May 11, 2020 – The Day Governor Wolf Lost Control of the Commonwealth of Pennsylvania

May 11, 2020 will go down in history as the day the Governor Wolf lost control of the state.

In a series of statements today, Governor Wolf called the counties seeking to reopen against his wishes “cowardly.” He stated that businesses who reopen against his wishes could face loss of licenses, certificates of occupancy and insurance on their properties.

First, I take great offense to the Governor calling the county leaders cowardly. Questioning authority is never cowardly. This country was founded on the founding fathers questioning authority. Nearly every innovation that this Country has ever made was based on someone questioning authority, and saying “I can do it better.” Governor Wolf does not seem to understand that his program for reopening the state is based on a series of educated guesses. There is no scientific consensus as to the procedure for reopening, which is why no two states and no two countries are approaching the situation identically. This is a situation that has never been seen before in the history of mankind. You cannot predetermine a “right” way of doing something that has never been done before.

I am proud of any community leader that is willing to question the status quo and is willing to study the facts and come to their own conclusions. Contrary to what some suggest, none of the community leaders are being reckless. Every one of them are talking about the steps that will continue to protect the elderly, children and those otherwise at risk.

Calling someone cowardly is cowardly in itself. Calling someone a coward is an effort to stamp out dissent. A true leader, a brave leader, has no problem facing dissent and rationally addressing it.

We continue to believe that the one size fits all approach advocated by the Governor cannot work and that individual communities should be allowed to make their own informed decisions during the pandemic.

As to stripping individuals or businesses of their licenses, certificates of occupancy and insurance, could the Governor actually do this? The short answer is that the Governor could try, but he’s got quite a battle in front of him.

As to licenses, most professional licenses are overseen by the Pennsylvania Department of State. There are 29 professional licensing boards that operate in conjunction with the Department of State. The Pennsylvania Department of State is an executive agency and falls within the control of the Governor. The Department of Education Controls Teaching Licenses. The Supreme Court controls law licenses.

The requirements to get a professional license are set by statute or by regulation. As such, the license eligibility requirements cannot easily be changed by the Governor. Licensing requirements would have to be changed by the PA legislature (for a statute), or by the overseeing agency (for a regulation).  As there are dozens of types of licenses, it is well beyond the scope of this blog post to discuss them all.  However, we can discuss general requirements.

Obviously, there is no law that says that your professional license must be revoked for defying a Governor’s order during a state of emergency. Some licenses can be revoked for being charged or convicted of certain misdemeanors or felonies. However, violation of the Governor’s order is only punishable (if a District Attorney will even charge you) by a summary offense. All licenses have a “good character” requirement, however there is no uniform definition of “good character” – which is likely violative of Article 2, Section 1 of the Pennsylvania Constitution, void for vagueness and violative of the the rule of lenity.  Nevertheless, I believe that this is what the Governor is threatening. If an individual defies his order, he is going to instruct the Department of State to label them as having “bad character” and try to revoke or suspend their license. There is no precedent for this. The Governor would be trying to make new law over a large group of people if he pursues this route.

Failing to follow an order is a type of contempt. Contempt based offenses, as could be filed for violating the Governor’s order, require a specific state of mind. In criminal law, a small number of offenses are strict liability offenses; for these offenses the state of mind of the accused doesn’t matter. For all other offenses, there is a specific state of mind (mens rea) that is required. For someone to be guilty of a contempt offense, they must have intent. Intent means that a defendant is aware of an order they believe to be valid and they willingly choose to defy the order.

An excellent defense to this contempt theory would be an equally valid conflicting order. As discussed in a prior post, municipalities can pass ordinances to allow businesses to reopen. If the municipality where your business is located passes an ordinance contrary to the Governor’s order that provides a strong defense to a citation or to a claim of bad character.

For this reason it is very important that local municipalities do more than just issue a statement permitting businesses to reopen. A properly enacted municipal ordinance permitting businesses to reopen will provide the best defense against a citation or license issue later.

The comment about certificates of occupancy is a bluff. Certificates of occupancy are not controlled by the Governor or the state. Certificates of occupancy are issued by individual municipalities. While a municipality could revoke a certificate of occupancy for failing to practice proper sanitation, the Governor cannot direct this. If a business’ municipality passes an ordinance saying that a business may reopen and the business follows the local ordinance, then there is no reason for the municipality to revoke the occupancy permit.

