IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.W., individually and on behalf of minor:

children C.W., D.W. and M.W.; S.H., :

individually and on behalf of minor :

children C.H. and D.H., C.H., :

individually and on behalf of minor :

child M.J.L.; N.J., individually and on :

behalf of minor children J.J. and J.K.; :

R.M., individually and on behalf of :

minor child M.M.; C.A., individually :

and on behalf of minor child F.J.A., :

Petitioners :

:

v. :

:

Acting Secretary of the Pennsylvania :

Department of Health, Alison Beam, : No. 297 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 NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: November 10, 2021

This case presents a challenge by five Petitioners (J.W., S.H., N.J., 

R.M., and C.A.), individually and on behalf of their minor children (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 Health (Acting 
2

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 Petition for Review in the Nature of a Complaint 

(Petition for Review) seeks declarations: (1) that the Acting Secretary lacks the legal 

authority to require individuals to wear masks in Pennsylvania’s schools; (2) that the 

Masking Order does not apply in any county with a local health department; (3) that 

the Masking Order violates Article I, Section 3 of the Pennsylvania Constitution, Pa. 

Const. art. I, § 3, providing for freedom of religion within the Commonwealth;1 and 

(4) that the Masking Order violates procedural due process.

2 Ultimately, the Petition 

for Review requests that this Court reverse and vacate the Masking Order. 

Before the Court currently are Petitioners’ Application for Summary 

Relief (Petitioners’ Application) and Respondent’s Application for Summary Relief 

(Respondent’s Application) filed by the Acting Secretary.3 For the reasons set forth 

herein, we dismiss this matter as moot.

1 Count V of the Petition for Review also brings a non-declaratory judgment claim that the 

Masking Order violates Section 4 of the Religious Freedom Protection Act, Act of December 2, 

2012, P.L. 9, 71 P.S. § 2404, which protects the free exercise of religion. See Petition for Review 

at 27-28. 

2 As we did in our recent decision in Corman v. Acting Secretary of the Pennsylvania 

Department of Health (Pa. Cmwlth., No. 294 M.D. 2021, filed November 10, 2021), we note 

preliminarily 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 

Corman, slip op. at 3. Instead, we decide herein only the narrow legal question of whether the 

Acting Secretary acted properly in issuing the Masking Order.

3

 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, No. 297 M.D. 

2021 (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 
3

This Court explained the background of the Masking Order at length in 

our recent decision Corman v. Acting Secretary of the Pennsylvania Department of 

Health (Pa. Cmwlth., No. 294 M.D. 2021, filed November 10, 2021), as follows:

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), 35 Pa.C.S. § 7301(c), regarding the novel 

coronavirus (COVID-19) pandemic. Thereafter, the 

Governor implemented numerous orders designed to 

mitigate and stop the spread of COVID-19, which orders, 

inter alia, closed restaurants and bars in Pennsylvania for 

in-person 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 Proclamation, each of which renewed the 

Disaster Proclamation for an additional 90 days.

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). 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. The second of the Constitutional 

Amendments added new Section 20 to Article IV of the 

Pennsylvania Constitution, which section limits the 

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).
4

duration of a gubernatorial disaster emergency declaration 

to 21 days absent an extension by concurrent resolution of 

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

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.

However, on August 31, 2021, in anticipation of a 

Commonwealth-wide 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. 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, 
5

P.L. 312, as amended, 71 P.S. §] 1403(a); 28 Pa. 

Code § 27.60.

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

shall wear a face covering indoors, regardless of 

vaccination status, except as set forth in Section 3.

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.

Corman, slip op. at 3-9 (footnotes omitted).

Petitioners filed the Petition for Review in this matter on September 8, 

2021, followed by an Application for Emergency Relief Seeking a Preliminary 

Injunction (Preliminary Injunction Application) on September 13, 2021, which seeks 

a preliminary injunction staying the implementation of the Masking Order and 

enjoining Respondent from issuing further school masking directives until the Court 

can determine the issues raised in the Petition for Review. The Acting Secretary

filed Respondent’s Answer to Petitioners’ Application for Emergency Relief 

Seeking a Preliminary Injunction on September 20, 2021. 

Following a pre-hearing conference conducted on September 28, 2021, 

on agreement of the parties, by order dated September 29, 2021, the Court stayed 

the hearing on the Preliminary Injunction Application and directed the parties to file 
6

applications for summary relief.4 See Order dated September 29, 2021, at 1-2. On 

October 4, 2021, the parties filed Petitioners’ Application and Respondent’s 

Application, and the Court scheduled the matters for oral argument en banc to be 

argued seriately with Corman, which presented the same legal question regarding 

the Acting Secretary’s issuance of the Masking Order.

