Opinion
607 M.D. 2020
08-30-2021
Luigi DeFrancesco, Petitioner v. Thomas W. Wolf, Governor of the Commonwealth of Pennsylvania, Respondent
OPINION NOT REPORTED
Submitted: May 21, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
MEMORANDUM OPINION
CHRISTINE FIZZANO CANNON, Judge.
Before this Court, in our original jurisdiction, are the preliminary objections of Respondent, Thomas W. Wolf, Governor of the Commonwealth of Pennsylvania (Governor), to a Petition for Issuance of Writ of Mandamus (Petition) filed pro se by Luigi DeFrancesco (DeFrancesco). Upon consideration of the Petition, the preliminary objections and answer thereto, and both parties' briefs, we sustain the preliminary objections and dismiss the Petition with prejudice.
I. Background
DeFrancesco initially filed the Petition in the Court of Common Pleas of Crawford County, which transferred the matter to this Court. The Petition arises from DeFrancesco's dissatisfaction with the Governor's emergency handling of the COVID-19 pandemic. DeFrancesco avers that the Governor lacked authority under the Emergency Management Services Code, 35 Pa. C.S. §§ 7101-79A33 (EMS Code), to "restrain" citizens in their homes, prevent businesses from operating, and dictate which businesses could remain open and which were required to close. Pet. ¶¶ 22-23. DeFrancesco also asserts, somewhat inconsistently with the foregoing, that the Governor had a legal duty to identify infected persons, isolate them from healthy persons, limit the freedom of movement of persons exposed to communicable disease, and report suspected carriers of disease to the Department of Health. Id. ¶ 31. DeFrancesco suggests the Governor violated his legal duty by allowing placement of persons infected with COVID-19 in nursing homes along with uninfected persons. Id. ¶¶ 35-36. DeFrancesco seeks to compel the Governor to comply, in unspecified ways, with the requirements of the Disease Prevention and Control Law of 1955 (DPC Law). See generally Pet.
DeFrancesco further asserts that the Secretary of Health, who is not a party to this action, lacked authority to require healthy persons to wear face masks pursuant to a law directed at control of infected persons. Pet. ¶ 28.
Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S. §§ 521.1-521.21.
The Governor asserts three preliminary objections to the Petition, which we reorder as follows. First, the Governor contends that DeFrancesco lacks standing to maintain the Petition because he alleges only generalized harm and asserts no interest beyond that of the public in general. Second, the Governor demurs on the basis that the Pennsylvania Supreme Court's decision in Friends of Danny Devito v. Wolf, 227 A.3d 872 (Pa.), cert. denied, ___ U.S. ___, 141 S.Ct. 239 (2020), expressly rejected the same legal arguments DeFrancesco offers here. Third, the Governor demurs on the basis that DeFrancesco seeks to control the Governor's exercise of discretion, which is not amenable to relief in mandamus.
When reviewing preliminary objections to a petition in our original jurisdiction, this Court accepts all well-pleaded facts and reasonable inferences from those facts. Cnty. of Berks v. Pa. Off. of Open Recs., 204 A.3d 534, 539 n.7 (Pa. Cmwlth. 2019) (citing Russo v. Allegheny Cnty., 125 A.3d 113, 121 n.5 (Pa. Cmwlth. 2015), aff'd, 150 A.3d 16 (2016) & Feldman v. Hoffman, 107 A.3d 821, 826 n.7 (Pa. Cmwlth. 2014)). However, we need not accept legal conclusions, unwarranted inferences, opinions, or arguments. Berks, 204 A.3d at 539 n.7 (citing McCord v. Pa. Gaming Control Bd., 9 A.3d 1216, 1218 n.3 (Pa. Cmwlth. 2010) (en banc)). We will sustain a preliminary objection where, on the facts averred, the law says with certainty that no recovery is possible. Berks, 204 A.3d at 539 n.7 (citing Bruno v. Erie Ins. Co., 106 A.3d 48, 56 (Pa. 2014) & Feldman, 107 A.3d at 826 n.7).
II. Discussion
The Governor challenges DeFrancesco's standing to bring this action. As standing is a threshold matter, we address this preliminary objection first. We agree that DeFrancesco lacks standing and that the Petition must therefore be dismissed.
Under traditional standing, a party must be aggrieved by the matter he challenges. . . . To establish [aggrievement], a party must show an interest that is substantial, direct and immediate. . . . A substantial interest means the party suffers a discernible adverse effect to an interest other than the interest of all citizens in compliance with the law. . . . A direct interest means the party shows the matter complained of caused harm to his interest. . . . Lastly, relating to the causal connection, the party must show the interest is immediate and not a remote consequence of the matter complained of.Scarnati v. Dep't of Env't Prot., 220 A.3d 723, 728 (Pa. Cmwlth. 2019 (citing William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975)), aff'd per curiam, 240 A.3d 536 (Pa. 2020)).
Here, DeFrancesco avers that the Governor's alleged failure to perform his duties under the DPC Law exposed DeFrancesco and his family to health risks and "difficulty [in] their daily lives." Pet. ¶ 32. However, he fails to point to any manner in which these asserted risks and difficulties differed from or exceeded those faced by the general public.
In his brief, DeFrancesco states that he personally contracted COVID-19 and was ill for a month with the disease. Br. of Pet'r at 10. An averment in a brief is not a pleading, and we cannot consider it as such. See Smith v. Beard, 26 A.3d 551, 558-59 (Pa. Cmwlth. 2011) ("Although [petitioner] asserts additional explanations and facts in his brief in opposition to [preliminary objections], a brief is not a pleading, see Pa. R.C.P. No. 1017 (defining what constitutes pleadings), and we look only to the pleadings when considering preliminary objections, Pa. R.C.P. No. 1028(a).").
Moreover, we agree with the Governor's observation that "[t]he Petition sets forth no facts to demonstrate or suggest that []DeFrancesco's contraction of the virus was directly related to the Governor's policy choices." Reply Br. of Resp't at 2-3. We conclude that DeFrancesco avers only a generalized interest in the subject matter of the Petition, which is insufficient to confer standing to maintain this action. See Pa. State Lodge, Fraternal Ord. of Police v. Dep't of Conservation & Natural Res., 909 A.2d 413, 417 (Pa. Cmwlth. 2006), aff'd, 924 A.2d 1203 (Pa. 2007) ("general allegation that FOP members fear for their safety and for the safety of all citizenry . . . fails to demonstrate . . . a substantial, direct, and immediate interest . . . that is distinct from the interest of other members of the general public") (citing William Penn Parking Garage).
Because DeFrancesco lacks standing to maintain this action, the Petition must be dismissed. Accordingly, we do not reach the Governor's additional preliminary objections.
III. Conclusion
Based on the foregoing discussion, this Court sustains the Governor's preliminary objection to DeFrancesco's standing and dismisses the Petition with prejudice.
ORDER
AND NOW, this 30th day of August, 2021, the preliminary objection of Thomas W. Wolf, Governor of the Commonwealth of Pennsylvania, to the Petition for Issuance of Writ of Mandamus (Petition) filed by Luigi DeFrancesco, based on lack of standing, is SUSTAINED. The Petition is DISMISSED with prejudice.