Jacob Doyle Corman, III, individually and as a parent of two minor school children v. Acting Secretary of the Pennsylvania Department of Health ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jacob Doyle Corman, III, :
individually and as a parent of two :
minor school children; Jesse Wills :
Topper, individually and as a parent of :
two minor school children; Calvary :
Academy; Hillcrest Christian :
Academy; James Reich and Michelle :
Reich, individually and as parents of :
three minor school children; Adam :
McClure and Chelsea McClure, :
individually and as parents of one :
minor special needs school child; :
Victoria T. Baptiste, individually and :
as a parent of two special needs :
school children; Jennifer D. Baldacci, :
individually and as a parent of one :
school child; Klint Neiman and :
Amanda Palmer, individually and as :
parents of two minor school children; :
Penncrest School District; Chestnut :
Ridge School District and West York :
Area School District, :
Petitioners :
:
v. :
:
Acting Secretary of the Pennsylvania :
Department of Health, : No. 294 M.D. 2021
Respondent : Argued: October 20, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: November 10, 2021
This case presents a challenge by Petitioners Jacob Doyle Corman, III,
Jesse Wills Topper, Calvary Academy, Hillcrest Christian Academy, James and
Michelle Reich, Adam and Chelsea McClure, Victoria T. Baptiste, Jennifer D.
Baldacci, Klint Neiman and Amanda Palmer, Penncrest School District, Chestnut
Ridge School District, and West York Area School District (collectively, Petitioners)
to the “Order of the Acting Secretary of the Pennsylvania Department of Health
Directing Face Coverings in School Entities” (Masking Order) issued on August 31,
2021, by Alison M. Beam, the Acting Secretary of Health1 (Acting Secretary or
Respondent), which imposed an open-ended general masking requirement effective
September 7, 2021, on all teachers, students, school staff, and visitors within
Pennsylvania’s schools, regardless of vaccination status, with certain exceptions.
Petitioners’ underlying First Amended Petition for Review (Amended Petition)2
alleges the Masking Order is void ab initio as a result of the Acting Secretary’s
failure to comply with the requirements of Pennsylvania law in imposing the
1
Although Alison M. Beam is identified in the Masking Order as the “Acting Secretary of
the Pennsylvania Department of Health,” her actual title is “Acting Secretary of Health.” See
Section 205 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended
(Administrative Code), 71 P.S. § 66 (stating the heads of the Commonwealth’s administrative
departments and their respective titles).
2
As discussed infra, Petitioners originally filed their Petition for Review on September 3,
2021. On September 24, 2021, Petitioners filed Petitioners’ Motion for Leave to File Amended
Petition for Review (Petition to Amend) seeking to add the Penncrest School District, Chestnut
Ridge School District, and West York Area School District as additional petitioners. See Petition
to Amend. This Court granted the Petition to Amend and docketed the Amended Petition on
September 27, 2021, at which time the Amended Petition became the operative filing before this
Court. See Commonwealth Court Order dated September 27, 2021. We note that, by stipulation
filed October 4, 2021, the parties jointly agreed that Respondent would not need to file a responsive
pleading to the Amended Petition, if necessary, until 14 days after the Court’s resolution of the
parties’ respective applications for summary relief presently before the Court. See Stipulation filed
October 4, 2021, at 1-2.
2
Masking Order and seeks an injunction preventing the Acting Secretary from
enforcing the Masking Order. The Amended Petition further claims that the
Masking Order violates the non-delegation doctrine.
Before the Court currently are Petitioners’ Application for Summary
Relief and Entry of Judgment Pursuant to Pa.R.A.P. 1532 and In Accordance With
the Court’s September 27, 2021 Order (Petitioners’ Application) and Respondent’s
Application for Summary Relief (Respondent’s Application) filed by the Acting
Secretary.
Preliminarily, we note that we express herein no opinion regarding the
science or efficacy of mask-wearing or the politics underlying the considerable
controversy the subject continues to engender. See Wolf v. Scarnati, 233 A.3d 679,
684 (Pa. 2020). Instead, we decide herein only the narrow legal question of whether
the Acting Secretary acted properly in issuing the Masking Order in the absence of
either legislative oversight or a declaration of disaster emergency by the Governor.3
Upon review, we grant Petitioners’ Application and deny Respondent’s
Application.
I. Background and Procedural Posture
3
The parties stipulated that this matter could be decided on the purely legal issues of (1)
whether the Masking Order constitutes a rule or regulation subject to the provisions of the
Regulatory Review Act, Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-745.15
(Regulatory Review Act), and (2) whether the Masking Order violates the principles governing
the delegation of legislative authority. See Commonwealth Court Order dated September 13, 2021
(September 13 Order) at 2. While the Dissenting Opinion raises issues of the substantive merit of
the Masking Order, see Dissenting Opinion at 11-12, that issue is not before this Court. This
Majority Opinion intentionally does not respond to points raised by the Dissenting Opinion, on the
merits or otherwise, beyond the scope of those stipulated by the parties for consideration by this
Court.
3
On March 6, 2020, Governor Wolf issued a Proclamation of Disaster
Emergency (Disaster Proclamation) pursuant to Section 7301(c) of the Emergency
Management Services Code (Emergency Code),4 35 Pa.C.S. § 7301(c),5 regarding
the novel coronavirus (COVID-19) pandemic.6 Thereafter, the Governor
implemented numerous orders designed to mitigate and stop the spread of COVID-
19, which orders, inter alia, closed restaurants and bars in Pennsylvania for in-
person dining, closed non-essential businesses, limited the size of in-person
gatherings within the Commonwealth, and directed citizens to stay at home.
Governor Wolf also issued multiple periodic amendments to the Disaster
4
35 Pa.C.S. §§ 7101-79A33.
5
At the time Governor Wolf issued the Disaster Proclamation, Section 7301 of the
Emergency Code allowed for the issuance of disaster emergency declarations that would continue
at the discretion of the Governor for renewable 90-day periods terminable by the General
Assembly as follows:
Declaration of disaster emergency.--A disaster emergency shall be
declared by executive order or proclamation of the Governor upon
finding that a disaster has occurred or that the occurrence or the
threat of a disaster is imminent. The state of disaster emergency
shall continue until the Governor finds that the threat or danger has
passed or the disaster has been dealt with to the extent that
emergency conditions no longer exist and terminates the state of
disaster emergency by executive order or proclamation, but no state
of disaster emergency may continue for longer than 90 days unless
renewed by the Governor. The General Assembly by concurrent
resolution may terminate a state of disaster emergency at any time.
35 Pa.C.S. § 7301(c). As discussed infra, the enactment of two amendments to Pennsylvania’s
Constitution in May of 2021 limited the duration of a gubernatorial disaster emergency declaration
pursuant to this section of the Emergency Code.
6
At the time the Governor issued the Disaster Proclamation, the World Health
Organization (WHO) characterized the COVID-19 outbreak as a “public health emergency of
international concern.” See Disaster Proclamation at 1 (pagination supplied). The WHO upgraded
the COVID-19 outbreak to a global pandemic shortly thereafter on March 11, 2020.
4
Proclamation, each of which renewed the Disaster Proclamation for an additional 90
days.7
On May 18, 2021, the voters of the Commonwealth approved two
amendments to the Pennsylvania Constitution that limit the Governor’s power under
the Emergency Code (collectively, the Constitutional Amendments).8 The first of
the Constitutional Amendments amended section 9 of article III of the Constitution
to allow the General Assembly, by a simple majority vote, to extend or terminate a
gubernatorial disaster emergency declaration, or a portion thereof, as declared by an
executive order or proclamation. See Pa. Const. art. III, § 9.9 The second of the
Constitutional Amendments added new section 20 to article IV of the Pennsylvania
Constitution, which section limits the duration of a gubernatorial disaster emergency
7
The Governor issued amendments renewing the Disaster Proclamation on June 3, 2020,
August 31, 2020, November 24, 2020, February 19, 2021, and May 20, 2021.
The Constitutional Amendments followed our Supreme Court’s July 1, 2020 decision in
8
Wolf v. Scarnati, 233 A.3d 679 (Pa. 2020), wherein the Supreme Court held that the General
Assembly could not unilaterally terminate a Governor’s emergency powers by resolution. See
generally Scarnati.
9
Section 9 of article III of the Pennsylvania Constitution now provides as follows:
Every order, resolution or vote, to which the concurrence of both
Houses may be necessary, except on the questions of adjournment
or termination or extension of a disaster emergency declaration as
declared by an executive order or proclamation, or portion of a
disaster emergency declaration as declared by an executive order or
proclamation, shall be presented to the Governor and before it shall
take effect be approved by him, or being disapproved, shall be
repassed by two-thirds of both Houses according to the rules and
limitations prescribed in case of a bill.
Pa. Const. art. III, § 9.
5
declaration to 21 days absent an extension by concurrent resolution of the General
Assembly. See Pa. Const. art. IV, § 20.10
Following the adoption of the Constitutional Amendments, on June 10,
2021, the General Assembly approved a concurrent resolution terminating the
Disaster Proclamation (Concurrent Resolution). Governor Wolf did not issue a new
proclamation of disaster emergency following the approval of the Concurrent
Resolution.
10
Section 20 of article IV of the Pennsylvania Constitution provides:
§ 20. Disaster emergency declaration and management
(a) A disaster emergency declaration may be declared by executive
order or proclamation of the Governor upon finding that a disaster
has occurred or that the occurrence or threat of a disaster is imminent
that threatens the health, safety or welfare of this Commonwealth.
(b) Each disaster emergency declaration issued by the Governor
under subsection (a) shall indicate the nature, each area threatened
and the conditions of the disaster, including whether the disaster is
a natural disaster, military emergency, public health emergency,
technological disaster or other general emergency, as defined by
statute. The General Assembly shall, by statute, provide for the
manner in which each type of disaster enumerated under this
subsection shall be managed.
(c) A disaster emergency declaration under subsection (a) shall be
in effect for no more than twenty-one (21) days, unless otherwise
extended in whole or part by concurrent resolution of the General
Assembly.
(d) Upon the expiration of a disaster emergency declaration under
subsection (a), the Governor may not issue a new disaster
emergency declaration based upon the same or substantially similar
facts and circumstances without the passage of a concurrent
resolution of the General Assembly expressly approving the new
disaster emergency declaration.
Pa. Const. art. IV, § 20.
6
However, on August 31, 2021, in anticipation of a Commonwealth-
wide return to in-person learning in the 2021-2022 school year, the Acting Secretary
issued the Masking Order, effective September 7, 2021. Initially, the Masking Order
provides an introductory statement that explains the Acting Secretary imposed the
Masking Order to protect the health and safety of Pennsylvania’s schoolchildren.11
See Masking Order at 1-3. The introductory statement outlines the Acting
Secretary’s purported authority to impose the Masking Order as follows:
COVID-19 is a threat to the public’s health, for which the
Secretary of Health may order general control measures.
This authority is granted to the Secretary of Health
pursuant to Pennsylvania law. See [S]ection 5 of the
Disease Prevention and Control Law[, Act of April 23,
1956, P.L. (1955) 1510 (Disease Control Law)], 35 P.S. §
521.5; [S]ection 2102(a) of The Administrative Code of
1929, 71 P.S. § 532(a); and the Department of Health’s
regulation at 28 Pa. Code § 27.60 (relating to disease
control measures). Particularly, the Department of Health
[] has the authority to take any disease control measure
appropriate to protect the public from the spread of
infectious disease. See 35 P.S. § 521.5; 71 P.S. §§ 532(a),
and [Section 8 of the Act of April 27, 1905, P.L. 312, as
amended, 71 P.S. §] 1403(a); 28 Pa. Code § 27.60.
