By Matthew Santoni

Law360 (December 15, 2020, 5:20 PM EST ) A pair of Pennsylvania indoor water parks can't tie their federal lawsuit challenging Gov. Tom Wolf's latest coronavirus restrictions to another suit that temporarily tossed the earlier version of those mandates, the judge on the first case said Tuesday.

U.S. District Judge William S. Stickman IV, who ruled against the state's COVID-19 crowd limits in September before the case was appealed to the Third Circuit, said Sunday's lawsuit by Kalahari Resorts and Conley Resort & Golf wasn't "related" to the earlier suit since it involved different plaintiffs and a new set of restrictions, so it should be passed to the next judge in the Pittsburgh court's rotation instead of automatically to Judge Stickman.

"While both cases may present similar or related legal issues stemming from defendants' use of emergency powers to promulgate COVID-19 mitigation orders, the instant case concerns different plaintiffs, in a different industry, who are challenging a different emergency order," Judge Stickman wrote. "The local rule is also designed to avoid even the appearance of judge shopping. The presence of similar legal issues or even the same defendants does not, alone, permit the designation of a case as 'related.'"

Judge Stickman ordered the removal of the "related to" designation connecting the resorts' case to the Butler County v. Wolf case from earlier in the year, and for it to be assigned like any other case. The docket showed it was assigned to Chief U.S. District Judge Mark R. Hornak later Tuesday.

Jordan P. Shuber of Dillon McCandless King Coulter & Graham, representing the water parks, said the case fit the definition of "related" under the court's local rules, since both pertained to restrictions that have been issued by the governor and secretary since the beginning of the pandemic, but he was not taken aback by the cases being split.

"The governor's office and secretary's office are still issuing orders that affect people's constitutional rights," he told Law360. "We're happy to move forward with Judge Hornak and don't consider it an impediment to the merits of the case."

Facing a surge in coronavirus cases, Gov. Wolf and Pennsylvania Secretary of Health Rachel Levine issued new orders that took effect on Saturday, Dec. 12, including prohibitions on indoor, non-religious gatherings of more than 10 people, 50% capacity limits on businesses and a total shutdown of indoor entertainment venues.

On Sunday, Kalahari Resorts LLC, which operates the Kalahari indoor water park in Monroe County, and The Woodlands at St. Barnabas, operating Conley Resort and Golf and its "Pirate's Cove" indoor water park in Butler County, filed their lawsuit in Pennsylvania's western district federal court, claiming the orders violated their constitutional rights to equal protection and due process.

"Many of the non-entertainment industry businesses that have been granted favorable treatment under defendants' orders have equal, or greater, person-to-person contact," the complaint said. "Defendants' shutdown orders permit countless patrons to walk the narrow shopping aisles of retail stores, such as: Walmart, Sam's Club, Home Depot and their local malls, but prohibit any patron from swimming in plaintiffs' waterparks and pools."

The same group of attorneys had represented a group of counties, political candidates and businesses in the earlier lawsuit in which Judge Stickman ruled that the state's first round of closure orders was unconstitutional. Though most of the restrictions had been lifted by the time the court ruled, and the remaining limits were reinstated pending the Third Circuit appeal.

Those attorneys also filed a complaint in state court Monday on behalf of the Butler County School District, members of its school board and several parents, claiming the state usurped the school district and state legislators' powers when requiring school districts to attest that they were following safety and reporting protocols in order to continue in-person teaching and canceling after-school clubs and sports as part of the virus-related restrictions.

The water parks' suit cited part of the Centers for Disease Control website that said there was no evidence that COVID-19 is transmitted in recreational waters, and it pointed to Kalahari's efforts to reduce the likelihood of person-to-person transmission within its Pocono Mountains resort. Because of the closure order, Kalahari alone stood to lose an estimated $10 million during its peak season, the suit said.

The suit said Kalahari and Pirate's Cove were misclassified as "entertainment industry" businesses and called the categorization "arbitrary and unexplained." A separate piece of guidance from the Health Department's website singled out indoor recreational pools and hotel pools as prohibited from operating.

"Plaintiffs' businesses have been classified as 'entertainment industries,' along with 'theaters, concert venues, museums, movie theaters, arcades, casinos, bowling alleys, and private clubs … These other businesses are so unlike Kalahari's indoor waterpark that after initially reading the shutdown orders, Kalahari felt that its indoor waterpark could be considered a 'business serving the public,' and asked a Pocono tourism representative to contact Governor Wolf's office for clarification," the complaint said. "The shutdown orders conflate plaintiffs' businesses with ones that are not similarly situated and treat plaintiffs' businesses in a different manner than similarly situated businesses without any rational basis."

Shuber noted that another southwestern Pennsylvania resort, Seven Springs, opened for the skiing season Friday, and it has an indoor pool.

The orders also provided no methods of appealing, challenging, or seeking exemptions, which allegedly violated the businesses' substantial and procedural due process rights, the water parks claimed.

Kalahari and Pirate's Cove also sought a speedy hearing from the court, arguing that they could implement the same mask-wearing, hand-washing and social-distancing efforts used by other businesses that were allowed to stay open in the second wave of shutdowns.

"Defendants' rationale for permitting other businesses to continue business operations is not the lack of person-to-person contact associated with the other businesses, but defendants' inexplicable position that those businesses can continue to operate if mitigation efforts are implemented – while at the same time defendants shut down plaintiffs' business operations without consideration of plaintiffs' demonstrated ability to effectively implement the same mitigation measures," the complaint said.

Representatives of the state did not immediately respond to requests for comment Tuesday.

The water parks are represented by Thomas W. King III, Thomas E. Breth and Jordan P. Shuber of Dillon McCandless King Coulter & Graham LLP.

Counsel information for the state was not immediately available.

The case is Kalahari Resorts et al. v. Wolf et al., case number 2:20-cv-01934, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Ellen Johnson.

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