Opinion
No. 90 MM 2020
07-31-2020
PRIVATE PROPERTIES, LLC, a Pennsylvania Limited Liability Company, Chester Properties, LLC, a Pennsylvania Limited Liability Company, and the Pennsylvania Residential Owners Association, a Pennsylvania Non-stock Non-profit on Behalf of All Similarly Situated Parties, Petitioners v. Tom WOLF, Governor of the Commonwealth of Pennsylvania and Josh Shapiro, Attorney General of Commonwealth of Pennsylvania, Respondents
ORDER
PER CURIAM.
AND NOW, this 31st day of July, 2020, the Application for Extraordinary Relief is DISMISSED as improvidently granted.
Justice Wecht files a dissenting statement.
DISSENTING STATEMENT
JUSTICE WECHT.
Governor Tom Wolf has issued consecutive executive orders, pursuant to his emergency powers under the Emergency Code,1 that bar until further notice landlords from evicting residential tenants for defaulting on their rent obligations or overstaying the terms of their residential leases.2 Acting per curiam, this Court, with only Chief Justice Saylor noting dissent, deemed Petitioner-landlords' constitutional challenge to the Governor's authority to issue that order worthy of our rarely-exercised King's Bench jurisdiction and of a sharply expedited briefing schedule.3 Astonishingly, more than two months later, a majority of this Court's members, again speaking per curiam, has decided that the case no longer warrants review at all. It appears that several of my colleagues simply have changed their minds.
When this Court took jurisdiction and directed briefing, we signaled our intention to review and decide the legal merit of a constitutional dispute of enormous consequence to Petitioners, hundreds or thousands of other landlords, and likely thousands of tenants who are behind on their rent because of continuing COVID-19-related hardships.4 In over two months since, none of the material circumstances that frame the constitutional questions presented have changed in any way that impairs our ability to analyze Petitioners' claims as originally presented. There have been no relevant surprises. Meanwhile, to all outside appearances the case has languished for nearly two months, while thousands of Pennsylvanians live with uncertainty as to the status—and in some instances the fate—of their core businesses and the roofs over their heads. The Governor's authority to have put them in that position, however well-intentioned, remains an open question. To dismiss this case as improvidently granted, implying that this Court simply erred in granting King's Bench review to begin with, is to leave roiling uncertainty in our wake as we drift out of sight. I dissent.
To understand the gravity of this Court's decision to abscond, it is necessary first to review a series of judicial and executive orders that have issued over the course of the Spring and Summer of this year of our pandemic, 2020. The scourge of COVID-19 ("COVID"), of course, has sent shockwaves through all levels of Pennsylvania's government. COVID's arrival in our Commonwealth—as it has in at least the vast majority of states in our nation— precipitated a flurry of executive orders. In Pennsylvania, these have descended from the Governor's initial, since-renewed Proclamation of a Disaster Emergency pursuant to the Emergency Code.5 This Court has considered and rejected a number of statutory and constitutional challenges to those orders.6
This particular challenge was initiated shortly after the Governor issued the May Order, on May 7, 2020,7 which effectively barred evictions under the Landlord and Tenant Act of 1951 ("LTA") and the Manufactured Home Community Rights Act ("MHA").8 Both Acts impose strict notice requirements upon lessors seeking to evict lessees from leased property before they may commence an action to dispossess the lessee of his or her rented home. These provisions ensure that tenants have sufficient notice to protect their rights, cure their default, or leave the premises in an orderly fashion without being subject to self-help, litigation by ambush, or sudden, unannounced removal by official compulsion.
Citing his Emergency Code authority and the Secretary of Health's discrete authority under the Disease Prevention and Control Law of 1955 ("DPCA"),9 and noting that "the movement and/or displacement of individuals residing in Pennsylvania from their homes or residences ... constitutes a public health danger to the Commonwealth," May Order at 2, the Governor ordered that, during the period from May 11 until July 10, LTA and MHA notice requirements would be stayed, "thereby tolling the ability to commence the timelines necessary for the initiation of eviction proceedings." Id. at 3; see supra n.8. Put simply, the Governor effectively suspended eviction proceedings for two months. On May 21, the Governor issued an Amendment to the May Order limiting the scope of the evictions presented to those involving nonpayment of rent or overstaying the duration of the tenant's lease.10
On May 12, one day after the May Order took effect and before the May 21 amendment, Petitioners filed their Application for Extraordinary Relief in this Court. Therein, they asked us to exercise King's Bench jurisdiction11 and to invalidate the May Order on the basis that the Governor's action had violated the separation of powers assured by the Pennsylvania Constitution and/or substantive due process principles. See Petition for Extraordinary Relief Pursuant to the Court's King's Bench Jurisdiction, ¶¶16-36. This Court responded by requiring Respondents, the Governor and the Attorney General, to file their Answer on May 18, the fourth business day thereafter.