Following oral argument, the Court issued its decision in Corman

holding that the Acting Secretary improperly issued the Masking Order without 

complying with the rulemaking requirements of the Regulatory Review Act, Act of 

June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-745.15, and in the absence 

of a gubernatorially-declared disaster emergency issued pursuant to the Emergency 

Code, 35 Pa.C.S. § 7301(c). See Corman, slip op. at 11-30. As a result, the Court 

declared the Masking Order to be void ab initio, an outcome which renders the 

claims of the instant matter moot. See Corman, slip op. at 30-31.

Accordingly, based on this Court’s decision in Corman,

5 we dismiss

both Petitioners’ Application and Respondent’s Application as moot and dismiss the 

Petition for Review.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

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

participate in this decision.

4 The order further directed, on agreement of the parties, that the Prothonotary mark Count 

VI of the Petition for Review, which sought to invoke this Court’s appellate jurisdiction, as 

withdrawn. See Order dated September 29, 2021, at 2.

5 As a result of finding the current matter moot for the reasons stated in Corman, we need 

not reach the claims based on the Pennsylvania Constitution or the primacy of local health 

departments presented by Petitioners in the instant matter.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.W., individually and on behalf of minor:

children C.W., D.W. and M.W.; S.H., :

individually and on behalf of minor :

children C.H. and D.H., C.H., :

individually and on behalf of minor :

child M.J.L.; N.J., individually and on :

behalf of minor children J.J. and J.K.; :

R.M., individually and on behalf of :

minor child M.M.; C.A., individually :

and on behalf of minor child F.J.A., :

Petitioners :

:

v. :

:

Acting Secretary of the Pennsylvania :

Department of Health, Alison Beam, : No. 297 M.D. 2021

Respondent :

O R D E R

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

for Summary relief filed by J.W., S.H., N.J., R.M., and C.A. (collectively, 

Petitioners), individually and on behalf of their minor children, and Respondent’s 

Application for Summary Relief filed by Alison M. Beam, the Acting Secretary of

Health, are DISMISSED as moot.

Petitioners’ Petition for Review in the Nature of a Complaint is 

DISMISSED as moot.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.W., individually and on behalf :

of minor children C.W., D.W. and :

M.W.; S.H., individually and on :

behalf of minor children C.H. and :

D.H., C.H., individually and on behalf :

of minor child M.J.L.; N.J., individually :

and on behalf of minor children J.J. and :

J.K.; R.M., individually and on behalf :

of minor child M.M.; C.A., individually :

and on behalf of minor child F.J.A., :

:

Petitioners :

:

 v. : No. 297 M.D. 2021

: Argued: October 20, 2021

Acting Secretary of the Pennsylvania :

Department of Health, Alison Beam, :

:

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

OPINION NOT REPORTED

CONCURRING AND DISSENTING OPINION 

BY JUDGE WOJCIK FILED: November 10, 2021

I agree with the Majority that Petitioners’ Petition for Review in the 

Nature of a Complaint (PFR) should be dismissed. However, I believe that the PFR 

should be dismissed based on the grant of the Acting Secretary (Secretary) of the 
MHW-2

Pennsylvania Department of Health’s (DOH) Application for Summary Relief 

(ASR), and the denial of Petitioners’ ASR.

1

In disposing of the cross-ASRs on the merits, with respect to Counts I 

and II raised in Petitioners’ PFR, I rely upon my Dissenting Opinion in Corman v. 

Acting Secretary of the Pennsylvania Department of Health (Pa. Cmwlth., No. 294 

M.D. 2021, filed ________ __, 2021) (Wojcik, J., dissenting opinion).

In Count III of the PFR, Petitioners acknowledge that “[t]he Public 

School Code [of 1949 (School Code)2] does not define the terms ‘medical 

examination’ or ‘medical treatment,’” yet they assert that “[f]ace masks constitute a 

1 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.”).

2 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 - 27-2702.
MHW-3

form of medical treatment to which religious and/or philosophical objections 

guaranteed under the Pennsylvania Constitution and [School Code] apply.” PFR 

¶¶69-70. Specifically, “[a]s face masks are being recommended to stop the spread 

of SARS-CoV-2 in order to prevent COVID-19 from occurring in humans, [by the 

federal Centers for Disease Control [and Prevention] and the Food and Drug 

Administration,] face masks are a form of prophylactic medical treatment.” Id.