11
The Masking Order breaks this generalized reason into multiple sub-reasons: (1) the
rising risk of COVID-19 to unvaccinated individuals based on the increased transmissibility and
severity of the Delta variant of the SARS-CoV-2 virus; (2) the current unavailability of an
approved vaccine for many school-aged children; (3) the desire to maintain in-person instruction
and socialization, which are necessary for the health and wellbeing of children; (4) the strong
recommendation issued by the Centers for Disease Control and Prevention for masking of all
persons within the nation’s schools regardless of vaccination status; (5) the recommendation of
the American Academy of Pediatrics that masks be worn in schools; (6) studies indicating that
mask-wearing in schools contributes to lower levels of COVID-19 transmission among students
and staff; and (7) rising COVID-19 case counts and hospitalizations. See Masking Order at 1-3.
7
Masking Order at 3. Section 2 of the Masking Order contains a “General Masking
Requirement” that requires:
Each teacher, child/student, staff, or visitor working,
attending, or visiting a School Entity[12] shall wear a face
covering indoors, regardless of vaccination status, except
as set forth in Section 3.[13]
12
The Masking Order defines a “School Entity” as any of the following:
(1) A public PreK-12 school.
(2) A brick and mortar or cyber charter school.
(3) A private or parochial school.
(4) A career and technical center (CTC).
(5) An Intermediate unit (IU).
(6) A PA Pre-K Counts program, Head Start Program, Preschool
Early Intervention program, or Family Center.
(7) A private academic nursery school and locally-funded
prekindergarten activities.
(8) A childcare provider licensed by the Department of Human
Services of the Commonwealth.
Masking Order at 3-4.
13
Section 3 of the Masking Order enumerates the exceptions to the masking requirement
and provides:
The following are exceptions to the face covering requirements in
Section 2. All alternatives to a face covering, including the use of a
face shield, should be exhausted before an individual is excepted
from this Order.
A. If wearing a face covering while working would create
an unsafe condition in which to operate equipment or execute a
task as determined by local, state, or federal regulators or
workplace safety guidelines.
B. If wearing a face covering would either cause a medical
condition, or exacerbate an existing one, including respiratory
issues that impede breathing, a mental health condition or a
disability.
C. When necessary to confirm the individual’s identity.
8
Masking Order at 4. Regarding the duration of the Masking Order, Section 6
indicates that, once effective, the Masking Order “shall remain in effect until
otherwise terminated.” Masking Order at 6.
On September 3, 2021, Petitioners filed a Petition for Review, in which
Petitioners allege the Acting Secretary failed to comply with the requirements of the
Disease Control Law in issuing the Masking Order, and “Petitioners’ Application
for Special Relief in the Form of an Emergency Preliminary Injunction Under
Pa.R.A.P. 1532” (Application for Special Relief), which sought an injunction to
D. When working alone and isolated from interaction with
other people with little or no expectation of in-person
interaction.
E. If an individual is communicating or seeking to
communicate with someone who is hearing-impaired or has
another disability, where the ability to see the mouth is essential
for communication.
F. When the individual is under two (2) years of age.
G. When an individual is:
1) Engaged in an activity that cannot be
performed while wearing a mask, such as eating and
drinking, or playing an instrument that would be
obstructed by the face covering; or
2) Participating in high intensity aerobic or
anerobic activities, including during a physical
education class in a well-ventilated location and able
to maintain a physical distance of six feet from all
other individuals.
H. When a child/student is participating in a sports practice
activity or event, whether indoors or outdoors.
Masking Order at 4-5.
9
prevent the Acting Secretary from enforcing the Masking Order. The Acting
Secretary filed Respondent’s Answer to Petitioners’ Application for Special Relief
in the Form of an Emergency Preliminary Injunction on September 8, 2021, and the
matter was scheduled for a hearing on September 16, 2021.
Following a pre-hearing conference conducted on September 13, 2021,
on agreement of the parties, the Court stayed the hearing on the Application for
Special Relief14 and directed the parties to file briefs addressing the limited legal
issues of (1) whether the Masking Order constitutes a rule or regulation subject to
the provisions of the Regulatory Review Act, Act of June 25, 1982, P.L. 633, as
amended, 71 P.S. §§ 745.1-745.15 (Regulatory Review Act), and (2) whether the
Masking Order violates the principles governing the delegation of legislative
authority. See Commonwealth Court Order dated September 13, 2021 (September
13 Order) at 2. Thereafter, Petitioners and Respondent each timely filed a brief
pursuant to the September 13 Order on September 16, 2021, and September 23,
2021, respectively. Following a status conference conducted on September 27,
2021, Petitioners withdrew the Application for Special Relief and the parties filed
their respective applications for summary relief and responses thereto. This Court
14
The Court also held in abeyance Respondent’s “Application for Relief in the Nature of
a Motion to Quash Notice to Attend and Subpoena Ad Testificandum Directed to Alison M. Beam,
Acting Secretary of Health,” which sought to quash the subpoena issued to compel the testimony
of the Acting Secretary at the scheduled hearing on the Application for Special Relief. See
Commonwealth Court Order dated September 13, 2021, at 2.
10
conducted en banc argument on October 20, 2021. The parties’ applications for
summary relief are now ripe for determination by the Court.15, 16
II. Discussion
The applications for summary relief17 currently before the Court argue
diametrically opposed views of the same undisputed facts, stated supra, regarding
15
Amicus Curiae briefs were filed by the Spring Grove Area School District, Central York
School District and Penn-Trafford School District.
16
On October 27, 2021, the Acting Secretary also filed “Respondents’ [sic] Application
for Relief in the Nature of a Motion for Leave to Supplement the Record” in this matter
(Application to Supplement Record), seeking to add the Joint Committee on Documents’ October
21, 2021, Order in Favor of Respondent Department of Health (Joint Committee Order) to the
record of this matter. See Application to Supplement Record. This Application to Supplement the
Record was treated as an application pursuant to Rule of Appellate Procedure 2501(a) and was
granted on October 29, 2021, as a post-submission communication to the Court advising the Court
of the Joint Committee Order. See Pa.R.A.P. 2501(a).
17
Pennsylvania Rule of Appellate Procedure 1532(b) provides that “[a]t any time after the
filing of a petition for review in an appellate or original jurisdiction matter the court may on
application enter judgment if the right of the applicant thereto is clear.” Pa.R.A.P. 1532(b); see
also Summit Sch., Inc. v. Dep’t of Educ., 108 A.3d 192, 195 (Pa. Cmwlth. 2015). In deciding a
request for summary relief, “this [C]ourt must determine whether it is clear from the undisputed
facts that either party has a clear right to the relief requested.” Bell Atl.-Pa., Inc. v. Tpk. Comm’n,
703 A.2d 589, 590 (Pa. Cmwlth. 1997), aff’d, 713 A.2d 96 (Pa. 1998). “The record, for purposes
of the motion for summary relief, is the same as a record for purposes of a motion for summary
judgment.” Summit, 108 A.3d at 195-96. Pursuant to Pennsylvania Rule of Civil Procedure
1035.1, the record in a motion for summary judgment includes any: “(1) pleadings, (2) depositions,
answers to interrogatories, admissions and affidavits, and (3) reports signed by an expert witness
that would, if filed, comply with [Pa.R.Civ.P. 4003.5(a)(1)], whether or not the reports have been
produced in response to interrogatories.” Pa.R.Civ.P. 1035.1. “In ruling on applications for
summary relief, [this Court] must view the evidence of record in the light most favorable to the
non-moving party and enter judgment only if there is no genuine issue as to any material facts and
the right to judgment is clear as a matter of law.” Eleven Eleven Pa., LLC v. State Bd. of
Cosmetology, 169 A.3d 141, 145 (Pa. Cmwlth. 2017) (internal brackets omitted).
11
the imposition of the Masking Order, with each party claiming that these undisputed
facts entitle them to summary relief. Petitioners argue that, because the Acting
Secretary imposed the Masking Order without statutory authority, the Masking
Order, which does not rely on a gubernatorial declaration of disaster emergency,
represents a rule or regulation issued without compliance with established, statutory
rulemaking requirements and is accordingly void ab initio. See generally
Petitioners’ Application; Petitioners’ Br. Respondent, on the other hand, argues that
the Masking Order is not a rule or regulation subject to regulatory rulemaking
procedures, but instead was promulgated pursuant to existing statutory and
regulatory authority. See generally Respondent’s Application; Respondent’s Br.
Initially, we begin by reviewing the established law governing the
process for the promulgation of regulations by Commonwealth agencies. As this
Court has explained:
An agency derives its power to promulgate regulations
from its enabling act. An agency’s regulations are valid
and binding only if they are: (a) adopted within the
agency’s granted power, (b) issued pursuant to proper
procedure, and (c) reasonable. . . . [W]hen promulgating a
regulation, an agency must comply with the requirements
set forth in the Commonwealth Documents Law[, Act of
July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-
1602, and 45 Pa.C.S. §§ 501-907, which, collectively, are
known as the “Commonwealth Documents Law”], the
Commonwealth Attorneys Act[, Act of October 15, 1980,
P.L. 950, as amended, 71 P.S. §§ 732-101-732-506,] and
the Regulatory Review Act. Regulations promulgated in
accordance with these requirements have the force and
12
effect of law. A regulation not promulgated in accordance
with the statutory requirements will be declared a nullity.
In general, the purpose of the Commonwealth
Documents Law is to promote public participation in the
promulgation of a regulation. To that end, an agency must
invite, accept, review and consider written comments from
the public regarding the proposed regulation; it may hold
public hearings if appropriate. [Section 202 of the
Commonwealth Documents Law,] 45 P.S. § 1202. After
an agency obtains the Attorney General’s approval of the
form and legality of the proposed regulation, the agency
must deposit the text of the regulation with the Legislative
Reference Bureau for publication in the Pennsylvania
Bulletin. Section 205, 207 of the Commonwealth
Documents Law, 45 P.S. §§ 1205, 1207.
The legislature has identified what is meant by an
“agency” for purposes of the Commonwealth Documents
Law. It has defined an “agency” as:
the Governor or any department, departmental
administrative board or commission,
officer, independent board or commission,
authority or other agency of this
Commonwealth now in existence or hereafter
created. . . .
Section 102(3) of the Commonwealth Documents Law, 45
P.S. § 1102(3) []. Thus, any “independent commission”
or any “other agency of this Commonwealth,” including
one not in existence at the time of the enactment of the
Commonwealth Documents Law, is subject to its terms.
Germantown Cab Co. v. Phila. Parking Auth., 993 A.2d 933, 937-38 (Pa. Cmwlth.
2010), aff’d, 36 A.3d 105 (Pa. 2012) (footnotes, internal quotations, emphasis, and
some internal citations omitted).
13
Additionally, the Regulatory Review Act establishes a “mandatory,
formal rulemaking procedure[18] that is, with rare exceptions, required for the
promulgation of [agency] regulations.” See Naylor v. Dep’t of Pub. Welfare, 54
A.3d 429, 433 (Pa. Cmwlth. 2012), aff’d, 76 A.3d 536 (Pa. 2013); see also Section
5 of the Regulatory Review Act, 71 P.S. § 745.5. The General Assembly enacted
the Regulatory Review Act with the express purpose of establishing procedures “for
oversight and review of regulations adopted pursuant to this delegation of legislative
power in order to curtail excessive regulation and to require the executive branch to
justify its exercise of the authority to regulate[.]” 71 P.S. § 745.5.19 Accordingly,
18
In promulgating regulations, the Regulatory Review Act requires that Commonwealth
agencies “submit [] proposed regulation[s] to [the Independent Regulatory Review Commission
(IRRC)] for public comment, recommendation from [the] IRRC, and, ultimately, [the]
IRRC’s approval or denial of a final-form regulation. [Section 5 of the Regulatory Review Act,]
71 P.S. § 745.5.” Naylor v. Dep’t of Pub. Welfare, 54 A.3d 429, 434 (Pa. Cmwlth. 2012), aff’d, 76
A.3d 536 (Pa. 2013).
