IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jacob Doyle Corman, III, :

individually and as a parent of two :

minor school children; Jesse Wills :

Topper, individually and as a parent of :

two minor school children; Calvary :

Academy; Hillcrest Christian :

Academy; James Reich and Michelle :

Reich, individually and as parents of :

three minor school children; Adam :

McClure and Chelsea McClure, :

individually and as parents of one :

minor special needs school child; :

Victoria T. Baptiste, individually and :

as a parent of two special needs :

school children; Jennifer D. Baldacci, :

individually and as a parent of one :

school child; Klint Neiman and :

Amanda Palmer, individually and as :

parents of two minor school children; :

Penncrest School District; Chestnut :

Ridge School District and West York :

Area School District, :

Petitioners :

:

v. :

:

Acting Secretary of the Pennsylvania :

Department of Health, : No. 294 M.D. 2021

Respondent : Argued: October 20, 2021

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION

BY JUDGE FIZZANO CANNON FILED: November 10, 2021
2

This case presents a challenge by Petitioners Jacob Doyle Corman, III, 

Jesse Wills Topper, Calvary Academy, Hillcrest Christian Academy, James and 

Michelle Reich, Adam and Chelsea McClure, Victoria T. Baptiste, Jennifer D. 

Baldacci, Klint Neiman and Amanda Palmer, Penncrest School District, Chestnut 

Ridge School District, and West York Area School District (collectively, Petitioners) 

to the “Order of the Acting Secretary of the Pennsylvania Department of Health 

Directing Face Coverings in School Entities” (Masking Order) issued on August 31, 

2021, by Alison M. Beam, the Acting Secretary of Health1(Acting Secretary or 

Respondent), which imposed an open-ended general masking requirement effective 

September 7, 2021, on all teachers, students, school staff, and visitors within 

Pennsylvania’s schools, regardless of vaccination status, with certain exceptions. 

Petitioners’ underlying First Amended Petition for Review (Amended Petition)2

alleges the Masking Order is void ab initio as a result of the Acting Secretary’s

failure to comply with the requirements of Pennsylvania law in imposing the 

1 Although Alison M. Beam is identified in the Masking Order as the “Acting Secretary of 

the Pennsylvania Department of Health,” her actual title is “Acting Secretary of Health.” See

Section 205 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended

(Administrative Code), 71 P.S. § 66 (stating the heads of the Commonwealth’s administrative 

departments and their respective titles).

2 As discussed infra, Petitioners originally filed their Petition for Review on September 3, 

2021. On September 24, 2021, Petitioners filed Petitioners’ Motion for Leave to File Amended 

Petition for Review (Petition to Amend) seeking to add the Penncrest School District, Chestnut 

Ridge School District, and West York Area School District as additional petitioners. See Petition 

to Amend. This Court granted the Petition to Amend and docketed the Amended Petition on 

September 27, 2021, at which time the Amended Petition became the operative filing before this 

Court. See Commonwealth Court Order dated September 27, 2021. We note that, by stipulation 

filed October 4, 2021, the parties jointly agreed that Respondent would not need to file a responsive 

pleading to the Amended Petition, if necessary, until 14 days after the Court’s resolution of the 

parties’ respective applications for summary relief presently before the Court. See Stipulation filed 

October 4, 2021, at 1-2.
3

Masking Order and seeks an injunction preventing the Acting Secretary from 

enforcing the Masking Order. The Amended Petition further claims that the 

Masking Order violates the non-delegation doctrine. 

Before the Court currently are Petitioners’ Application for Summary 

Relief and Entry of Judgment Pursuant to Pa.R.A.P. 1532 and In Accordance With 

the Court’s September 27, 2021 Order (Petitioners’ Application) and Respondent’s 

Application for Summary Relief (Respondent’s Application) filed by the Acting 

Secretary. 

Preliminarily, we note that we express herein no opinion regarding the 

science or efficacy of mask-wearing or the politics underlying the considerable 

controversy the subject continues to engender. See Wolf v. Scarnati, 233 A.3d 679, 

684 (Pa. 2020). Instead, we decide herein only the narrow legal question of whether 

the Acting Secretary acted properly in issuing the Masking Order in the absence of 

either legislative oversight or a declaration of disaster emergency by the Governor.3 

Upon review, we grant Petitioners’ Application and deny Respondent’s 

Application.

I. Background and Procedural Posture

3 The parties stipulated that this matter could be decided on the purely legal issues of (1) 

whether the Masking Order constitutes a rule or regulation subject to the provisions of the

Regulatory Review Act, Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-745.15 

(Regulatory Review Act), and (2) whether the Masking Order violates the principles governing 

the delegation of legislative authority. See Commonwealth Court Order dated September 13, 2021 

(September 13 Order) at 2. While the Dissenting Opinion raises issues of the substantive merit of 

the Masking Order, see Dissenting Opinion at 11-12, that issue is not before this Court. This 

Majority Opinion intentionally does not respond to points raised by the Dissenting Opinion, on the 

merits or otherwise, beyond the scope of those stipulated by the parties for consideration by this 

Court.
4

On March 6, 2020, Governor Wolf issued a Proclamation of Disaster 

Emergency (Disaster Proclamation) pursuant to Section 7301(c) of the Emergency 

Management Services Code (Emergency Code),

4 35 Pa.C.S. § 7301(c),5

regarding 

the novel coronavirus (COVID-19) pandemic.

6

 Thereafter, the Governor 

implemented numerous orders designed to mitigate and stop the spread of COVID19, which orders, inter alia, closed restaurants and bars in Pennsylvania for inperson dining, closed non-essential businesses, limited the size of in-person 

gatherings within the Commonwealth, and directed citizens to stay at home. 

Governor Wolf also issued multiple periodic amendments to the Disaster 

4

35 Pa.C.S. §§ 7101-79A33.

5 At the time Governor Wolf issued the Disaster Proclamation, Section 7301 of the 

Emergency Code allowed for the issuance of disaster emergency declarations that would continue 

at the discretion of the Governor for renewable 90-day periods terminable by the General 

Assembly as follows:

Declaration of disaster emergency.--A disaster emergency shall be 

declared by executive order or proclamation of the Governor upon 

finding that a disaster has occurred or that the occurrence or the 

threat of a disaster is imminent. The state of disaster emergency 

shall continue until the Governor finds that the threat or danger has 

passed or the disaster has been dealt with to the extent that 

emergency conditions no longer exist and terminates the state of 

disaster emergency by executive order or proclamation, but no state 

of disaster emergency may continue for longer than 90 days unless 

renewed by the Governor. The General Assembly by concurrent 

resolution may terminate a state of disaster emergency at any time.

35 Pa.C.S. § 7301(c). As discussed infra, the enactment of two amendments to Pennsylvania’s 

Constitution in May of 2021 limited the duration of a gubernatorial disaster emergency declaration 

pursuant to this section of the Emergency Code.

6 At the time the Governor issued the Disaster Proclamation, the World Health 

Organization (WHO) characterized the COVID-19 outbreak as a “public health emergency of 

international concern.” See Disaster Proclamation at 1 (pagination supplied). The WHO upgraded 

the COVID-19 outbreak to a global pandemic shortly thereafter on March 11, 2020.
5

Proclamation, each of which renewed the Disaster Proclamation for an additional 90 

days.7

On May 18, 2021, the voters of the Commonwealth approved two

amendments to the Pennsylvania Constitution that limit the Governor’s power under 

the Emergency Code (collectively, the Constitutional Amendments).

8

 The first of 

the Constitutional Amendments amended section 9 of article III of the Constitution 

to allow the General Assembly, by a simple majority vote, to extend or terminate a 

gubernatorial disaster emergency declaration, or a portion thereof, as declared by an 

executive order or proclamation. See Pa. Const. art. III, § 9.9 The second of the 

Constitutional Amendments added new section 20 to article IV of the Pennsylvania 

Constitution, which section limits the duration of a gubernatorial disaster emergency 

7 The Governor issued amendments renewing the Disaster Proclamation on June 3, 2020, 

August 31, 2020, November 24, 2020, February 19, 2021, and May 20, 2021.

8 The Constitutional Amendments followed our Supreme Court’s July 1, 2020 decision in 

Wolf v. Scarnati, 233 A.3d 679 (Pa. 2020), wherein the Supreme Court held that the General 

Assembly could not unilaterally terminate a Governor’s emergency powers by resolution. See

generally Scarnati.

9 Section 9 of article III of the Pennsylvania Constitution now provides as follows:

Every order, resolution or vote, to which the concurrence of both 

Houses may be necessary, except on the questions of adjournment 

or termination or extension of a disaster emergency declaration as 

declared by an executive order or proclamation, or portion of a 

disaster emergency declaration as declared by an executive order or 

proclamation, shall be presented to the Governor and before it shall 

take effect be approved by him, or being disapproved, shall be 

repassed by two-thirds of both Houses according to the rules and 

limitations prescribed in case of a bill.

Pa. Const. art. III, § 9.
6

declaration to 21 days absent an extension by concurrent resolution of the General 

Assembly. See Pa. Const. art. IV, § 20.

10

Following the adoption of the Constitutional Amendments, on June 10, 

2021, the General Assembly approved a concurrent resolution terminating the 

Disaster Proclamation (Concurrent Resolution). Governor Wolf did not issue a new 

proclamation of disaster emergency following the approval of the Concurrent 

Resolution.

10 Section 20 of article IV of the Pennsylvania Constitution provides:

§ 20. Disaster emergency declaration and management

(a) A disaster emergency declaration may be declared by executive 

order or proclamation of the Governor upon finding that a disaster 

has occurred or that the occurrence or threat of a disaster is imminent 

that threatens the health, safety or welfare of this Commonwealth.

(b) Each disaster emergency declaration issued by the Governor 

under subsection (a) shall indicate the nature, each area threatened 

and the conditions of the disaster, including whether the disaster is 

a natural disaster, military emergency, public health emergency, 

technological disaster or other general emergency, as defined by 

statute. The General Assembly shall, by statute, provide for the 

manner in which each type of disaster enumerated under this 

subsection shall be managed.

(c) A disaster emergency declaration under subsection (a) shall be 

in effect for no more than twenty-one (21) days, unless otherwise 

extended in whole or part by concurrent resolution of the General 

Assembly.

(d) Upon the expiration of a disaster emergency declaration under 

subsection (a), the Governor may not issue a new disaster 

emergency declaration based upon the same or substantially similar 

facts and circumstances without the passage of a concurrent 

resolution of the General Assembly expressly approving the new 

disaster emergency declaration.

Pa. Const. art. IV, § 20.
7

However, on August 31, 2021, in anticipation of a Commonwealthwide return to in-person learning in the 2021-2022 school year, the Acting Secretary 

issued the Masking Order, effective September 7, 2021. Initially, the Masking Order 

provides an introductory statement that explains the Acting Secretary imposed the 

Masking Order to protect the health and safety of Pennsylvania’s schoolchildren.11

See Masking Order at 1-3. The introductory statement outlines the Acting 

Secretary’s purported authority to impose the Masking Order as follows:

COVID-19 is a threat to the public’s health, for which the 

Secretary of Health may order general control measures. 

This authority is granted to the Secretary of Health 

pursuant to Pennsylvania law. See [S]ection 5 of the 

Disease Prevention and Control Law[, Act of April 23, 

1956, P.L. (1955) 1510 (Disease Control Law)], 35 P.S. § 

521.5; [S]ection 2102(a) of The Administrative Code of 

1929, 71 P.S. § 532(a); and the Department of Health’s 

regulation at 28 Pa. Code § 27.60 (relating to disease 

control measures). Particularly, the Department of Health 

[] has the authority to take any disease control measure 

appropriate to protect the public from the spread of 

infectious disease. See 35 P.S. § 521.5; 71 P.S. §§ 532(a), 

and [Section 8 of the Act of April 27, 1905, P.L. 312, as 

amended, 71 P.S. §] 1403(a); 28 Pa. Code § 27.60.

