IN THE SUPREME COURT OF PENNSYLVANIA

 MIDDLE DISTRICT

FRIENDS OF DANNY DEVITO, KATHY 

GREGORY, B&J LAUNDRY, LLC, 

BLUEBERRY HILL PUBLIC GOLF 

COURSE & LOUNGE, AND CALEDONIA 

LAND COMPANY,

Petitioners

v.

TOM WOLF, GOVERNOR, AND RACHEL 

LEVINE, SECRETARY OF PA 

DEPARTMENT OF HEALTH,

Respondents

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No. 68 MM 2020

CONCURRING AND DISSENTING OPINION

CHIEF JUSTICE SAYLOR Decided: April 13, 2020

Respectfully, I would refrain from exercising discretion to grant King’s Bench 

jurisdiction, albeit I agree with the majority that the circumstances are extraordinary and 

matters of great public importance are involved. I find, however, that several material 

aspects of the petitioners’ claims may involve issues of disputed fact. And it also 

appears to me that some of the majority’s conclusions have mixed legal and factual 

overtones.

For these reasons -- and in light of the ongoing public health crisis -- I believe 

there is much to be said for treating the executive branch’s actions as presumptively 
[68 MM 2020][M.O. – Donohue, J.] - 2

valid for now, while not foreclosing colorable challenges from moving forward in the 

appropriate court of original jurisdiction, i.e., the Commonwealth Court. Importantly, that 

court, unlike this one, is organized to support orderly fact-finding. Thus, it can more 

appropriately administer the necessary judicial consideration in the first instance, 

subject to appellate review by this Court if necessary.

That said, since the merits are now being explored, I lend my support to the 

majority’s conclusion that the present public-health crisis may properly be regarded as a 

“disaster emergency,” triggering the Governor’s special powers to respond. See

Majority Opinion, slip op. at 23-26 (citing 35 Pa.C.S. §7102). While there are factual 

aspects attending the majority’s reasoning on this point, I believe judicial notice can 

appropriately be taken concerning the severity of the current emergency and the need 

for strong countermeasures.

I am less confident, however, in the majority’s conclusion that “summary 

administrative action” by the executive branch to close many businesses throughout the 

Commonwealth must evade judicial review as a check against arbitrariness. Majority 

Opinion, slip op. at 42. While the majority repeatedly stresses that such closure is 

temporary, see id., this may in fact not be so for businesses that are unable to endure 

the associated revenue losses. Additionally, the damage to surviving businesses may 

be vast. Significantly, moreover, the Supreme Court of the United States has 

admonished that the impermanent nature of a restriction “should not be given exclusive 

significance one way or the other” in determining whether it is a proper exercise of 

police power. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 

U.S. 302, 337, 122 S. Ct. 1465, 1486 (2002).

The majority opines that “[t]he protection of the lives and health of millions of 

Pennsylvania residents is the sine qua non of a proper exercise of police power.” Id. at 
[68 MM 2020][M.O. – Donohue, J.] - 3

30. I believe, however, that greater account must be given to the specific nature of the 

exercise, and that arbitrariness cannot be tolerated, particularly when the livelihoods of 

citizens are being impaired to the degree presently asserted.

To me, the majority allocates too much weight to temporariness to defeat 

developed allegations of a lack of due process in the executive branch’s determination 

of which businesses must close and which must remain closed. See Majority Opinion, 

slip op. at 37-38.1 Again, there seems to be a factual dynamic that should not be 

dismissed out of hand. Certainly, the executive branch may engage in proper exercises 

of police power in a disaster emergency, and a fair amount of deference to its decisions 

may be in order. At least short of martial law, however -- relative to the broad-scale 

closure of Pennsylvania business for a prolonged period -- I don’t believe the 

executive’s determinations of propriety can go untested in the face of the present 

allegations of inconsistency and irrationality.2

In summary, in my considered judgment, the matters raised in the emergency 

application for extraordinary relief -- especially those related to alleged inconsistency 

 

1 Such allegations include the following:

It is not clear why some businesses are on the life-sustaining 

list[.] For example, why are “beer, wine, and liquor stores,” 

determined to be non-life-sustaining, but “beer distributors” 

are determined to be “life-sustaining?” Why are “department 

stores” non-life-sustaining, but “other general merchandise 

stores” life-sustaining? 

Brief for Petitioners at 48 (footnote omitted).

2 The majority observes that the General Assembly has the ability to terminate the 

Governor’s order. See Majority Opinion, slip op. at 37 (citing 35 Pa.C.S. §7301(c)). 

Although I agree with the majority that this serves as one check on executive power, I 

note that the Constitution serves as another.
[68 MM 2020][M.O. – Donohue, J.] - 4

and arbitrariness in the waiver process -- should be left to the Commonwealth Court, in 

the first instance, as the court of original jurisdiction invested with fact-finding 

capabilities.

Justices Dougherty and Mundy join this concurring and dissenting opinion.