For thirty days thereafter, interested members of the public or
relevant legislative committees may submit public comments. At
the close of the public comment period, [the] IRRC may offer
recommendations on the proposed regulation. The agency
then reviews and considers the comments and delivers final-form
regulations to [the] IRRC.
[The] IRRC may then approve or disapprove the regulations within
thirty (30) days. In making a decision, [the] IRRC considers, in
part, whether the agency has the statutory authority to promulgate
the legislation.
Naylor, 54 A.3d at 434 n.10 (internal citations omitted).
19
The General Assembly explained its intent in enacting the Regulatory Review Act in
depth as follows:
The General Assembly has enacted a large number of statutes and
has conferred on boards, commissions, departments and agencies
within the executive branch of government the authority to adopt
rules and regulations to implement those statutes. The General
14
in the absence of a gubernatorial proclamation of disaster emergency or a statute or
regulation that authorizes or requires a new agency rule or requirement, the
enactment of new rules and regulations proposed by Commonwealth agencies must
be accomplished in compliance with the mandatory procedures for review set forth
in the Regulatory Review Act.20 See 71 P.S. § 745.5. Our Supreme Court, however,
Assembly has found that this delegation of its authority has resulted
in regulations being promulgated without undergoing effective
review concerning cost benefits, duplication, inflationary impact
and conformity to legislative intent. The General Assembly finds
that it must establish a procedure for oversight and review of
regulations adopted pursuant to this delegation of legislative power
in order to curtail excessive regulation and to require the executive
branch to justify its exercise of the authority to regulate before
imposing hidden costs upon the economy of Pennsylvania. It is the
intent of this act to establish a method for ongoing and effective
legislative review and oversight in order to foster executive branch
accountability; to provide for primary review by a commission with
sufficient authority, expertise, independence and time to perform
that function; to provide ultimate review of regulations by the
General Assembly; and to assist the Governor, the Attorney General
and the General Assembly in their supervisory and oversight
functions. To the greatest extent possible, this act is intended to
encourage the resolution of objections to a regulation and the
reaching of a consensus among the commission, the standing
committees, interested parties and the agency.
Section 2(a) of the Regulatory Review Act, 71 P.S. § 745.2(a).
20
We note that procedures exist to expedite the administrative rulemaking process, if
necessary. Section 6(d) of the Regulatory Review Act authorizes the Governor to certify the
immediate adoption of regulations “to meet an emergency which includes conditions which may
threaten the public health, safety or welfare[.]” 71 P.S. § 745.6(d). This certification bars the
IRRC from issuing an order barring an agency from “promulgating a final-form or final omitted
regulation” and allows the regulation to “take effect on the date of publication,” while its review
by the IRRC and the House and Senate Committees takes place over a 120-day period. Id. The
emergency regulation “shall be rescinded after 120 days or upon final disapproval, whichever
occurs later.” Id. If no action is taken by the expiration of the review period, the regulation shall
continue in full force and effect until otherwise suspended or repealed. See id.
15
has recognized that the Governor may, as a valid use of police power, suspend the
otherwise mandatory rulemaking procedures of the Regulatory Review Act upon the
declaration or proclamation of a disaster emergency pursuant to the Emergency
Code, 35 Pa.C.S. § 7301(c). See Scarnati, 233 A.3d at 705; Friends of Danny DeVito
v. Wolf, 227 A.3d 872, 887-88, 892-93 (Pa.), cert. denied, 141 S. Ct. 239 (2020).21
In the instant matter, it is undisputed that the Governor did not issue a
new declaration of disaster emergency following the termination of the Disaster
Proclamation by the General Assembly’s June 10, 2021 Concurrent Resolution. It
is likewise beyond dispute that the Acting Secretary did not comply with the formal
requirements of the Commonwealth Documents Law and the Regulatory Review
Act in promulgating the Masking Order. As a result, the pertinent question herein
is whether the Masking Order represents a rule or regulation subject to the formal
requirements for regulatory rulemaking and, if so, whether the Acting Secretary was
authorized by statute or regulation to promulgate the Masking Order without
Although the Regulatory Review Act has been amended numerous times since its
enactment in 1982, the mechanism for the emergency certification of agency regulations has
remained intact. Under this mechanism, a regulation can be promulgated expeditiously. For
example, on March 17, 1986, in the wake of “substantial increase in the number of mid-term
cancellations and nonrenewal of commercial property and casualty insurance policies,” Governor
Dick Thornburgh certified that emergency rulemaking was required to address that “emergency
situation.” 16 PA. B. 953 (Mar. 22, 1986) (citations omitted). On March 22, 1986, the Insurance
Department published its “emergency amendments” to its regulations “to provide commercial
property and casualty insurance policyholders within 60 days’ advance notice of nonrenewal or
midterm cancellation of their coverage and to limit the reasons for which an insurer may cancel
commercial property and casualty insurance policies in midterm.” 16 PA. B. 951-52 (Mar. 22,
1986). The regulation was deemed approved by the IRRC on April 16, 1986. See 16 PA. B. 4167
(Oct. 25, 1986). From the certification of the emergency to the promulgation of the emergency
regulation, a total of five days elapsed. In the instant matter, the Acting Secretary did not employ
such measures in the implementation of the Masking Order.
21
The Acting Secretary notes that this Court followed these Supreme Court holdings in its
unpublished opinion County of Allegheny v. Cracked Egg, LLC (Pa. Cmwlth., No. 101 C.D. 2021,
filed July 23, 2021), slip op. at 30-33.
16
complying with the formal requirements of the Commonwealth Documents Law and
the Regulatory Review Act.
As our Supreme Court has observed:
An administrative agency has available two methods for
formulating policy that will have the force of law. An
agency may establish binding policy through rulemaking
procedures by which it promulgates substantive rules, or
through adjudications which constitute binding
precedents. A general statement of policy is the outcome
of neither a rulemaking nor an adjudication; it is neither a
rule nor a precedent but is merely an announcement to the
public of the policy which the agency hopes to implement
in future rulemakings or adjudications. A general
statement of policy, like a press release, presages an
upcoming rulemaking or announces the course which the
agency intends to follow in future adjudications.
Pa. Hum. Rels. Comm’n v. Norristown Area Sch. Dist., 374 A.2d 671, 679 (Pa.
1977). Therefore, as opposed to regulations that establish substantive rules, the
promulgation of simple statements of policy does not require adherence to the
procedural requirements of the Regulatory Review Act. See id. On the distinction
between these concepts, our Supreme Court has noted:
The critical distinction between a substantive rule and a
general statement of policy is the different practical effect
that these two types of pronouncements have in
subsequent administrative proceedings. . . . A properly
adopted substantive rule establishes a standard of conduct
which has the force of law. . . . The underlying policy
embodied in the rule is not generally subject to challenge
before the agency.
A general statement of policy, on the other hand, does not
establish a “binding norm”. . . . A policy statement
17
announces the agency’s tentative intentions for the future.
When the agency applies the policy in a particular
situation, it must be prepared to support the policy just as
if the policy statement had never been issued.
Id.Because the Masking Order herein is intended to, and actually does,
dictate citizens’ standards of conduct within Pennsylvania’s schools, we need not
belabor an analysis of whether the Masking Order represents simply a general
statement of policy as opposed to a regulation. The language of the Masking Order
clearly mandates that those inside School Entities must wear masks and binds those
School Entities and those attending or visiting. The Order does not guide or provide
an interpretation of a statute, but rather, requires that “[e]ach teacher, child/student,
staff, or visitor working, attending, or visiting a School Entity shall wear a face
covering indoors, regardless of vaccination status[.]” Masking Order at 4. There is
no palatable argument that this Order is mere guidance. 22
The Regulatory Review Act defines a “regulation,” in relevant part, as:
22
We acknowledge the Dissenting Opinion’s citation of dicta in Northwestern Youth
Services. Inc. v. Department of Public Welfare, 66 A.3d 301 (Pa. 2013), in an attempt to classify
the Masking Order as an “interpretative” rule. See Corman v. Acting Sec’y of the Pa. Dep’t of
Health, __ A.3d __ (Pa. Cmwlth. 2021) (Wojcik, J., dissenting), slip op. at 9-11. There are two
categories of rules: (1) legislative, and (2) non-legislative, sometimes called “guidance documents”
or “interpretive rules,” that merely explain existing statutes or regulations. Nw. Youth Servs., 66
A.3d at 310-11. The Supreme Court in Northwestern Youth Services held that a bulletin intended
to be “mandatory and binding” was neither a “guideline” nor a “statement of the Department’s
future intent,” but rather, imposed new and strict changes to an agency’s practices and policies and
was procedurally invalid where regulatory review procedures were not followed. Id. at 307 &
316-17. This holding supports the conclusion that the Masking Order, a mandate, is procedurally
invalid as it did not follow regulatory review procedures and does not support the Dissenting
Opinion’s position that the Masking Order is an interpretive rule not subject to those procedures.
Further, the Dissenting Opinion overlooks the fact that, in the instant matter, the Acting
Secretary does not contend that her Masking Order is mere guidance or an interpretation of any
rule or regulation. See Masking Order at 3; see also Nw. Youth Servs., 66 A.3d at 311-12.
18
[a]ny rule or regulation, or order in the nature of a rule or
regulation, promulgated by an agency under statutory
authority in the administration of any statute administered
by or relating to the agency or amending, revising or
otherwise altering the terms and provisions of an existing
regulation, or prescribing the practice or procedure before
such agency. . . . The term shall not include a
proclamation, executive order, directive or similar
document issued by the Governor, but shall include a
regulation which may be promulgated by an agency, only
with the approval of the Governor.
Section 3 of the Regulatory Review Act, 71 P.S. § 745.3. Our Supreme Court has
adopted the three-part “binding norm” test articulated by the Court of Appeals for
the District of Columbia to determine whether an order issued by an agency amounts
to a regulation requiring adherence to formal rulemaking processes. See Pa. Hum.
Rels. Comm’n, 374 A.2d at 679. Pursuant to this test,
[i]n ascertaining whether an agency has established a
binding norm, the reviewing court must consider: (1) the
plain language of the provision; (2) the manner in which
the agency has implemented the provision; and, (3)
whether the agency’s discretion is restricted by the
provision.
Eastwood Nursing & Rehab. Ctr. v. Dep’t of Pub. Welfare, 910 A.2d 134, 144 (Pa.
Cmwlth. 2006).
Here, with certain exceptions, the plain language of the Masking Order
requires all persons physically within a School Entity as a student, teacher, staff, or
visitor, to wear a face covering regardless of COVID-19 infection or vaccination
status. This plain language clearly indicates that the Masking Order is an order of
general application that creates a binding norm for all persons physically within
19
School Entities. Further, the Acting Secretary intended the Masking Order to be
implemented not by future rulemaking, but immediately upon the effective date and
under the authority of statute and regulation as cited in the Masking Order itself.
Finally, the Masking Order leaves no room for the Department of Health to exercise
any discretion regarding compliance with the Masking Order, once implemented.
The Masking Order is a blanket rule that affects all School Entities in the
Commonwealth. The Masking Order has the force and effect of law.
