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Third Circuit Stays Federal Court's Decision Striking Down Pennsylvania Governor's COVID-19 Emergency Orders as Unconstitutional

October 5, 2020

Third Circuit Stays Federal Court's Decision Striking Down Pennsylvania Governor's COVID-19 Emergency Orders as Unconstitutional

October 5, 2020

Read below

The Third Circuit granted only a temporary status quo remainder. 

Pennsylvania Governor Tom Wolf’s COVID-19 pandemic emergency orders shall remain in effect, says the Third Circuit. The federal appellate court stayed the lower court decision striking down several portions of the Governor’s orders as unconstitutional.

Last month, a federal district court in Pennsylvania ruled that significant portions of several of Governor Wolf’s emergency orders relating to the COVID-19 pandemic are unconstitutional under the First and Fourteenth Amendments of the United States Constitution.[1] Those orders, struck down by Judge William S. Stickman IV of the United States District Court for the Western District of Pennsylvania, included: numeric limitations on gatherings of individuals, closures of certain “non-life-sustaining businesses” with capacity limitations placed on others, and a stay-at-home order.[2] The court ruled that the numeric limitations on gatherings violated the First Amendment rights to free speech and assembly, and that the stay-at-home and non-life-sustaining business closure orders violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.[3]

The Governor appealed the district court’s ruling to the United States Court of Appeals for the Third Circuit. On October 1, 2020, the Third Circuit granted the Governor’s motion to stay the district court’s ruling, thereby temporarily leaving his emergency orders in effect while the Third Circuit reviews the lower court’s decision.[4] The Governor’s opening brief currently is due November 4, 2020.

Impact of Third Circuit’s Order

First, all of Governor Wolf’s emergency orders will remain in effect until the Third Circuit delivers a final ruling. Indoor gatherings remain limited to 25 people while outdoor gatherings remain limited to 250 people. Certain non-life-sustaining businesses, such as nightclubs, will continue to cease operations while others, such as restaurants, will continue to have capacity limitations placed on them. Additionally, the stay-at-home order remains in effect, although the shelter-in-place order has been lifted. In short, businesses and individuals should continue to operate as they had been prior to the district court’s September 14, 2020, ruling, striking down those restrictions.

Second, the reinstatement of the Governor’s emergency orders are not necessarily permanent. The Third Circuit merely decided that those restrictions remain operational until it is able to review the merits of the appeal and decide whether it agrees with the district court that the emergency orders are unconstitutional. The Third Circuit granted only a temporary status quo remainder. Briefing currently is scheduled to close by the end of the year, and at that point the Third Circuit will review the appeal for a final ruling. Therefore, businesses are encouraged to seek counsel before implementing any changes to their protocols as to how this order specifically affects them. Remember, the law is only the minimum in the measures businesses may consider to protect others from COVID-19, and, in so doing, can help minimize their own legal and business risks.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Sharon L. Caffrey, Jonathan A. Segal, Elizabeth Mincer, Jonathan Aronchick, any of the attorneys in our Trial Practice Group or the attorney in the firm with whom you are regularly in contact.


[1] County of Butler, et al. v. Thomas W. Wolf, et al., No. 2:20-cv-677 (W.D. Pa. Sept. 14, 2020).

[2] Orders of the Governor of the Commonwealth of Pennsylvania Directing Mitigation Measures, July 15, 2020.

[3] County of Butler, No. 2:20-cv-677, at 32.

[4] County of Butler, et al. v. Governor of Pennsylvania, et al., No. 20-2936 (3d Cir. Oct. 1, 2020).

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.