Finally the Governor has threatened to revoke insurance. The Pennsylvania Department of Insurance regulates insurance companies. The Department of Insurance makes sure that insurance companies have enough resources available to cover potential claims. The Department sets insurance rates and also can penalize insurance companies for unreasonably failing to pay compensable claims. I have been unable to find any authority that would allow the Insurance Department to revoke the insurance for an insured individual or business.

There were some additional comments made about the fact that insurance may not cover an injury that occurs during an illegal activity. This is actually true. However, there are a number of issues with that. If a municipality issues an ordinance that says a business may reopen, is the business operating illegally? That’s not a good argument for the insurance company. Additionally, to deny coverage, the injury normally needs to be a result of the illegal activity. It is difficult to see how that would work in this case. For example, if a business opens in violation of the Governor’s order and a customer slips and falls, is the injury a result of “illegal activity.” Of course not, the injury is a result of a slippery floor. The Governor’s order has nothing to do with a slippery floor. This threat to lose insurance is yet another illusory threat with no real teeth.

For all these reasons, it is certainly possible for the Governor to try these punitive measures, but it is very unlikely they will be successful.

The best thing that business owners can do at this time is to support their local elected officials and get those officials to enact a reasonable clear ordinance to reopen local businesses.

We are happy to review your specific license or business situation and tell you whether you should have any concerns in reopening.

If you or someone you know  want to review your specific license or business situation or has had your rights violated by Governor Wolf’s Order, contact us today to discuss your rights!

21 thoughts on “May 11, 2020 – The Day Governor Wolf Lost Control of the Commonwealth of Pennsylvania

    1. I have an idea start proceedings to remove this communist before your law firm no longer exists ! Or we no longer have a sovereign nation . This is a battle for the United States . It is a take down of America make no mistake about it . One hundred million will soon starve to death in this country if action isn’t started soon Stop all the damn talk and do something

      Liked by 1 person

  1. I had a waiver that has been rescinded. I own a title, tag and notary service, and have a contract with the Department of Transportation. I also have a certificate from the Department of State for my notary commission. We will risk losing everything if we open to the public?
    Thank you!

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  2. Thank you for this…. Absolutely a “great read”. As an Mounted Officer for the Lancaster City Police Dept (who patrols the downtown business district for the last 17 years) it frustrates me to see so many great family owned shops sinking. Over the years I have seen many of them build their shops / business Into thriving downtown places of interest…..only to now watch them lose close to everything in a matter of months. I feel for these people.

    Thanks for putting this out there… SUPPORT YOUR LOCAL ELECTED OFFICIALS!

    Mounted Officer Eric Lukacs
    Lancaster City Police Dept

    Liked by 2 people

  3. Thank You for all of your professional guidance with the issues we face today. You are a true American who loves his country and the people

    Sent from my iPhone

    >

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  4. Would it be possible for your firm to create some guidance to help direct the municipal authorities in creating the ordinances needed to dethrone self appointed Emperor Wolf? Seeing as how he has used the authority originally meant to help areas hit by floods, fires, tornados or other natural or man made disasters, and turned it into him being the unquestionable ruler of the state who answers to no one, the municipalities could use some help dethroning him.

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  5. Thank you for the incite. I own a second generation Used Car Dealership with a large repair facility and a quick lube in Mechanicsburg, PA. My father started this business and I want it to continue to third generation, who is in training right now. This Governor needs to stop throwing his authority around and let us get back to doing business rather than threatening us and calling us cowards. He reminds me of my grand kids in a fight. Thanks for listening and putting your opinion out for us to read.

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  6. Thank you for this encouraging e-mail. My blood boils more every day since this horrible dictator has shown his true colors. This e-mail offers hope that we may still have some freedom in PA!

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  7. How do we start precedings to get rid of him? I am a Landlord and he is doing Nothing to help us! My business will soon fail and my buildings go into foreclosure. I’ve worked Extremely hard and invested my life savings into these buildings and people cannot pay due to supposed job loss.