In consideration of the above, we have little difficulty agreeing that the
Masking Order represents an attempt by the Acting Secretary to impose a new,
binding norm. As such, if not already authorized by statute or regulation, and in the
absence of a disaster emergency declared by the Governor, the Masking Order
represents a regulation subject to the requirements of the Commonwealth
Documents Law and the Regulatory Review Act.23
23
We note that the Regulatory Review Act contains a document classification procedure
whereby a legislative committee may review a document and, if it determines the document should
be published as a regulation, the committee may present the matter to the Joint Committee on
Documents. See Section 7.1 of the Regulatory Review Act, added by the Act of June 30, 1989,
P.L. 73, 71 P.S. § 745.7a. The Joint Committee on Documents consists of nine governmental
members – the General Counsel, the Attorney General, the Director of the Legislative Reference
Bureau, the Director of the Pennsylvania Code, the President Pro Tempore of the Senate, the
Minority Leader of the Senate, the Speaker of the House of Representatives, the Minority Leader
of the House of Representatives, and the Secretary of General Services, or persons designated by
each – and two public members appointed by the Governor from among attorneys at law or other
members of the public who represent the class of persons who may be expected to be effected by
documents published by the Joint Committee on Documents. See 45 Pa.C.S. § 502. Pursuant to
this procedure, once the legislative committee determines that a document should be published as
a regulation and presents it to the Joint Committee on Documents, the Joint Committee then makes
its own determination of whether the document should be promulgated as a regulation. See Section
7.1 of the Regulatory Review Act, 71 P.S. § 745.7a.
This process occurred in the instant matter. On September 14, 2021, the Pennsylvania
House of Representatives Health Committee concluded that the Masking Order is, in fact, a rule
or regulation requiring compliance with the Regulatory Review Act and presented this
determination, by letter, to the Joint Committee on Documents. See Letter to the Commonwealth
20
The Acting Secretary claims that the Masking Order is not a rule or
regulation requiring compliance with the requirements of the Commonwealth
Documents Law or the Regulatory Review Act, but instead is an order promulgated
pursuant to the authority granted to the Secretary of Health by Pennsylvania law,
specifically, Section 5 of the Disease Control Law, 35 P.S. § 521.5, Section 2102(a)
of the Administrative Code, 71 P.S. §§ 532(a), Section 8 of the Act of April 27,
1905, P.L. 312, 71 P.S. § 1403(a), and the Department of Health’s regulation at 28
Pa. Code § 27.60 (relating to disease control measures). The Masking Order states
that these authorities allow the Department to implement any disease control
measure appropriate to protect the public from the spread of infectious disease. See
Masking Order at 3. We do not agree.
Before reviewing the authority cited by the Acting Secretary for the
implementation of the Masking Order, we observe the following with reference to
the principle of administrative agency deference:
Courts give substantial deference to an agency’s
interpretation of a statute the agency is charged with
implementing and enforcing. An administrative agency’s
interpretation of the statute it is charged to administer is
entitled to deference on appellate review absent fraud, bad
faith, abuse of discretion or clearly arbitrary action.
Interpretations of an ordinance that are entitled to
deference become of controlling weight unless they are
Joint Committee on Documents from Kathy L. Rapp, Chairperson of the House of Representatives
Health Committee, dated September 14, 2021, attached as Exhibit G to Petitioners’ Application.
Thereafter, on October 21, 2021, the Joint Committee on Documents reviewed the Masking Order
and arrived, by a vote of 7 to 4, at the opposite conclusion – that the Masking Order was not a
regulation requiring compliance with formal rulemaking procedures. See Joint Committee Order.
The Joint Committee Order, which has been appealed at Commonwealth Court Docket No. 1184
C.D. 2021, was issued absent analysis or rationale and, in any case, has no precedential or binding
effect on the judiciary. See The Honorable Kathy L. Rapp, Chair, on behalf of the House of
Representatives Health Comm. v. Dep’t of Health (Pa. Cmwlth., No. 1184 C.D. 2021).
21
plainly erroneous or inconsistent with the ordinance.
However, when an administrative agency’s interpretation
is inconsistent with the statute itself, or when the statute is
unambiguous, such administrative interpretation carries
little weight.
Azoulay v. Phila. Zoning Bd. of Adjustment, 194 A.3d 241, 249 (Pa. Cmwlth. 2018)
(internal quotations, citations, and brackets omitted). Initially, and as discussed
hereinafter, we find the text of the statutes and regulations cited by the Acting
Secretary as authorizing the implementation of the Masking Order to be
unambiguous. For this reason, we owe no deference to the Department of Health’s
interpretation thereof. Id. at 249.
Regarding the specific sections of Pennsylvania law upon which the
Acting Secretary bases her authority to implement the Masking Order, first, Section
5 of the Disease Control Law, entitled “Control measures,” provides that
[u]pon the receipt by a local board or department of health
or by the [D]epartment [of Health], as the case may be, of
a report of a disease which is subject to isolation,
quarantine, or any other control measure, the local board
or department of health or the [D]epartment [of Health]
shall carry out the appropriate control measures in such
manner and in such place as is provided by rule or
regulation.
35 P.S. § 521.5 (emphasis added). A “control measure” is limited to one as provided
by an existing rule or regulation. See id.
22
The Masking Order requires neither isolation24 nor quarantines.25
Therefore, the Acting Secretary by necessity relies on the “any other control
measure” portion of this section of the Disease Control Law as authority for the
Masking Order. However, the language of this section – particularly “a disease
which is subject to isolation, quarantine, or any other disease control measure” and
“shall carry out the appropriate control measures” – contemplates existing control
measures for diseases already subject to those existing control measures.
Additionally, the Acting Secretary’s reading of Section 5 of the Disease Control Law
does not account for the portion of the text that immediately follows the “any control
measures” language that requires that any “other control measure” be carried out “in
such manner and in such place as is provided by an existing rule or regulation.” 35
P.S. § 521.5. As a result of this express limitation, while Section 5 of the Disease
Control Law does grant the authority to “carry out the appropriate control measures”
24
The Disease Control Law defines “isolation” as:
The separation for the period of communicability of infected
persons or animals from other persons or animals in such places and
under such conditions as will prevent the direct or indirect
transmission of the infectious agent from infected persons or
animals to other persons or animals who are susceptible or who may
spread the disease to others.
Section 2 of the Disease Control Law, 35 P.S. § 521.2.
25
The Disease Control Law defines “quarantine” as:
The limitation of freedom of movement of persons or animals who
have been exposed to a communicable disease for a period of time
equal to the longest usual incubation period of the disease in such
manner as to prevent effective contact with those not so exposed.
Quarantine may be complete, or, as defined below, it may be
modified, or it may consist merely of surveillance or segregation.
Section 2 of the Disease Control Law, 35 P.S. § 521.2.
23
to control diseases, as Respondent suggests,26 it does not provide the Acting
Secretary with the blanket authority to create new rules and regulations out of whole
cloth, provided they are related in some way to the control of disease or can
otherwise be characterized as disease control measures.27 Instead, Section 5 limits
the “other control measures” available to Respondent to those permitted under
existing rules and regulations. Accordingly, this section of the Disease Control Law
does not, on its own, provide the Acting Secretary with the authority to impose the
Masking Order’s non-isolation, non-quarantine control measure of requiring all
individuals to wear masks or face coverings inside Pennsylvania’s School Entities
to combat reports of COVID-19.
The Acting Secretary also relies on two provisions from the
Administrative Code as further authority for the implementation of the Masking
Order. See Masking Order at 3. Section 2102(a) of the Administrative Code, entitled
“General health administration,” enumerates the duties of the Department of Health,
among which are the duties
[t]o protect the health of the people of this
Commonwealth, and to determine and employ the most
efficient and practical means for the prevention and
suppression of disease[.]
71 P.S. § 532(a). The Administrative Code further states, in the section entitled
“Duty to protect health of the people,” that
26
See Respondent’s Brief Addressing Legal Issues Framed In the Court’s September 13,
2021 Order at 4.
27
Respondent acknowledges that, while the General Assembly may delegate broad powers
to the executive branch of government, it may not impart limitless discretion thereon. See
Respondent’s Br. at 20.
24
[i]t shall be the duty of the Department of Health to protect
the health of the people of the State, and to determine and
employ the most efficient and practical means for the
prevention and suppression of disease.
Section 8 of the Act of April 27, 1905, P.L. 312, 71 P.S. § 1403(a). These sections
are statements of general duties of the Department of Health. By so listing these
duties, these subsections do authorize the Department of Health to promulgate rules
and regulations to accomplish these goals and fulfill these duties, but do not
authorize specific means by which the Department of Health may accomplish the
duties, nor do they provide specific authority for the Masking Order. These
Administrative Code subsections make no reference whatsoever to disease control
measures of any kind; nothing in these subsections authorizes the promulgation of
rules or regulations pursuant to the duties listed therein without compliance with
established rulemaking protocols. It goes without saying that the Department of
Health must carry out these duties within the constraints of the law and does not
have carte blanche authority to impose whatever disease control measures the
Department of Health sees fit to implement without regard for the procedures for
promulgating rules and regulations, expedited or otherwise. See supra nn.18-20.
The Acting Secretary also cites Section 27.60 of the Department of
Health Regulations, 28 Pa. Code § 27.60, as authorizing the requirements of the
Masking Order. Section 27.60(a) provides that
[t]he Department [of Health] or local health authority shall
direct isolation of a person or an animal with a
communicable disease or infection; surveillance,
segregation, quarantine or modified quarantine of contacts
of a person or an animal with a communicable disease or
infection; and any other disease control measure the
25
Department [of Health] or the local health authority
considers to be appropriate for the surveillance of disease,
when the disease control measure is necessary to protect
the public from the spread of infectious agents.
28 Pa. Code § 27.60(a)28 (emphasis added).29 This subsection of Department of
Health Regulation Section 27.60 speaks in terms of isolating30 and/or surveilling31
animals or individuals with a communicable disease or infection, and also in terms
of the surveillance, segregation, and quarantine of contacts32 of a person or an animal
28
The directives authorized by Section 27.60 are issued to discrete individuals with a
communicable disease and their contacts. In that regard, the directive is a quasi-judicial action
governed by the Administrative Agency Law, 2 Pa.C.S. §§ 101-754. An agency action with
“general application throughout the Commonwealth is a quasi-legislative function and is not an
adjudication.” 20 Darlington et al., WEST’S PENNSYLVANIA APPELLATE PRACTICE § 102:6 (2020).
Calling a regulation an “order” does not diminish the quasi-legislative character of the agency
action. See Sule v. Phila. Parking Auth., 26 A.3d 1240, 1244 (Pa. Cmwlth. 2011).
29
We note that, in reciting the provisions of Section 27.60(a) of the Department of Health
Regulations, the Dissenting Opinion omits the portion of text that makes clear that Section 26.70(a)
refers to control measures considered “appropriate for the surveillance of disease[.]” See 28 Pa.
Code § 26.70(a); see also Corman, __ A.3d at __ (Wojcik, J., dissenting), slip op. at 11.
30
The Department of Health’s regulations define “isolation” to mean:
The separation for the communicable period of an infected person
or animal from other persons or animals, in such a manner as to
prevent the direct or indirect transmission of the infectious agent
from infected persons or animals to other persons or animals who
are susceptible or who may spread the disease to others.
28 Pa. Code § 27.1.
31
The Department of Health’s regulations define “surveillance of disease” to mean:
The continuing scrutiny of all aspects of occurrence and spread of
disease that are pertinent to effective control.
28 Pa. Code § 27.1.
32
The Department of Health’s regulations define “contact” to mean:
26
with a communicable disease or infection. See id. The Masking Order requires the
wearing of masks and/or face coverings in School Entities regardless of whether
individuals are known to be infected with COVID-19 or whether they are a contact
of an individual known to be infected with a communicable disease. As such, the
Masking Order cannot be said to be in furtherance of the isolation or surveillance of
animals or individuals with a communicable disease or the surveillance, segregation,
or quarantine of contacts of a person or an animal with a communicable disease or
infection.
To the extent the Acting Secretary relies on the language of Department
of Health Regulation Section 27.60(a) that allows the Department to implement “any
other disease control measure the Department [of Health] . . . considers to be
appropriate[,]” we note, as we did in our discussion of the language of Section 5 of
the Disease Control Law, 35 P.S. § 521.5, supra, that this language does not provide
blanket authority to create new rules and regulations out of whole cloth. Instead,
directly following the “any other disease control measure” language is the qualifying
language “for the surveillance of disease.” 28 Pa. Code § 27.60(a). This language
directly limits the disease control measures the Department of Health may consider
“appropriate” to those disease control measures related to the surveillance of disease.