11 The Masking Order breaks this generalized reason into multiple sub-reasons: (1) the 

rising risk of COVID-19 to unvaccinated individuals based on the increased transmissibility and 

severity of the Delta variant of the SARS-CoV-2 virus; (2) the current unavailability of an 

approved vaccine for many school-aged children; (3) the desire to maintain in-person instruction 

and socialization, which are necessary for the health and wellbeing of children; (4) the strong 

recommendation issued by the Centers for Disease Control and Prevention for masking of all 

persons within the nation’s schools regardless of vaccination status; (5) the recommendation of 

the American Academy of Pediatrics that masks be worn in schools; (6) studies indicating that 

mask-wearing in schools contributes to lower levels of COVID-19 transmission among students 

and staff; and (7) rising COVID-19 case counts and hospitalizations. See Masking Order at 1-3.
8

Masking Order at 3. Section 2 of the Masking Order contains a “General Masking 

Requirement” that requires:

Each teacher, child/student, staff, or visitor working, 

attending, or visiting a School Entity[12]shall wear a face 

covering indoors, regardless of vaccination status, except 

as set forth in Section 3.[13]

12 The Masking Order defines a “School Entity” as any of the following:

(1) A public PreK-12 school.

(2) A brick and mortar or cyber charter school.

(3) A private or parochial school.

(4) A career and technical center (CTC).

(5) An Intermediate unit (IU).

(6) A PA Pre-K Counts program, Head Start Program, Preschool 

Early Intervention program, or Family Center.

(7) A private academic nursery school and locally-funded 

prekindergarten activities.

(8) A childcare provider licensed by the Department of Human 

Services of the Commonwealth.

Masking Order at 3-4. 

13 Section 3 of the Masking Order enumerates the exceptions to the masking requirement 

and provides:

The following are exceptions to the face covering requirements in 

Section 2. All alternatives to a face covering, including the use of a 

face shield, should be exhausted before an individual is excepted 

from this Order.

A. If wearing a face covering while working would create 

an unsafe condition in which to operate equipment or execute a 

task as determined by local, state, or federal regulators or 

workplace safety guidelines.

B. If wearing a face covering would either cause a medical 

condition, or exacerbate an existing one, including respiratory 

issues that impede breathing, a mental health condition or a 

disability.

C. When necessary to confirm the individual’s identity.
9

Masking Order at 4. Regarding the duration of the Masking Order, Section 6 

indicates that, once effective, the Masking Order “shall remain in effect until 

otherwise terminated.” Masking Order at 6.

On September 3, 2021, Petitioners filed a Petition for Review, in which 

Petitioners allege the Acting Secretary failed to comply with the requirements of the 

Disease Control Law in issuing the Masking Order, and “Petitioners’ Application 

for Special Relief in the Form of an Emergency Preliminary Injunction Under 

Pa.R.A.P. 1532” (Application for Special Relief), which sought an injunction to 

D. When working alone and isolated from interaction with 

other people with little or no expectation of in-person 

interaction.

E. If an individual is communicating or seeking to 

communicate with someone who is hearing-impaired or has 

another disability, where the ability to see the mouth is essential 

for communication.

F. When the individual is under two (2) years of age.

G. When an individual is:

1) Engaged in an activity that cannot be 

performed while wearing a mask, such as eating and 

drinking, or playing an instrument that would be 

obstructed by the face covering; or

2) Participating in high intensity aerobic or 

anerobic activities, including during a physical 

education class in a well-ventilated location and able 

to maintain a physical distance of six feet from all 

other individuals.

H. When a child/student is participating in a sports practice 

activity or event, whether indoors or outdoors.

Masking Order at 4-5.
10

prevent the Acting Secretary from enforcing the Masking Order. The Acting 

Secretary filed Respondent’s Answer to Petitioners’ Application for Special Relief 

in the Form of an Emergency Preliminary Injunction on September 8, 2021, and the 

matter was scheduled for a hearing on September 16, 2021. 

Following a pre-hearing conference conducted on September 13, 2021, 

on agreement of the parties, the Court stayed the hearing on the Application for 

Special Relief14 and directed the parties to file briefs addressing the limited legal 

issues of (1) whether the Masking Order constitutes a rule or regulation subject to 

the provisions of the Regulatory Review Act, Act of June 25, 1982, P.L. 633, as 

amended, 71 P.S. §§ 745.1-745.15 (Regulatory Review Act), and (2) whether the 

Masking Order violates the principles governing the delegation of legislative 

authority. See Commonwealth Court Order dated September 13, 2021 (September 

13 Order) at 2. Thereafter, Petitioners and Respondent each timely filed a brief 

pursuant to the September 13 Order on September 16, 2021, and September 23, 

2021, respectively. Following a status conference conducted on September 27, 

2021, Petitioners withdrew the Application for Special Relief and the parties filed 

their respective applications for summary relief and responses thereto. This Court 

14 The Court also held in abeyance Respondent’s “Application for Relief in the Nature of 

a Motion to Quash Notice to Attend and Subpoena Ad Testificandum Directed to Alison M. Beam, 

Acting Secretary of Health,” which sought to quash the subpoena issued to compel the testimony 

of the Acting Secretary at the scheduled hearing on the Application for Special Relief. See

Commonwealth Court Order dated September 13, 2021, at 2.
11

conducted en banc argument on October 20, 2021. The parties’ applications for 

summary relief are now ripe for determination by the Court.15, 16

II. Discussion

The applications for summary relief17 currently before the Court argue 

diametrically opposed views of the same undisputed facts, stated supra, regarding 

15 Amicus Curiae briefs were filed by the Spring Grove Area School District, Central York 

School District and Penn-Trafford School District.

16 On October 27, 2021, the Acting Secretary also filed “Respondents’ [sic] Application 

for Relief in the Nature of a Motion for Leave to Supplement the Record” in this matter 

(Application to Supplement Record), seeking to add the Joint Committee on Documents’ October 

21, 2021, Order in Favor of Respondent Department of Health (Joint Committee Order) to the 

record of this matter. See Application to Supplement Record. This Application to Supplement the 

Record was treated as an application pursuant to Rule of Appellate Procedure 2501(a) and was 

granted on October 29, 2021, as a post-submission communication to the Court advising the Court 

of the Joint Committee Order. See Pa.R.A.P. 2501(a).

17 Pennsylvania Rule of Appellate Procedure 1532(b) provides that “[a]t any time after the 

filing of a petition for review in an appellate or original jurisdiction matter the court may on 

application enter judgment if the right of the applicant thereto is clear.” Pa.R.A.P. 1532(b); see 

also Summit Sch., Inc. v. Dep’t of Educ., 108 A.3d 192, 195 (Pa. Cmwlth. 2015). In deciding a 

request for summary relief, “this [C]ourt must determine whether it is clear from the undisputed 

facts that either party has a clear right to the relief requested.” Bell Atl.-Pa., Inc. v. Tpk. Comm’n, 

703 A.2d 589, 590 (Pa. Cmwlth. 1997), aff’d, 713 A.2d 96 (Pa. 1998). “The record, for purposes 

of the motion for summary relief, is the same as a record for purposes of a motion for summary 

judgment.” Summit, 108 A.3d at 195-96. Pursuant to Pennsylvania Rule of Civil Procedure 

1035.1, the record in a motion for summary judgment includes any: “(1) pleadings, (2) depositions, 

answers to interrogatories, admissions and affidavits, and (3) reports signed by an expert witness 

that would, if filed, comply with [Pa.R.Civ.P. 4003.5(a)(1)], whether or not the reports have been 

produced in response to interrogatories.” Pa.R.Civ.P. 1035.1. “In ruling on applications for 

summary relief, [this Court] must view the evidence of record in the light most favorable to the 

non-moving party and enter judgment only if there is no genuine issue as to any material facts and 

the right to judgment is clear as a matter of law.” Eleven Eleven Pa., LLC v. State Bd. of 

Cosmetology, 169 A.3d 141, 145 (Pa. Cmwlth. 2017) (internal brackets omitted).
12

the imposition of the Masking Order, with each party claiming that these undisputed 

facts entitle them to summary relief. Petitioners argue that, because the Acting 

Secretary imposed the Masking Order without statutory authority, the Masking 

Order, which does not rely on a gubernatorial declaration of disaster emergency,

represents a rule or regulation issued without compliance with established, statutory 

rulemaking requirements and is accordingly void ab initio. See generally

Petitioners’ Application; Petitioners’ Br. Respondent, on the other hand, argues that 

the Masking Order is not a rule or regulation subject to regulatory rulemaking 

procedures, but instead was promulgated pursuant to existing statutory and 

regulatory authority. See generally Respondent’s Application; Respondent’s Br.

Initially, we begin by reviewing the established law governing the 

process for the promulgation of regulations by Commonwealth agencies. As this 

Court has explained:

An agency derives its power to promulgate regulations 

from its enabling act. An agency’s regulations are valid 

and binding only if they are: (a) adopted within the 

agency’s granted power, (b) issued pursuant to proper 

procedure, and (c) reasonable. . . . [W]hen promulgating a 

regulation, an agency must comply with the requirements 

set forth in the Commonwealth Documents Law[, Act of 

July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-

1602, and 45 Pa.C.S. §§ 501-907, which, collectively, are 

known as the “Commonwealth Documents Law”], the 

Commonwealth Attorneys Act[, Act of October 15, 1980, 

P.L. 950, as amended, 71 P.S. §§ 732-101-732-506,] and 

the Regulatory Review Act. Regulations promulgated in 

accordance with these requirements have the force and 
13

effect of law. A regulation not promulgated in accordance 

with the statutory requirements will be declared a nullity.

In general, the purpose of the Commonwealth 

Documents Law is to promote public participation in the 

promulgation of a regulation. To that end, an agency must 

invite, accept, review and consider written comments from 

the public regarding the proposed regulation; it may hold 

public hearings if appropriate. [Section 202 of the 

Commonwealth Documents Law,] 45 P.S. § 1202. After 

an agency obtains the Attorney General’s approval of the 

form and legality of the proposed regulation, the agency 

must deposit the text of the regulation with the Legislative 

Reference Bureau for publication in the Pennsylvania 

Bulletin. Section 205, 207 of the Commonwealth 

Documents Law, 45 P.S. §§ 1205, 1207.

The legislature has identified what is meant by an 

“agency” for purposes of the Commonwealth Documents 

Law. It has defined an “agency” as:

the Governor or any department, departmental 

administrative board or commission,

officer, independent board or commission, 

authority or other agency of this 

Commonwealth now in existence or hereafter 

created. . . . 

Section 102(3) of the Commonwealth Documents Law, 45 

P.S. § 1102(3) []. Thus, any “independent commission” 

or any “other agency of this Commonwealth,” including 

one not in existence at the time of the enactment of the 

Commonwealth Documents Law, is subject to its terms.

Germantown Cab Co. v. Phila. Parking Auth., 993 A.2d 933, 937-38 (Pa. Cmwlth. 

2010), aff’d, 36 A.3d 105 (Pa. 2012) (footnotes, internal quotations, emphasis, and 

some internal citations omitted).
14

Additionally, the Regulatory Review Act establishes a “mandatory, 

formal rulemaking procedure[18]that is, with rare exceptions, required for the 

promulgation of [agency] regulations.” See Naylor v. Dep’t of Pub. Welfare, 54 

A.3d 429, 433 (Pa. Cmwlth. 2012), aff’d, 76 A.3d 536 (Pa. 2013); see also Section 

5 of the Regulatory Review Act, 71 P.S. § 745.5. The General Assembly enacted 

the Regulatory Review Act with the express purpose of establishing procedures “for 

oversight and review of regulations adopted pursuant to this delegation of legislative 

power in order to curtail excessive regulation and to require the executive branch to 

justify its exercise of the authority to regulate[.]” 71 P.S. § 745.5.19 Accordingly, 

18 In promulgating regulations, the Regulatory Review Act requires that Commonwealth 

agencies “submit [] proposed regulation[s] to [the Independent Regulatory Review Commission 

(IRRC)] for public comment, recommendation from [the] IRRC, and, ultimately, [the] 

IRRC’s approval or denial of a final-form regulation. [Section 5 of the Regulatory Review Act,] 

71 P.S. § 745.5.” Naylor v. Dep’t of Pub. Welfare, 54 A.3d 429, 434 (Pa. Cmwlth. 2012), aff’d, 76 

A.3d 536 (Pa. 2013). 