On May 27, this Court determined by per curiam order, Chief Justice Saylor noting dissent, that Petitioners' challenge warranted an exercise of this Court's King's Bench jurisdiction.12 Mindful of the urgency and import of the questions presented, this Court directed briefing on a schedule as tight as would be practicable in any matter. Specifically, our Order, which issued on a Wednesday, required Petitioners to file their brief no later than noon the following Monday, June 1—and granted Respondents only three business days thereafter to respond, setting a noon deadline on June 4. This Court also accepted numerous briefs by amici curiae, each of which thoughtfully fleshed out the legal issue and/or the interests at stake. See supra n.4.
While the Governor was attempting to minimize the harm caused by the pandemic, this Court had not been standing idly by. Mindful of the foreseeable risk of disease transmission inside bustling courthouses and courtrooms, and given the face-to-face contact that litigation traditionally entails, on March 18, this Court declared the Pennsylvania courts generally closed to the public from March 19 through April 3. We also ordered that no judicial agents or employees would be permitted to act upon eviction orders.13 On April 1, we entered a new order extending the shutdown through April 30, thus renewing our prohibition of eviction enforcement by judicial employees.14
Again on April 28, we extended the statewide judicial emergency through June 1.15 But this time we made clear that "the statewide suspension of procedures related to the dispossession of property," i.e., evictions and foreclosures, would end on May 11. See Emergency Order, 531 & 532 Administrative Docket (April 28, 2020), supra n.14, at 12. While we lifted our statewide suspension, we expressly authorized President Judges of the lower courts to issue their own emergency declarations and take such protective measures as they saw fit in light of local conditions. See id. at 3.
It was against this backdrop that the Governor issued the May Order four days before our Order was to expire, and it is easier to infer the Governor's intent within that framework. In short, when it became clear that this Court no longer deemed it necessary to suspend eviction enforcement, delegating any such restrictions to the discretion of the lower courts, the Governor issued his May Order, extending the prohibition on eviction enforcement by different means. Whether the Governor has actual authority to issue such an order, or whether his order impermissibly infringed this Court's broad and exclusive supervisory authority over the administration of the courts under Article V, Section 10(c), of our Constitution16 or otherwise violated Petitioners' due process rights, is the subject of the instant action. And as noted above, on May 27, we signaled our intent to resolve these important questions by exercising King's Bench jurisdiction.17
Meanwhile, the clock was ticking on the Governor's May Order, which was set to expire on July 10. On July 9, a little over a month after the parties to this action completed their briefing on our expedited schedule, the Governor issued his July order, which renewed his prior measures to prevent the dispossession of property by eviction.18 Among minor differences with no obvious bearing on the broad dispute before us, the July Order cited only the Emergency Code as authority, omitting to mention the Secretary of Health's discrete authority under the Administrative Code and the DPCA; and, unlike the May Order, the July Order expressly limited the scope of its prohibition to residential evictions. See supra n.8. But in all relevant particulars, the July Order preserved the same condition relative to Petitioners' interests that the May Order had imposed. Like the May Order, the July Order bars two broad categories of evictions to minimize community spread of COVID. The lone change to Section 2 of the Order barring tenant evictions under the LTA and MHA in no way affected the gravamen of Petitioners' argument.19
Perhaps for that reason, the parties did not venture to file any additional documents addressing the July Order, despite the pendency of this action and the opacity of this Court's then-ongoing deliberative process. But we also did not issue any order directing or inviting the parties to do so, a conspicuous omission given that we not infrequently will do precisely that when we believe that changed circumstances, briefing deficiencies, or other prudential concerns require further advocacy. I can only speculate as to why the parties did not elect to supplement their previous submissions on their own initiative—an especially interesting question with respect to Respondents, who could have preserved the status quo they presumably prefer by successfully arguing that the July Order mooted Petitioners' challenge by replacing the by-then expired May Order.20
In any event, if this Court detected some previously unnoticed flaw or believed that circumstances had changed in a way that called into question the justiciability of the instant challenge on any basis, at the very least, having already deliberated for nearly two months, we could have granted the parties an opportunity to address the concern before dismissing a case that this Court already had deemed so extraordinary as to warrant bypassing the ordinary course of litigation and taking immediate jurisdiction. While we address jurisdictional defects sua sponte when we identify them, other grounds for deeming a case non-justiciable, such as standing and ripeness, typically are waived unless raised by the parties. See Rendell v. Pa. State Ethics Comm'n, 603 Pa. 292, 983 A.2d 708, 717-18 (2009). And our King's Bench authority brings with it the prerogative to overlook irregularities in the posture or presentation of a case of great public importance. See In re Bruno, 627 Pa. 505, 101 A.3d 635, 669 (2014) ("The exercise of King's Bench authority is not limited by prescribed forms of procedure or to action upon writs of a particular nature; the Court may employ any type of process or procedure necessary for the circumstances."). Moreover, even without invoking our extraordinary King's Bench authority, when this Court is confronted with the prospect that an issue of great public importance is capable of repetition and evading review, we may and sometimes do overlook justiciability concerns to resolve the issue. See, e.g., Pub. Def.'s Office of Venango Cty. v. Venango Cty. Court of Common Pleas, 586 Pa. 317, 893 A.2d 1275, 1279-80 (2006).
