holds that expedited proceedings to examine the claims at Counts II, IV and V are warranted. The Court denies the motion as to Counts I and III. Status Report due by 6/1/2020 at 5:00 PM. Telephonic Status Conference set for 6/2/2020 at 9:30 AM before Judge William S. Stickman. Signed by Judge William S. Stickman on 05/28/20. (eca) (Entered: 05/28/2020)
16 STATUS REPORT by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Breth, Thomas) (Entered: 06/01/2020)
17 Minute Entry for proceedings held before Judge William S. Stickman: Telephonic Status Conference held on 6/2/2020. (Court Reporter: Deborah Betzler) (eca) (Entered: 06/02/2020)
18 CASE MANAGEMENT ORDER. Answer due 06/05/20; Exchange of initial disclosures by 06/05/20; Initial disclosures by 06/12/20; Joint

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Status Report on discovery due 06/16/20; Declaratory Judgment Hearing set for 07/17/20 at 9:30 AM before Judge William S. Stickman; Joint Status Report on the hearing due 07/09/20; Declarations/Affidavits due by 07/09/20; Pre-hearing briefs by 07/09/20. Signed by Judge William S. Stickman on 06/02/20. (eca) (Entered: 06/02/2020)
19 ANSWER to 1 Complaint,, with Affirmative Defenses by RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 06/05/2020)
20 AFFIDAVIT by COUNTY OF BUTLER Affiant: Leslie Osche. (Attachments: # 1 Exhibit) (King, Thomas) (Entered: 07/09/2020)
21 AFFIDAVIT by COUNTY OF WASHINGTON Affiant: Diana Irey Vaughan. (King, Thomas) (Entered: 07/09/2020)
22 AFFIDAVIT by COUNTY OF GREENE Affiant: Mike Belding. (King, Thomas) (Entered: 07/09/2020)
23 AFFIDAVIT by COUNTY OF FAYETTE Affiant: David Lohr. (King, Thomas) (Entered: 07/09/2020)
24 AFFIDAVIT by DARYL METCALFE Affiant: Daryl Metcalfe. (King, Thomas) (Entered: 07/09/2020)
25 AFFIDAVIT by MARCI MUSTELLO Affiant: Marci Mustello. (King, Thomas) (Entered: 07/09/2020)
26 AFFIDAVIT by TIM BONNER Affiant: Timothy R. Bonner. (King, Thomas) (Entered: 07/09/2020)
27 AFFIDAVIT by MIKE KELLY Affiant: George M. "Mike" Kelly. (Attachments: # 1 Exhibit) (King, Thomas) (Entered: 07/09/2020)
28 AFFIDAVIT by SKYVIEW DRIVE-IN, LLC Affiant: Charles and Elizabeth Walker. (Attachments: # 1 Exhibit) (King, Thomas) (Entered: 07/09/2020)
29 AFFIDAVIT by STARLIGHT DRIVE-IN, INC. Affiant: John Manson and Beth Chiesa. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (King, Thomas) (Entered: 07/09/2020)
30 AFFIDAVIT by R.W. MCDONALD & SONS, INC. Affiant: Lee McDonald. (Attachments: # 1 Exhibit) (King, Thomas) (Entered: 07/09/2020)
31 AFFIDAVIT by MIKE GIFFORD, NANCY GIFFORD Affiant: Nancy and Michael Gifford. (Attachments: # 1 Exhibit) (King, Thomas) (Entered: 07/09/2020)
32 AFFIDAVIT by PRIMA CAPELLI, INC. Affiant: Chris Young and Jody Beroncello-Young. (King, Thomas) (Entered: 07/09/2020)
33 AFFIDAVIT by CATHY HOSKINS Affiant: Cathy Hoskins. (King, Thomas) (Entered: 07/09/2020)

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34 AFFIDAVIT by STEVEN SCHOEFFEL Affiant: Steve Schoeffel. (King, Thomas) (Entered: 07/09/2020)
36 BRIEF in Support of 1 Complaint, filed by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (King, Thomas) (Entered: 07/09/2020)
37 DECLARATION of Sarah Boateng by RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 07/09/2020)
38 DECLARATION of Neil Weaver by RACHEL LEVINE, THOMAS W. WOLF. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Romano, Karen) (Entered: 07/09/2020)
39 DECLARATION of Sam Robinson by RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 07/09/2020)
40 BRIEF in Opposition to 1 Complaint, for Declaratory Judgment filed by RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 07/09/2020)
41 STATUS REPORT by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (King, Thomas) (Entered: 07/09/2020)
42 Exhibit List Stipulated Joint by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4a, # 5 Exhibit 4b, # 6 Exhibit 4c, # 7 Exhibit 4d, # 8 Exhibit 4e, # 9 Exhibit 4f, # 10 Exhibit 4g, # 11 Exhibit 4h, # 12 Exhibit 4i, # 13 Exhibit 4j, # 14 Exhibit 5, # 15 Exhibit 6, # 16 Exhibit 7, # 17 Exhibit 8, # 18 Exhibit 9, # 19 Exhibit 10, # 20 Exhibit 11, # 21 Exhibit 12, # 22 Exhibit 13, # 23 Exhibit 14, # 24 Exhibit 15, # 25 Exhibit 16, # 26 Exhibit 17, # 27 Exhibit 18, # 28 Exhibit 19, # 29 Exhibit 20, # 30 Exhibit 21, # 31 Exhibit 31a,

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# 32 Exhibit 31b, # 33 Exhibit 31c, # 34 Exhibit 31d, # 35 Exhibit 31e, # 36 Exhibit 31f, # 37 Exhibit 31g, # 38 Exhibit 31h, # 39 Exhibit 31i, # 40 Exhibit 31j, # 41 Exhibit 31k, # 42 Exhibit 31l, # 43 Exhibit 31m, # 44 Exhibit 31n, # 45 Exhibit 31o, # 46 Exhibit 31p, # 47 Exhibit 31q, # 48 Exhibit 32, # 49 Exhibit 33, # 50 Exhibit 34, # 51 Exhibit 35, # 52 Exhibit 36, # 53 Exhibit 37, # 54 Exhibit 38, # 55 Exhibit 39, # 56 Exhibit 40, # 57 Exhibit 41, # 58 Exhibit 42, # 59 Exhibit 43, # 60 Exhibit 44, # 61 Exhibit 45, # 62 Exhibit 46, # 63 Exhibit 47, # 64 Exhibit 48, # 65 Exhibit 49, # 66 Exhibit 50, # 67 Exhibit 51, # 68 Exhibit 52, # 69 Exhibit 53, # 70 Exhibit 54, # 71 Exhibit 55, # 72 Exhibit 56, # 73 Exhibit 57, # 74 Exhibit 58, # 75 Exhibit 59, # 76 Exhibit 60, # 77 Exhibit 61, # 78 Exhibit 62, # 79 Exhibit 63, # 80 Exhibit 64, # 81 Exhibit 65, # 82 Exhibit 66, # 83 Exhibit 67, # 84 Exhibit 68, # 85 Exhibit 69, # 86 Exhibit 70, # 87 Exhibit 71, # 88 Exhibit 72, # 89 Exhibit 73, # 90 Exhibit 74, # 91 Exhibit 75, # 92 Exhibit 76, # 93 Exhibit 77, # 94 Exhibit 78, # 95 Exhibit 79, # 96 Exhibit 80, # 97 Exhibit 81, # 98 Exhibit 82, # 99 Exhibit 83, # 100 Exhibit 84, # 101 Exhibit 85, # 102 Exhibit 86, # 103 Exhibit 87, # 104 Exhibit 88, # 105 Exhibit 89, # 106 Exhibit 90, # 107 Exhibit 91, # 108 Exhibit 92, # 109 Exhibit 93, # 110 Exhibit 94, # 111 Exhibit 95) (King, Thomas) (Entered: 07/09/2020)
43 ORDER SCHEDULING TELEPHONIC STATUS CONFERENCE. A Telephonic Status Conference is scheduled for 7/14/2020 at 10:30 AM before Judge William S. Stickman. The parties are directed to use the Court's teleconference line provided via email from the Court's Deputy Clerk. Signed by Judge William S. Stickman on 07/13/20. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 07/13/2020)
44 Minute Entry for proceedings held before Judge William S. Stickman: Telephonic Status Conference held on 7/14/2020. (eca) (Entered: 07/14/2020)
45 ORDER regarding location and Zoom connection for Declaratory Judgment Hearing set for 07/17/2020 at 9:30 a.m. Signed by Judge William S. Stickman on 07/16/2020. (rgm) (Entered: 07/16/2020)
46 MOTION to Accept Supplemental Affidavits by Plaintiffs Butler County, Fayette County, Greene County and Washington County by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit A - Butler,

