By Matthew Santoni

Law360 (February 1, 2021, 6:50 PM EST ) A proposed class action lawsuit over waivers Pennsylvania granted for some businesses to stay open during the early stages of the COVID-19 pandemic should be dismissed because the waiver program has been scrapped, attorneys for Gov. Tom Wolf told a federal court.

The governor's March 19 order closing all but "non-life sustaining" businesses, which also provided waivers for certain businesses that could argue that their services were still needed, had been phased out and would not return, the state said in a motion for summary judgment filed Friday. The federal court therefore no longer had jurisdiction over the equal-protection lawsuit brought by Philadelphia-area pool sales and maintenance company Paradise Concepts, the government said.

"This court may only enter injunctive or declaratory relief if there is an ongoing violation of federal law by a state official, but, indisputably, the policy challenged here was only in effect for a few weeks during March and April 2020, and it will not return," the state's brief said. "The equal protection claim here is moot. ... The specific circumstances of this case — for example, that the challenged policy started nearly a year ago, arose suddenly at the outset of the pandemic, and lasted for less than a month — merit dismissal here."

Paradise Concepts, doing business as Kenwood Pools, had sued the governor, Secretary of Health Rachel Levine and the Department of Community and Economic Development in May, claiming it was denied a waiver to stay open while its competitors were granted waivers, allegedly creating a violation of its equal protection rights under the U.S. Constitution.

But Pennsylvania countered Friday that a competitor Kenwood Pools cited, LA Pools, had gotten its waiver because it presented its business model differently in its application. While Kenwood Pools' waiver application described it as a retailer of pool supplies and chemicals, where customers would be limited in number to maintain distancing inside its store, LA Pools applied as an installer and repair business, whose workers would visit customers one at a time to work on pending construction or repair projects.

"Under traditional equal protection analysis, Kenwood Pools' claim fails the first part of the equal protection test because its waiver submission was not similarly situated to that of LA Pools," the brief said. "LA Pools' pool maintenance service did not involve nearly as many potential person-to-person contacts as Kenwood Pools' retail environment. Although both might involve contacts between employees and between an employee and a customer, only Kenwood Pools' request suggested that there may be a substantial number of customer-to-customer contacts."

The state said the phasing-out of the closure orders and the waiver program also rendered the suit moot, since a court's declaratory relief can only address a current or continuing constitutional violation. When a Western Pennsylvania federal judge struck down some of the other pandemic-related limits on gatherings in September, his opinion had noted that claims in that lawsuit related to the waiver program were no longer eligible for the declaratory relief being sought, since there were no longer any waivers in place or being granted, the brief said.

That case, County of Butler v. Wolf , was appealed to the Third Circuit, which put a hold on lifting the restrictions pending the appeal.

With the unique circumstances that prompted the first closure order at the beginning of the pandemic, it was unlikely that the state would try to bring back a substantially similar closure plan or waiver program, so there was no reason for the court to rule on the matter in case Kenwood's problems could be repeated, the brief said.

"This is not a typical situation of voluntary cessation, where an established or longstanding practice was suddenly halted after litigation was filed; in that situation, there might be valid concerns that offending conduct might resume," it said. "But the waiver program existed only from March 19 to April 3, 2020. It was, admittedly, put together hastily in a rapidly changing world, during an emerging and largely unknown global pandemic, but this background provides strong evidence that any closure and waiver system that might exist in the future would look different."

Counsel for Kenwood Pools and representatives of the commonwealth did not immediately respond to requests for comment Monday.

Kenwood Pools is represented by Walter Zimolong of Zimolong LLC.

The commonwealth is represented by Stephen Kovatis and Karen Romano of its office of attorney general.

The case is Paradise Concepts Inc. v. Wolf et al., case number 2:20-cv-02161, in the U.S. District Court for the Eastern District of Pennsylvania.

--Editing by Adam LoBelia.

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