For thirty days thereafter, interested members of the public or 

relevant legislative committees may submit public comments. At 

the close of the public comment period, [the] IRRC may offer 

recommendations on the proposed regulation. The agency 

then reviews and considers the comments and delivers final-form 

regulations to [the] IRRC.

[The] IRRC may then approve or disapprove the regulations within 

thirty (30) days. In making a decision, [the] IRRC considers, in 

part, whether the agency has the statutory authority to promulgate 

the legislation.

Naylor, 54 A.3d at 434 n.10 (internal citations omitted).

19 The General Assembly explained its intent in enacting the Regulatory Review Act in 

depth as follows:

The General Assembly has enacted a large number of statutes and 

has conferred on boards, commissions, departments and agencies 

within the executive branch of government the authority to adopt 

rules and regulations to implement those statutes. The General 
15

in the absence of a gubernatorial proclamation of disaster emergency or a statute or 

regulation that authorizes or requires a new agency rule or requirement, the 

enactment of new rules and regulations proposed by Commonwealth agencies must 

be accomplished in compliance with the mandatory procedures for review set forth 

in the Regulatory Review Act.20 See 71 P.S. § 745.5. Our Supreme Court, however,

Assembly has found that this delegation of its authority has resulted 

in regulations being promulgated without undergoing effective 

review concerning cost benefits, duplication, inflationary impact 

and conformity to legislative intent. The General Assembly finds 

that it must establish a procedure for oversight and review of 

regulations adopted pursuant to this delegation of legislative power 

in order to curtail excessive regulation and to require the executive 

branch to justify its exercise of the authority to regulate before 

imposing hidden costs upon the economy of Pennsylvania. It is the 

intent of this act to establish a method for ongoing and effective 

legislative review and oversight in order to foster executive branch 

accountability; to provide for primary review by a commission with 

sufficient authority, expertise, independence and time to perform 

that function; to provide ultimate review of regulations by the 

General Assembly; and to assist the Governor, the Attorney General 

and the General Assembly in their supervisory and oversight 

functions. To the greatest extent possible, this act is intended to 

encourage the resolution of objections to a regulation and the 

reaching of a consensus among the commission, the standing 

committees, interested parties and the agency.

Section 2(a) of the Regulatory Review Act, 71 P.S. § 745.2(a).

20 We note that procedures exist to expedite the administrative rulemaking process, if 

necessary. Section 6(d) of the Regulatory Review Act authorizes the Governor to certify the 

immediate adoption of regulations “to meet an emergency which includes conditions which may 

threaten the public health, safety or welfare[.]” 71 P.S. § 745.6(d). This certification bars the 

IRRC from issuing an order barring an agency from “promulgating a final-form or final omitted 

regulation” and allows the regulation to “take effect on the date of publication,” while its review 

by the IRRC and the House and Senate Committees takes place over a 120-day period. Id. The 

emergency regulation “shall be rescinded after 120 days or upon final disapproval, whichever 

occurs later.” Id. If no action is taken by the expiration of the review period, the regulation shall 

continue in full force and effect until otherwise suspended or repealed. See id.
16

has recognized that the Governor may, as a valid use of police power, suspend the 

otherwise mandatory rulemaking procedures of the Regulatory Review Act upon the 

declaration or proclamation of a disaster emergency pursuant to the Emergency 

Code, 35 Pa.C.S. § 7301(c). See Scarnati, 233 A.3d at 705; Friends of Danny DeVito 

v. Wolf, 227 A.3d 872, 887-88, 892-93 (Pa.), cert. denied, 141 S. Ct. 239 (2020).

21

In the instant matter, it is undisputed that the Governor did not issue a 

new declaration of disaster emergency following the termination of the Disaster 

Proclamation by the General Assembly’s June 10, 2021 Concurrent Resolution. It 

is likewise beyond dispute that the Acting Secretary did not comply with the formal 

requirements of the Commonwealth Documents Law and the Regulatory Review 

Act in promulgating the Masking Order. As a result, the pertinent question herein 

is whether the Masking Order represents a rule or regulation subject to the formal 

requirements for regulatory rulemaking and, if so, whether the Acting Secretary was 

authorized by statute or regulation to promulgate the Masking Order without 

Although the Regulatory Review Act has been amended numerous times since its 

enactment in 1982, the mechanism for the emergency certification of agency regulations has 

remained intact. Under this mechanism, a regulation can be promulgated expeditiously. For 

example, on March 17, 1986, in the wake of “substantial increase in the number of mid-term 

cancellations and nonrenewal of commercial property and casualty insurance policies,” Governor 

Dick Thornburgh certified that emergency rulemaking was required to address that “emergency 

situation.” 16 PA. B. 953 (Mar. 22, 1986) (citations omitted). On March 22, 1986, the Insurance 

Department published its “emergency amendments” to its regulations “to provide commercial 

property and casualty insurance policyholders within 60 days’ advance notice of nonrenewal or 

midterm cancellation of their coverage and to limit the reasons for which an insurer may cancel 

commercial property and casualty insurance policies in midterm.” 16 PA. B. 951-52 (Mar. 22, 

1986). The regulation was deemed approved by the IRRC on April 16, 1986. See 16 PA. B. 4167 

(Oct. 25, 1986). From the certification of the emergency to the promulgation of the emergency 

regulation, a total of five days elapsed. In the instant matter, the Acting Secretary did not employ 

such measures in the implementation of the Masking Order.

21 The Acting Secretary notes that this Court followed these Supreme Court holdings in its 

unpublished opinion County of Allegheny v. Cracked Egg, LLC (Pa. Cmwlth., No. 101 C.D. 2021, 

filed July 23, 2021), slip op. at 30-33.
17

complying with the formal requirements of the Commonwealth Documents Law and 

the Regulatory Review Act.

As our Supreme Court has observed:

An administrative agency has available two methods for 

formulating policy that will have the force of law. An 

agency may establish binding policy through rulemaking 

procedures by which it promulgates substantive rules, or 

through adjudications which constitute binding 

precedents. A general statement of policy is the outcome 

of neither a rulemaking nor an adjudication; it is neither a 

rule nor a precedent but is merely an announcement to the 

public of the policy which the agency hopes to implement 

in future rulemakings or adjudications. A general 

statement of policy, like a press release, presages an 

upcoming rulemaking or announces the course which the 

agency intends to follow in future adjudications.

Pa. Hum. Rels. Comm’n v. Norristown Area Sch. Dist., 374 A.2d 671, 679 (Pa. 

1977). Therefore, as opposed to regulations that establish substantive rules, the 

promulgation of simple statements of policy does not require adherence to the 

procedural requirements of the Regulatory Review Act. See id. On the distinction 

between these concepts, our Supreme Court has noted:

The critical distinction between a substantive rule and a 

general statement of policy is the different practical effect 

that these two types of pronouncements have in 

subsequent administrative proceedings. . . . A properly 

adopted substantive rule establishes a standard of conduct 

which has the force of law. . . . The underlying policy 

embodied in the rule is not generally subject to challenge 

before the agency.

A general statement of policy, on the other hand, does not 

establish a “binding norm”. . . . A policy statement 
18

announces the agency’s tentative intentions for the future. 

When the agency applies the policy in a particular 

situation, it must be prepared to support the policy just as

if the policy statement had never been issued.

Id.

Because the Masking Order herein is intended to, and actually does, 

dictate citizens’ standards of conduct within Pennsylvania’s schools, we need not 

belabor an analysis of whether the Masking Order represents simply a general 

statement of policy as opposed to a regulation. The language of the Masking Order 

clearly mandates that those inside School Entities must wear masks and binds those 

School Entities and those attending or visiting. The Order does not guide or provide 

an interpretation of a statute, but rather, requires that “[e]ach teacher, child/student, 

staff, or visitor working, attending, or visiting a School Entity shall wear a face 

covering indoors, regardless of vaccination status[.]” Masking Order at 4. There is 

no palatable argument that this Order is mere guidance. 22

The Regulatory Review Act defines a “regulation,” in relevant part, as:

22 We acknowledge the Dissenting Opinion’s citation of dicta in Northwestern Youth 

Services. Inc. v. Department of Public Welfare, 66 A.3d 301 (Pa. 2013), in an attempt to classify 

the Masking Order as an “interpretative” rule. See Corman v. Acting Sec’y of the Pa. Dep’t of 

Health, __ A.3d __ (Pa. Cmwlth. 2021) (Wojcik, J., dissenting), slip op. at 9-11. There are two 

categories of rules: (1) legislative, and (2) non-legislative, sometimes called “guidance documents” 

or “interpretive rules,” that merely explain existing statutes or regulations. Nw. Youth Servs., 66 

A.3d at 310-11. The Supreme Court in Northwestern Youth Services held that a bulletin intended 

to be “mandatory and binding” was neither a “guideline” nor a “statement of the Department’s 

future intent,” but rather, imposed new and strict changes to an agency’s practices and policies and 

was procedurally invalid where regulatory review procedures were not followed. Id. at 307 & 

316-17. This holding supports the conclusion that the Masking Order, a mandate, is procedurally 

invalid as it did not follow regulatory review procedures and does not support the Dissenting 

Opinion’s position that the Masking Order is an interpretive rule not subject to those procedures.

Further, the Dissenting Opinion overlooks the fact that, in the instant matter, the Acting 

Secretary does not contend that her Masking Order is mere guidance or an interpretation of any 

rule or regulation. See Masking Order at 3; see also Nw. Youth Servs., 66 A.3d at 311-12.
19

[a]ny rule or regulation, or order in the nature of a rule or 

regulation, promulgated by an agency under statutory 

authority in the administration of any statute administered 

by or relating to the agency or amending, revising or 

otherwise altering the terms and provisions of an existing 

regulation, or prescribing the practice or procedure before 

such agency. . . . The term shall not include a 

proclamation, executive order, directive or similar 

document issued by the Governor, but shall include a 

regulation which may be promulgated by an agency, only 

with the approval of the Governor.

Section 3 of the Regulatory Review Act, 71 P.S. § 745.3. Our Supreme Court has 

adopted the three-part “binding norm” test articulated by the Court of Appeals for 

the District of Columbia to determine whether an order issued by an agency amounts 

to a regulation requiring adherence to formal rulemaking processes. See Pa. Hum. 

Rels. Comm’n, 374 A.2d at 679. Pursuant to this test, 

[i]n ascertaining whether an agency has established a 

binding norm, the reviewing court must consider: (1) the 

plain language of the provision; (2) the manner in which 

the agency has implemented the provision; and, (3) 

whether the agency’s discretion is restricted by the 

provision.

Eastwood Nursing & Rehab. Ctr. v. Dep’t of Pub. Welfare, 910 A.2d 134, 144 (Pa. 

Cmwlth. 2006).

Here, with certain exceptions, the plain language of the Masking Order 

requires all persons physically within a School Entity as a student, teacher, staff, or 

visitor, to wear a face covering regardless of COVID-19 infection or vaccination 

status. This plain language clearly indicates that the Masking Order is an order of 

general application that creates a binding norm for all persons physically within 
20

School Entities. Further, the Acting Secretary intended the Masking Order to be 

implemented not by future rulemaking, but immediately upon the effective date and 

under the authority of statute and regulation as cited in the Masking Order itself. 

Finally, the Masking Order leaves no room for the Department of Health to exercise 

any discretion regarding compliance with the Masking Order, once implemented.

The Masking Order is a blanket rule that affects all School Entities in the 

Commonwealth. The Masking Order has the force and effect of law. 