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# 2 Exhibit B - Fayette, # 3 Exhibit C - Green, # 4 Exhibit D Washington, # 5 Proposed Order) (King, Thomas) (Entered: 07/16/2020)
47 Exhibit List Supplemental Joint Stipulation to List of Exhibits by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit 22, # 2 Exhibit 23, # 3 Exhibit 24, # 4 Exhibit 25, # 5 Exhibit 26, # 6 Exhibit 27, # 7 Exhibit 28, # 8 Exhibit 29, # 9 Exhibit 30) (King, Thomas) (Entered: 07/16/2020)
48 Exhibit List Plaintiffs by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit, # 2 Exhibit,
# 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit) (King, Thomas) (Entered: 07/16/2020)
49 Minute Entry for proceedings held before Judge William S. Stickman: Declaratory Judgment Hearing held on 7/17/2020. (Court Reporter: Deborah Betzler) (eca) (Entered: 07/17/2020)
50 ORDER OF COURT. 46 Motion to Accept Supplemental Affidavits is GRANTED. Signed by Judge William S. Stickman on 07/17/20. Textonly entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 07/17/2020)
51 SCHEDULING ORDER. The continuation of the Declaratory Judgment Hearing will be held via videoconference 07/22/20 at 9:30 AM. All parties are to participate by Zoom. The link for the videoconference will be sent via email from the Court's Deputy Clerk. Signed by Judge William S. Stickman on 07/17/20. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 07/20/2020)
52 Minute Entry for proceedings held before Judge William S. Stickman: Videoconference Declaratory Judgment Hearing held on 7/22/2020. (Court Reporter: Deborah Betzler) (eca) (Entered: 07/23/2020)
53 MOTION to Place Admissions by Defendants in the Record of the Expedited Hearing in this Matter by TIM BONNER, COUNTY OF

07/23/2020
07/23/2020 08/03/2020
08/10/2020
08/11/2020 08/12/2020

BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit A) (King, Thomas) (Entered: 07/23/2020)
54 Exhibit List Plaintiffs' Supplemental List of Exhibits by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit 2a, # 2 Exhibit 2b, # 3 Exhibit 2c, # 4 Exhibit 2d) (King, Thomas) (Entered: 07/23/2020)
55 ORDER OF COURT. Motion to Place Admissions by Defendants in the Record of the Expedited Hearing in this Matter is GRANTED. Signed by Judge William S. Stickman on 07/23/20. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 07/23/2020)
56 BRIEF in Support of 1 Complaint,, Post Hearing Brief filed by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (King, Thomas) (Entered: 08/03/2020)
57 MOTION to Supplement the Record by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1, # 3 Proposed Order) (King, Thomas) (Entered: 08/10/2020)
58 ORDER GRANTING 57 Motion to Supplement the Record. Signed by Judge William S. Stickman on 08/11/20. (eca) (Entered: 08/11/2020)
59 MOTION Pursuant to Federal Rule of Evidence 201 "Judicial Notice of Adjudicative Facts" by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF

08/14/2020
08/17/2020 08/17/2020 08/19/2020 08/19/2020

WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order) (King, Thomas) (Entered: 08/12/2020)
60 MOTION Second Motion pursuant to Federal Rule of Evidence 201 "Judicial Notice of Adjudicative Facts" by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Proposed Order) (King, Thomas) (Entered: 08/14/2020)
61 ORDER GRANTING 59 Motion Requesting Judicial Notice of Adjudicative Facts. Signed by Judge William S. Stickman on 08/17/20. (eca) (Entered: 08/17/2020)
62 SCHEDULING ORDER. Response or Notice of No Opposition to 60 Motion Requesting Judicial Notice due by 8/21/2020. Response not to exceed ten pages. Signed by Judge William S. Stickman on 08/17/20. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 08/17/2020)
63 ORDER. Telephonic Status Conference set for 8/19/2020 at 01:45 PM before Judge William S. Stickman. Information regarding connecting to the Court's conference line has been emailed to the parties by the Court's Chief Law Clerk. Signed by Judge William S. Stickman on 08/19/2020. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (rgm) (Entered: 08/19/2020)
64 Supplemental MOTION re 60 MOTION Second Motion pursuant to Federal Rule of Evidence 201 "Judicial Notice of Adjudicative Facts" filed by R.W. MCDONALD & SONS, INC., TIM BONNER, MIKE KELLY, COUNTY OF FAYETTE, STARLIGHT DRIVE-IN, INC., COUNTY OF WASHINGTON, COUNTY OF GREENE, MIKE GIFFORD, COUNTY OF BUTLER, PAUL F. CRAWFORD, PRIMA CAPELLI, INC., SKYVIEW DRIVE-IN, LLC, MARCI MUSTELLO, DARYL METCALFE, NANCY GIFFORD, CATHY HOSKINS, STEVEN SCHOEFFEL by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD &

08/19/2020 08/19/2020 08/20/2020 08/24/2020
08/24/2020
08/25/2020

SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC,
STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit 1, # 2
Proposed Order) (King, Thomas) (Entered: 08/19/2020)
65 Minute Entry for proceedings held before Judge William S. Stickman: Telephonic Status Conference held on 8/19/2020. (Court Reporter: Deborah Betzler) (rgm) (Entered: 08/19/2020)
66 BRIEF in Opposition to 1 Complaint, Post Hearing Brief filed by RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 08/19/2020)
67 ORDER GRANTING 60 and 64 Motions for Judicial Notice. Having carefully reviewed the second motion for judicial notice, and having considered the defendants objections to the same, the Court hereby GRANTS the motion and will accept the document attached thereto as filed. Signed by Judge William S. Stickman on 08/20/20. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (eca) Modified on 8/20/2020 (eca). (Entered: 08/20/2020)
68 Third MOTION Pursuant to Federal Rule of Evidence 201 Judicial Notice of Adjudicative Facts by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Proposed Order) (King, Thomas) (Entered: 08/24/2020)
69 REPLY BRIEF in Support of 1 Complaint filed by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (King, Thomas) Modified on 8/25/2020 (ma). (Entered: 08/24/2020)
70 RESPONSE to Motion re 68 Third MOTION Pursuant to Federal Rule of Evidence 201 Judicial Notice of Adjudicative Facts filed by RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 08/25/2020)