What is so dispiriting about this dismissal is that this Court has resolved nothing, inviting commencement of another materially identical challenge. The July Order remains in effect until August 31. And as of this writing, the rate of new infections in Pennsylvania has been increasing steadily for over a month, standing now at nearly the same level it was at the time of the May Order, and continuing to increase. It is half-again as high as it was when the Governor entered the July Order.21 While we cannot know what the Governor will do in the future, present conditions differ only modestly from those that prompted the Governor's May and July Orders. Petitioners and others similarly situated have every reason to speculate that the Governor will extend the July Order or issue an order to similar effect before the July Order's August 31 expiration.22 Thus, it is all but certain that some party or parties will bring a similar if not materially identical challenge to the Commonwealth Court in its original jurisdiction,23 restarting the clock on this urgent constitutional dispute. And since the case will be heard in the Commonwealth Court's original jurisdiction, the losing party will be entitled to appeal the ruling to this Court as of right,24 all but ensuring still further delay. All things remaining equal, in the coming months we have every reason to anticipate that the same constitutional challenges we accepted jurisdiction to entertain months ago will return. The only question is how far down the road we have kicked the can.
Worse still, any difficulties arising from the Governor's replacement of one emergency order of relatively short duration with the next, as occurred during the pendency of this case, are likely to recur. One must ask whether Pennsylvania landlords will find themselves powerless as a class ever to secure a definitive ruling as to whether the Governor has authority to bar judicial eviction proceedings in the first instance so long as he continues to issue his orders in six- to eight-week increments.
The Governor took precipitous action that has impaired the business interests and property rights of Petitioners and many other landlords across this Commonwealth. Petitioners, their rights impaired in a most immediate sense, invited this Court to exercise our King's Bench jurisdiction, an invitation that this Court accepted after due deliberation. We then directed briefing of two discrete constitutional issues on a schedule that reflected a clear sense of urgency, one which surely led multiple attorneys to work through the weekend and deep into the evenings. Two months later, without explanation, this Court abruptly washes its hands of the whole affair, while uncertainty as to the constitutionality of the Governor's actions persists. For all the good we have done, this Court at least might have diverted Petitioners to the Commonwealth court two months ago by declining to take jurisdiction in the first place.
To decide the constitutional questions before us would affect the economic interests of thousands of individuals, be they landlords or tenants, and hundreds or thousands of small businesses. The potential outcome is beside the point. As Justice Baer once aptly wrote: "The question now before us is not what a majority of this Court would decide, but whether it will undertake its normal comprehensive and thoughtful process, and decide something on this important issue." Commonwealth v. Roby-Spencer, 594 Pa. 14, 934 A.2d 693, 695 (2007) (Baer, J., dissenting from an order dismissing the case as improvidently granted). Today, the Court answers, "No." But not to rule upon the question is, in effect, to rule against Petitioners, at least for weeks if not months to come.
I discern no practical, institutional, or jurisprudential benefit to dismissing this case so late in its development—and much to commend its prompt decision by this Court. In taking King's Bench jurisdiction, we correctly signaled that this case warranted extraordinary treatment. We were right to take the case then, and we would do right to decide it now.
It beggars belief that after the passage of two months, this Court has declined to address two focused, ripe, and emergent constitutional questions of consequence to so many. And the Court does so without any explanation. Petitioners and similarly situated landlords deserve more. Tenants suffering economic hardship in a state of enduring confusion deserve more. The Pennsylvania bench and bar, and the Governor himself, deserve more.
Someone must answer the difficult constitutional questions this case presents. If not us, then who? If not now, when?