Mask wearing is not disease surveillance. Therefore, for this additional reason, the
A person or animal known to have had an association with an
infected person or animal which presented an opportunity for
acquiring the infection.
28 Pa. Code § 27.1.
27
Acting Secretary cannot rely on Department of Health Regulation Section 27.60(a)
as authority for the Masking Order.
Likewise, it cannot be said that mask wearing represents a form of
“modified quarantine” as contemplated in 28 Pa. Code § 27.60(a). In addition to
Section 27.60(a) referring only to infected animals or individuals and the contacts of
infected animals or individuals, Section 27.1 of the Department Regulations defines
“Modified quarantine” as
[a] selected, partial limitation of freedom of movement
determined on the basis of differences in susceptibility or
danger of disease transmission which is designated to meet
particular situations. The term includes the exclusion of
children from school and the prohibition, or the restriction,
of those exposed to a communicable disease from
engaging in particular activities.
28 Pa. Code § 27.1. This definition of “modified quarantine” contemplates the
limitation of movement of individuals who have already been exposed to a
communicable disease. To equate a “partial limitation of freedom of movement” in
those exposed to a communicable disease with a mask-wearing requirement for all
individuals without knowledge of whether they had been exposed to COVID-19
would improperly ignore the plain language of the definitions contained in the
Department of Health’s own regulations.
Further, subsection (b) of the Department of Health Regulation Section
27.60 permits the Department of Health to “determine the appropriate disease
control measure based upon the disease or infection, the patient’s circumstance, the
type of facility available, and any other available information relating to the patient
and the disease or infection.” 28 Pa. Code § 27.60(b). In referring to “the patient’s
circumstances,” Department of Health Regulation Section 27.60(b) specifically
28
limits the authority and possible actions of the Department of Health to those
individuals who have already contracted specific diseases, not the general,
uninfected population as a whole. Additionally, the subsection’s reference to
“facilities available” indicates facilities for the surveillance, segregation, quarantine,
or modified quarantine of individuals already known to have been exposed to a
disease or infection. Accordingly, this subsection likewise fails to provide the broad
authority claimed by the Acting Secretary to impose the Masking Order on otherwise
healthy Pennsylvanians attending, working in, or otherwise visiting Pennsylvania’s
School Entities.
We further acknowledge that the Emergency Code grants the Governor
the power to issue “executive orders, proclamations and regulations which shall have
the effect of law.” 35 Pa.C.S. § 7301(b). We further acknowledge that our Supreme
Court has recognized in Scarnati, 233 A.3d at 705, and DeVito, 227 A.3d at 885,
that the General Assembly has also granted the Governor the power to “[s]uspend
the provisions of any regulatory statute prescribing the procedures for conduct of
Commonwealth business, or the orders, rules or regulations of any Commonwealth
agency, if strict compliance . . . would in any way prevent, hinder or delay necessary
action in coping with the emergency,” declared pursuant to Section 7301(f)(1) of the
Emergency Code. 35 Pa.C.S. § 7301(f)(1). However, as discussed supra, in the
absence of a declared emergency, and where such orders are not otherwise
authorized by statute or regulation, the Governor and the executive agencies of the
Commonwealth must follow the prescribed procedures for rulemaking set forth in
the Commonwealth Documents Law and the Regulatory Review Act.
The instant matter presents such a scenario. The Governor did not
declare a new disaster emergency following the General Assembly’s approval of the
29
Concurrent Resolution that terminated the Disaster Proclamation. Instead, the
Acting Secretary issued the Masking Order, which is a regulation, without
complying with the mandatory rulemaking requirements of the Commonwealth
Documents Law and the Regulatory Review Act. In so doing, the Acting Secretary
attempted to issue her own emergency declaration about the dangers of COVID-19
and mutations thereof, including the Delta variant. See Masking Order at 1. The
purported authority cited by the Acting Secretary in the Masking Order does not
convey the authority required to promulgate a new regulation without compliance
with the formal rulemaking requirements of the Commonwealth Documents Law
and the Regulatory Review Act. Therefore, because the Acting Secretary did not
comply with the requirements of the Commonwealth Documents Law or the
Regulatory Review Act in promulgating the Masking Order, the Masking Order is
void ab initio. For this Court to rule otherwise would be tantamount to giving the
Acting Secretary unbridled authority to issue orders with the effect of regulations in
the absence of either a gubernatorial proclamation of disaster emergency or
compliance with the Commonwealth Documents Law and the Regulatory Review
Act, as passed by the General Assembly. As this would be contrary to
Pennsylvania’s existing law, we decline to do so.
III. Conclusion
For the foregoing reasons, we find the Masking Order to be void ab
initio. Accordingly, we grant Petitioners’ Application and deny Respondent’s
30
Application.33 Consequently, we declare the Masking Order void ab initio and
unenforceable.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
President Judge Brobson and Judges Cohn Jubelirer, Covey, and Crompton did not
participate in this decision.
33
Our determination herein that the Masking Order is void ab initio vitiates the need for
this Court to determine whether the Acting Secretary’s enactment of the Masking Order represents
a violation of the non-delegation doctrine.
31
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jacob Doyle Corman, III, :
individually and as a parent of two :
minor school children; Jesse Wills :
Topper, individually and as a parent of :
two minor school children; Calvary :
Academy; Hillcrest Christian :
Academy; James Reich and Michelle :
Reich, individually and as parents of :
three minor school children; Adam :
McClure and Chelsea McClure, :
individually and as parents of one :
minor special needs school child; :
Victoria T. Baptiste, individually and :
as a parent of two special needs :
school children; Jennifer D. Baldacci, :
individually and as a parent of one :
school child; Klint Neiman and :
Amanda Palmer, individually and as :
parents of two minor school children; :
Penncrest School District; Chestnut :
Ridge School District and West York :
Area School District, :
Petitioners :
:
v. :
:
Acting Secretary of the Pennsylvania :
Department of Health, : No. 294 M.D. 2021
Respondent :
ORDER
AND NOW, this 10th day of November, 2021, Petitioners’ Application
for Summary Relief and Entry of Judgment Pursuant to Pa.R.A.P. 1532 and In
Accordance with the Court’s September 27, 2021 Order is GRANTED, and
Respondent’s Application for Summary Relief filed by Alison M. Beam, the Acting
Secretary of Health (Acting Secretary), is DENIED.
The “Order of the Acting Secretary of the Pennsylvania Department of
Health Directing Face Coverings in School Entities,” issued by the Acting Secretary
on August 31, 2021, is declared void ab initio.
Respondent’s “Application for Relief in the Nature of a Motion to
Quash Notice to Attend and Subpoena Ad Testificandum Directed to Alison M.
Beam, Acting Secretary of Health” is DISMISSED as moot.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jacob Doyle Corman, III, individually :
and as a parent of two minor school :
children; Jesse Wills Topper, individually :
and as a parent of two minor school :
children; Calvary Academy; Hillcrest :
Christian Academy; James Reich and :
Michelle Reich, individually and as parents :
of three minor school children; Adam :
McClure and Chelsea McClure, individually :
and as parents of one minor special needs :
school child; Victoria T. Baptiste, :
individually and as a parent of two special :
needs school children; Jennifer D. Baldacci, :
individually and as a parent of one school :
child; Klint Neiman and Amanda Palmer, :
individually and as parents of two minor :
school children; Penncrest School District; :
Chestnut Ridge School District and :
West York Area School District, :
:
Petitioners :
:
v. : No. 294 M.D. 2021
: Argued: October 20, 2021
Acting Secretary of the Pennsylvania :
Department of Health, :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
DISSENTING OPINION
BY JUDGE WOJCIK FILED: November 10, 2021
I dissent.
On August 31, 2021, the Acting Secretary (Secretary) of the
Pennsylvania Department of Health (DOH) issued an Order directing that face
coverings must be worn by each teacher, child/student, staff, or visitor working,
attending, or visiting a school while indoors regardless of his or her 2019 novel
coronavirus (COVID-19) vaccination status. See Petitioners’ Amended Petition for
Review (PFR), Exhibit A at 1-6. The Secretary states her reasoning for issuing the
Order, in relevant part, as follows:
[COVID-19] is a contagious disease that continues
spreading rapidly from person to person in the world, the
United States, and this Commonwealth. Despite periods
of time when the virus seemed to wane, it, like all viruses,
has continued to mutate, and spread. As of the date of this
Order, there have been 1,300,368 cases and 28,235 deaths
in this Commonwealth caused by the still present and
ongoing pandemic. At this time, the Centers for Disease
Control and Prevention (CDC) estimates that the Delta
variant is the predominant strain in the Commonwealth.
COVID-19 can be transmitted from any person who is
infected, even if they [sic] have no symptoms and, with the
Delta variant, even if they [sic] have been vaccinated.
Symptoms of COVID-19 may include fever or chills,
cough, shortness of breath or difficulty breathing, fatigue,
muscle or body aches, headache, new loss of taste or smell,
sore throat, congestion or runny nose, nausea or vomiting,
or diarrhea. Older adults and people who have serious
chronic medical conditions were considered to be at higher
risk for serious illness. Now, because of the rise of the
Delta variant, increasing disease and hospitalizations, and
the inability to obtain vaccines for a large part of that
vulnerable group, children are more and more at risk.
There are several reasons for the increasing risk to children
from COVID-19. The risk overall to the unvaccinated
population is rising. Given the rise in hospitalizations and
deaths, and despite COVID-19 vaccines being available,
the Delta variant of the SARS-CoV-2 virus is causing the
rate of cases of COVID-19 to increase. The Delta variant
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is more infectious, and it is leading to increased
transmissibility. Additionally, data [are] suggesting that
the Delta variant may cause more severe illness than
previous strains of SARS-CoV-2; however, not all of our
population is able to get vaccinated. As of yet, no vaccine
has been approved for children under the age of 12. As of
August 26, 2021, the total number of cumulative cases
reported in children in the Commonwealth was 23,974 in
the 0-4 years of age cohort, 56,039 in the 5-12 years of age
cohort, and 88,205 in the 12-18 years of age cohort.
In addition to the concern that COVID-19 spreads quickly
and dangerously among children, there are concerns that
school closures create health issues for children too.
Maintaining in-person instruction and socialization are
necessary for the health and well-being of our children. In
view of this serious concern for our nation’s children, the
CDC has issued a strong recommendation for masking of
all persons, teachers, students, and staff within the nation’s
schools, regardless of vaccination status, to create a multi-
layered approach for fighting COVID-19 and to keep our
schools open for in-person education. In addition, the
American Academy of Pediatrics (AAP) has also strongly
recommended masking in schools. Finally, recent studies
have shown that mask-wearing in schools has contributed
to lower levels of COVID-19 transmission among students
and staff and allowed for the continued in-person
attendance. Requiring face coverings in schools,
therefore, balances the concerns for the mental health of
our children with the need to protect them against a disease
that is growing more virulent as we struggle to protect the
most vulnerable members of our population. In
accordance with the recommendations of the CDC and
AAP and based upon the rising case numbers and
hospitalizations in general in the Commonwealth,
including the number of cases in our children, as well as
the need to protect and maintain in-person education for
the health and well-being of those children, I am issuing
this Order to protect the ability of our schools to continue
to educate our children, and of our children to receive in-
person instruction in the safest environment possible.