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    1. Getting rid of the Governor is extremely hard. While impeachment is a possibility, the state legislature does not seem to be interested in even exploring that possibility. Private citizens do not have the power to begin impeachment proceedings.
      As a landlord, you should take a look at my prior blog post about evictions. I am not in favor of evicting tenants who are temporarily out of work and are getting a plan together to repay their landlords. However, there are plenty of tenants who have no problem with taking advantage of their landlords and not paying rent for as long as possible.
      Governor Wolf’s order suspending evictions is illegal. If a landlord cannot work out a repayment plan with a tenant, they should move ahead with evictions as soon as the judicial state of emergency in their county ends. The statewide judicial emergency ended on May 11, 2020. Individual counties have been allowed to extend the state of emergency through May 31. Most, if not all counties have extended the state of emergency past May 11.
      After the state of emergency in your county ends, landlord tenant cases should proceed as usual.

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  8. The real issue is that our Governor has no valid reasoning why he allows some businesses to open and others to remain closed, what construction sites may continue operating and what sites may not and what counties are open and others must stay closed. Governor Wolf is not motivated by the welfare of the ordinary citizens of PA. It all has to do with the Unions in Pennsylvania who contributed heavily to his campaign. The other reason is Democratic politics. Ask yourself why we were only 1 of 2 states that closed liquor stores at the beginning of the pandemic. Because the workers belong to a union that didn’t want them to return to work. Why are we the only state in the United States that has closed all car dealerships to any business. Because PA law mandates they must have a notary public present in all dealerships. Notaries are State employees. Who makes all the money from this? Why wouldn’t Wolf allow the North Western Counties turn Yellow and let the miners return to work when there have been minimal cases of Covid-19 in those areas. Because he would like all mining to stop permanently in Pennsylvania, that’s why. In fact 2/3 of all the Covid-19 cases in PA are from mismanaged nursing homes. Their mismanagement started with the insane idea of Dr Levine, to allow new cases of Covid-19 into nursing homes. She had to know this would be a prescription for disaster! Why else remove her own mother from such a home. It was like dropping a live virus onto a petri dish of cells and watching them all implode. There were no unions to protect here and after all Wolf had to save some money after he saved all the pensions of the state workers. When I heard what Dr Levine did I was alarmed. As a physician she should be held responsible for all the deaths that ensued following her reckless decision. The media in Pittsburgh chose to focus primarily on the story that our mayor refused to go on KDKA because an anchor at that station accidentally misidentified Dr Levine, as a male, during an interview yesterday. Big deal! Let him go back to his basement and hide like Joe Biden. I never heard him say anything noteworthy and obviously his identity is more important to him than all the deaths in nursing homes, I suppose this is just another thing we must learn to accept in our “progressive” culture. But what is he trying to say here with his boycott? Someone please tell me because I am clueless.

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  9. Hairstylist and barbers! Having the license to do the right reopen. We just don’t get why we can’t open! Can you answer that question?

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  10. Great article!
    I do have a question can we the citizens of the commonwealth sue individual elected officials for violating their oath to office that requires to protect the constitution?

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    1. That’s a really good question. Unfortunately the answer is that any lawsuit is very unlikely to work. Pennsylvania officials have “sovereign immunity” if they are members of the state government and “governmental immunity” if they are members of the local government. There’s also a couple other types of special immunity available depending on their position. What this means is that Pennsylvania officials can only be sued for certain specific things. For example, if the Governor were to cause a car accident while driving for work purposes, he could be sued for that.

      However, the immunity prevents Government Officials from being sued for a huge number of things including doing their job badly. To get around that immunity, you have to show extreme and outrageous behavior by the government official. Unfortunately, the Courts reviewing immunity cases over the years have only rarely found conduct to be extreme and outrageous.

      The other issue is, while Pennsylvania statute clearly DOES NOT permit the Governor to do what he’s doing, the Pennsylvania Supreme Court has determined that the Governor has expansive emergency powers to deal with the pandemic. In other words, the Pennsylvania Supreme Court has essentially given the Governor a blank check to do whatever he wants. It’s extremely hard to argue that the Governor is doing something illegal when the Courts have made that type of ruling.

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      1. Lots of things can be done to public officials by judges of a case, and by prosecutors. Sanctions and even arrests can happen for misconduct. Adverse attorneys with some imagination can move for sanctions, and mandamus prosecutions for misconduct. Most attorneys are not zealous, and prefer to just go along.

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      2. Thanks for the quick reply. Understood, but can they be sued after their term in office is over?

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