"The COVID-19 pandemic is, by all definitions, a natural disaster and a catastrophe of massive proportions." This pronouncement by the Supreme Court of Pennsylvania may have far-reaching implications, well beyond the state's borders. It comes from the court's April 13, 2020, decision in Friends of DeVito v. Wolf,1 in which several business owners and a political candidate challenged Gov. Tom Wolf's statutory authority to issue an executive order closing non-life-sustaining businesses to reduce the spread of COVID-19. The petitioners also challenged the executive order's constitutionality.
The petitioners' statutory argument hinged on whether the COVID-19 pandemic constituted a "disaster" under the state's Emergency Code. Under the Emergency Code, "disaster" is defined as "[a] man-made disaster, natural disaster or war-caused disaster." 35 Pa.C.S. § 7102. "Natural disaster" is further defined as: "Any hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe which results in substantial damage to property, hardship, suffering or possible loss of life. Id. (emphasis added)."
Noting the staggering increase in confirmed COVID-19 infections and deaths in the 20 days since the petition had been filed, the court determined that "the COVID-19 pandemic is unquestionably a catastrophe that 'results in ... hardship, suffering or possible loss of life.' " The issue was thus whether, under the doctrine of ejusdem generis, a viral illness such as COVID-19 was "of the same general nature or class" as the types of catastrophes expressly listed in the definition of "natural disaster" so as to fall within the "other catastrophe" catchall. The court held that it was. In reaching this conclusion, the court explained that the specific disasters listed in the definition of "natural disaster" lacked commonality because some were weather related (e.g., hurricane, tornado, storm), while others were not (e.g., tidal wave, earthquake, fire, explosion). The only commonality the court found among the listed disasters was that they all involve "substantial damage to property, hardship, suffering or possible loss of life," and the same was true of the COVID-19 pandemic.
The court further noted that ejusdem generis was simply a tool used to determine the intent of the General Assembly and must yield where it would produce a result contrary to the legislative intent. Recognizing the General Assembly's stated goals to "[r]educe vulnerability of people and communities of this Commonwealth to damage, injury and loss of life and property resulting from disasters," and to "strengthen" the governor's role "in prevention of, preparation for, response to and recovery from disasters," 35 Pa.C.S. § 7103(1),(4), the court interpreted the legislative intent to provide an expansive list of emergency circumstances in which the governor would have the power to "respond to exigencies involving vulnerability and loss of life."
While the court's statutory analysis could be limited to the specific definition of "natural disaster" under the Pennsylvania Emergency Code, parties may try to invoke it to support arguments that the COVID-19 pandemic constitutes a "natural disaster" as that term is used in other contexts, including force majeure clauses, particularly given the dearth of case law throughout the United States addressing this consequential issue. It also provides a preview of how other courts across the country may ultimately interpret "natural disaster" and similar terms in COVID-19-related disputes.
For questions or more information about this topic, please contact the authors.
DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.
1 Friends of DeVito v. Wolf, __ A.2d __, 2020 WL 1847100 (Pa. Sup. Ct. Apr. 13, 2020).
Please note that email communications to the firm through this website do not create an attorney-client relationship between you and the firm. Do not send any privileged or confidential information to the firm through this website. Click "accept" below to confirm that you have read and understand this notice.