PITTSBURGH – A group of construction companies is suing Gov. Tom Wolf and Secretary of Health Rachel Levine, contending that state authorities enforcing shutdown orders for the coronavirus pandemic have deprived it of due process.
Builders Association Of Metropolitan Pittsburgh, Londonbury Homes, Inc. of Carnegie, Sparkle Construction-SPP, Inc. of Apollo, Magnotti & Sons, Inc. (doing business as “The Fireplace and Patioplace”) of Pittsburgh, TJ Bush Enterprises, Inc. of Bridgeville and Rossman/Hensley, Inc. of Valencia filed suit in the U.S. District Court for the Western District of Pennsylvania on June 12 versus Wolf and Levine, both of Harrisburg.
Both Wolf and Levine issued orders compelling the closure of the physical operations of all businesses that were deemed non-life sustaining, and though physical construction has resumed, it is restricted due to amendments to the orders.
BAMP says that its membership is comprised of businesses and individuals from Allegheny, Beaver, Butler, Greene, Westmoreland and Washington counties, in the state’s southwest region.
“Other than Beaver County, the Governor announced that the Southwest Region was moved to the ‘Yellow’ phase of reopening on May 18, 2020. Based on the information currently available, the ‘Yellow Phase’ does not alter the order and guidance for the construction industry restricting workers on residential construction sites. Based on the information currently available, the ‘Green Phase’ does not alter the order and guidance for the Construction Industry restricting workers on residential construction sites,” the suit states.
“Some BAMP member suppliers, manufacturers, and trade contractors, Londonbury and Sparkle were ordered to remain closed under the governor’s and health secretary’s orders, which is disrupting the supply chain and construction operations for residential construction. Plaintiffs have suffered, and will continue to suffer, economic harm as a result of the orders.”
In conjunction with the orders, the governor established a waiver process administered by the Department of Community of Economic Development by which a business deemed “non-life sustaining” could advocate for an exemption to permit it to open.
After receiving more than 40,000 waiver applications by April 3, the waiver process was closed and the plaintiffs say they were denied waivers to operate their respective businesses and then issued a “clarification” that no new construction or non-emergency rehabilitation or remodeling may be performed.
“Effectively, there is no waiver process for residential contractors and associated member businesses. This standardized approach and failure to consider the applicant’s unique situation and proposal constitutes a denial of the applicant’s due process rights under the United States Constitution,” the suit states.
The litigation states distinctions were not made between commercial and residential construction, which the plaintiffs argue are key differences.
“Under the guidance, a commercial contractor building a 5,000 square foot structure would be permitted to have ten persons on the job site, while a residential contractor building a 5,000 square foot house would be permitted to have only four persons on the job site,” the lawsuit says.
“Other than the number of workers permitted to work in an enclosed unit, the guidance for safely working at a construction site are identical for all construction related activities, including following Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) guidelines.”
The plaintiffs argue that the governor’s orders and guidance treat similarly situated entities differently and as related to the number of workers permitted to work within an enclosed unit, they violate the equal protection clause of the United States Constitution.
For the aforementioned conduct, the plaintiff is seeking a declaratory judgment that issuance and enforcement of the orders are unconstitutional for the reasons stated herein, and that the actions of the defendants are unlawful and unconstitutional; an injunction to prohibit the defendants from enforcing the orders; a declaration that the plaintiffs’ rights have been violated, costs and expenses, such other relief as the Court deems appropriate and a trial by jury.
The plaintiffs are represented by Kristen L. Moritz of Gesk Moritz, in Carnegie.
The defendants are represented by Karen Mascio Romano of the Pennsylvania Attorney General’s Office, in Harrisburg.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-00870
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com