PHILADELPHIA – A Philadelphia sports medicine business owner who attempted to bill Gov. Tom Wolf more than $137,000 for the losses he incurred during adherence to COVID-19 orders has lost the first attempt at his case.
U.S. District Court for the Eastern District of Pennsylvania Judge Joshua D. Wolson issued his opinion on Jan. 27, dismissing the complaint but providing leave to file an amended iteration consistent with his ruling.
Plaintiff Steven Wilson operates “Tape Me Up, LLC,” a sports medicine injury prevention business in Philadelphia, which relies on athletes’ participation in sporting events and outdoor athletic activities.
Due to the COVID-19 pandemic, Wolf issued a series of executive orders beginning in March 2020 which required state residents to stay home and businesses to close. According to Wilson, the COVID orders shut down his business, because they closed all public parks and recreation facilities and prohibited sporting events.
Wilson determined that Wolf had to compensate him for his business losses, charging him $2,000 for each day from April 1 to June 4 (65 days) and added six percent sales tax, for a total of $137,800.
On July 6, 2020, Wilson mailed Wolf a bill for the amount he determined the Governor owed him. Not receiving a response, so he sent the invoice a total of three more times, but received no payment in response to these mailings.
On Sept. 15, 2020, Wilson filed a pro se complaint against Wolf “in his official capacity as Governor of the Commonwealth of Pennsylvania”, seeking damages for violations of his First and Fourteenth Amendment rights under 42 U.S.C. Section 1983.
Wilson referenced “a contract controversy for Governor Wolf’s failure to pay his bill, and disability discrimination claims under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act on the theory that Governor Wolf ‘disabled’ his business by classifying it as ‘non-life sustaining,’ thus rendering it inoperable.”
Counsel for Wolf moved to dismiss the complaint, arguing that the Eleventh Amendment bars the Section 1983 claims and that Wilson did not state a claim for violation of the ADA or the Rehabilitation Act.
But, Wolson observed as “a matter of philosophy” that the plaintiff suggests that the Governor’s refusal to pay his bill is really a breach of contract action – based on the premise that that the Pennsylvania Constitution is a social contract, the social contract required Wilson to follow the COVID orders and that the Commonwealth has allegedly waived sovereign immunity for contract disputes.
“But the Court is not here to resolve philosophical disputes. It is here to resolve legal disputes, and Mr. Wilson’s argument is wrong as a legal matter. The Pennsylvania Constitution is not an enforceable contract. It is an organizational document for the Pennsylvania government. Though clever, Mr. Wilson’s argument does not allow him to avoid the Eleventh Amendment [or sovereign immunity under the Due Process Clause],” Wolson stated.
Wolson further deconstructed Wilson’s argument as to his perceived disability.
“Disability under both Acts is defined as a ‘physical or mental impairment’ that substantially limits one or more of the major life activities of such individual.’ Mr. Wilson has not alleged any physical or mental disability. He hasn’t identified any program, service, or activity in which he’s been denied participation. Nor could he. His claim under these federal statutes fails as a matter of law,” Wolson said.
“Mr. Wilson’s attempt to recover from the Governor is inventive, but it fails. The Court will give him leave to re-plead his Section 1983 claims, if he can do so in a way that is consistent with this opinion.”
Wolson ordered that the plaintiff's claims against governor wolf in his official capacity under 42 U.S.C. Section 1983, under the Americans with Disabilities Act and the Rehabilitation Act be dismissed with prejudice.
Wilson was also given leave to file an amended complaint, consistent with this order and the analysis in the Court’s memorandum, on or before Feb. 19. Wolson added that if the plaintiff does not file an amended complaint by that deadline, the Court will conclude that he has elected to stand on his complaint and will close this case.
U.S. District Court for the Eastern District of Pennsylvania 2:20-cv-04560
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com