08/28/2020 08/31/2020 09/03/2020 09/08/2020
09/08/2020

71 Fourth MOTION pursuant to Federal Rule of Evidence 201 "Judicial Notice of Adjudicative Facts" by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Proposed Order) (King, Thomas) (Entered: 08/28/2020)
72 RESPONSE to Motion re 71 Fourth MOTION pursuant to Federal Rule of Evidence 201 "Judicial Notice of Adjudicative Facts" filed by RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 08/31/2020)
73 Fifth MOTION Pursuant to Federal Rule of Evidence 201 Judicial Notice of Adjudicative Facts by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Exhibit 1, # 2 Proposed Order) (King, Thomas) (Entered: 09/03/2020)
74 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings re Hearing held on 07/17/2020 before Judge William S. Stickman IV. Court Reporter Deborah Ann Betzler, Telephone number 412-330-1365. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter or viewed at the clerk's office public terminal. Any Notice of Intent to Request Redaction and Redaction Request must be separately mailed to the court reporter of said proceedings. Notice of Intent for Redaction of Personal Data Identifiers due by 9/15/2020. Redaction Request due 9/29/2020. Redacted Transcript Deadline set for 10/9/2020. Release of Transcript Restriction set for 12/7/2020. (dab) (Entered: 09/08/2020)
75 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings re Hearing held on 07/22/2020 before Judge William S. Stickman IV. Court Reporter Deborah Ann Betzler, Telephone number 412-330-1365. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or

09/14/2020 09/14/2020 09/14/2020 09/14/2020 09/14/2020
09/14/2020 09/14/2020

otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter or viewed at the clerk's office public terminal. Any Notice of Intent to Request Redaction and Redaction Request must be separately mailed to the court reporter of said proceedings. Notice of Intent for Redaction of Personal Data Identifiers due by 9/15/2020. Redaction Request due 9/29/2020. Redacted Transcript Deadline set for 10/9/2020. Release of Transcript Restriction set for 12/7/2020. (dab) (Entered: 09/08/2020)
76 ORDER denying 68 Third Motion for Judicial Notice. Signed by Judge William S. Stickman on 9/14/20. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (Stickman, William) (Entered: 09/14/2020)
77 ORDER denying 71 Fourth Motion Judicial Notice. Signed by Judge William S. Stickman on 9/14/20. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (Stickman, William) (Entered: 09/14/2020)
78 ORDER granting 73 Fifth Motion for Judicial Notice. Signed by Judge William S. Stickman on 9/14/20. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (Stickman, William) (Entered: 09/14/2020)
79 OPINION. Signed by Judge William S. Stickman on 09/14/20. (rgm) (Entered: 09/14/2020)
80 DECLARATORY JUDGMENT ORDER. Judgment is entered in favor of Plaintiffs Mike Kelly, Daryl Metcalfe, Marci Mustello, Tim Bonner, Nancy Gifford and Mike Gifford, d/b/a Double Image, Prima Capelli, Inc., Steven Schoeffel, Paul F. Crawford, t/d/b/a Marigold Farm, Cathy Hoskins, t/d/b/a Classy Cuts Hair Salon, R.W. McDonald & Sons, Inc., Starlight Drive-In, Inc., and, Skyview Drive-In, LLC for the reasons outlined in the Opinion filed by the Court this same day. IT IS FURTHER ORDERED that the County Plaintiffs (Butler, Fayette, Greene, and Washington) are hereby DISMISSED from the case. Signed by Judge William S. Stickman on 09/14/2020. (rgm) (Entered: 09/14/2020)
COUNTY OF GREENE, COUNTY OF WASHINGTON, COUNTY OF BUTLER and COUNTY OF FAYETTE terminated. Signed by Judge William S. Stickman on 09/14/2020. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (rgm) (Entered: 09/14/2020)
81 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings re Status Conference held on 08/19/2020 before Judge William S. Stickman IV. Court Reporter Deborah Ann Betzler, Telephone number 412-3301365. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to

09/16/2020
09/16/2020 09/16/2020 09/16/2020 09/17/2020
09/21/2020

the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter or viewed at the clerk's office public terminal. Any Notice of Intent to Request Redaction and Redaction Request must be separately mailed to the court reporter of said proceedings. Notice of Intent for Redaction of Personal Data Identifiers due by 9/21/2020. Redaction Request due 10/5/2020. Redacted Transcript Deadline set for 10/15/2020. Release of Transcript Restriction set for 12/14/2020. (dab) (Entered: 09/14/2020)
82 MOTION for Entry of Judgment under Rule 54(b) , or in the Alternative, Motion to Certify Issues for Appeal by RACHEL LEVINE, THOMAS W.

WOLF. (Attachments: # 1 Proposed Order #1, # 2 Proposed

Order #2, # 3 09/16/2020)

Proposed Order #3) (Romano, Karen) (Entered:

83 BRIEF in Support re 82 Motion for Entry of Judgment under Rule 54(b), or in the Alternative, Motion to Certify Issues for Appeal filed by RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 09/16/2020)

84 MOTION to Stay re 80

Order, by RACHEL LEVINE, THOMAS W.

WOLF. (Attachments: # 1 (Entered: 09/16/2020)

Proposed Order) (Romano, Karen)

85 BRIEF in Support re 84 Motion to Stay September 14, 2020, Order filed by RACHEL LEVINE, THOMAS W. WOLF. (Romano, Karen) (Entered: 09/16/2020)

86 ORDER Response/Briefing Schedule re 84 Motion to Stay: Plaintiffs' Response, not to exceed twenty (20) pages, due by 12:00 PM on 09/21/2020. Signed by Judge William S. Stickman on 09/17/2020. Textonly entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (rgm) (Entered: 09/17/2020)

87 MOTION to File Amicus Brief in support of Plaintiffs' Opposition to

Defendants' 84 Motion to Stay by Eagle Forum Education & Legal

Defense Fund. (Attachments: # 1 Exhibit Proposed Amicus Memo of Law, # 2 Proposed Order) (Joseph, Lawrence) Modified on 9/22/2020 (ma). Modified on 9/22/2020 (ma). (Entered: 09/21/2020)

09/21/2020 09/22/2020 09/22/2020
09/22/2020 09/22/2020
09/23/2020

88 BRIEF in Opposition re 84 Motion to Stay filed by TIM BONNER, COUNTY OF BUTLER, COUNTY OF FAYETTE, COUNTY OF GREENE, COUNTY OF WASHINGTON, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Elliott, Ronald) (Entered: 09/21/2020)
89 ORDER GRANTING 87 Motion to File Amicus Brief. The motion is GRANTED. Signed by Judge William S. Stickman on 09/22/20. Textonly entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 09/22/2020)
90 FINAL DECLARATORY JUDGMENT. Final declaratory judgment is entered on Count II, Count IV, and Count V in favor of Plaintiffs Mike Kelly, Daryl Metcalfe, Marci Mustello, Tim Bonner, Nancy Gifford and Mike Gifford, d/b/a Double Image, Prima Capelli, Inc., Steven Schoeffel, Paul F. Crawford, t/d/b/a Marigold Farm, Cathy Hoskins, t/d/b/a Classy Cuts Hair Salon, R.W. McDonald & Sons, Inc., Starlight Drive-In, Inc., and, Skyview Drive-In, LLC, and against Defendants for the reasons
outlined in 79 and 80 . Signed by Judge William S. Stickman on 09/22/20. (eca) (Entered: 09/22/2020)
91 MEMORANDUM ORDER DENYING 84 Motion to Stay. Signed by Judge William S. Stickman on 09/22/20. (eca) (Entered: 09/22/2020)
92 NOTICE OF APPEAL as to 90 Judgment by RACHEL LEVINE, THOMAS W. WOLF. Filing fee $505, receipt number CPAWDC5933449. Motion for IFP N/A. Certificate of Appealability N/A. Court Reporter(s): N/A. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Romano, Karen) (Entered: 09/22/2020)
93 USCA Case Number 20-2936 for 92 Notice of Appeal filed by THOMAS W. WOLF, RACHEL LEVINE. USCA Case Manager Laurie (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF) (lr3) (Entered: 09/23/2020)

