PITTSBURGH – A series of construction companies continue to claim they were deprived of constitutional due process by top state authorities, during their enforcement of shutdown orders meant to contain the spread of the coronavirus pandemic.
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 first 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 said 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 stated.
“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 Stated Constitution,” the suit stated.
The litigation stated 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 said.
“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 argued 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 Stated Constitution.
UPDATE
Wolf and Levine filed a motion to dismiss the case on July 14.
“Plaintiffs’ argument is nothing more than a public policy disagreement with the defendants’ determination as to which physical business locations would remain open and which would be temporarily closed. Plaintiffs implicitly argue that if they had been empowered by law to make these life and death decisions, they would have responded to this global crisis differently. This policy matter is not for plaintiffs to decide,” the defendants’ motion read, in part.
“Here, during an unprecedented and rapidly evolving global health disaster, deference to the public policy decisions of Commonwealth officials is most appropriate. The business closure orders balance the economic interests of the Commonwealth against the health and lives of 12.8 million Pennsylvanians. Temporarily closing certain physical locations in order to protect lives is certainly not invidious or wholly arbitrary. The health and survival of those residents is the most compelling of state interests. And the classifications and distinctions made to protect our citizenry are absolutely essential – not just reasonably related – to achieving that most compelling of state interests.”
The plaintiffs filed a brief opposing the dismissal motion on Aug. 4.
“The stated purpose of the orders is to combat the spread of COVID-19. Residential and commercial contractors are similar businesses engaged in the same type of work. A commercial contractor and a residential contractor working on a project of the same size have the same ability to implement social distance between persons working on the job site,” the brief said.
“Stated otherwise, there is nothing specific to residential construction, as opposed to commercial construction, that makes it more difficult to implement social distancing between persons on a job site. Only the size of an enclosed structure bears a relationship to the stated goal of orders. The ultimate use of the structure, commercial or residential, in no way impacts the transmission of the virus among those constructing the structure.”
Per the guidance, the plaintiffs argue that 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.
“As such, under applicable law, the orders and guidance related to the number of workers permitted to work within an enclosed unit violate the equal protection clauses of the U.S. Constitution,” the plaintiffs countered.
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