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COVID-19 is a threat to the public’s health for which the
[Secretary] may order general control measures. This
authority is granted to the [Secretary] pursuant to
Pennsylvania law. See [Section 5 of the Disease
Prevention and Control Law of 1955 (Disease Control
Law)];[1] [Section 2102(a) of The Administrative Code of
1
Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S. §521.5. Section 5 states,
in relevant part: “Upon the receipt by . . . [DOH] . . . of a report of a disease which is subject to
isolation, quarantine, or any other control measure, . . . [DOH] shall carry out the appropriate
control measures in such manner and in such place as is provided by rule or regulation.” In
addition, Section 3 of the Disease Control Law states, in relevant part:
(a) Local boards and departments of health shall be primarily
responsible for the prevention and control of communicable and
non-communicable disease, including disease control in public and
private schools, in accordance with the regulations of the [State
Advisory Health Board (Board)] and subject to the supervision and
guidance of [DOH].
(b) [DOH] shall be responsible for the prevention and control of
communicable and non-communicable disease in any municipality
which is not served by a local board or department of health,
including disease control in public and private schools.
(c) If the [S]ecretary finds that the disease control program carried
out by any local board or department of health is so inadequate that
it constitutes a menace to the health of the people within or without
the municipalities served by the local board or department of health,
he may appoint agents of [DOH] to supervise or to carry out the
disease control program of the particular local board or department
of health until he determines that the menace to the health of the
people no longer exists and that the local board or department of
health is able to carry out an adequate disease control program.
35 P.S. §521.3. As the Pennsylvania Supreme Court has explained:
We find in the [Disease Control Law] a holistic scheme that,
for purposes of disease prevention and control, favors local
regulation as informed by the expertise of a dedicated local board or
department of health over state-level regulation, and
correspondingly allows local lawmakers to impose more stringent
(Footnote continued on next page…)
MHW-4
1929 (Administrative Code)];[2] and [the DOH] regulation
at 28 Pa. Code §27.60 (relating to disease control
regulations than state law provides. Thus, in priority order, a
municipality with a board or department of health may enact
ordinances or promulgate rules and regulations in service of disease
prevention and control. Where a municipality lacks its own board
or department of health, but lies within the jurisdiction of a county
department of health, the municipality may enact such ordinances,
while the county board or department of health may issue rules and
regulations. Absent a municipal or county board or department of
health, a municipality falls within the jurisdiction of the [Board].
With this account in mind, viewing [Section 16 of the
Disease Control Law, 35 P.S.] §521.16, in its entirety, certain
principles are clear. First, state-level regulations must be devised
and promulgated by [the Board] with the Secretary[’s] oversight.
Second, at the local level, municipalities with the benefit of access
to similar expertise, whether in the form of a municipal board or
department of health or a department or board administered by the
county, enjoy the prerogative of enacting additional laws or
regulations, provided they are no less strict than state law and
regulations on the same subject. See [Section 16(c) of the Disease
Control Law,] 35 P.S. §521.16(c) (allowing such ordinances that
“are not less strict than the provisions of this act or the rules and
regulations issued thereunder” by the [B]oard).
Pennsylvania Restaurant and Lodging Association v. City of Pittsburgh, 211 A.3d 810, 828 (Pa.
2019) (emphasis in original).
2
Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §532(a). Section 2102(a) states:
“[DOH] shall have the power, and its duty shall be . . . [t]o protect the health of the people of this
Commonwealth, and to determine and employ the most efficient and practical means for the
prevention and suppression of disease[.]” See also Section 2111(a) and (b) of the Administrative
Code, 71 P.S. §541(a) and (b) (“The [Board] shall have the power, and its duty shall be . . . [t]o
advise the [Secretary] on such matters as he may bring before it . . . [and t]o make such reasonable
rules and regulations, not contrary to law, as may be deemed by the [B]oard necessary for the
prevention of disease, and for the protection of the lives and health of the people of the
Commonwealth, and for the proper performance of the work of [DOH], and such rules and
regulations, when made by the [B]oard, shall become the rules and regulations of [DOH].”).
MHW-5
measures).[3] Particularly, [DOH] has the authority to take
any disease control measure appropriate to protect the
public from the spread of infectious disease. See [Section
5 of the Disease Control Law]; [Section 2102(a) of the
Administrative Code and Section 8(a) of the Act of April
27, 1905, P.L. 312, as amended, 71 P.S. §1403(a) (DOH
Act)];[4] [and Section 27.60 of DOH’s regulations]. With
the opening of the 2021 school year at hand, and case
counts and hospitalizations continuing to rise, there is a
need for additional action to protect our Commonwealth’s
children.
PFR, Exhibit A at 1-2 (footnotes omitted).
3
28 Pa. Code §27.60. Section 27.60(a) of DOH’s regulations states, in pertinent part:
(a) [DOH] . . . shall direct isolation of a person . . . with a
communicable disease or infection; surveillance, segregation,
quarantine or modified quarantine of contacts of a person . . . with a
communicable disease or infection; and any other disease control
measure [DOH] . . . considers to be appropriate for the surveillance
of disease, when the disease control measure is necessary to protect
the public from the spread of infectious agents.
28 Pa. Code §27.60(a).
In turn, Section 27.1 of DOH’s regulations defines “isolation,” in relevant part, as
[t]he separation for the communicable period of an infected person
. . . from other persons . . . in such a manner as to prevent the direct
or indirect transmission of the infectious agent from infected
persons . . . to other persons . . . who are susceptible or who may
spread the disease to others.
28 Pa. Code §27.1. Additionally, Section 27.1 defines “segregation,” in pertinent part, as “[t]he
separation for special control and observation of one or more persons . . . from other persons . . .
to facilitate the control of a communicable disease.” Id.4
Section 8(a) of the DOH Act states: “It shall be the duty of [DOH] to protect the health
of the people of the State, and to determine and employ the most efficient and practical means for
the prevention and suppression of disease.”
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In Section 2 of the Order, the Secretary imposes a “General Masking
Requirement” requiring that “[e]ach teacher, child/student, staff, or visitor working,
attending, or visiting a School Entity[5] shall wear a face covering indoors, regardless
of vaccination status, except as set forth in Section 3.[6]” PFR, Exhibit A at 4. The
Secretary also stated she issued the Order “in order to prevent and control the spread
of disease,” and that “[t]his Order shall take effect at 12:01 a.m. on September 7,
2021, and shall remain in effect until otherwise terminated.” Id. at 3, 6. Petitioners
5
Section 2 of the Order defines “School Entity,” in relevant part, as follows:
(1) A public PreK-12 school.
(2) A brick and mortar or cyber charter school.
(3) A private or parochial school.
(4) A career and technical center (CTC).
(5) An intermediate unit (IU).
(6) A PA Pre-K Counts program, Head Start Program, Preschool
Early Intervention program, or Family Center.
(7) A private academic nursery school and local-funded
prekindergarten activities.
(8) A childcare provider licensed by the Department of Human
Services of the Commonwealth.
PFR, Exhibit A at 3-4.
6
Section 3 of the Order lists the following exceptions to its application: (1) if wearing a
mask while working would create an unsafe condition in which to operate equipment or execute a
task under local, state, or federal regulations or workplace safety guidelines; (2) if wearing a mask
would either cause a medical condition, or exacerbate an existing one, including respiratory issues
that impede breathing, a mental health condition, or a disability; (3) when necessary to confirm an
individual’s identity; (4) while working alone and isolated from others with little or no expectation
of in-person contact; (5) while communicating with someone who is hearing impaired or has
another disability requiring sight of the mouth in order to communicate; (6) when the individual is
under two years old; (7) when the individual is engaged in an activity that cannot be performed
while wearing a mask, such as eating or drinking, or playing an instrument, or participating in a
high intensity aerobic or anaerobic activity, including during physical education class, in a well-
ventilated area; and (8) while participating in a sports activity or event either indoors or outdoors.
PFR, Exhibit A at 4-5.
MHW-7
subsequently filed the PFR seeking declaratory and injunctive relief based on the
Order’s purported invalidity, and Petitioners and the Secretary filed cross-
Applications for Summary Relief (ASR).7
On September 13, 2021, this Court filed an order framing the issues to
be considered in this matter:
[W]hether the August 31, 2021 [Order] constitutes a rule
or regulation subject to the provisions of the Regulatory
Review Act, Act of June 25, 1982, P.L. 633, as amended,
71 P.S. §§745.1-745.15, and whether said [Order] violates
the principles governing the delegation of administrative
authority.
7
As this Court has recently observed:
Applications for summary relief filed in this Court’s original
jurisdiction are governed by Pennsylvania Rule of Appellate
Procedure 1532(b), Pa. R.A.P. 1532(b), which provides that “[a]t
any time after the filing of a petition for review . . . , the court may
enter judgment if the right of the applicant thereto is clear.” An
application for summary relief under Rule 1532(b) is evaluated
according to standard for a motion for summary judgment. A
motion for summary relief may only be granted when “the dispute
is legal rather than factual,” there is no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of law.
The evidence is to be reviewed in a light most favorable to the non-
moving party. “Even if the facts are undisputed, the moving party
has the burden of proving that its right to relief is so clear as a matter
of law that summary relief is warranted.” “Bold unsupported
assertions of conclusory accusations cannot create genuine issues of
material fact.” “Summary [relief] may be entered only in cases that
are clear and free from doubt.”
Delaware Riverkeeper Network v. Department of Environmental Protection (Pa. Cmwlth., No. 525
M.D. 2017, filed August 3, 2021), slip op. at 13 (citations and footnote omitted); see also
Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an unreported
memorandum opinion of the Commonwealth Court filed after January 15, 2008. [] Non-
precedential decisions . . . may be cited for their persuasive value.”).
MHW-8
I.
With regard to the first issue presented herein, the Pennsylvania
Supreme Court has explained:
Commonwealth agencies have no inherent power to
make law or otherwise bind the public or regulated
entities. Rather, an administrative agency may do so only
in the fashion authorized by the General Assembly, which
is, as a general rule, by way of recourse to procedures
prescribed in the Commonwealth Documents Law,[8] the
Regulatory Review Act, and the Commonwealth
Attorneys Act.[9] When an agency acts under the general
rule and promulgates published regulations through the
formal notice, comment, and review procedures
prescribed in those enactments, its resulting
pronouncements are accorded the force of law and are thus
denominated “legislative rules.” See Borough of
Pottstown [v. Pennsylvania Municipal Retirement Board,
712 A.2d 741, 743 (Pa. 1998)]. See generally Mark
Seidenfeld, Substituting Substantive for Procedural
Review of Guidance Documents, 90 TEX. L.REV. 331, 335
(2011) (“The canonical mode by which agencies define
the meaning of statutes and regulations or establish policy
is legislative rulemaking.”) (footnote omitted).
Non-legislative rules—more recently couched (in
decisions and in the literature) as “guidance documents”—
comprise a second category of agency pronouncements
recognized in administrative law practice. These “come
in an abundance of formats with a diversity of names,
including guidances, manuals, interpretive memoranda,
staff instructions, policy statements, circulars, bulletins,
advisories, press releases and others.” Robert A. Anthony,
Commentary, A Taxonomy of Federal Agency Rules, 52
ADMIN. L.REV. 1045, 1046 (2000). When such documents
fairly may be said to merely explain or offer specific and
8
Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§1102-1602, and 45 Pa. C.S. §§501-
907.
9
Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§732-101–732-506.
MHW-9
conforming content to existing statutes or regulations
within the agency’s purview, they are regarded as
“interpretive rules,” which generally are exempt from
notice-and-comment rulemaking and regulatory-review
requirements. See Borough of Pottstown, [712 A.2d at
743]; Seidenfeld, Substituting Substantive for Procedural
Review, 90 TEX. L.REV. at 346 (explaining that an
interpretive rule “is meant to explain preexisting legal
obligations and relations that are embodied in the agency’s
authorizing statutes and regulations”) (footnote omitted).
Additionally, “statements of policy”—or agency
pronouncements which are not intended to bind the public
and agency personnel, but rather, merely express an
agency’s tentative, future intentions—also are not
regulations subject to notice-and-comment rulemaking
and regulatory-review requirements. See Borough of
Pottstown, [712 A.2d at 743 n.8].