09/25/2020 09/28/2020

94 MOTION to Strike 82 Motion to Stay by JEFFREY CUTLER. (Attachments: # 1 Motion to Strike part 2 of 3, # 2 Motion to Strike part 3 of 3, # 3 Envelope) (ma) (Entered: 09/25/2020)
95 ORDER OF COURT. No motion to intervene having been filed or

09/28/2020 09/28/2020 09/29/2020

granted, 94 Motion to Strike is STRICKEN from the record and the Clerk of Court is directed to remove the document from public view. Signed by Judge William S. Stickman on 09/28/20. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 09/28/2020)
96 MOTION for Attorney Fees by TIM BONNER, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (Attachments: # 1 Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (King, Thomas) (Entered: 09/28/2020)
97 BRIEF in Support re 96 Motion for Attorney Fees, filed by TIM BONNER, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC, STARLIGHT DRIVE-IN, INC.. (King, Thomas) (Entered: 09/28/2020)
98 DESIGNATION of Record on Appeal by TIM BONNER, PAUL F. CRAWFORD, MIKE GIFFORD, NANCY GIFFORD, CATHY HOSKINS, MIKE KELLY, DARYL METCALFE, MARCI MUSTELLO, PRIMA CAPELLI, INC., R.W. MCDONALD & SONS, INC., STEVEN SCHOEFFEL, SKYVIEW DRIVE-IN, LLC,

09/29/2020 10/01/2020

STARLIGHT DRIVE-IN, INC. re 92 Thomas) (Entered: 09/29/2020)

Notice of Appeal. (King,

99 SCHEDULING ORDER. Response to 96 Motion for Attorney Fees due by 10/20/2020. Signed by Judge William S. Stickman on 09/29/20. Textonly entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 09/29/2020)

100 ORDER of USCA as to 92 Notice of Appeal, filed by THOMAS W. WOLF, RACHEL LEVINE, The motion by Appellants for stay of the District Court's order pending appeal is GRANTED. (lr3) (Entered: 10/01/2020)

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 Case 2:20-cv-00677-WSS Document 1 Filed 05/07/20 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COUNTY OF BUTLER;

:

COUNTY OF FAYETTE;

:

COUNTY OF GREENE;

:

COUNTY OF WASHINGTON;

:

NANCY GIFFORD and MIKE GIFFORD

:

husband and wife, d/b/a

:

DOUBLE IMAGE STYLING SALON;

:

PRIMA CAPELLI, INC., a Pennsylvania

:

Corporation;

:

MIKE KELLY;

:

MARCI MUSTELLO;

:

DARYL METCALFE;

:

TIM BONNER;

:

STEVEN SCHOEFFEL;

:

PAUL F. CRAWFORD, t/d/b/a

:

MARIGOLD FARM;

:

CATHY HOSKINS, t/d/b/a

:

CLASSY CUTS HAIR SALON;

:

R.W. McDONALD & SONS, INC.,

:

STARLIGHT DRIVE-IN, INC., a Pennsylvania :

Corporation; and

:

SKYVIEW DRIVE-IN, LLC, a Pennsylvania

:

Limited Liability Company,

:

Plaintiffs

:

:

v.

:

:

THOMAS W. WOLF, in his official capacity

:

as Governor of the Commonwealth of

:

Pennsylvania, and

:

RACHEL LEVINE, MD, in her official

:

capacity as Secretary of the

:

Pennsylvania Department of Health,

:

Defendants

:

No. _2_:_2_0_-_cv_-_6_7_7______
Complaint In Civil Action Seeking a Declaratory Judgment and Injunctive Relief

COMPLAINT

INTRODUCTION 1. Plaintiffs are the Counties of Butler, Fayette, Greene, and Washington, Pennsylvania,

political subdivisions of the Commonwealth of Pennsylvania; Mike Kelly, an individual residing

-1-

Case 2:20-cv-00677-WSS Document 1 Filed 05/07/20 Page 2 of 25

in the County of Butler; Daryl Metcalfe, an individual residing in the County of Butler; Marci

Mustello, an individual residing in the County of Butler; Tim Bonner, an individual doing business

in the County of Butler; Nancy Gifford and Mike Gifford, d/b/a Double Image, Prima Capelli, Inc.,

Steven Schoeffel, Paul F. Crawford, t/d/b/a Marigold Farm, Cathy Hoskins, t/d/b/a Classy Cuts Hair

Salon, and R.W. McDonald & Sons, Inc., Starlight Drive-In, Inc., and Skyview Drive-In, LLC, are

all residents of or located within the United States District Court for the Western District of

Pennsylvania, and members of the general public, all affected by Orders entered by the Defendants,

as detailed herein.

2. In March through April of 2020, Governor Thomas W. Wolf entered Orders in

response to the novel coronavirus outbreak (“COVID-19") pandemic, purportedly to protect

Pennsylvania’s public health, safety and welfare.

3. The Governor claimed powers to enact such Orders as set forth under certain

Pennsylvania Statutes.

JURISDICTION AND VENUE

4. This Court has jurisdiction to hear this case under 28 U.S.C. §§ 1331, 1343(a)(3)(4),

which confer original jurisdiction on federal district courts to hear suits alleging the violation of

rights and privileges under the United States Constitution.

5. Venue is proper under 28 U.S.C. § 1391(b), because a substantial part of the events giving rise to Plaintiffs’ claim occurred in this district.