¶¶71-73. Article I, section 26 of the Pennsylvania Constitution,3 Section 1419 of the 

School Code,4 and Section 23.84(b) of DOH’s regulations5 preclude the Secretary 

from requiring treatment or discriminating against students based on their religious 

beliefs. PFR ¶¶67-68. “[Petitioners] have religious and/or strong moral ethical 

convictions similar to religious belief against the requirements to force [the students] 

to wear face masks during in-person education.” Id. ¶75. As a result, Petitioners

3 Pa. Const. art. I, §26. Article I, section 26 states: “Neither the Commonwealth nor any 

political subdivision thereof shall deny to any person the enjoyment of any civil right, nor 

discriminate against any person in the exercise of any civil right.”

4 Added by the Act of July 15, 1957, P.L. 937, 24 P.S. §14-1419. Section 1419 states:

This article shall not be construed to compel any person to submit 

to any medical . . . examination or treatment under the authority of 

this act when the person or the parent or guardian of the person, if a 

minor, objects to the examination or treatment on religious grounds 

or to permit any discrimination against any person on account of 

such objections: Provided, That exemption from medical . . . 

examinations shall not be granted if the [Secretary] finds that 

facts exist under which the exemption constitutes a present 

substantial menace to the health of other persons exposed to 

contact with the unexamined person. 

(Emphasis added.).

5

28 Pa. Code §23.84(b). Section 23.84(b) states: “Children need not be immunized if the 

parent, guardian or emancipated child objects in writing to the immunization on religious grounds 

or on the basis of a strong moral or ethical conviction similar to a religious belief.”
MHW-4

ask this Court to declare that the Secretary’s August 31, 2021 Order violates article 

I, section 3 of the Pennsylvania Constitution6 because it does not allow for a religious 

and/or philosophical exemption from its requirements, or to entirely strike it based 

on this defect. Id. ¶¶76-77; id. at 24.

However, the Secretary’s Order “is a neutral law of general 

applicability” and “neither compels nor prevents [Petitioners] from exercising any 

religious beliefs.” Secretary’s ASR ¶¶30-31. Where a regulation neither targets a 

religious practice nor imposes burdens on religious conduct, a rational basis is only 

required and “the wearing of masks in the congregate setting of school entities is 

rationally related to the government objective of preventing the spread of COVID19[.]” Id. ¶¶32-34 (citing Combs v. Homer-Center School District, 540 F.3d 231, 

242-43 (3d Cir. 2008)). The Secretary’s Order “does not compel medical treatment” 

and “‘merely wearing a mask does not address any medical malady of the wearer[; 

r]ather, the covering of one’s nose and mouth is designed to safeguard other 

citizens.’” Id. ¶¶35-36 (citation omitted). Indeed, were we to accept Petitioners’ 

allegation in this regard, every surgeon would be receiving medical treatment every

time he or she practiced his or her medical skill on every patient in every hospital

across this country.

Additionally:

6 Pa. Const. art. I, §3. Article I, section 3 states:

All men have a natural and indefeasible right to worship Almighty 

God according to the dictates of their own consciences; no man can 

of right be compelled to attend, erect or support any place of 

worship, or to maintain any ministry against his consent; no human 

authority can, in any case whatever, control or interfere with the 

rights of conscience, and no preference shall ever be given by law 

to any religious establishments or modes of worship.
MHW-5

A State is well within its authority to prevent an 

individual’s indifference from hurting others. See, e.g.,

Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905); Zucht 

v. King, 260 U.S. 174 (1922) (upholding ordinance 

requiring children to be vaccinated before enrolling in 

public school); Prince v. Massachusetts, 321 U.S. 159 

(1944) (upholding state vaccination law protecting 

children over the religious objections of their parents).

Secretary’s ASR ¶38 (footnote omitted).

Moreover, as outlined above, Petitioners’ reliance on Section 1419 of 

the School Code is misplaced as it specifically empowers the Secretary to reject the 

religious exemption from the medical examination or treatment if she “finds that 

facts exist under which the exemption constitutes a present substantial menace to the 

health of other persons exposed to contact with the unexamined person.” 24 P.S. 

