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Businesses take fight to governor in new Supreme Court filing

Five entities — including two Warren County businesses — who have taken their fight against Gov. Tom Wolf’s COVID-19 business closure order all the way to the U.S. Supreme Court have made additional arguments in their effort.

A supplemental petition was filed by the counsel, Marc Scaringi, representing the Blueberry Hill Golf Club and Caledonia Land Company in addition to a realtor, political candidate and a laundromat, on Friday.

Since the beginning of this challenge, they have asserted that a virus does not fit the state code’s definition of a pandemic.

“Simply because someone dies or could possibly die from something does not make that thing a natural disaster under the code; otherwise things like the flu, heart disease, driving an automobile, swimming in pool would constitute a ‘natural disaster’ and initiate the Governor’s power,” they argue. “Just about anything can cause ‘hardship.'”

They argue that the state Supreme Court “ignored” the “commonality” that all of the disasters listed are caused by the “traditionally and commonly understood forces of nature: earth, fire, wind and waters….”

“This court can declare the lower court’s interpretation of the code is wrong and can substitute its own interpretation,” they suggest in the filing. “The governor has identified no background principles of Pennsylvania law on property and nuisance that support the order.”

Suggesting that the business closure order “exceeds the permissible scope of his police powers,” the entities then attack Wolf’s reopening plan, specifically because it is functioning regionally while the business order was state-wide.

They argue that the business closure “order did not even attempt to strike a balance between maximizing the results of our economy while minimizing public health risks.”

They cite an epidemiologist who has worked with the World Health Organization and has said that lockdown policies are not “evidence-based” and that the “flattening of the curve is due to the most vulnerable dying first as much as the lockdown.

“The correct policy would have been to protect the elderly and the infirm and to allow the disease to have spread through the population so that herd immunity can work to build the immunity of healthy Pennsylvanians.”

It will take the affirmative votes of four justices to hear the case, or grant the writ of certiorari they have filed with the court. According to uscourts.gov, just 100 to 150 of over 7,000 submitted annually. Just when that decision will be made is unclear.

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