-2-

Case 2:20-cv-00677-WSS Document 1 Filed 05/07/20 Page 3 of 25
PARTIES 6. The County of Butler is a Fourth Class County of the Commonwealth of Pennsylvania with general administrative offices located at 124 W. Diamond Street, Butler, Pennsylvania 16001. 7. The County of Fayette is a Fourth Class County of the Commonwealth of Pennsylvania with general administrative offices located at 61 East Main Street, Third Floor, Uniontown, Pennsylvania, 15401. 8. The County of Greene is a Sixth Class County of the Commonwealth of Pennsylvania with general administrative offices located at 10 East High Street, Waynesburg, Pennsylvania 15370. 9. The County of Washington is a Fourth Class County of the Commonwealth of Pennsylvania with general administrative offices located at 100 West Beau Street, Washington, Pennsylvania 15301. 10. Nancy Gifford and Mike Gifford are husband and wife, adult individuals doing business as Double Image Styling Salon, with an address of 1734 1/2 North Main Street, Butler, Pennsylvania 16001. 11. Prima Capelli, Inc., is a Pennsylvania Corporation with a registered address of 1617 North Main Street Extension, Suite B, Butler, Pennsylvania 16001. 12. Honorable Mike Kelly is a member of the United States House of Representatives representing the 16th Congressional District, with an office address of 101 E. Diamond Street, Suite 210, Butler, Pennsylvania 16001. Mr. Kelly brings this action as a citizen and not in his representative capacity.
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13. Honorable Marci Mustello is a member of the Commonwealth of Pennsylvania House of Representatives representing the 11th District, with an office address of 100 Barracks Road, Kerven Building, Butler, Pennsylvania 16001. Ms. Mustello brings this action as a citizen and not in her representative capacity.
14. Honorable Daryl Metcalfe is a member of the Commonwealth of Pennsylvania House of Representatives representing the 12th District, with an office address of Cranberry Township Municipal Building, 2525 Rochester Road, Cranberry Township, Pennsylvania 16066. Mr. Metcalfe brings this action as a citizen and not in his representative capacity.
15. Honorable Tim Bonner is a member of the Commonwealth of Pennsylvania House of Representatives representing the 8th District, and an adult individual with an address of 209 West Pine Street, Grove City, Pennsylvania, 16127. Mr. Bonner brings this action as a citizen and not in his representative capacity.
16. Steven Schoeffel is an adult individual with an address of 239 Kaufman Road, Evans City, Pennsylvania 16033.
17. Paul F. Crawford is an adult individual, trading and doing business as Marigold Farm, with an address of 37 Leech Lane, Washington, Pennsylvania, 15301.
18. Cathy Hoskins is an adult individual, trading and doing business as Classy Cuts Hair Salon, with an address of 1470 East High Street, Waynesburg, Pennsylvania, 15370.
19. R.W. McDonald & Sons, Inc., is a Pennsylvania Corporation, with an address of 1610 North Main Street Extension, Butler, Pennsylvania, 16001.
20. Starlight Drive-In, Inc., is a Pennsylvania Corporation, with an address of 151 Spring Run Road, Butler, Pennsylvania, 16001.
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21. Skyview Drive-In, LLC, is a Pennsylvania Limited Liability Company, with an address of P.O. Box 351, Carmichaels, Pennsylvania, 15320.
22. Defendant Governor Thomas W. Wolf, named in his official capacity (“Defendant Wolf”), is the Governor of the Commonwealth of Pennsylvania and is generally charged with enforcing the laws of the Commonwealth of Pennsylvania, and issued Executive Orders on March 19, 2020, March 20, 2020, and easing up guidance on May 1, 2020.
23. Defendant Rachel Levine, MD, named in her official capacity (“Defendant Levine”), is the Secretary of the Commonwealth of Pennsylvania Department of Health and is generally charged with enforcing the laws regarding the public health of the Commonwealth of Pennsylvania and its residents, including the COVID-19 Closure Orders at issue in this case.
FACTS 24. On March 19, 2020, Defendant Wolf and Defendant Levine issued an Executive Order which prohibited the operation of all but “life sustaining” businesses throughout the Commonwealth of Pennsylvania (“Business Shutdown Order”). A copy of the Business Shutdown Order is attached hereto as Exhibit “A”. The Defendants Wolf, Levine, and the Secretary of the Department of Community and Economic Development, Dennis M. Davin, have all issued Orders which are in their possession or have been posted to the websites of the Governor’s Office and the Office of the Secretary of Health and the Secretary of the Pennsylvania Department of Community and Economic Development, all of which said Orders are in the possession of said Defendants and have been widely circulated and are incorporated herein by reference thereto insofar as they are relevant to the facts set forth in this Complaint.
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25. Defendant Wolf purported to rely upon several different sources, all contained in the Business Shutdown Order, in an effort to justify the action that he took in ordering the shutdown.
26. Defendant Wolf, as set forth in the Business Shutdown Order, declared the ability to control the movement of residents of the Commonwealth of Pennsylvania, and to order that citizens of the Commonwealth not utilize their private property, without providing the citizens prior notice nor an opportunity to be heard, and without providing just compensation.
27. The Business Shutdown Order also purports to delegate to Defendant Levine the authority “to determine and employ the most efficient and practical means for the prevention and suppression of disease . . . includ[ing] isolation, quarantine, and any other control measure needed.”
28. The Business Shutdown Order prohibited businesses that Defendant Wolf determined were not “life sustaining” from operation at their physical locations. The Business Shutdown Order provided, in part, “No person or entity shall operate a place of business in the Commonwealth that is not a life sustaining business regardless of whether the business is open to members of the public.”
29. The Business Shutdown Order contained a list of businesses that Defendant Wolf determined were “life sustaining.” Defendant Wolf issued a revised list on March 20, 2020, and subsequent revised lists.
30. A business operating out of compliance of the Business Shutdown Order is subject to fines and penalties, and possible police action, including denial of government assistance and disaster relief.
31. The Business Shutdown Order did not provide for compensation to the affected business owners as a result of Defendant Wolf’s Business Shutdown Order.
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32. The Business Shutdown Order did not provide for prior notice and an opportunity to be heard relative to the mandated shutdown.
33. On May 1, 2020, Defendant Wolf announced a plan to begin reopening the Commonwealth of Pennsylvania (the “Plan”).
34. Defendant Wolf’s Plan involves a phased reopening of Pennsylvania, based upon a variety of factors, but such Plan violates several provisions of the United States Constitution, as set forth herein.
35. The County of Butler is a political subdivision of the Commonwealth of Pennsylvania and is generally responsible for the governmental operation in its geographic area, including but not limited to operations related to the health, safety, welfare, and economic well-being of its residents.
36. The County of Fayette is a political subdivision of the Commonwealth of Pennsylvania and is generally responsible for the governmental operation its geographic area, including but not limited to operations related to the health, safety, welfare, and economic well-being of its residents.
37. The County of Greene is a political subdivision of the Commonwealth of Pennsylvania and is generally responsible for the governmental operation in its geographic area, including but not limited to operations related to the health, safety, welfare, and economic well-being of its residents.
38. The County of Washington is a political subdivision of the Commonwealth of Pennsylvania and is generally responsible for the governmental operation in its geographic area, including but not limited to operations related to the health, safety, welfare, and economic well-being of its residents.
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39. Plaintiffs Nancy Gifford and Mike Gifford operate a small hairstyling business located in Butler County, Commonwealth of Pennsylvania. Although Plaintiff’s business is located within Butler County, many of Plaintiff’s customers and/or employees reside outside of Butler County. The Business Shutdown Order issued by Governor Wolf, under the color of state law, continued to restrict such Plaintiffs’ right to operate their business partly based upon the geographic location of the business, e.g. Butler County.
40. Prima Capelli, Inc., operates a small hairstyling business located in Butler County, Commonwealth of Pennsylvania. Although Plaintiff’s business is located within Butler County, many of Plaintiff’s customers and/or employees reside outside of Butler County. The Business Shutdown Order issued by Governor Wolf, under the color of state law, continued to restrict such Plaintiff‘s right to operate its business partly based upon the geographic location of its business, e.g. Butler County.
41. Honorable Mike Kelly, a member of Congress, is a candidate for re-election and is affected by the Orders aforesaid in that the Governor has prohibited door to door campaigning, campaign rallies and other Constitutionally protected activities related thereto.
42. Honorable Marci Mustello, a member of the Commonwealth of Pennsylvania House of Representatives, is a candidate for re-election and is affected by the Orders aforesaid in that the Governor has prohibited door to door campaigning, campaign rallies and other Constitutionally protected activities related thereto.
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43. Honorable Daryl Metcalfe, a member of the Commonwealth of Pennsylvania House of Representatives, is a candidate for re-election and is affected by the Orders aforesaid in that the Governor has prohibited door to door campaigning, campaign rallies and other Constitutionally protected activities related thereto.
44. Honorable Tim Bonner, a member of the Commonwealth of Pennsylvania House of Representatives, is a candidate for re-election and is affected by the Orders aforesaid in that the Governor has prohibited door to door campaigning, campaign allies, and other Constitutionally protected activities related thereto.
45. Steven Schoeffel operates a small horse training and racing business located in Butler County, Commonwealth of Pennsylvania, and races at The Meadows in Washington County, Pennsylvania. Although Plaintiff’s business is located within Butler County, many of Plaintiff’s customers and/or employees reside outside of Butler County. The Business Shutdown Order Governor Wolf issued, under the color of state law, continued to restrict such Plaintiff’s right to operate his business by virtue of the Governor closing all race tracks.
46. Paul F. Crawford, t/d/b/a Marigold Farm, is a small market garden business that offers produce and seedlings to its customers. Although Plaintiff’s business is located within Washington County, many of Plaintiff’s customers and/or employees reside outside of Washington County. The Business Shutdown Order issued by Governor Wolf, under the color of state law, continues to restrict such Plaintiff’s right to operate his business partly based upon the geographic location of its business; e.g., Washington County, insofar as the Washington County Farmers Market where Mr. Crawford sells his goods was closed by virtue of said actions of the Governor and the Defendants.
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47. Cathy Hoskins operates a small hairstyling business known as Classy Cuts Hair Salon located in Greene County, Commonwealth of Pennsylvania. Although Plaintiff’s business is located within Greene County, many of Plaintiff’s customers and/or employees reside outside of Greene County. The Business Shutdown Order issued by Governor Wolf, under the color of state law, continues to restrict such Plaintiff’s right to operate her business partly based upon the geographic location of its business; e.g., Greene County.