§14-1419. The Secretary specifically outlined the present “menace” to the health of 

the students underlying her decision to require wearing masks in school. See PFR, 

Exhibit A at 1-3. Likewise, as outlined above, Petitioners’ reliance on Section 

23.84(b) of DOH’s regulations is misplaced as it only relates to a religious objection 

to vaccinations and the Secretary’s Order does not require any COVID-19 

vaccinations. See id.

In Count IV of the PFR, Petitioners assert that public education is a 

fundamental right that cannot be denied absent procedural due process, including 

notice and an opportunity to be heard, and that the Secretary’s Order denies their 

fundamental right to education without procedural due process because it was not 

issued in compliance with the Regulatory Review Act7 or the Commonwealth 

Documents Law.8 PFR ¶¶79-84.

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

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

907.
MHW-6

Moreover, under article I, sections 1,9 25,10 and 2711 of the Pennsylvania 

Constitution, students have an “inherent and indefeasible right[]” to breathe without 

restriction the deprivation of which is subject to procedural due process, which was 

not afforded in this case. PFR ¶85. Finally, the instant Order differs from the 

Governor’s Universal Masking Order in effect in the 2020-2021 school year, which 

was upheld in Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020), because 

it was issued without an active emergency declaration and outside of the provisions 

of the Emergency Management Services Code, 35 Pa. C.S. §§7501-7931. PFR 

¶86.12 Because the Secretary’s Order was issued without procedural due process, 

Petitioners assert that this Court should declare it void and strike the Order. Id. ¶87; 

id. at 26.

However, contrary to Petitioners’ assertion, the Secretary was not 

required to issue her Order under either the Regulatory Review Act or the 

Commonwealth Documents Law for the reasons expressed in my Dissenting 

Opinion in Corman. Additionally, there must be the deprivation of a civil right 

before procedural due process rights are implicated, and the Secretary’s Order does 

not deprive students of either a right to education, the right to breathe, or any other 

9 Pa. Const. art. I, §1. Article I, section 1 states, in relevant part: “All men are born equally 

free and independent, and have certain inherent and indefeasible rights, among which are those of 

enjoying and defending life. . . .”

10 Pa. Const. art. I, §25. Article I, section 25 states: “To guard against transgressions of 

the high powers which we have delegated, we declare that everything in this article is excepted out 

of the general powers of government and shall forever remain inviolate.”

11 Pa. Const. art. I, §27. Article I, section 27 states, in pertinent part: “The people have a 

right to clean air. . . .”

12 Again, the Secretary was empowered to issue her Order in the absence of Governor’s 

Universal Masking Order for the reasons expressed in my Dissenting Opinion in Corman.
MHW-7

civil right; rather it allows students to breathe while reducing the risk of transmitting 

or receiving the SARS-CoV-2 virus causing COVID-19. Secretary’s ASR ¶¶41-46, 

55. Moreover, even if some process was due, the “[p]rotection of the health and 

safety of the public is a paramount governmental interest which justifies summary 

administrative action.” Friends of Danny DeVito, 227 A.2d at 898. Given the rapid 

spread of COVID-19 among school-aged children as outlined in the Secretary’s 

Order, a pre-deprivation process was not feasible and the Secretary acted pursuant 

to her authority under The Administrative Code of 1929,13 the Disease Prevention 

and Control Law of 1955,

14 and DOH’s regulations, and not the Emergency 

Management Services Code, so no disaster declaration was required. Secretary’s 

ASR ¶¶51-55. 

In Count V of the PFR, Petitioners assert that Section 4 of the Religious 

Freedom Protection Act (RFPA) prohibits DOH from “substantially burden[ing 

students’] free exercise of religion, including any burden which results from a rule 

of general applicability,” except where the burden is “in furtherance of a compelling 

interest of the agency,” and “the least restrictive means of furthering the compelling 

interest.” 71 P.S. §2404.15 In this case, the Secretary’s Order “substantially burdens 

13 Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §§51-732.

14 Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S. §§521.1-521.21.

15 Act of December 9, 2002, P.L. 1701, 71 P.S. §§2401-2408. Section 4 of the RFPA 

states:

(a) General rule.--Except as provided in subsection (b), an agency 

shall not substantially burden a person’s free exercise of religion, 

including any burden which results from a rule of general 

applicability.

(Footnote continued on next page...)
MHW-8

their free exercise of religion for the reasons previously asserted” and “was not 

issued in furtherance of a compelling [DOH] interest” because it “requires healthy 

individuals (rather than individuals infected with COVID-19) to wear masks[.]” 

