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Law360 (May 6, 2020, 3:03 PM EDT ) A Philadelphia-area pool sales and maintenance business launched a proposed class action Tuesday challenging Gov. Tom Wolf's protocol for determining what commercial enterprises should be deemed "life-sustaining" and allowed to remain open during Pennsylvania's statewide coronavirus lockdown.
Paradise Concepts Inc., which operates in Bucks County as Kenwood Pools, alleged the state's Department of Community and Economic Development had arbitrarily issued waivers exempting businesses from Wolf's closure order in violation of due process and equal protection provisions of the U.S. Constitution.
Kenwood pointed specifically to the fact it had been denied a waiver whereas several of its competitors had been allowed to open their doors.
"Kenwood Pool's business is like its competitors in all relevant respects," the company said. "It serves the same customers, has similar retail operations, and [is] located within the same area. Yet Kenwood was [inexplicably] denied a waiver while its competitors had their waivers granted."
Wolf ordered the closure of nonessential businesses by executive order in mid-March as COVID-19 cases began spreading in earnest across Pennsylvania.
As the order went into effect, the governor provided a system for certain businesses to apply for waivers that would allow them to potentially continue operating throughout the duration of the emergency.
According to Kenwood's complaint Tuesday, the state ended up receiving some 42,000 applications for waivers, of which 7,000 were granted before the program was halted at the beginning of April.
Kenwood said it decided to apply for a waiver after learning that two of its competitors in Bucks County had received permission from DCED to remain in business during the shutdown.
Unlike its competitors, however, Kenwood said its application was denied.
This, the complaint said, constituted an equal protection violation.
"The equal protection clause does not permit state officials to give special treatment to certain non-life sustaining businesses which is different from the treatment given to all other so-called non-life sustaining businesses," Kenwood said.
In addition to the proposed class action filed Tuesday, the shutdown has faced constitutional scrutiny from the Pennsylvania Supreme Court, which agreed to allow the governor's executive order to remain standing in a 4-3 ruling last month.
In a partial dissent, however, Chief Justice Thomas Saylor raised concerns that the lack of any judicial review of waiver application decisions could constitute a violation of due process protections.
The decision has since been appealed to the U.S. Supreme Court, which on Wednesday denied an emergency application for stay of the order.
Meanwhile, in response to criticism from Republican lawmakers about the program, the state's auditor general has also announced plans to investigate how DCED managed the waiver process.
Neither an attorney for Kenwood nor a spokesperson for Wolf's office immediately returned messages seeking comment Wednesday.
The plaintiffs are represented by Walter Zimolong of Zimolong LLC.
Counsel information for the defendant was not immediately available.
The case is Paradise Concepts Inc. v. Thomas Wolf et al., case number 2:20-cv-02161, in the U.S. District Court for the Eastern District of Pennsylvania.
--Editing by Orlando Lorenzo.
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