By Matthew Santoni

Law360 (May 14, 2020, 6:56 PM EDT ) The Supreme Court of Pennsylvania on Thursday denied a Pittsburgh restaurant's bid to skip straight to the state's highest court for a decision on whether insurers should cover business losses and damages due to the COVID-19 pandemic and the related state-ordered closures.

The court's brief order Thursday denied Joseph Tambellini Inc.'s petition to use the justices' "King's Bench" powers to fast-track the restaurant's case and "hundreds, if not thousands" like it contesting their insurers' denial of claims related to coronavirus closures intended to slow the spread of the pandemic.

The restaurant, based in Pittsburgh's Highland Park neighborhood, asked the court to intervene in late April in the hope of answering broad questions about whether the closures would be covered despite the insurers claiming there was no "physical loss," and expediting cases that could otherwise take years to climb through the appellate system.

"We were hoping to streamline the central threshold issue to expedite small businesses getting their monies they paid premiums for," said Scott Cooper of Schmidt Kramer PC, one of the attorneys representing Tambellini. "Hopefully the insurance companies will not file motions and use other delay tactics to avoid addressing the main issue which is that business sustained a physical loss when the governor restricted or limited egress and ingress to their properties."

Tambellini had petitioned the court to use its extraordinary jurisdictional powers to take up its case, which claimed Erie Insurance Exchange had improperly denied its claims for losses suffered due to Pennsylvania Democratic Gov. Tom Wolf's mid-March order closing "nonessential businesses" and limiting bars and restaurants to carry-out service only. Although restrictions for large parts of the state were starting to be relaxed as of Thursday, restaurants are still limited to carry-out and delivery service only.

The petition also asked the Supreme Court to consolidate similar insurance cases in a single court or under a handful of judges, comparing its proposal to a federal multidistrict litigation, to streamline other common questions and discovery. Other businesses filing in Pennsylvania's federal courts have asked for such a multidistrict litigation to be formed in Philadelphia.

Erie, AIG and several trade organizations filed responses and amicus briefs May 7, saying since insurance policies are contracts, the interactions between every contract and each policy holder's circumstances were different and could not be addressed with broad rulings.

The insurers also said having the Supreme Court step in would be unprecedented, given that most of its previous exercises of King's Bench jurisdiction involved pressing issues and government exercise of power.

A representative for AIG and counsel for the trade groups declined to comment Thursday. Counsel for Erie did not immediately respond to requests for comment.

Tambellini is represented by James C. Haggerty of Haggerty Goldberg Schleifer & Kupersmith PC, Scott B. Cooper and Abbie C. Trone of Schmidt Kramer PC, John P. Goodrich and Lauren Nichols of Jack Goodrich & Associates PC and Jonathan Shub of Kohn Swift & Graf PC.

Erie is represented by John M. Elliott, Frederick P. Santarelli, Patrick R. Casey and Matthew G. Boyd of Elliott Greenleaf PC, Richard W. DiBella and Tara Maczuzak of DiBella Geer McAllister & Best PC, Robert T. Horst of Timoney Knox LLP and Adam Kaiser and Tiffany Powers of Alston & Bird LLP.

AIG is represented by Keith Moskowitz, Clifford B. Levine, Alice B. Mitinger, Mark A. May and David F. Russey of Dentons.

The insurance trade groups are represented by Robert L. Byer, Damon N. Vocke, Robert M. Palumbos and Jonathan I. Aronchick of Duane Morris LLP.

The case is Tambellini Inc. v. Erie Insurance Exchange, case number 52 WM 2020, in the Supreme Court of Pennsylvania.

--Editing by Stephen Berg.

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