PFR ¶¶90-91. Additionally, it “is not the ‘least restrictive means of furthering’ any 

(b) Exceptions.--An agency may substantially burden a person’s free 

exercise of religion if the agency proves, by a preponderance of the 

evidence, that the burden is all of the following:

(1) In furtherance of a compelling interest of the agency.

(2) The least restrictive means of furthering the compelling 

interest.

71 P.S. §2404. In addition, Section 5(a), (e), and (f) of the RFPA states, in relevant part:

(a) Claim or defense.--A person whose free exercise of religion has 

been burdened or likely will be burdened in violation of section 4 

may assert that violation against an agency as a claim or defense in 

any judicial or administrative proceeding.

* * *

(e) Jurisdiction.--A person alleging a violation of section 4 by a 

Commonwealth agency may bring an action in Commonwealth 

Court in accordance with this section and the applicable rules of 

court. . . .

(f) Remedies.--If a person asserts a claim or defense in accordance 

with this section and proves, by clear and convincing evidence, that 

the person’s free exercise of religion has been burdened or likely 

will be burdened in violation of section 4, a court may award the 

person such declaratory or injunctive relief as may be appropriate. 

No court shall award monetary damages for a violation of this act. 

Unless the court finds that the actions of the agency were dilatory, 

obdurate or vexatious, no court shall award attorney fees for a 

violation of this act.

71 P.S. §2405(a), (e), (f).
MHW-9

alleged [DOH] interest” for the same reason. Id. ¶92.16 As a result, this Court should 

grant the declaratory and injunctive relief provided in Section 5(f) of the RFPA, 71 

P.S. §2405(f), based on the Secretary’s violation of Section 4 of the RFPA, 71 P.S. 

§2404. PFR ¶94-95; id. at 28.

However, in applying the RFPA, “Pennsylvania courts scrutinize 

claims of religious burden to determine if the burdened activity is truly ‘fundamental 

to the person’s religion.’ Commonwealth v. Parente, 956 A.2d 1065, 1074 (Pa. 

Cmwlth. 2008).” Secretary’s ASR ¶58. Additionally, Petitioners “‘must meet the 

threshold burden of showing, by clear and convincing evidence, that there is or will 

be denial or substantial infringement of conduct or expression which violates a 

specific tenet of his or her religious faith. . . .’” Id. ¶59 (citation omitted and 

emphasis in original). Petitioners have failed to allege, by clear and convincing 

evidence, that the students’ wearing of a face covering while in school constitutes a 

substantial burden on the free exercise of religion. Id. ¶60. Moreover, even if it 

does, it is permissible under Section 4(b) of the RFPA because it is in furtherance of 

a compelling DOH interest and it is the least restrictive means of furthering that 

interest while still allowing for in-person education. Id. ¶61, 64, 65. See, e.g.,

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63, 67 (2020) (“Stemming 

the spread of COVID-19 is unquestionably a compelling interest.”); Friends of 

Danny DeVito, 227 A.2d at 898 (“Protection of the health and safety of the public is 

a paramount governmental interest which justifies summary administrative 

action.”). As a result, Petitioners’ RFPA claims are without merit.

16 Petitioners need not comply with the 30-day notice requirement of Section 5(c)(1) and 

(2) of the RFPA, 71 P.S. §2405(c)(1) and (2), because the Secretary’s action was “imminent” and 

they were “not informed and did not otherwise have knowledge of [her] exercise of governmental 

authority in time to reasonably provide notice.” PFR ¶93.
MHW-10

Finally, in Count VI, Petitioners appeal the Secretary’s Order to the 

extent that it is appealable under Section 5105(a)(1) of the Judicial Code, 42 Pa. C.S. 

§5105(a)(1), for the same reasons stated above: (1) it is ineffective in counties with 

a health department; (2) the Secretary lacks the legal authority to require masks in 

schools; (3) the Secretary’s Order violates the Pennsylvania Constitution by not 

allowing for religious and philosophical objections to the requirement; (4) the 

Secretary’s Order violates procedural due process; and (5) the Secretary’s Order 

violates the RFPA by substantially and impermissibly burdening Petitioners’ free 

exercise of religion. However, as outlined in the Dissenting Opinion in Corman, 

and as outlined above, these claims are without merit.

Accordingly, unlike the Majority, I would grant the Secretary’s ASR

and deny Petitioners’ ASR; however, like the Majority, I would dismiss Petitioners’

PFR.

MICHAEL H. WOJCIK, Judge