48. R. W. McDonald & Sons, Inc., a Pennsylvania Corporation, operates a furniture and small appliance store in Butler County, Commonwealth of Pennsylvania. Although Plaintiff’s business is located within Butler County, many of Plaintiff’s customers and/or employees reside outside of Butler County. The Business Shutdown Order issued by Governor Wolf, under the color of state law, continues to restrict such Plaintiff’s right to operate its business partly based upon the geographic location of its business; e.g., Butler County.
49. Starlight Drive-In, Inc., is a Pennsylvania Corporation, operating a drive-in theater in Butler County, Pennsylvania. The owners of the Starlight Drive-In, Inc., were denied the right to permit local churches to deliver Easter and Passover services at the drive-in theater. However, the said drive-in theater was advised that schools could hold graduation services at the drive-in theater. Attached hereto and marked as Exhibit “B” is a letter from Ali Doyle of the Office of the Governor.
50. Skyview DriveIn, LLC, is a Pennsylvania Limited Liability Company, operating a drive-in theater in Carmichaels, Greene County, Pennsylvania, and engaged in showing drive-in movies as well as serving food, such as 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
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which likewise was authorized to remain open albeit on a limited basis. At the same time, the DriveIn theater was not permitted to be open whatsoever and was the recipient of disparate treatment as well as the other constitutional violations asserted.
51. In an arbitrary and capricious manner, Defendant Wolf has issued guidance concerning an easing of stay at home restrictions for certain counties, which is inconsistent with the available statistical data and health precautions recommended by the United States Center for Disease Control (CDC).
52. According to Defendant Wolf, Lawrence County, Mercer County, Venango County, and Clarion County, all of which border Butler County, are all to go “yellow”, meaning an easing up of the stay at home restrictions. It is clear that the Coronavirus does not stop at or respect arbitrary boundaries such as County dividing lines. Further, it is likewise clear that the virus does not stop at State lines. The County of Greene directly borders the State of West Virginia, which is operating under completely different rules and is widely reported to be operational. The County of Washington, likewise, is in the immediate proximity of both the States of Ohio and West Virginia, and its citizens travel to and from said States for business, shopping, and necessities. The edicts of the Governor and Secretary of Health have no relation to nor bearing upon the conduct of business, liberty, and other constitutional rights with respect to the citizens of these counties when entering into the States of Ohio and West Virginia. That likewise the Plaintiffs, Paul F. Crawford and Cathy Hoskins, are similarly affected due to their location in the Counties of Washington and Greene, respectively.
53. Plaintiffs Gifford, Prima Capelli, Schoeffel, Crawford, Hoskins, and R.W. McDonald & Sons, Inc.’s, Starlight Drive-In, Inc., and Skyview DriveIn, LLC, business operations are
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consistent with similar businesses located in other counties within the Commonwealth of Pennsylvania, such as, Clarion, Mercer, and Lawrence Counties.
54. However, Defendants Wolf and Levine will continue to prohibit the Plaintiffs from operating their businesses while permitting other similar businesses to operate in other counties within the Commonwealth of Pennsylvania, and, in fact, allows competitor businesses to operate within the same zone.
55. These Plaintiffs can implement the same safety precautions, policies and procedures that similar businesses located inside or outside of Butler County, Fayette County, Greene County, or Washington County will be permitted to implement in order to resume business operations.
56. The Business Shutdown Order issued by Defendants Wolf and Levine have been issued pursuant to their alleged authority as Governor and Secretary of Health under Pennsylvania’s Emergency Code, 35 P.S. 7301, et. seq. These Orders have not restricted or prohibited travel between counties within the Commonwealth of Pennsylvania. Likewise, the actions of Secretary Davin are taken under alleged color of law and all of said Orders are enforced by the exercise of his police powers by the Governor and the Secretary of Health through the Pennsylvania State Police and other agents of the Commonwealth. In addition, the Governor apparently intends to exercise suspects rights to “trace” or “track” citizens of this Commonwealth by the use of Commonwealth employees and to record and make a record of the whereabouts of Pennsylvanians in violation of their constitutional rights.
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57. These Plaintiffs have invested a tremendous amount of financial resources, time and effort into all aspects of their businesses, including, but not limited to, the purchase or lease of equipment, inventory and physical business facilities; advertising; training and hiring of employees; and, customer development, as well as other expenses such as rent or mortgage payments.
58. In an arbitrary and capricious manner, Defendant Wolf, Defendant Levine, as well as Secretary Davin, have expressed an intention to deprive these Plaintiffs of the economic benefits and use of their property while permitting similar businesses to operate and compete against these Plaintiffs’ business.
59. Defendants’ Orders have so deprived these Plaintiffs of the economic benefits and use of their property that the resulting financial impact will adversely impact these Plaintiffs’ business for an indefinite period and, unless immediately rescinded, threaten the future viability and sustainability of the businesses.
60. There is no reasonable or substantial basis between Defendants’ Orders permitting one business to operate in a county while prohibiting a similar business from operating in an adjacent county (or even within the same county) when both businesses are capable of implementing the same safety precautions, policies and procedures; are serving customers from multiple counties, including Butler County, Fayette County, Greene County, and Washington County; are located within a short distance of each other; and, are separated solely by the geographic county-lines established within the Commonwealth of Pennsylvania.
61. These Plaintiffs should not be forced to endure the destruction of their businesses while they are obligated to prove that Defendant Wolf and Defendant Levine have taken these Plaintiffs’ private property without the payment of just compensation in violation of the Fifth Amendment of the Constitution of the United States.
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62. Defendants have taken Plaintiff‘s private property without due process of law. 63. Plaintiffs County of Butler, County of Fayette, County of Greene, and County of Washington have standing in this action for the following reasons:
a. they have an actual injury in that they are not permitted to hold public meetings in which all residents of the County may attend and be heard on important issues of the day;
b. all counties will suffer a substantial loss; c. their interest is concrete and particularized in that the injury set forth herein
above is actual and ongoing; d. the Governor’s Orders, and guidance relative to the easing of the stay at
home restrictions, have directly caused Plaintiffs Butler County, Fayette County, Greene County, and Washington County to suffer the harm complained of herein; and, e. the remedy requested herein will be directly redressed by a favorable decision. Taliaferro v. Darby Township Zoning Board, F.3d 181 (3d Cir. 2006). 64. Plaintiffs County of Butler, County of Fayette, County of Greene, and County of Washington have been damaged by the Defendants’ Business Shutdown Order because of the impact to tax revenue, and reputation, and the impact upon their citizens as aforesaid. Such citizens have no access to lawyers or law offices which are likewise closed and rely upon the Counties to protect their interests stated herein. 65. Plaintiffs, Mike Kelly, Marci Mustello, Daryl Metcalfe, and Tim Bonner, have standing in this action for the following reasons:
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a. Mike Kelly is a United States Representative and Marci Mustello, Daryl Metcalfe, and Tim Bonner are Commonwealth of Pennsylvania Representatives and as such have an obligation to report to their constituents on matters of public importance;
b. They are candidates for re-election to the office that they hold; c. They are individuals whose freedom to assemble, including their freedom of
expressive assembly, is being violated. 66. These Plaintiffs have standing because the Defendants’ Orders have caused the shutdown of Plaintiffs’ businesses and caused severe financial hardship and loss of the owners’ livelihood and use of property.
COUNT I Plaintiffs Gifford, Prima Capelli, Inc., Schoeffel, Crawford, Hoskins, and R.W. McDonald & Sons, Inc., Starlight Drive-In, Inc., and Skyview DriveIn, LLC
v. Defendants VIOLATION OF THE TAKING CLAUSE - 42 U.S.C. § 1983 67. All preceding paragraphs are incorporated herein. 68. The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” U.S. Const. Amend. V. 69. The Takings Clause generally bars the government from forcing some members of the public from bearing burdens that should be borne by the public as a whole.
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70. The Commonwealth of Pennsylvania, through Governor Wolf’s Business Shutdown Order, took property from member of the public, and from some of the Plaintiffs herein, without just compensation.
71. The taking occasioned by the Business Shutdown Order worked to prohibit the use of citizens’ property and, therefore, caused a diminution or loss in value of that property.
72. The taking in this case was so onerous as to work as a direct appropriation of the property.
73. Property and business owners who were forced to close their businesses suffered a taking and were, therefore, obligated to bear the cost of government action without just compensation.
74. The Business Shutdown Order worked to deprive numerous residents, including some of the Plaintiffs herein, of their property interests.
COUNT II Plaintiffs Gifford, Prima Capelli, Schoeffel, Crawford, Hoskins, and R.W. McDonald & Sons, Inc., Starlight Drive-In, Inc., and Skyview DriveIn, LLC
v. Defendants SUBSTANTIVE DUE PROCESS - 42 U.S.C. § 1983 75. All previous paragraphs are incorporated herein. 76. The March 19, 2020, Business Shutdown Order compelled the closure of the physical operations of all business and entities that the Governor deemed to be non-life-sustaining, and threatened criminal prosecution for those who violate the Executive Order.
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77. Governor Wolf established a waiver process to be administered by the Pennsylvania Department of Community and Economic Development (DCED) though which businesses and entities could apply for a waiver to be excluded from the Governor’s list of non-life-sustaining businesses.
78. On Wednesday, April 1, 2020, the DCED announced that it would cease accepting applications for waivers filed after 5:00 PM on April 3, 2020.
79. In the approximate two-week time period that the DCED was accepting applications for waiver from Defendant Wolf’s list of non-life-sustaining businesses, the DCED received some 42,380 applications.