In consideration of the above, we have little difficulty agreeing that the 

Masking Order represents an attempt by the Acting Secretary to impose a new, 

binding norm. As such, if not already authorized by statute or regulation, and in the 

absence of a disaster emergency declared by the Governor, the Masking Order 

represents a regulation subject to the requirements of the Commonwealth 

Documents Law and the Regulatory Review Act.23

23 We note that the Regulatory Review Act contains a document classification procedure 

whereby a legislative committee may review a document and, if it determines the document should 

be published as a regulation, the committee may present the matter to the Joint Committee on 

Documents. See Section 7.1 of the Regulatory Review Act, added by the Act of June 30, 1989, 

P.L. 73, 71 P.S. § 745.7a. The Joint Committee on Documents consists of nine governmental 

members – the General Counsel, the Attorney General, the Director of the Legislative Reference 

Bureau, the Director of the Pennsylvania Code, the President Pro Tempore of the Senate, the 

Minority Leader of the Senate, the Speaker of the House of Representatives, the Minority Leader 

of the House of Representatives, and the Secretary of General Services, or persons designated by 

each – and two public members appointed by the Governor from among attorneys at law or other 

members of the public who represent the class of persons who may be expected to be effected by 

documents published by the Joint Committee on Documents. See 45 Pa.C.S. § 502. Pursuant to 

this procedure, once the legislative committee determines that a document should be published as 

a regulation and presents it to the Joint Committee on Documents, the Joint Committee then makes

its own determination of whether the document should be promulgated as a regulation. See Section 

7.1 of the Regulatory Review Act, 71 P.S. § 745.7a.

This process occurred in the instant matter. On September 14, 2021, the Pennsylvania 

House of Representatives Health Committee concluded that the Masking Order is, in fact, a rule 

or regulation requiring compliance with the Regulatory Review Act and presented this 

determination, by letter, to the Joint Committee on Documents. See Letter to the Commonwealth 
21

The Acting Secretary claims that the Masking Order is not a rule or 

regulation requiring compliance with the requirements of the Commonwealth 

Documents Law or the Regulatory Review Act, but instead is an order promulgated 

pursuant to the authority granted to the Secretary of Health by Pennsylvania law, 

specifically, Section 5 of the Disease Control Law, 35 P.S. § 521.5, Section 2102(a) 

of the Administrative Code, 71 P.S. §§ 532(a), Section 8 of the Act of April 27, 

1905, P.L. 312, 71 P.S. § 1403(a), and the Department of Health’s regulation at 28 

Pa. Code § 27.60 (relating to disease control measures). The Masking Order states

that these authorities allow the Department to implement any disease control 

measure appropriate to protect the public from the spread of infectious disease. See

Masking Order at 3. We do not agree.

Before reviewing the authority cited by the Acting Secretary for the 

implementation of the Masking Order, we observe the following with reference to 

the principle of administrative agency deference:

Courts give substantial deference to an agency’s 

interpretation of a statute the agency is charged with 

implementing and enforcing. An administrative agency’s 

interpretation of the statute it is charged to administer is 

entitled to deference on appellate review absent fraud, bad 

faith, abuse of discretion or clearly arbitrary action. 

Interpretations of an ordinance that are entitled to 

deference become of controlling weight unless they are 

Joint Committee on Documents from Kathy L. Rapp, Chairperson of the House of Representatives 

Health Committee, dated September 14, 2021, attached as Exhibit G to Petitioners’ Application. 

Thereafter, on October 21, 2021, the Joint Committee on Documents reviewed the Masking Order 

and arrived, by a vote of 7 to 4, at the opposite conclusion – that the Masking Order was not a 

regulation requiring compliance with formal rulemaking procedures. See Joint Committee Order. 

The Joint Committee Order, which has been appealed at Commonwealth Court Docket No. 1184 

C.D. 2021, was issued absent analysis or rationale and, in any case, has no precedential or binding 

effect on the judiciary. See The Honorable Kathy L. Rapp, Chair, on behalf of the House of 

Representatives Health Comm. v. Dep’t of Health (Pa. Cmwlth., No. 1184 C.D. 2021).
22

plainly erroneous or inconsistent with the ordinance. 

However, when an administrative agency’s interpretation 

is inconsistent with the statute itself, or when the statute is 

unambiguous, such administrative interpretation carries 

little weight.

Azoulay v. Phila. Zoning Bd. of Adjustment, 194 A.3d 241, 249 (Pa. Cmwlth. 2018)

(internal quotations, citations, and brackets omitted). Initially, and as discussed 

hereinafter, we find the text of the statutes and regulations cited by the Acting 

Secretary as authorizing the implementation of the Masking Order to be

unambiguous. For this reason, we owe no deference to the Department of Health’s 

interpretation thereof. Id. at 249.

Regarding the specific sections of Pennsylvania law upon which the 

Acting Secretary bases her authority to implement the Masking Order, first, Section 

5 of the Disease Control Law, entitled “Control measures,” provides that

[u]pon the receipt by a local board or department of health 

or by the [D]epartment [of Health], as the case may be, of 

a report of a disease which is subject to isolation, 

quarantine, or any other control measure, the local board 

or department of health or the [D]epartment [of Health]

shall carry out the appropriate control measures in such 

manner and in such place as is provided by rule or 

regulation.

35 P.S. § 521.5 (emphasis added). A “control measure” is limited to one as provided 

by an existing rule or regulation. See id.
23

The Masking Order requires neither isolation24 nor quarantines.25 

Therefore, the Acting Secretary by necessity relies on the “any other control 

measure” portion of this section of the Disease Control Law as authority for the 

Masking Order. However, the language of this section – particularly “a disease 

which is subject to isolation, quarantine, or any other disease control measure” and 

“shall carry out the appropriate control measures” – contemplates existing control 

measures for diseases already subject to those existing control measures. 

Additionally, the Acting Secretary’s reading of Section 5 of the Disease Control Law

does not account for the portion of the text that immediately follows the “any control 

measures” language that requires that any “other control measure” be carried out “in 

such manner and in such place as is provided by an existing rule or regulation.” 35 

P.S. § 521.5. As a result of this express limitation, while Section 5 of the Disease 

Control Law does grant the authority to “carry out the appropriate control measures” 

24 The Disease Control Law defines “isolation” as: 

The separation for the period of communicability of infected 

persons or animals from other persons or animals in such places and 

under such conditions as will prevent the direct or indirect 

transmission of the infectious agent from infected persons or 

animals to other persons or animals who are susceptible or who may 

spread the disease to others.

Section 2 of the Disease Control Law, 35 P.S. § 521.2.

25 The Disease Control Law defines “quarantine” as:

The limitation of freedom of movement of persons or animals who 

have been exposed to a communicable disease for a period of time 

equal to the longest usual incubation period of the disease in such 

manner as to prevent effective contact with those not so exposed. 

Quarantine may be complete, or, as defined below, it may be 

modified, or it may consist merely of surveillance or segregation.

Section 2 of the Disease Control Law, 35 P.S. § 521.2.
24

to control diseases, as Respondent suggests,26 it does not provide the Acting 

Secretary with the blanket authority to create new rules and regulations out of whole 

cloth, provided they are related in some way to the control of disease or can 

otherwise be characterized as disease control measures.

27

 Instead, Section 5 limits 

the “other control measures” available to Respondent to those permitted under 

existing rules and regulations. Accordingly, this section of the Disease Control Law

does not, on its own, provide the Acting Secretary with the authority to impose the 

Masking Order’s non-isolation, non-quarantine control measure of requiring all 

individuals to wear masks or face coverings inside Pennsylvania’s School Entities

to combat reports of COVID-19.

The Acting Secretary also relies on two provisions from the 

Administrative Code as further authority for the implementation of the Masking 

Order. See Masking Order at 3. Section 2102(a) of the Administrative Code, entitled 

“General health administration,” enumerates the duties of the Department of Health, 

among which are the duties

[t]o protect the health of the people of this 

Commonwealth, and to determine and employ the most 

efficient and practical means for the prevention and 

suppression of disease[.]

71 P.S. § 532(a). The Administrative Code further states, in the section entitled 

“Duty to protect health of the people,” that

26 See Respondent’s Brief Addressing Legal Issues Framed In the Court’s September 13, 

2021 Order at 4.

27 Respondent acknowledges that, while the General Assembly may delegate broad powers 

to the executive branch of government, it may not impart limitless discretion thereon. See

Respondent’s Br. at 20. 
25

[i]t shall be the duty of the Department of Health to protect 

the health of the people of the State, and to determine and 

employ the most efficient and practical means for the 

prevention and suppression of disease.

Section 8 of the Act of April 27, 1905, P.L. 312, 71 P.S. § 1403(a). These sections

are statements of general duties of the Department of Health. By so listing these 

duties, these subsections do authorize the Department of Health to promulgate rules 

and regulations to accomplish these goals and fulfill these duties, but do not 

authorize specific means by which the Department of Health may accomplish the 

duties, nor do they provide specific authority for the Masking Order. These 

Administrative Code subsections make no reference whatsoever to disease control 

measures of any kind; nothing in these subsections authorizes the promulgation of

rules or regulations pursuant to the duties listed therein without compliance with 

established rulemaking protocols. It goes without saying that the Department of 

Health must carry out these duties within the constraints of the law and does not 

have carte blanche authority to impose whatever disease control measures the 

Department of Health sees fit to implement without regard for the procedures for 

promulgating rules and regulations, expedited or otherwise. See supra nn.18-20.

The Acting Secretary also cites Section 27.60 of the Department of 

Health Regulations, 28 Pa. Code § 27.60, as authorizing the requirements of the 

Masking Order. Section 27.60(a) provides that

[t]he Department [of Health] or local health authority shall 

direct isolation of a person or an animal with a 

communicable disease or infection; surveillance, 

segregation, quarantine or modified quarantine of contacts 

of a person or an animal with a communicable disease or 

infection; and any other disease control measure the 
26

Department [of Health] or the local health authority 

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.

28 Pa. Code § 27.60(a)28 (emphasis added).29 This subsection of Department of 

Health Regulation Section 27.60 speaks in terms of isolating30 and/or surveilling31

animals or individuals with a communicable disease or infection, and also in terms 

of the surveillance, segregation, and quarantine of contacts32 of a person or an animal 

28 The directives authorized by Section 27.60 are issued to discrete individuals with a 

communicable disease and their contacts. In that regard, the directive is a quasi-judicial action 

governed by the Administrative Agency Law, 2 Pa.C.S. §§ 101-754. An agency action with 

“general application throughout the Commonwealth is a quasi-legislative function and is not an 

adjudication.” 20 Darlington et al., WEST’S PENNSYLVANIA APPELLATE PRACTICE § 102:6 (2020). 

Calling a regulation an “order” does not diminish the quasi-legislative character of the agency 

action. See Sule v. Phila. Parking Auth., 26 A.3d 1240, 1244 (Pa. Cmwlth. 2011).

29 We note that, in reciting the provisions of Section 27.60(a) of the Department of Health 

Regulations, the Dissenting Opinion omits the portion of text that makes clear that Section 26.70(a) 

refers to control measures considered “appropriate for the surveillance of disease[.]” See 28 Pa. 

Code § 26.70(a); see also Corman, __ A.3d at __ (Wojcik, J., dissenting), slip op. at 11.

30 The Department of Health’s regulations define “isolation” to mean:

The separation for the communicable period of an infected person 

or animal from other persons or animals, in such a manner as to 

prevent the direct or indirect transmission of the infectious agent 

from infected persons or animals to other persons or animals who 

are susceptible or who may spread the disease to others.

28 Pa. Code § 27.1.

31 The Department of Health’s regulations define “surveillance of disease” to mean:

The continuing scrutiny of all aspects of occurrence and spread of 

disease that are pertinent to effective control.

28 Pa. Code § 27.1.

32 The Department of Health’s regulations define “contact” to mean:
27

with a communicable disease or infection. See id. The Masking Order requires the 

wearing of masks and/or face coverings in School Entities regardless of whether 

individuals are known to be infected with COVID-19 or whether they are a contact 

of an individual known to be infected with a communicable disease. As such, the 

Masking Order cannot be said to be in furtherance of the isolation or surveillance of 

animals or individuals with a communicable disease or the surveillance, segregation, 

or quarantine of contacts of a person or an animal with a communicable disease or 

infection.

To the extent the Acting Secretary relies on the language of Department 

of Health Regulation Section 27.60(a) that allows the Department to implement “any 

other disease control measure the Department [of Health] . . . considers to be 

appropriate[,]” we note, as we did in our discussion of the language of Section 5 of 

the Disease Control Law, 35 P.S. § 521.5, supra, that this language does not provide 

blanket authority to create new rules and regulations out of whole cloth. Instead, 

directly following the “any other disease control measure” language is the qualifying 

language “for the surveillance of disease.” 28 Pa. Code § 27.60(a). This language 

directly limits the disease control measures the Department of Health may consider 

“appropriate” to those disease control measures related to the surveillance of disease. 