Northwestern Youth Services, Inc. v. Department of Public Welfare, 66 A.3d 301,
310-11 (Pa. 2013) (citation and footnote omitted).10
10
With respect to the various species of non-legislative rules, such as the Secretary’s Order
issued herein, Professor Anthony has further explained:
Documents that are not legislative rules, but that
nevertheless fit [Section 551 of Administrative Procedures Act’s, 5
U.S.C. §551,] definition of “rule,” are called “non[-]legislative
rules.” They come in an abundance of formats with a diversity of
names, including guidances, manuals, interpretive memoranda, staff
instructions, policy statements, circulars, bulletins, advisories, press
releases and others. Non[-]legislative rules do not carry the force of
law. They are potentially exempt from notice[]and[]comment
requirements under the “interpretative rules” exemption (for
documents that interpret) or under the “general statements of policy”
exemption (for some documents that do not interpret). Whether a
document will be exempt in a given case depends upon further
analysis.
That analysis is a simple one for non[-]legislative rules that
interpret existing legislation. All such documents (more precisely,
those portions of the documents that genuinely interpret) fall
(Footnote continued on next page…)
MHW-10
To my mind, the Secretary’s Order is a valid interpretive rule that tracks
the statutory and regulatory authority conferred upon her, and it is not a rule or
regulation that must be promulgated under the Regulatory Review Act. As outlined
above, Section 2102(a) of the Administrative Code states: “[DOH] shall have the
power, and its duty shall be . . . [t]o protect the health of the people . . . and to
determine and employ the most efficient and practical means for the prevention and
suppression of disease[.]” 71 P.S. §532(a). Likewise, Section 8(a) of the DOH Act
states: “It shall be the duty of [DOH] to protect the health of the people . . . and to
determine and employ the most efficient and practical means for the prevention and
suppression of disease.” 71 P.S. §1403(a). Additionally, Section 5 of the Disease
squarely within the exemption for “interpretative rules,” and need
not undergo notice[]and[]comment. The theory is that the agency is
not making new law, but is merely spelling out or explaining
positive legal substance that was already inherent in the statute or
legislative rule or line of decisional law being interpreted. Thus, the
public-participation procedures required by [S]ection 553[, 5 U.S.C.
§553,] for making new law are not needed.
In practice, the courts often have quite an uneasy time
deciding whether a document does or does not interpret. It is in the
application of the interpretative rule exemption, not in its
conception, that perplexity intrudes. It is notoriously difficult to say
with confidence that a given non[-]legislative document actually
interprets a given legislative document, such that the meaning of the
former flows fairly from and is justified by the latter. But when the
court ultimately concludes that a document does so interpret, the law
is utterly clear that notice[]and[]comment need not have been used
in its promulgation. (Good practice may counsel agencies
voluntarily to observe notice[]and[]comment before issuing an
interpretation in many situations, such as where the interpretation
would extend the practical scope of the agency’s jurisdiction, would
alter the obligations of private parties or would modify eligibility for
entitlements.)
A Taxonomy of Federal Agency Rules, 52 ADMIN. L.REV. at 1046-47.
MHW-11
Control Law states, in relevant part: “Upon the receipt by . . . [DOH] . . . of a report
of a disease which is subject to isolation, quarantine, or any other control measure,
. . . [DOH] shall carry out the appropriate control measures in such manner and in
such place as is provided by rule or regulation.” 35 P.S. §521.5. In turn, as stated
above, Section 27.60(a) of DOH’s regulations provides, in relevant part, that
“[DOH] . . . shall direct isolation of a person . . . with a communicable disease or
infection . . . [or] segregation, quarantine or modified quarantine of contacts of a
person . . . with a communicable disease or infection . . . .” 28 Pa. Code §27.60(a).
As extensively outlined in the Secretary’s Order, the increase in
COVID-19 cases caused by the Delta variant of the SARS-CoV-2 virus at the time
of its issuance, in combination with the concern of the quick and dangerous spread
among unvaccinated children, while considering the mental health needs of students
to return to in-person instruction in schools, compelled the Secretary to follow the
advice of the CDC and AAP to temporarily impose the least restrictive and “most
efficient and practical means” of ensuring the safety of the vulnerable student
population.11 In the absence of universal testing of all individuals who may come
In this regard, the Secretary’s rulemaking authority under the Administrative Code, the
11
DOH Act, and the Disease Control Law must be distinguished from the Board’s authority to
promulgate regulations with respect to DOH operations as outlined above in the Disease Control
Law. The Pennsylvania Supreme Court has explained this important distinction as follows:
There is a well-recognized distinction in the law of
administrative agencies between the authority of a rule adopted by
an agency pursuant to what is denominated by the text writers as
legislative rule-making power and the authority of a rule adopted
pursuant to interpretative rule-making power. The former type of
rule ‘is the product of an exercise of legislative power by an
administrative agency, pursuant to a grant of legislative power by
the Legislative body,’ and ‘is valid and is as binding upon a court as
a statute if it is (a) within the granted power, (b) issued pursuant to
(Footnote continued on next page…)
MHW-12
into contact with a student while in a “School Entity,” the use of masks by all
individuals in this setting during the life of the COVID-19 pandemic is an
appropriate and limited “isolation” or “segregation” measure to prevent the spread
of an airborne virus causing, in some cases, an asymptomatic disease. This
temporary measure is “the most efficient and practical means for the prevention and
suppression of [this] disease,” as mandated by Section 2102(a) of the Administrative
Code and Section 8(a) of the DOH Act,12 and is a specifically authorized mode of
proper procedure, and (c) reasonable.’ A court, in reviewing such a
regulation, ‘is not at liberty to substitute its own discretion for that
of administrative officers who have kept within the bounds of their
administrative powers. To show that these have been exceeded in
the field of action . . . involved, it is not enough that the prescribed
system of accounts shall appear to be unwise or burdensome or
inferior to another. Error or unwisdom is not equivalent to abuse.
What has been ordered must appear to be ‘so entirely at odds with
fundamental principles . . . as to be the expression of a whim rather
than an exercise of judgment.’
An interpretative rule on the other hand depends for its
validity not upon a law-making grant of power, but rather upon the
willingness of a reviewing court to say that it in fact tracks the
meaning of the statute it interprets. While courts traditionally
accord the interpretation of the agency charged with administration
of the act some deference, the meaning of a statute is essentially a
question of law for the court, and, when convinced that the
interpretative regulation adopted by an administrative agency is
unwise or violative of legislative intent, courts disregard the
regulation.
Uniontown Area School District v. Pennsylvania Human Relations Commission, 313 A.2d 156,
169 (Pa. 1973) (emphasis in original and citations omitted). As outlined above, because the
Secretary’s Order tracks the statutory and regulatory powers conferred thereunder, it is a valid
interpretive rule issued pursuant to her rulemaking authority.
12
Where, as here, the Secretary has extensively outlined the basis upon which she issued
the Order, the Pennsylvania Supreme Court has cautioned:
(Footnote continued on next page…)
MHW-13
By a host of authorities in our own and other jurisdictions it has been
established as an elementary principle of law that courts will not
review the actions of governmental bodies or administrative
tribunals involving acts of discretion, in the absence of bad faith,
fraud, capricious action or abuse of power; they will not inquire into
the wisdom of such actions or into the details of the manner adopted
to carry them into execution. It is true that the mere possession of
discretionary power by an administrative body does not make it
wholly immune from judicial review, but the scope of that review is
limited to the determination of whether there has been a manifest
and flagrant abuse of discretion or a purely arbitrary execution of
the agency’s duties or functions. That the court might have a
different opinion or judgment in regard to the action of the agency
is not a sufficient ground for interference; judicial discretion may
not be substituted for administrative discretion.
Blumenschein v. Pittsburgh Housing Authority, 109 A.2d 331, 334-35 (Pa. 1954) (footnotes
omitted and emphasis in original).
As provided within the text of the Order, the Secretary stated the reasoning underlying the
exercise of her statutory and regulatory discretion in formulating the appropriate means for
protecting the vulnerable statewide student population in the School Entity setting during the
ongoing COVID-19 pandemic. The pleadings in this case simply do not demonstrate the requisite
“manifest and flagrant abuse of discretion or a purely arbitrary execution of the [Secretary’s] duties
or functions” to enable this Court to inquire into the wisdom or details of her actions in this regard.
Further, as extensively explained throughout this Dissenting Opinion, the Secretary’s Order does
not constitute a rule or regulation subject to the notice and comment requirements of either the
Regulatory Review Act or the Commonwealth Documents Law, so no extra-agency input was
required prior to the Secretary’s issuance of the Order pursuant to her statutory and regulatory
authority. In sum, although this Court may have reached a different conclusion based on the
available information that was relied upon by the Secretary in issuing the Order, it is inappropriate
to substitute our judicial discretion for the Secretary’s administrative discretion conferred by
Section 2102(a) of the Administrative Code and Section 8(a) of the DOH Act to employ “the most
efficient and practical means for the prevention and suppression of” COVID-19 in the School
Entity setting during the life of this pandemic.
MHW-14
prevention provided by Section 5 of the Disease Control Law and Section 27.60(a)
of DOH’s regulations.13
Moreover, on October 21, 2021, while this matter was pending, the
Joint Committee on Documents (Joint Committee) issued the following Order:
Pursuant to [S]ection 7.1 of the Regulatory Review
14
Act[, ] the [Joint Committee] finds the following:
1. Findings.
The Health Committee of the House of
Representatives [(House Committee)] petitioned the [Joint
Committee] to determine whether the order of the
[Secretary], issued August 31, 2021, should be
13
Likewise, Section 2106(b) of the Administrative Code states:
The [DOH] shall have the power, and its duty shall be:
***
(b) to establish and enforce quarantines, in such manner, for such
period, and with such powers, as may now or hereafter be provided
by law, to prevent the spread of diseases declared by law or by the
[DOH] to be communicable diseases.
71 P.S. §536(b) (emphasis added).
14
Added by the Act of June 30, 1989, P.L. 633, as amended, 71 P.S. §745.7a. Section 7.1
of the Regulatory Review Act states:
If the [Independent Regulatory Review Commission
(Commission)] or [a standing committee of the Senate or House of
Representatives (committee)] finds that a published or unpublished
document should be promulgated as a regulation, the [C]ommission
or committee may present the matter to the [Joint Committee]. The
[Joint Committee] shall determine whether the document should be
promulgated as a regulation and may order an agency either to
promulgate the document as a regulation within 180 days or to desist
from the use of the document in the business of the agency.
MHW-15
promulgated as a regulation. A legislative standing
committee may challenge an agency’s unpromulgated
order under [S]ection 7.1 of the Regulatory Review Act[.]
The [O]rder is an instrument issued by [DOH] under
the authority of the Commonwealth and is, therefore, a
document for purposes of Pennsylvania’s laws governing
Commonwealth documents. Def[inition] of “document,”
[S]ection 102 of the Commonwealth Documents Law[,
Act of July 9, 1970, P.L. 477, as amended,] 45 P.S.
§1102;[15] see also [Section 1.4 of the Pennsylvania Code,]
1 Pa. Code §1.4.[16] A regulation is “any rule or regulation,
or order in the nature of a rule or regulation, promulgated
by an agency under statutory authority in the
administration of any statute administered by or relating to
the agency . . . .” Def[inition] of “regulation,” [S]ection 3
of the Regulatory Review Act[,] 71 P.S. §745.3[;] 1
Pa. Code §1.4.[17] As a substantive rule issued under an
agency’s statutory authority, a regulation must be
promulgated in accordance with the Commonwealth
Documents Law. Def[inition] of “regulation,” [S]ection 3
of the Regulatory Review Act[,] 71 P.S. §745.3[;] see also
Article II of the Commonwealth Documents Law, [45 P.S.