80. Thousands of waivers have been denied or gone unanswered without hearing and no appeals process has been provided for. Further, DCED erred in their initial determinations as to what were non-life-sustaining businesses having granted in excess of 7,000 waivers and having also changed industry designations after the Business Shutdown Order became effective. Evidence of the arbitrary and capricious nature of these decisions (or the simply inappropriate nature of these decisions) can readily be seen with respect to the waiver granted by the Governor and/or Secretary Davin to the Governor’s own family-owned business, Wolf Home Products, which was granted a waiver, which waiver was revoked after the waiver was widely publicized in newspapers of general circulation in this Commonwealth, and which business thereafter continued to operate despite the rescinding of said waiver following great publicity regarding the same.
81. On April 24, 2020, Defendants announced a phased reopening plan using a threephase matrix and announced that the Business Shutdown Order would be relaxed in some counties within the Commonwealth, not including Plaintiffs’ counties, beginning May 8, 2020 (the “April Announcement”).
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82. Four of Butler County’s neighboring Counties with similar population characteristics will be allowed to partially reopen as of May 8, 2020, but the Counties cannot reopen as the Business Shutdown Order will remain in effect. Further, as previously stated, the States of West Virginia and Ohio either border or are in proximity to the Counties of Greene and Washington and have either reopened completely or have reopened in a disparate manner with respect to the rights of the citizens of said counties in Pennsylvania.
83. The Governor announced he is partnering with Carnegie Mellon University to create a data-driven tool to aid in decisions to reopen counties.
84. The Defendants do not set forth with particularity what factors are considered, and provide citizens no means to challenge or appeal the Governor’s decision.
85. The Defendants’ classification of what counties may reopen on May 8, 2020, is arbitrary and capricious.
86. The Plaintiffs have a protected liberty interest in their right to live without arbitrary governmental interference.
87. The Plaintiffs have a right to protection from arbitrary action of the government. 88. Substantive Due Process prevents the government from engaging in conduct that “shocks the conscious” or that interferes with the concept of ordered liberty. 89. The Business Shutdown Order, and the April Guidelines issued by Defendants, constitute arbitrary, capricious, irrational and abusive conduct that interferes with Plaintiffs’ liberty and property interests protected by the due process clause of the Fourteenth Amendment to the United States Constitution.
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90. Defendants’ actions constitute official policy, custom and practice of the Commonwealth of Pennsylvania. Defendants’ actions shock the conscience of the citizens of this Commonwealth and of the Court.
91. Defendants’ actions do not comport with the traditional ideas of fair play and decency.
92. Plaintiffs have the right to pursue lawful employment as they shall determine and be free of governmental interference.
93. The shutdown is causing citizens of Pennsylvania to lose their jobs, their livelihoods, and their reputations in their communities.
COUNT III Plaintiffs Gifford, Prima Capelli, Schoeffel, Crawford, Hoskins, and R.W. McDonald & Sons, Inc., Starlight Drive-In, Inc., and Skyview DriveIn, LLC
v. Defendants PROCEDURAL DUE PROCESS - 42 U.S.C. § 1983 94. All previous paragraphs are incorporated herein. 95. The Fourteenth Amendment to the United States Constitution forbids a state from depriving anyone of life, liberty, or property without due process of law. 96. None of the following due process protections have been afforded to Plaintiffs, or any citizen of Butler County, Fayette County, Greene County, or Washington County as required by the United States Constitution: a. the waivers are written and do not permit evaluation by a neutral arbitrator; b. the waiver determination does not provide for an opportunity to be heard;
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c. the waiver determination does not offer an opportunity to present witnesses; d. the waiver determination does not permit an opportunity to cross examine
witnesses; e. the waiver determination does not provide for a reasoned decision; and, f. the waiver determination does not provide for an opportunity for an appeal. 97. The Business Shutdown Order, and subsequent April guidance on easing of the stay at home Order provided by Defendants, do not provide due process protections set forth herein. The Defendants shut down of the appeal process with the DCED, without any explanation, which constitutes an unexplained inconsistency and is arbitrary and capricious. 98. All fundamental rights comprised within the term liberty, including, but not limited to, the rights to be free from bodily restraint, the right to contract and engage in the common occupations of life, the right to acquire useful knowledge, to worship God according to the dictates of ones own conscience, and to generally enjoy the privileges long associated with the rights of free people are guaranteed substantive due process rights under the Fourteenth Amendment. 99. The Governor did permit citizens of the Commonwealth of Pennsylvania to request an exemption to the closure orders through a waiver form. 100. The waiver requests, however, do not comply with due process requirements in that: a. the waivers are written and do not permit evaluation by a neutral arbitrator; b. the waiver determination does not provide for an opportunity to be heard; c. the waiver determination does not offer an opportunity to present witnesses;
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d. The defendants shut down the appeal process with the DCED, violating the rights of business owners to appeal Defendant Wolf's business shut down order or to seek judicial review of any administrative denial of their right to operate;
e. the waiver determination does not permit an opportunity to cross examine witnesses;
f. the waiver determination does not provide for a reasoned decision; and, g. the waiver determination does not provide for an opportunity for an appeal. 101. The Business Shutdown Order deprives Plaintiffs, and residents of the Counties of Butler, Fayette, Greene, and Washington of fundamental property rights without due process of law, based solely upon discretion of Defendants, which discretion is not subject to appeal rights.
COUNT IV Plaintiffs v. Defendants
VIOLATION OF EQUAL PROTECTION - 42 U.S.C. § 1983 102. All previous paragraphs are incorporated herein. 103. The Equal Protection Clause requires governments to act in a rational and nonarbitrary fashion. 104. Defendants’ actions in classifying businesses into “life-sustaining” and “non-lifesustaining” are arbitrary and irrational given that there has never been such a classification of business activity and the Defendants’ attempts to classify such categories is nothing more than ipse dixit.
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105. Defendants’ actions are therefore a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
106. On May 1, 2020, Governor Wolf announced plans to begin easing stay at home restrictions previously implemented. Said plan would ease the restrictions on some counties, and not others.
107. The easing of restrictions in some counties, and not in other counties, is not rational and is an arbitrary exercise of Defendant Wolf’s executive power.
108. The Defendants’ plan is nothing more than an arbitrary decision-making tool that relies on the speculations of the Defendants.
109. Defendants’ decision not to ease stay at home restrictions on all counties impedes Plaintiffs’ fundamental right to use their private property without the government imposing arbitrary or irrational restrictions on the use of the property.
110. Defendants’ actions will cause Plaintiffs to be completely deprived of the use and control of their private property while businesses in other counties will be authorized to operate.
111. As such, Defendants’ intention to not ease the stay at home Order for the County of Butler, County of Fayette, County of Greene, and the County of Washington, but to ease the stay at home Order for other similarly situated Counties, will continue to cause harm to Butler County, Fayette County, Greene County, and Washington County, and the residents thereof, as they will be prohibited from operating their businesses pursuant to the Governor’s Business Shutdown Order.
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COUNT V Plaintiffs
v. Defendants VIOLATION OF FIRST AMENDMENT - 42 U.S.C. § 1983 112. All previous paragraphs are incorporated herein. 113. The restrictions contained in the Business Shutdown Order limit public gatherings to ten (10) people, and in the next “phase”, twenty-five (25) people. 114. The First Amendment provides protection for freedom of association in the context of expressive association. 115. Expressive association includes, but may not be limited to, speech, assembly, press, petitioning government for grievances, and the free exercise of religion. 116. The County of Butler, County of Fayette, County of Greene, and the County of Washington all hold, and are obligated to hold, public meetings in which the public is invited to attend, and does attend, almost always in numbers of more than ten (10) or twenty-five (25) people. 117. Political representatives, and candidates for political office, often hold meetings, gatherings, town hall discussions, and similar events, in order to discuss matters of general importance, including matters concerning the health, safety, and welfare of members of the community.
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118. Defendants’ Business Shutdown Order limiting the number of individuals at public gatherings violates the freedom of association clause inasmuch as expressive advocacy cannot take place because of the Business Shutdown Order, and it affects persons who pose no danger whatsoever to others.
119. Attending such events, such as political gatherings, public meetings, or similar events is a right protected by the First Amendment and is directly and completely prohibited and/or curtailed by the Business Shutdown Order.
120. It is of no moment that one might be able to attend these functions via technological tools such as video or audio conference, as not all citizens have access to or own such technology.
121. That the harm being perpetrated is on-going and will continue or may continue in the future unless enjoined and constitutes significant and various violations of constitutional rights guaranteed by the Constitution of the United States.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs demand judgment in their favor, against Defendants jointly and severally, and seek relief as follows: (1) a Declaratory Judgment that issuance and enforcement of the Business Shutdown
Orders is unconstitutional for the reasons stated herein, and that the actions of the Defendants are unlawful and unconstitutional; (2) a permanent injunction to prohibit Defendants from enforcing the Business Shutdown Order in the manner and fashion engaged by Defendants, the elimination of the arbitrary and capricious “waiver” system;
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(3) a declaration that the rights of the Plaintiffs and the citizens of the Commonwealth
have been violated by the various actions of the Defendants and the said Defendants
are enjoined from engaging in such violations and declaring them to be null and void
ab initio, and in addition thereto with respect to the First Amendment rights of
assembly and worship as provided in the Constitution of the United States of
America;
(4) award of costs and expenses, including reasonable attorneys’ fees under 42 U.S.C.
§ 1983 and 1988; and,
(5) such other relief as this Court deems appropriate.
DILLON McCANDLESS KING COULTER & GRAHAM, LLP
By: s/Thomas W. King, III Thomas W. King, III, Esquire (21580) Ronald T. Elliott, Esquire (71567) Thomas E. Breth, Esquire (66350) Jordan P. Shuber, Esquire (317823) 128 West Cunningham Street Butler, PA 16001 (724) 283-2200 (Phone) (724) 283-2298 (Fax)
Email: tking@dmkcg.com Email: relliott@dmkcg.com E-mail: tbreth@dmkcg.com E-mail: jshuber@dmkcg.com
s/Robert Eugene Grimm Robert Eugene Grimm, Esquire (72205) Solicitor - County of Greene 183 S. Morris Street Waynesburg, PA 15370 (724) 627-6166 (Phone) E-mail: rgrimm@co.greene.pa.us