Mask wearing is not disease surveillance. Therefore, for this additional reason, the 

A person or animal known to have had an association with an 

infected person or animal which presented an opportunity for 

acquiring the infection.

28 Pa. Code § 27.1.
28

Acting Secretary cannot rely on Department of Health Regulation Section 27.60(a) 

as authority for the Masking Order.

Likewise, it cannot be said that mask wearing represents a form of 

“modified quarantine” as contemplated in 28 Pa. Code § 27.60(a). In addition to 

Section 27.60(a) referring only to infected animals or individuals and the contacts of 

infected animals or individuals, Section 27.1 of the Department Regulations defines 

“Modified quarantine” as

[a] selected, partial limitation of freedom of movement 

determined on the basis of differences in susceptibility or 

danger of disease transmission which is designated to meet 

particular situations. The term includes the exclusion of 

children from school and the prohibition, or the restriction, 

of those exposed to a communicable disease from 

engaging in particular activities.

28 Pa. Code § 27.1. This definition of “modified quarantine” contemplates the 

limitation of movement of individuals who have already been exposed to a 

communicable disease. To equate a “partial limitation of freedom of movement” in 

those exposed to a communicable disease with a mask-wearing requirement for all 

individuals without knowledge of whether they had been exposed to COVID-19 

would improperly ignore the plain language of the definitions contained in the 

Department of Health’s own regulations.

Further, subsection (b) of the Department of Health Regulation Section 

27.60 permits the Department of Health to “determine the appropriate disease 

control measure based upon the disease or infection, the patient’s circumstance, the 

type of facility available, and any other available information relating to the patient 

and the disease or infection.” 28 Pa. Code § 27.60(b). In referring to “the patient’s 

circumstances,” Department of Health Regulation Section 27.60(b) specifically 
29

limits the authority and possible actions of the Department of Health to those 

individuals who have already contracted specific diseases, not the general, 

uninfected population as a whole. Additionally, the subsection’s reference to 

“facilities available” indicates facilities for the surveillance, segregation, quarantine,

or modified quarantine of individuals already known to have been exposed to a 

disease or infection. Accordingly, this subsection likewise fails to provide the broad 

authority claimed by the Acting Secretary to impose the Masking Order on otherwise 

healthy Pennsylvanians attending, working in, or otherwise visiting Pennsylvania’s 

School Entities.

We further acknowledge that the Emergency Code grants the Governor 

the power to issue “executive orders, proclamations and regulations which shall have 

the effect of law.” 35 Pa.C.S. § 7301(b). We further acknowledge that our Supreme 

Court has recognized in Scarnati, 233 A.3d at 705, and DeVito, 227 A.3d at 885, 

that the General Assembly has also granted the Governor the power to “[s]uspend 

the provisions of any regulatory statute prescribing the procedures for conduct of 

Commonwealth business, or the orders, rules or regulations of any Commonwealth 

agency, if strict compliance . . . would in any way prevent, hinder or delay necessary 

action in coping with the emergency,” declared pursuant to Section 7301(f)(1) of the 

Emergency Code. 35 Pa.C.S. § 7301(f)(1). However, as discussed supra, in the 

absence of a declared emergency, and where such orders are not otherwise 

authorized by statute or regulation, the Governor and the executive agencies of the 

Commonwealth must follow the prescribed procedures for rulemaking set forth in 

the Commonwealth Documents Law and the Regulatory Review Act. 

The instant matter presents such a scenario. The Governor did not 

declare a new disaster emergency following the General Assembly’s approval of the 
30

Concurrent Resolution that terminated the Disaster Proclamation. Instead, the 

Acting Secretary issued the Masking Order, which is a regulation, without 

complying with the mandatory rulemaking requirements of the Commonwealth 

Documents Law and the Regulatory Review Act. In so doing, the Acting Secretary 

attempted to issue her own emergency declaration about the dangers of COVID-19 

and mutations thereof, including the Delta variant. See Masking Order at 1. The 

purported authority cited by the Acting Secretary in the Masking Order does not 

convey the authority required to promulgate a new regulation without compliance 

with the formal rulemaking requirements of the Commonwealth Documents Law 

and the Regulatory Review Act. Therefore, because the Acting Secretary did not 

comply with the requirements of the Commonwealth Documents Law or the 

Regulatory Review Act in promulgating the Masking Order, the Masking Order is 

void ab initio. For this Court to rule otherwise would be tantamount to giving the 

Acting Secretary unbridled authority to issue orders with the effect of regulations in 

the absence of either a gubernatorial proclamation of disaster emergency or 

compliance with the Commonwealth Documents Law and the Regulatory Review 

Act, as passed by the General Assembly. As this would be contrary to 

Pennsylvania’s existing law, we decline to do so.

III. Conclusion

For the foregoing reasons, we find the Masking Order to be void ab 

initio. Accordingly, we grant Petitioners’ Application and deny Respondent’s 
31

Application.33 Consequently, we declare the Masking Order void ab initio and 

unenforceable.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

President Judge Brobson and Judges Cohn Jubelirer, Covey, and Crompton did not 

participate in this decision.

33 Our determination herein that the Masking Order is void ab initio vitiates the need for 

this Court to determine whether the Acting Secretary’s enactment of the Masking Order represents 

a violation of the non-delegation doctrine.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jacob Doyle Corman, III, :

individually and as a parent of two :

minor school children; Jesse Wills :

Topper, individually and as a parent of :

two minor school children; Calvary :

Academy; Hillcrest Christian :

Academy; James Reich and Michelle :

Reich, individually and as parents of :

three minor school children; Adam :

McClure and Chelsea McClure, :

individually and as parents of one :

minor special needs school child; :

Victoria T. Baptiste, individually and :

as a parent of two special needs :

school children; Jennifer D. Baldacci, :

individually and as a parent of one :

school child; Klint Neiman and :

Amanda Palmer, individually and as :

parents of two minor school children; :

Penncrest School District; Chestnut :

Ridge School District and West York :

Area School District, :

Petitioners :

:

v. :

:

Acting Secretary of the Pennsylvania :

Department of Health, : No. 294 M.D. 2021

Respondent :

O R D E R

AND NOW, this 10th day of November, 2021, Petitioners’ Application 

for Summary Relief and Entry of Judgment Pursuant to Pa.R.A.P. 1532 and In 

Accordance with the Court’s September 27, 2021 Order is GRANTED, and 
Respondent’s Application for Summary Relief filed by Alison M. Beam, the Acting 

Secretary of Health (Acting Secretary), is DENIED.

The “Order of the Acting Secretary of the Pennsylvania Department of 

Health Directing Face Coverings in School Entities,” issued by the Acting Secretary 

on August 31, 2021, is declared void ab initio.

Respondent’s “Application for Relief in the Nature of a Motion to 

Quash Notice to Attend and Subpoena Ad Testificandum Directed to Alison M. 

Beam, Acting Secretary of Health” is DISMISSED as moot.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jacob Doyle Corman, III, individually :

and as a parent of two minor school :

children; Jesse Wills Topper, individually :

and as a parent of two minor school :

children; Calvary Academy; Hillcrest :

Christian Academy; James Reich and :

Michelle Reich, individually and as parents :

of three minor school children; Adam :

McClure and Chelsea McClure, individually :

and as parents of one minor special needs :

school child; Victoria T. Baptiste, :

individually and as a parent of two special :

needs school children; Jennifer D. Baldacci, :

individually and as a parent of one school :

child; Klint Neiman and Amanda Palmer, :

individually and as parents of two minor :

school children; Penncrest School District; :

Chestnut Ridge School District and :

West York Area School District, :

:

Petitioners :

:

 v. : No. 294 M.D. 2021

: Argued: October 20, 2021

Acting Secretary of the Pennsylvania :

Department of Health, :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

DISSENTING OPINION 

BY JUDGE WOJCIK FILED: November 10, 2021

I dissent.
MHW-2

On August 31, 2021, the Acting Secretary (Secretary) of the 

Pennsylvania Department of Health (DOH) issued an Order directing that face 

coverings must be worn by each teacher, child/student, staff, or visitor working, 

attending, or visiting a school while indoors regardless of his or her 2019 novel 

coronavirus (COVID-19) vaccination status. See Petitioners’ Amended Petition for 

Review (PFR), Exhibit A at 1-6. The Secretary states her reasoning for issuing the 

Order, in relevant part, as follows:

[COVID-19] is a contagious disease that continues 

spreading rapidly from person to person in the world, the 

United States, and this Commonwealth. Despite periods 

of time when the virus seemed to wane, it, like all viruses, 

has continued to mutate, and spread. As of the date of this 

Order, there have been 1,300,368 cases and 28,235 deaths 

in this Commonwealth caused by the still present and 

ongoing pandemic. At this time, the Centers for Disease 

Control and Prevention (CDC) estimates that the Delta 

variant is the predominant strain in the Commonwealth. 

COVID-19 can be transmitted from any person who is 

infected, even if they [sic] have no symptoms and, with the 

Delta variant, even if they [sic] have been vaccinated. 

Symptoms of COVID-19 may include fever or chills, 

cough, shortness of breath or difficulty breathing, fatigue, 

muscle or body aches, headache, new loss of taste or smell, 

sore throat, congestion or runny nose, nausea or vomiting, 

or diarrhea. Older adults and people who have serious 

chronic medical conditions were considered to be at higher 

risk for serious illness. Now, because of the rise of the 

Delta variant, increasing disease and hospitalizations, and 

the inability to obtain vaccines for a large part of that 

vulnerable group, children are more and more at risk.

There are several reasons for the increasing risk to children 

from COVID-19. The risk overall to the unvaccinated 

population is rising. Given the rise in hospitalizations and 

deaths, and despite COVID-19 vaccines being available, 

the Delta variant of the SARS-CoV-2 virus is causing the 

rate of cases of COVID-19 to increase. The Delta variant 
MHW-3

is more infectious, and it is leading to increased 

transmissibility. Additionally, data [are] suggesting that 

the Delta variant may cause more severe illness than 

previous strains of SARS-CoV-2; however, not all of our 

population is able to get vaccinated. As of yet, no vaccine 

has been approved for children under the age of 12. As of 

August 26, 2021, the total number of cumulative cases 

reported in children in the Commonwealth was 23,974 in 

the 0-4 years of age cohort, 56,039 in the 5-12 years of age 

cohort, and 88,205 in the 12-18 years of age cohort.

In addition to the concern that COVID-19 spreads quickly 

and dangerously among children, there are concerns that 

school closures create health issues for children too. 

Maintaining in-person instruction and socialization are 

necessary for the health and well-being of our children. In 

view of this serious concern for our nation’s children, the 

CDC has issued a strong recommendation for masking of 

all persons, teachers, students, and staff within the nation’s 

schools, regardless of vaccination status, to create a multilayered approach for fighting COVID-19 and to keep our 

schools open for in-person education. In addition, the 

American Academy of Pediatrics (AAP) has also strongly 

recommended masking in schools. Finally, recent studies 

have shown that mask-wearing in schools has contributed 

to lower levels of COVID-19 transmission among students 

and staff and allowed for the continued in-person 

attendance. Requiring face coverings in schools, 

therefore, balances the concerns for the mental health of 

our children with the need to protect them against a disease 

that is growing more virulent as we struggle to protect the 

most vulnerable members of our population. In 

accordance with the recommendations of the CDC and 

AAP and based upon the rising case numbers and 

hospitalizations in general in the Commonwealth, 

including the number of cases in our children, as well as 

the need to protect and maintain in-person education for 

the health and well-being of those children, I am issuing 

this Order to protect the ability of our schools to continue 

to educate our children, and of our children to receive inperson instruction in the safest environment possible.
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COVID-19 is a threat to the public’s health for which the 

[Secretary] may order general control measures. This 

authority is granted to the [Secretary] pursuant to 

Pennsylvania law. See [Section 5 of the Disease 

Prevention and Control Law of 1955 (Disease Control 

Law)];

[1]

[Section 2102(a) of The Administrative Code of 

1 Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S. §521.5. Section 5 states, 

in relevant part: “Upon the receipt by . . . [DOH] . . . of a report of a disease which is subject to 

isolation, quarantine, or any other control measure, . . . [DOH] shall carry out the appropriate 

control measures in such manner and in such place as is provided by rule or regulation.” In 

addition, Section 3 of the Disease Control Law states, in relevant part:

(a) Local boards and departments of health shall be primarily 

responsible for the prevention and control of communicable and 

non-communicable disease, including disease control in public and 

private schools, in accordance with the regulations of the [State 

Advisory Health Board (Board)] and subject to the supervision and 

guidance of [DOH].