§§1201-1208].
2. Determination.
Based on the record, the [Joint Committee], by a
vote of seven to four, finds that the [House Committee]
15
Section 102 of the Commonwealth Documents Law defines “Document,” in pertinent
part, as “any . . . order, regulation, rule, statement of policy, adjudication, certificate, license,
permit, notice or similar instrument issued, prescribed or promulgated by or under the authority of
this Commonwealth.”
16
Section 1.4 of the Pennsylvania Code defines “Document,” in relevant part, as “an order,
regulation, rule, statement of policy, adjudication, certificate, license, permit, notice or similar
instrument issued, prescribed or promulgated by or under the authority of the Commonwealth.”
17
Section 1.4 of the Pennsylvania Code defines “Regulation” as “[a] rule or regulation or
order in the nature of a rule or regulation, promulgated by an agency under statutory authority in
the administration of a statute administered by or relating to the agency, or prescribing the practice
or procedure before the agency.”
MHW-16
has failed to show that the [Secretary’s Order], issued
August 31, 2021, should be promulgated as a regulation.
While the [Secretary’s Order] imposes a legal
requirement to wear face coverings in schools and other
locations identified in the [O]rder, [the Secretary] issued
the [O]rder under existing statutory and regulatory
authority. [DOH’s] regulatory authority to bypass the
rulemaking process is authorized by [Section 27.60 of its
regulations,] 28 Pa. Code §27.60[;] [S]ection 2101(a) of
the [Administrative Code], 71 P.S. §532(a)[;] [S]ection
8(a) of the [DOH Act], 71 P.S. §1403(a)[;] and [S]ection
2106[(b)] of the [Administrative Code], 71 P.S. §536[(b)].
(Footnote Omitted).[18]
As the Commonwealth entity empowered to determine whether an
administrative agency rule is required to be promulgated as a rule or regulation
subject to the provisions of the Regulatory Review Act19 and the Commonwealth
Documents Law,20 this Court should defer to the Joint Committee’s expertise and
18
By an October 29, 2021 order, this Court granted the Secretary’s Application for Relief
in the Nature of a Motion for Leave to Supplement the Record, treating the application as a post-
submission communication under Pa. R.A.P. 2501(a), and docketed the Joint Committee’s October
21, 2021 Order in this matter as an addendum to the Secretary’s ASR. Additionally, the House
Committee has petitioned this Court to review the Joint Committee’s October 21, 2021 Order. See
The Honorable Kathy L. Rapp v. Department of Health (Pa. Cmwlth., No. 1184 C.D. 2021).
19
See Section 7.1 of the Regulatory Review Act, 71 P.S. §745.7a (“The [Joint Committee]
shall determine whether the document should be promulgated as a regulation and may order an
agency either to promulgate the document as a regulation within 180 days or to desist from the use
of the document in the business of the agency.”); see also Section 11(a) of the Regulatory Review
Act, 71 P.S. §745.11(a) (“For the purposes of reviewing the regulations of the [C]ommission and
otherwise satisfying the requirements of this act, the [Joint Committee] shall exercise the rights
and perform the functions of the [C]ommission; and the [C]ommission shall exercise the rights
and perform the functions of an agency under this act.”).
20
Section 502(d) of the Commonwealth Documents Law states that “[t]he [Joint
Committee] shall exercise the powers and perform the duties vested in and imposed upon it by this
part and any other powers or duties vested in and imposed upon the [Joint Committee] by law.”
45 Pa. C.S. §502(d). In turn, Section 503 of the Commonwealth Documents Law states:
(Footnote continued on next page…)
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determination that the Secretary’s Order does not constitute a rule or regulation
within the requirements of either of these statutes, as well as the Secretary’s
determination that her Order was properly issued according to her statutory and
regulatory authority. As the Pennsylvania Supreme Court has explained:
Subject to the provisions of [S]ection 732 (relating to required
contractual arrangements), the manner in which the [Pennsylvania
Code], the permanent supplements thereto, and the [Pennsylvania
Bulletin], shall be published, and all other matters with respect
thereto not otherwise provided for in this part shall be prescribed by
regulations promulgated or orders adopted by the [Joint
Committee]. The [Joint Committee] shall administer this part and
Subchapter A of Chapter 3 of Title 2 (relating to regulations of
Commonwealth agencies) with a view toward encouraging the
widest possible dissemination of documents among the persons
affected thereby which is consistent with the due administration of
public affairs.
45 Pa. C.S. §503. See also Section 206 of the Commonwealth Documents Law, 45 P.S. §1206
(“The agency text of all regulations and other documents, required or authorized to be deposited
with the Legislative Reference Bureau [(Bureau)] by this act shall be prepared in such form and
format as may be prescribed by regulations promulgated by the [Joint Committee].”); Section 701
of the Commonwealth Documents Law, 45 Pa. C.S. §701 (“It shall be the duty of the [Bureau],
subject to the policy supervision and direction of the [Joint Committee], to compile, edit and
supplement . . . an official legal codification, to be divided into titles of convenient size and scope,
and to be known as the ‘Pennsylvania Code.’”); Section 722(d) of the Commonwealth Documents
Law, 45 Pa. C.S. §722(d) (“If an agency and the [B]ureau disagree concerning the form or format
of a document required or authorized to be deposited with the [B]ureau, the agency may refer the
matter to the [Joint Committee], which shall resolve the conflict pursuant to the standards and
procedures provided by [S]ection 723(a) (relating to processing of deposited documents).”); 1
Pa. Code §3.1(a)(2) and (9) (“The following documents shall be codified in the [Pennsylvania]
Code: . . . [a]dministrative and gubernatorial regulations [and d]ocuments or classes of documents
which the Governor, the Joint Committee or the Bureau finds to be general and permanent in
nature.”); 1 Pa. Code §17.94 (“Section 502(d) of [the Commonwealth Documents Law] (relating
to [the Joint Committee]) provides that the Joint Committee shall exercise the powers and perform
the duties vested in and imposed upon it by the act and any powers and duties subsequently vested
in and imposed upon the Joint Committee by statute.”).
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It is well settled that when the courts of this
Commonwealth are faced with interpreting statutory
language, they afford great deference to the interpretation
rendered by the administrative agency overseeing the
implementation of such legislation. . . . Thus, our courts
will not disturb administrative discretion in interpreting
legislation within an agency’s own sphere of expertise
absent fraud, bad faith, abuse of discretion or clearly
arbitrary action.
Winslow-Quattlebaum v. Maryland Insurance Group, 752 A.2d 878, 881 (Pa. 2000)
(citations omitted).
Based on the allegations raised in the PFR, it is clear that neither the
Secretary nor the Joint Committee acted with fraud or bad faith, or that either
committed an abuse of discretion or clearly arbitrary action. As a result, unlike the
Majority, I do not conclude that the Secretary’s Order is void ab initio as an
improperly promulgated rule or regulation subject to the requirements of the
Regulatory Review Act, the Commonwealth Documents Law, or in the absence of a
gubernatorially-declared disaster emergency issued pursuant to Section 7301(c) of
Pennsylvania’s Emergency Management Services Code, 35 Pa. C.S. §7301(c). This
conclusion is amply supported by the Joint Committee’s October 21, 2021 Order.
Accordingly, unlike the Majority, I would grant the Secretary’s ASR, and deny
Petitioners’ ASR, with respect to the first issue in this case.
II.
Regarding the second issue presented in this matter, the Pennsylvania
Supreme Court has stated:
[T]he separation of powers doctrine divides the functions
of government equally between the executive, legislative,
and judicial branches. As we recently explained,
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Article II, [s]ection 1 of the Pennsylvania
Constitution states that “[t]he legislative power of
this Commonwealth shall be vested in a General
Assembly, which shall consist of a Senate and a
House of Representatives.” PA. CONST. art. II, §1.
That is why, when the General Assembly empowers
some other branch or body to act, our jurisprudence
requires “that the basic policy choices involved in
‘legislative power’ actually be made by the
[l]egislature as constitutionally mandated.” This
constraint serves two purposes. First, it ensures that
duly authorized and politically responsible officials
make all of the necessary policy decisions, as is
their mandate per the electorate. And second, it
seeks to protect against the arbitrary exercise of
unnecessary and uncontrolled discretionary power.
Although the legislature may not delegate
legislative power, it may, in some instances, assign the
authority and discretion to execute or administer a law,
subject to two fundamental limitations: First, the General
Assembly must make “the basic policy choices.” Once it
does so, the General Assembly may “impose upon others
the duty to carry out the declared legislative policy in
accordance with the general provisions” of the legislation.
Second, the legislation must include “adequate standards
which will guide and restrain the exercise of the delegated
administrative functions.” In determining whether the
legislature has established adequate standards, “we are not
limited to the mere letter of the law, but must look to the
underlying purpose of the statute and its reasonable
effect.” Further, the General Assembly does not delegate
legislative powers by delegating mere details of
administration.
Germantown Cab Company v. Philadelphia Parking Authority, 206 A.3d 1030, 1047
(Pa. 2019) (citations omitted).
The provisions of the Administrative Code and the Disease Control
Law provide DOH broad authority “[t]o protect the health of the people of
[Pennsylvania], and to determine and employ the most efficient and practical means
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for the prevention and suppression of disease.” 71 P.S. §§532(a), 1403(a).21
However, the Disease Control Law and the associated regulations outline the
parameters within which the Secretary and the Board, as well as local boards and
departments, may operate with respect to the containment of communicable diseases
within public and private schools. See Sections 4 and 5 of the Disease Control Law;
Section 27.60 of DOH’s regulations. Specifically, the Secretary may only “carry out
the appropriate control measures in such manner and in such place as is provided by
rule or regulation,” upon the receipt of “a report of a disease which is subject to
isolation, quarantine, or any other control measure.” 35 P.S. §521.5. See also Wolf
v. Scarnati, 233 A.3d 679, 705 (Pa. 2020) (“Broad discretion and standardless
discretion are not the same thing.”); Gilligan v. Pennsylvania Horse Racing
Commission, 422 A.2d 487, 490 (Pa. 1980) (“The latitude of the standards
controlling exercise of the rulemaking powers expressly conferred on the
Commission must be viewed in light of the broad supervisory task necessary to
accomplish the express legislative purpose.”).
21
In this regard, the Pennsylvania Supreme Court has observed:
In Archbishop O’Hara’s Appeal, [131 A.2d 587, 594 (Pa. 1957)],
the standard of “the promotion of the health, safety, morals and
general welfare * * *” was deemed sufficient to limit the
administrative exercise of the zoning power to grant or refuse a
special exception. The similarly general standard of “detrimental to
welfare, health, peace and morals of the inhabitants of the
neighborhood” was held to provide adequate guidance for the
administrative refusal of a liquor license in Tate Liquor License
Case, [173 A.2d 657 (Pa. Super. 1961)]. See also Dauphin Deposit
Trust Co. v. Myers, [130 A.2d 686, 689 (Pa. 1957)] (statement that
“adequacy or inadequacy of banking facilities” a proper criterion).
DePaul v. Kauffman, 272 A.2d 500, 503 (Pa. 1971).
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In this case, the Secretary has acted according to the statutory and
regulatory authority conferred upon her to protect the vulnerable student population
in “School Entities” by the least restrictive and “the most efficient and practical
means” available while the lethal COVID-19 pandemic continues to infect and kill
the residents of this Commonwealth. The authority conferred upon her in this regard
in no way encroaches upon the legislative power provided in article II, section 1 of
the Pennsylvania Constitution.
Accordingly, unlike the Majority, I would grant the Secretary’s ASR
and deny Petitioners’ ASR, with respect to the second issue as well, and dismiss
Petitioners’ PFR.
MICHAEL H. WOJCIK, Judge
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