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 Case 2:20-cv-00677-WSS Document 100 Filed 10/01/20 Page 1 of 2
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
ECO-041
No. 20-2936
COUNTY OF BUTLER; COUNTY OF FAYETTE; COUNTY OF GREENE; COUNTY OF WASHINGTON; NANCY GIFFORD; MIKE GIFFORD, husband and wife doing business as Double Image Styling Salon; PRIMA CAPELLI INC, a Pennsylvania Corporation; MIKE KELLY; MARCI MUSTELLO; DARYL METCALFE; TIM
BONNER; STEVEN SCHOEFFEL; PAUL F. CRAWFORD, trading and doing business as Marigold Farm; CATHY HOSKINS, trading and doing business as Classy Cuts Hair Salon; RW MCDONALD & SONS INC; STARLIGHT DRIVE IN LLC, a Pennsylvania Corporation; SKYVIEW DRIVE IN LLC, a Pennsylvania Limited Liability Company
v.
GOVERNOR OF PENNSYLVANIA; SECRETARY PENNSYLVANIA DEPARTMENT OF HEALTH, Appellants
(W.D. Pa. No. 2-20-cv-00677)
Present: SMITH, Chief Judge, CHAGARES and SHWARTZ, Circuit Judges
1. Motion filed by Appellants Governor of Pennsylvania and Secretary Pennsylvania Department of Health for Stay of the District Court’s Order Pending Appeal.
2. Response filed by Appellees County of Butler, et al. to Motion for Stay of the District Court’s Order Pending Appeal.
3. Unopposed Motion filed by Appellants Governor of Pennsylvania and Secretary Pennsylvania Department of Health to accept Motion for Stay of the District Court’s Order Pending Appeal that is in excess of word limit.
4. Motion filed by the Leaders of the Pennsylvania House of Representatives for leave to file a Brief as Amici Curiae in Support of Appellees’ Opposition to Motion for Stay of the District Court’s Order Pending Appeal.

Case 2:20-cv-00677-WSS Document 100 Filed 10/01/20 Page 2 of 2

5. Motion filed by Eagle Forum Education & Legal Defense Fund for leave to file Brief as Amicus Curiae in Support of Appellees’ Opposition to Motion for Stay of the District Court’s Order Pending Appeal.
Respectfully, Clerk/LMR
_________________________________ORDER________________________________ The motion by Appellants for stay of the District Court’s order pending appeal is GRANTED. The unopposed motion by Appellants to file a stay motion in excess of the word limit is GRANTED. The motions by Leaders of the Pennsylvania House of Representatives and Eagle Forum Education & Legal Defense Fund for leave to file briefs as Amici Curiae in support of Appellees’ opposition to the motion for a stay are GRANTED.

Dated: October 1, 2020 Lmr/cc: All Counsel of Record

By the Court,
s/ D. Brooks Smith Chief Judge

A True Copy:
Patricia S. Dodszuweit, Clerk