(b) [DOH] shall be responsible for the prevention and control of 

communicable and non-communicable disease in any municipality 

which is not served by a local board or department of health, 

including disease control in public and private schools.

(c) If the [S]ecretary finds that the disease control program carried 

out by any local board or department of health is so inadequate that 

it constitutes a menace to the health of the people within or without 

the municipalities served by the local board or department of health, 

he may appoint agents of [DOH] to supervise or to carry out the 

disease control program of the particular local board or department 

of health until he determines that the menace to the health of the 

people no longer exists and that the local board or department of 

health is able to carry out an adequate disease control program.

35 P.S. §521.3. As the Pennsylvania Supreme Court has explained:

We find in the [Disease Control Law] a holistic scheme that,

for purposes of disease prevention and control, favors local 

regulation as informed by the expertise of a dedicated local board or 

department of health over state-level regulation, and 

correspondingly allows local lawmakers to impose more stringent 

(Footnote continued on next page...)
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1929 (Administrative Code)];

[2]

and [the DOH] regulation 

at 28 Pa. Code §27.60 (relating to disease control 

regulations than state law provides. Thus, in priority order, a 

municipality with a board or department of health may enact 

ordinances or promulgate rules and regulations in service of disease 

prevention and control. Where a municipality lacks its own board 

or department of health, but lies within the jurisdiction of a county 

department of health, the municipality may enact such ordinances, 

while the county board or department of health may issue rules and 

regulations. Absent a municipal or county board or department of 

health, a municipality falls within the jurisdiction of the [Board].

With this account in mind, viewing [Section 16 of the 

Disease Control Law, 35 P.S.] §521.16, in its entirety, certain 

principles are clear. First, state-level regulations must be devised 

and promulgated by [the Board] with the Secretary[’s] oversight. 

Second, at the local level, municipalities with the benefit of access 

to similar expertise, whether in the form of a municipal board or 

department of health or a department or board administered by the 

county, enjoy the prerogative of enacting additional laws or 

regulations, provided they are no less strict than state law and 

regulations on the same subject. See [Section 16(c) of the Disease 

Control Law,] 35 P.S. §521.16(c) (allowing such ordinances that 

“are not less strict than the provisions of this act or the rules and 

regulations issued thereunder” by the [B]oard).

Pennsylvania Restaurant and Lodging Association v. City of Pittsburgh, 211 A.3d 810, 828 (Pa. 

2019) (emphasis in original).

2 Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §532(a). Section 2102(a) states: 

“[DOH] shall have the power, and its duty shall be . . . [t]o protect the health of the people of this 

Commonwealth, and to determine and employ the most efficient and practical means for the 

prevention and suppression of disease[.]” See also Section 2111(a) and (b) of the Administrative 

Code, 71 P.S. §541(a) and (b) (“The [Board] shall have the power, and its duty shall be . . . [t]o 

advise the [Secretary] on such matters as he may bring before it . . . [and t]o make such reasonable 

rules and regulations, not contrary to law, as may be deemed by the [B]oard necessary for the 

prevention of disease, and for the protection of the lives and health of the people of the 

Commonwealth, and for the proper performance of the work of [DOH], and such rules and 

regulations, when made by the [B]oard, shall become the rules and regulations of [DOH].”).
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measures).[3] Particularly, [DOH] has the authority to take 

any disease control measure appropriate to protect the 

public from the spread of infectious disease. See [Section 

5 of the Disease Control Law]; [Section 2102(a) of the 

Administrative Code and Section 8(a) of the Act of April 

27, 1905, P.L. 312, as amended, 71 P.S. §1403(a) (DOH 

Act)];[4][and Section 27.60 of DOH’s regulations]. With 

the opening of the 2021 school year at hand, and case 

counts and hospitalizations continuing to rise, there is a 

need for additional action to protect our Commonwealth’s 

children.

PFR, Exhibit A at 1-2 (footnotes omitted).

3

28 Pa. Code §27.60. Section 27.60(a) of DOH’s regulations states, in pertinent part:

(a) [DOH] . . . shall direct 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; and any other disease control 

measure [DOH] . . . 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.

28 Pa. Code §27.60(a).

In turn, Section 27.1 of DOH’s regulations defines “isolation,” in relevant part, as

[t]he separation for the communicable period of an infected person 

. . . from other persons . . . in such a manner as to prevent the direct 

or indirect transmission of the infectious agent from infected 

persons . . . to other persons . . . who are susceptible or who may 

spread the disease to others.

28 Pa. Code §27.1. Additionally, Section 27.1 defines “segregation,” in pertinent part, as “[t]he 

separation for special control and observation of one or more persons . . . from other persons . . . 

to facilitate the control of a communicable disease.” Id.

4 Section 8(a) of the DOH Act states: “It shall be the duty of [DOH] to protect the health 

of the people of the State, and to determine and employ the most efficient and practical means for 

the prevention and suppression of disease.” 
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In Section 2 of the Order, the Secretary imposes a “General Masking 

Requirement” requiring that “[e]ach teacher, child/student, staff, or visitor working, 

attending, or visiting a School Entity[5]shall wear a face covering indoors, regardless 

of vaccination status, except as set forth in Section 3.[6]” PFR, Exhibit A at 4. The 

Secretary also stated she issued the Order “in order to prevent and control the spread 

of disease,” and that “[t]his Order shall take effect at 12:01 a.m. on September 7, 

2021, and shall remain in effect until otherwise terminated.” Id. at 3, 6. Petitioners 

5 Section 2 of the Order defines “School Entity,” in relevant part, as follows:

(1) A public PreK-12 school.

(2) A brick and mortar or cyber charter school.

(3) A private or parochial school.

(4) A career and technical center (CTC).

(5) An intermediate unit (IU).

(6) A PA Pre-K Counts program, Head Start Program, Preschool 

Early Intervention program, or Family Center.

(7) A private academic nursery school and local-funded 

prekindergarten activities.

(8) A childcare provider licensed by the Department of Human 

Services of the Commonwealth.

PFR, Exhibit A at 3-4.

6 Section 3 of the Order lists the following exceptions to its application: (1) if wearing a 

mask while working would create an unsafe condition in which to operate equipment or execute a 

task under local, state, or federal regulations or workplace safety guidelines; (2) if wearing a mask 

would either cause a medical condition, or exacerbate an existing one, including respiratory issues 

that impede breathing, a mental health condition, or a disability; (3) when necessary to confirm an 

individual’s identity; (4) while working alone and isolated from others with little or no expectation 

of in-person contact; (5) while communicating with someone who is hearing impaired or has 

another disability requiring sight of the mouth in order to communicate; (6) when the individual is 

under two years old; (7) when the individual is engaged in an activity that cannot be performed 

while wearing a mask, such as eating or drinking, or playing an instrument, or participating in a 

high intensity aerobic or anaerobic activity, including during physical education class, in a wellventilated area; and (8) while participating in a sports activity or event either indoors or outdoors. 

PFR, Exhibit A at 4-5.
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subsequently filed the PFR seeking declaratory and injunctive relief based on the 

Order’s purported invalidity, and Petitioners and the Secretary filed crossApplications for Summary Relief (ASR).

7

On September 13, 2021, this Court filed an order framing the issues to 

be considered in this matter:

[W]hether the August 31, 2021 [Order] constitutes a rule 

or regulation subject to the provisions of the Regulatory 

Review Act, Act of June 25, 1982, P.L. 633, as amended, 

71 P.S. §§745.1-745.15, and whether said [Order] violates

the principles governing the delegation of administrative 

authority.

7 As this Court has recently observed:

Applications for summary relief filed in this Court’s original 

jurisdiction are governed by Pennsylvania Rule of Appellate 

Procedure 1532(b), Pa. R.A.P. 1532(b), which provides that “[a]t 

any time after the filing of a petition for review . . . , the court may 

enter judgment if the right of the applicant thereto is clear.” An 

application for summary relief under Rule 1532(b) is evaluated 

according to standard for a motion for summary judgment. A 

motion for summary relief may only be granted when “the dispute 

is legal rather than factual,” there is no genuine issue of material 

fact, and the moving party is entitled to judgment as a matter of law. 

The evidence is to be reviewed in a light most favorable to the nonmoving party. “Even if the facts are undisputed, the moving party 

has the burden of proving that its right to relief is so clear as a matter 

of law that summary relief is warranted.” “Bold unsupported 

assertions of conclusory accusations cannot create genuine issues of 

material fact.” “Summary [relief] may be entered only in cases that 

are clear and free from doubt.”

Delaware Riverkeeper Network v. Department of Environmental Protection (Pa. Cmwlth., No. 525 

M.D. 2017, filed August 3, 2021), slip op. at 13 (citations and footnote omitted); see also

Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an unreported 

memorandum opinion of the Commonwealth Court filed after January 15, 2008. [] Nonprecedential decisions . . . may be cited for their persuasive value.”).
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I.

With regard to the first issue presented herein, the Pennsylvania 

Supreme Court has explained:

Commonwealth agencies have no inherent power to 

make law or otherwise bind the public or regulated 

entities. Rather, an administrative agency may do so only 

in the fashion authorized by the General Assembly, which 

is, as a general rule, by way of recourse to procedures 

prescribed in the Commonwealth Documents Law,[8]the 

Regulatory Review Act, and the Commonwealth 

Attorneys Act.[9] When an agency acts under the general 

rule and promulgates published regulations through the 

formal notice, comment, and review procedures 

prescribed in those enactments, its resulting 

pronouncements are accorded the force of law and are thus 

denominated “legislative rules.” See Borough of 

Pottstown [v. Pennsylvania Municipal Retirement Board, 

712 A.2d 741, 743 (Pa. 1998)]. See generally Mark 

Seidenfeld, Substituting Substantive for Procedural 

Review of Guidance Documents, 90 TEX. L.REV. 331, 335 

(2011) (“The canonical mode by which agencies define 

the meaning of statutes and regulations or establish policy 

is legislative rulemaking.”) (footnote omitted).

Non-legislative rules—more recently couched (in 

decisions and in the literature) as “guidance documents”—

comprise a second category of agency pronouncements 

recognized in administrative law practice. These “come 

in an abundance of formats with a diversity of names, 

including guidances, manuals, interpretive memoranda, 

staff instructions, policy statements, circulars, bulletins, 

advisories, press releases and others.” Robert A. Anthony, 

Commentary, A Taxonomy of Federal Agency Rules, 52 

ADMIN. L.REV. 1045, 1046 (2000). When such documents 

fairly may be said to merely explain or offer specific and 

8 Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§1102-1602, and 45 Pa. C.S. §§501-

907.

9 Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§732-101–732-506.
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conforming content to existing statutes or regulations 

within the agency’s purview, they are regarded as 

“interpretive rules,” which generally are exempt from 

notice-and-comment rulemaking and regulatory-review

requirements. See Borough of Pottstown, [712 A.2d at 

743]; Seidenfeld, Substituting Substantive for Procedural 

Review, 90 TEX. L.REV. at 346 (explaining that an 

interpretive rule “is meant to explain preexisting legal 

obligations and relations that are embodied in the agency’s 

authorizing statutes and regulations”) (footnote omitted). 

Additionally, “statements of policy”—or agency 

pronouncements which are not intended to bind the public 

and agency personnel, but rather, merely express an 

agency’s tentative, future intentions—also are not 

regulations subject to notice-and-comment rulemaking 

and regulatory-review requirements. See Borough of 

Pottstown, [712 A.2d at 743 n.8].

Northwestern Youth Services, Inc. v. Department of Public Welfare, 66 A.3d 301, 

310-11 (Pa. 2013) (citation and footnote omitted).10 

10 With respect to the various species of non-legislative rules, such as the Secretary’s Order 

issued herein, Professor Anthony has further explained:

Documents that are not legislative rules, but that 

nevertheless fit [Section 551 of Administrative Procedures Act’s, 5 

U.S.C. §551,] definition of “rule,” are called “non[-]legislative 

rules.” They come in an abundance of formats with a diversity of 

names, including guidances, manuals, interpretive memoranda, staff 

instructions, policy statements, circulars, bulletins, advisories, press 

releases and others. Non[-]legislative rules do not carry the force of 

law. They are potentially exempt from notice[]and[]comment 

requirements under the “interpretative rules” exemption (for 

documents that interpret) or under the “general statements of policy” 

exemption (for some documents that do not interpret). Whether a 

document will be exempt in a given case depends upon further 

analysis.

That analysis is a simple one for non[-]legislative rules that 

interpret existing legislation. All such documents (more precisely, 

those portions of the documents that genuinely interpret) fall 

(Footnote continued on next page...)
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To my mind, the Secretary’s Order is a valid interpretive rule that tracks 

the statutory and regulatory authority conferred upon her, and it is not a rule or 

regulation that must be promulgated under the Regulatory Review Act. As outlined 

above, Section 2102(a) of the Administrative Code states: “[DOH] shall have the 

power, and its duty shall be . . . [t]o protect the health of the people . . . and to 

determine and employ the most efficient and practical means for the prevention and 

suppression of disease[.]” 71 P.S. §532(a). Likewise, Section 8(a) of the DOH Act 

states: “It shall be the duty of [DOH] to protect the health of the people . . . and to 

determine and employ the most efficient and practical means for the prevention and 

suppression of disease.” 71 P.S. §1403(a). Additionally, Section 5 of the Disease 

squarely within the exemption for “interpretative rules,” and need 

not undergo notice[]and[]comment. The theory is that the agency is 

not making new law, but is merely spelling out or explaining 

positive legal substance that was already inherent in the statute or 

legislative rule or line of decisional law being interpreted. Thus, the 

public-participation procedures required by [S]ection 553[, 5 U.S.C. 

§553,] for making new law are not needed.

In practice, the courts often have quite an uneasy time 

deciding whether a document does or does not interpret. It is in the 

application of the interpretative rule exemption, not in its 

conception, that perplexity intrudes. It is notoriously difficult to say 

with confidence that a given non[-]legislative document actually 

interprets a given legislative document, such that the meaning of the 

former flows fairly from and is justified by the latter. But when the 

court ultimately concludes that a document does so interpret, the law 

is utterly clear that notice[]and[]comment need not have been used 

in its promulgation. (Good practice may counsel agencies 

voluntarily to observe notice[]and[]comment before issuing an 

interpretation in many situations, such as where the interpretation 

would extend the practical scope of the agency’s jurisdiction, would 

alter the obligations of private parties or would modify eligibility for 

entitlements.)

A Taxonomy of Federal Agency Rules, 52 ADMIN. L.REV. at 1046-47.
MHW-12

Control Law states, in relevant part: “Upon the receipt by . . . [DOH] . . . of a report 

of a disease which is subject to isolation, quarantine, or any other control measure, 

. . . [DOH] shall carry out the appropriate control measures in such manner and in 

such place as is provided by rule or regulation.” 35 P.S. §521.5. In turn, as stated 

above, Section 27.60(a) of DOH’s regulations provides, in relevant part, that 

“[DOH] . . . shall direct isolation of a person . . . with a communicable disease or 

infection . . . [or] segregation, quarantine or modified quarantine of contacts of a 

person . . . with a communicable disease or infection . . . .” 28 Pa. Code §27.60(a).

As extensively outlined in the Secretary’s Order, the increase in 

COVID-19 cases caused by the Delta variant of the SARS-CoV-2 virus at the time 

of its issuance, in combination with the concern of the quick and dangerous spread

among unvaccinated children, while considering the mental health needs of students 

to return to in-person instruction in schools, compelled the Secretary to follow the 

advice of the CDC and AAP to temporarily impose the least restrictive and “most 

efficient and practical means” of ensuring the safety of the vulnerable student 

population.11 In the absence of universal testing of all individuals who may come 

11 In this regard, the Secretary’s rulemaking authority under the Administrative Code, the 

DOH Act, and the Disease Control Law must be distinguished from the Board’s authority to 

promulgate regulations with respect to DOH operations as outlined above in the Disease Control 

Law. The Pennsylvania Supreme Court has explained this important distinction as follows:

There is a well-recognized distinction in the law of

administrative agencies between the authority of a rule adopted by 

an agency pursuant to what is denominated by the text writers as 

legislative rule-making power and the authority of a rule adopted 

pursuant to interpretative rule-making power. The former type of 

rule ‘is the product of an exercise of legislative power by an 

administrative agency, pursuant to a grant of legislative power by 

the Legislative body,’ and ‘is valid and is as binding upon a court as 

a statute if it is (a) within the granted power, (b) issued pursuant to 

(Footnote continued on next page...)
MHW-13

into contact with a student while in a “School Entity,” the use of masks by all 

individuals in this setting during the life of the COVID-19 pandemic is an 

appropriate and limited “isolation” or “segregation” measure to prevent the spread 

of an airborne virus causing, in some cases, an asymptomatic disease. This 

temporary measure is “the most efficient and practical means for the prevention and 

suppression of [this] disease,” as mandated by Section 2102(a) of the Administrative 

Code and Section 8(a) of the DOH Act,12 and is a specifically authorized mode of 

proper procedure, and (c) reasonable.’ A court, in reviewing such a 

regulation, ‘is not at liberty to substitute its own discretion for that 

of administrative officers who have kept within the bounds of their 

administrative powers. To show that these have been exceeded in 

the field of action . . . involved, it is not enough that the prescribed 

system of accounts shall appear to be unwise or burdensome or 

inferior to another. Error or unwisdom is not equivalent to abuse. 

What has been ordered must appear to be ‘so entirely at odds with 

fundamental principles . . . as to be the expression of a whim rather 

than an exercise of judgment.’

An interpretative rule on the other hand depends for its 

validity not upon a law-making grant of power, but rather upon the 

willingness of a reviewing court to say that it in fact tracks the 

meaning of the statute it interprets. While courts traditionally 

accord the interpretation of the agency charged with administration 

of the act some deference, the meaning of a statute is essentially a 

question of law for the court, and, when convinced that the 

interpretative regulation adopted by an administrative agency is 

unwise or violative of legislative intent, courts disregard the 

regulation.

Uniontown Area School District v. Pennsylvania Human Relations Commission, 313 A.2d 156, 

169 (Pa. 1973) (emphasis in original and citations omitted). As outlined above, because the 

Secretary’s Order tracks the statutory and regulatory powers conferred thereunder, it is a valid 

interpretive rule issued pursuant to her rulemaking authority.

12 Where, as here, the Secretary has extensively outlined the basis upon which she issued 

the Order, the Pennsylvania Supreme Court has cautioned:

(Footnote continued on next page...)
MHW-14

By a host of authorities in our own and other jurisdictions it has been 

established as an elementary principle of law that courts will not 

review the actions of governmental bodies or administrative 

tribunals involving acts of discretion, in the absence of bad faith, 

fraud, capricious action or abuse of power; they will not inquire into 

the wisdom of such actions or into the details of the manner adopted 

to carry them into execution. It is true that the mere possession of 

discretionary power by an administrative body does not make it 

wholly immune from judicial review, but the scope of that review is 

limited to the determination of whether there has been a manifest 

and flagrant abuse of discretion or a purely arbitrary execution of 

the agency’s duties or functions. That the court might have a 

different opinion or judgment in regard to the action of the agency 

is not a sufficient ground for interference; judicial discretion may 

not be substituted for administrative discretion.

Blumenschein v. Pittsburgh Housing Authority, 109 A.2d 331, 334-35 (Pa. 1954) (footnotes 

omitted and emphasis in original).

As provided within the text of the Order, the Secretary stated the reasoning underlying the 

exercise of her statutory and regulatory discretion in formulating the appropriate means for 

protecting the vulnerable statewide student population in the School Entity setting during the 

ongoing COVID-19 pandemic. The pleadings in this case simply do not demonstrate the requisite 

“manifest and flagrant abuse of discretion or a purely arbitrary execution of the [Secretary’s] duties 

or functions” to enable this Court to inquire into the wisdom or details of her actions in this regard. 

Further, as extensively explained throughout this Dissenting Opinion, the Secretary’s Order does 

not constitute a rule or regulation subject to the notice and comment requirements of either the 

Regulatory Review Act or the Commonwealth Documents Law, so no extra-agency input was 

required prior to the Secretary’s issuance of the Order pursuant to her statutory and regulatory 

authority. In sum, although this Court may have reached a different conclusion based on the 

available information that was relied upon by the Secretary in issuing the Order, it is inappropriate 

to substitute our judicial discretion for the Secretary’s administrative discretion conferred by 

Section 2102(a) of the Administrative Code and Section 8(a) of the DOH Act to employ “the most 

efficient and practical means for the prevention and suppression of” COVID-19 in the School 

Entity setting during the life of this pandemic.
MHW-15

prevention provided by Section 5 of the Disease Control Law and Section 27.60(a) 

of DOH’s regulations.13

Moreover, on October 21, 2021, while this matter was pending, the 

Joint Committee on Documents (Joint Committee) issued the following Order:

Pursuant to [S]ection 7.1 of the Regulatory Review 

Act[,14] the [Joint Committee] finds the following:

1. Findings.

The Health Committee of the House of 

Representatives [(House Committee)] petitioned the [Joint 

Committee] to determine whether the order of the 

[Secretary], issued August 31, 2021, should be 

13 Likewise, Section 2106(b) of the Administrative Code states:

The [DOH] shall have the power, and its duty shall be:

* * *

(b) to establish and enforce quarantines, in such manner, for such 

period, and with such powers, as may now or hereafter be provided 

by law, to prevent the spread of diseases declared by law or by the 

[DOH] to be communicable diseases.

71 P.S. §536(b) (emphasis added).

14 Added by the Act of June 30, 1989, P.L. 633, as amended, 71 P.S. §745.7a. Section 7.1 

of the Regulatory Review Act states:

If the [Independent Regulatory Review Commission 

(Commission)] or [a standing committee of the Senate or House of 

Representatives (committee)] finds that a published or unpublished 

document should be promulgated as a regulation, the [C]ommission 

or committee may present the matter to the [Joint Committee]. The 

[Joint Committee] shall determine whether the document should be 

promulgated as a regulation and may order an agency either to 

promulgate the document as a regulation within 180 days or to desist 

from the use of the document in the business of the agency.
MHW-16

promulgated as a regulation. A legislative standing 

committee may challenge an agency’s unpromulgated 

order under [S]ection 7.1 of the Regulatory Review Act[.]

The [O]rder is an instrument issued by [DOH] under 

the authority of the Commonwealth and is, therefore, a 

document for purposes of Pennsylvania’s laws governing 

Commonwealth documents. Def[inition] of “document,” 

[S]ection 102 of the Commonwealth Documents Law[,

Act of July 9, 1970, P.L. 477, as amended,] 45 P.S. 

§1102;[15]see also [Section 1.4 of the Pennsylvania Code,] 

1 Pa. Code §1.4.[16] A regulation is “any rule or regulation, 

or order in the nature of a rule or regulation, promulgated 

by an agency under statutory authority in the 

administration of any statute administered by or relating to 

the agency . . . .” Def[inition] of “regulation,” [S]ection 3 

of the Regulatory Review Act[,] 71 P.S. §745.3[;] 1 

Pa. Code §1.4.[17] As a substantive rule issued under an 

agency’s statutory authority, a regulation must be 

promulgated in accordance with the Commonwealth 

Documents Law. Def[inition] of “regulation,” [S]ection 3 

of the Regulatory Review Act[,] 71 P.S. §745.3[;] see also

Article II of the Commonwealth Documents Law, [45 P.S. 

§§1201-1208].

2. Determination.

Based on the record, the [Joint Committee], by a 

vote of seven to four, finds that the [House Committee] 

15 Section 102 of the Commonwealth Documents Law defines “Document,” in pertinent 

part, as “any . . . order, regulation, rule, statement of policy, adjudication, certificate, license, 

permit, notice or similar instrument issued, prescribed or promulgated by or under the authority of 

this Commonwealth.”

16 Section 1.4 of the Pennsylvania Code defines “Document,” in relevant part, as “an order, 

regulation, rule, statement of policy, adjudication, certificate, license, permit, notice or similar 

instrument issued, prescribed or promulgated by or under the authority of the Commonwealth.”

17 Section 1.4 of the Pennsylvania Code defines “Regulation” as “[a] rule or regulation or 

order in the nature of a rule or regulation, promulgated by an agency under statutory authority in 

the administration of a statute administered by or relating to the agency, or prescribing the practice 

or procedure before the agency.”
MHW-17

has failed to show that the [Secretary’s Order], issued 

August 31, 2021, should be promulgated as a regulation.

While the [Secretary’s Order] imposes a legal 

requirement to wear face coverings in schools and other 

locations identified in the [O]rder, [the Secretary] issued 

the [O]rder under existing statutory and regulatory 

authority. [DOH’s] regulatory authority to bypass the 

rulemaking process is authorized by [Section 27.60 of its 

regulations,] 28 Pa. Code §27.60[;] [S]ection 2101(a) of 

the [Administrative Code], 71 P.S. §532(a)[;] [S]ection 

8(a) of the [DOH Act], 71 P.S. §1403(a)[;] and [S]ection 

2106[(b)] of the [Administrative Code], 71 P.S. §536[(b)]. 

(Footnote Omitted).[18]

As the Commonwealth entity empowered to determine whether an 

administrative agency rule is required to be promulgated as a rule or regulation 

subject to the provisions of the Regulatory Review Act19 and the Commonwealth 

Documents Law,20 this Court should defer to the Joint Committee’s expertise and 

18 By an October 29, 2021 order, this Court granted the Secretary’s Application for Relief 

in the Nature of a Motion for Leave to Supplement the Record, treating the application as a postsubmission communication under Pa. R.A.P. 2501(a), and docketed the Joint Committee’s October 

21, 2021 Order in this matter as an addendum to the Secretary’s ASR. Additionally, the House 

Committee has petitioned this Court to review the Joint Committee’s October 21, 2021 Order. See 

The Honorable Kathy L. Rapp v. Department of Health (Pa. Cmwlth., No. 1184 C.D. 2021).

19 See Section 7.1 of the Regulatory Review Act, 71 P.S. §745.7a (“The [Joint Committee] 

shall determine whether the document should be promulgated as a regulation and may order an 

agency either to promulgate the document as a regulation within 180 days or to desist from the use 

of the document in the business of the agency.”); see also Section 11(a) of the Regulatory Review 

Act, 71 P.S. §745.11(a) (“For the purposes of reviewing the regulations of the [C]ommission and 

otherwise satisfying the requirements of this act, the [Joint Committee] shall exercise the rights 

and perform the functions of the [C]ommission; and the [C]ommission shall exercise the rights 

and perform the functions of an agency under this act.”).

20 Section 502(d) of the Commonwealth Documents Law states that “[t]he [Joint 

Committee] shall exercise the powers and perform the duties vested in and imposed upon it by this 

part and any other powers or duties vested in and imposed upon the [Joint Committee] by law.” 

45 Pa. C.S. §502(d). In turn, Section 503 of the Commonwealth Documents Law states:

(Footnote continued on next page...)
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determination that the Secretary’s Order does not constitute a rule or regulation 

within the requirements of either of these statutes, as well as the Secretary’s 

determination that her Order was properly issued according to her statutory and 

regulatory authority. As the Pennsylvania Supreme Court has explained:

Subject to the provisions of [S]ection 732 (relating to required 

contractual arrangements), the manner in which the [Pennsylvania 

Code], the permanent supplements thereto, and the [Pennsylvania 

Bulletin], shall be published, and all other matters with respect 

thereto not otherwise provided for in this part shall be prescribed by 

regulations promulgated or orders adopted by the [Joint 

Committee]. The [Joint Committee] shall administer this part and 

Subchapter A of Chapter 3 of Title 2 (relating to regulations of 

Commonwealth agencies) with a view toward encouraging the 

widest possible dissemination of documents among the persons 

affected thereby which is consistent with the due administration of 

public affairs.

45 Pa. C.S. §503. See also Section 206 of the Commonwealth Documents Law, 45 P.S. §1206 

(“The agency text of all regulations and other documents, required or authorized to be deposited 

with the Legislative Reference Bureau [(Bureau)] by this act shall be prepared in such form and 

format as may be prescribed by regulations promulgated by the [Joint Committee].”); Section 701 

of the Commonwealth Documents Law, 45 Pa. C.S. §701 (“It shall be the duty of the [Bureau], 

subject to the policy supervision and direction of the [Joint Committee], to compile, edit and 

supplement . . . an official legal codification, to be divided into titles of convenient size and scope, 

and to be known as the ‘Pennsylvania Code.’”); Section 722(d) of the Commonwealth Documents 

Law, 45 Pa. C.S. §722(d) (“If an agency and the [B]ureau disagree concerning the form or format 

of a document required or authorized to be deposited with the [B]ureau, the agency may refer the 

matter to the [Joint Committee], which shall resolve the conflict pursuant to the standards and 

procedures provided by [S]ection 723(a) (relating to processing of deposited documents).”); 1 

Pa. Code §3.1(a)(2) and (9) (“The following documents shall be codified in the [Pennsylvania] 

Code: . . . [a]dministrative and gubernatorial regulations [and d]ocuments or classes of documents 

which the Governor, the Joint Committee or the Bureau finds to be general and permanent in 

nature.”); 1 Pa. Code §17.94 (“Section 502(d) of [the Commonwealth Documents Law] (relating 

to [the Joint Committee]) provides that the Joint Committee shall exercise the powers and perform 

the duties vested in and imposed upon it by the act and any powers and duties subsequently vested 

in and imposed upon the Joint Committee by statute.”).
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It is well settled that when the courts of this 

Commonwealth are faced with interpreting statutory 

language, they afford great deference to the interpretation 

rendered by the administrative agency overseeing the 

implementation of such legislation. . . . Thus, our courts 

will not disturb administrative discretion in interpreting 

legislation within an agency’s own sphere of expertise 

absent fraud, bad faith, abuse of discretion or clearly 

arbitrary action.

Winslow-Quattlebaum v. Maryland Insurance Group, 752 A.2d 878, 881 (Pa. 2000) 

(citations omitted).

Based on the allegations raised in the PFR, it is clear that neither the 

Secretary nor the Joint Committee acted with fraud or bad faith, or that either 

committed an abuse of discretion or clearly arbitrary action. As a result, unlike the 

Majority, I do not conclude that the Secretary’s Order is void ab initio as an 

improperly promulgated rule or regulation subject to the requirements of the 

Regulatory Review Act, the Commonwealth Documents Law, or in the absence of a 

gubernatorially-declared disaster emergency issued pursuant to Section 7301(c) of 

Pennsylvania’s Emergency Management Services Code, 35 Pa. C.S. §7301(c). This 

conclusion is amply supported by the Joint Committee’s October 21, 2021 Order. 

Accordingly, unlike the Majority, I would grant the Secretary’s ASR, and deny 

Petitioners’ ASR, with respect to the first issue in this case.

II.

Regarding the second issue presented in this matter, the Pennsylvania 

Supreme Court has stated:

[T]he separation of powers doctrine divides the functions 

of government equally between the executive, legislative, 

and judicial branches. As we recently explained,
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Article II, [s]ection 1 of the Pennsylvania 

Constitution states that “[t]he legislative power of 

this Commonwealth shall be vested in a General 

Assembly, which shall consist of a Senate and a 

House of Representatives.” PA. CONST. art. II, §1. 

That is why, when the General Assembly empowers 

some other branch or body to act, our jurisprudence 

requires “that the basic policy choices involved in 

‘legislative power’ actually be made by the 

[l]egislature as constitutionally mandated.” This 

constraint serves two purposes. First, it ensures that 

duly authorized and politically responsible officials 

make all of the necessary policy decisions, as is 

their mandate per the electorate. And second, it 

seeks to protect against the arbitrary exercise of 

unnecessary and uncontrolled discretionary power.

Although the legislature may not delegate 

legislative power, it may, in some instances, assign the 

authority and discretion to execute or administer a law, 

subject to two fundamental limitations: First, the General 

Assembly must make “the basic policy choices.” Once it 

does so, the General Assembly may “impose upon others 

the duty to carry out the declared legislative policy in 

accordance with the general provisions” of the legislation. 

Second, the legislation must include “adequate standards 

which will guide and restrain the exercise of the delegated 

administrative functions.” In determining whether the 

legislature has established adequate standards, “we are not 

limited to the mere letter of the law, but must look to the 

underlying purpose of the statute and its reasonable 

effect.” Further, the General Assembly does not delegate 

legislative powers by delegating mere details of 

administration.

Germantown Cab Company v. Philadelphia Parking Authority, 206 A.3d 1030, 1047 

(Pa. 2019) (citations omitted).

The provisions of the Administrative Code and the Disease Control 

Law provide DOH broad authority “[t]o protect the health of the people of 

[Pennsylvania], and to determine and employ the most efficient and practical means 
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for the prevention and suppression of disease.” 71 P.S. §§532(a), 1403(a).21 

However, the Disease Control Law and the associated regulations outline the 

parameters within which the Secretary and the Board, as well as local boards and 

departments, may operate with respect to the containment of communicable diseases 

within public and private schools. See Sections 4 and 5 of the Disease Control Law; 

Section 27.60 of DOH’s regulations. Specifically, the Secretary may only “carry out 

the appropriate control measures in such manner and in such place as is provided by 

rule or regulation,” upon the receipt of “a report of a disease which is subject to 

isolation, quarantine, or any other control measure.” 35 P.S. §521.5. See also Wolf 

v. Scarnati, 233 A.3d 679, 705 (Pa. 2020) (“Broad discretion and standardless 

discretion are not the same thing.”); Gilligan v. Pennsylvania Horse Racing 

Commission, 422 A.2d 487, 490 (Pa. 1980) (“The latitude of the standards 

controlling exercise of the rulemaking powers expressly conferred on the 

Commission must be viewed in light of the broad supervisory task necessary to 

accomplish the express legislative purpose.”).

21 In this regard, the Pennsylvania Supreme Court has observed:

In Archbishop O’Hara’s Appeal, [131 A.2d 587, 594 (Pa. 1957)], 

the standard of “the promotion of the health, safety, morals and 

general welfare * * *” was deemed sufficient to limit the 

administrative exercise of the zoning power to grant or refuse a 

special exception. The similarly general standard of “detrimental to 

welfare, health, peace and morals of the inhabitants of the 

neighborhood” was held to provide adequate guidance for the 

administrative refusal of a liquor license in Tate Liquor License 

Case, [173 A.2d 657 (Pa. Super. 1961)]. See also Dauphin Deposit 

Trust Co. v. Myers, [130 A.2d 686, 689 (Pa. 1957)] (statement that 

“adequacy or inadequacy of banking facilities” a proper criterion).

DePaul v. Kauffman, 272 A.2d 500, 503 (Pa. 1971). 
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In this case, the Secretary has acted according to the statutory and 

regulatory authority conferred upon her to protect the vulnerable student population 

in “School Entities” by the least restrictive and “the most efficient and practical 

means” available while the lethal COVID-19 pandemic continues to infect and kill 

the residents of this Commonwealth. The authority conferred upon her in this regard 

in no way encroaches upon the legislative power provided in article II, section 1 of 

the Pennsylvania Constitution.

Accordingly, unlike the Majority, I would grant the Secretary’s ASR

and deny Petitioners’ ASR, with respect to the second issue as well, and dismiss 

Petitioners’ PFR.

MICHAEL H. WOJCIK, Judge