MCCAFFERTY v. WOLF

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT A. MCCAFFERTY, )

)

) 2:20-CV-02008-CCW

Plaintiff, )

)

v. )

)

THOMAS W. WOLF, )

RACHEL LEVINE, )

)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff Robert McCafferty’s Motion for Preliminary Injunction.

ECF No. 13. For the reasons that follow, Plaintiff’s Motion will be DENIED.

I. Background

In this case, Plaintiff Robert McCafferty, owner of North Country Brewing Company

(“North Country”),1 challenges certain orders issued by Pennsylvania’s Governor and Secretary of

Health to mitigate the spread of COVID-19 in Pennsylvania.2 See ECF No. 1 at ¶ 1. In short,

Plaintiff claims that Defendants, through their mitigation orders and press statements, have

unlawfully discriminated against bars and restaurants, including those operated by North Country,

by misrepresenting the role played by bars and restaurants in the spread of the COVID-19 virus

and by imposing unwarranted and disproportionate restrictions on them when compared to other

types of businesses. See, e.g., id. at ¶¶ 2–8. According to the Complaint, these restrictions have

1 North Country Brewing Company operates three separate locations in the Butler, Pennsylvania, area: North Country

Brew Pub, the Harmony House Inn, and the North Country Canning and Taproom. ECF No. 44 at ¶ 1; ECF No. 43

at ¶ 1.

2 In this action, Plaintiff names both the Governor and Secretary of Health in their official capacities only. See ECF

No. 1 (caption).

allegedly caused Plaintiff to sustain substantial monetary losses, forced him to lay off employees,

and ultimately threaten the long-term survival of his business. See id. at ¶¶ 96–103.

Based on these allegations, Plaintiff’s Complaint asserts claims under 42 U.S.C. § 1983

for alleged violations of (1) the Equal Protection Clause of the Fourteenth Amendment (Count I);

(2) procedural due process under the Fourteenth Amendment (Count II); (3) substantive due

process under the Fourteenth Amendment (Count III); and (4) the Fifth Amendment Takings

Clause (Count IV). See ECF No. 1. Plaintiff seeks a declaration that Defendants’ mitigation orders

are unconstitutional; temporary and permanent injunctive relief barring enforcement of

Defendants’ mitigation orders; and damages. See id.

In this Motion, Plaintiff asks the Court to enter an order “enjoining Defendants and all

other[s] acting on their behalf from declaring or enforcing any prohibition on indoor dining, or any

Order subjecting Plaintiff to greater restrictions than those imposed upon other business

establishments, pending final judgment of this Court.” ECF No. 14 at 18. Plaintiff’s Motion is

premised on Counts I–III of his Complaint. See ECF No. 14. The Court held an evidentiary

hearing on Plaintiff’s Motion on March 3, 2021. See ECF Nos. 34 (Minute Entry) and 45 (Hearing

Transcript). In addition to himself, Plaintiff called Ms. Janine Simmons, Director of Operations

for North Country Brewing Company, to testify. See ECF No. 21. Defendants called Mr. Peter

Blank, Policy Director for the Pennsylvania Department of Health. See ECF No. 22. All three

witnesses testified credibly. Following the hearing, the parties submitted updated findings of fact

and conclusions of law, ECF Nos. 43 and 44, and Plaintiff’s Motion is now ripe for disposition.

II. Summary of Relevant Facts

On March 6, 2020, Governor Wolf issued a Proclamation of Disaster Emergency under 35

Pa.C.S. §§ 7101, et seq., related to the ongoing COVID-19 global pandemic. See ECF No. 43 at

¶ 2. Governor Wolf renewed the Proclamation on June 3, August 31, November 24 of 2020, and,

most recently, on February 19, 2021. See id. at ¶ 3. Under the Proclamation, Defendants have

issued various mitigation orders over the past year aimed at slowing the spread of COVID-19

within the Commonwealth. See ECF No. 43 at ¶ 6; see also, e.g., ECF No. 13-3 (March 19, 2020,

mitigation orders). As of today, only the November 17, 2020 order that requires universal face

coverings and the November 23, 2020 mitigation orders remain in effect.3 See ECF No. 43 at ¶ 4;

ECF No. 44 at ¶¶ 17, 19; ECF Nos. 13-6 and 13-7 (November 23, 2020 mitigation orders, referred

to collectively herein as the “November 23 Orders”).4 Plaintiff does not challenge the November

17 mask mandate, see ECF No. 43 at ¶ 5, so, for the purposes of Plaintiff’s Motion, only the

November 23 Orders are at issue.

As discussed in more detail below, Defendants amended their November 23 Orders on

April 4, 2021, lessening the restrictions applicable to certain kinds of businesses, including

restaurants and bars.5 The April 4, 2021, amendments to the November 23 Orders are referred to

together herein as the “Amended November Orders.”

In addition to restrictions imposed on other types of businesses, see, e.g., ECF No. 13-6 at

Sections 2–8 (setting out specific restrictions on gyms, salons, museums, etc.), the November

Orders limited indoor dining to 25% of a bar or restaurant’s stated fire code maximum occupancy

3 The November 23 orders rescind prior mitigation orders. ECF No. 44 at ¶ 6. Furthermore, limited-time mitigation

orders, issued on November 23 and December 10, which prohibited indoor service at bars and restaurants for specified

periods around the Thanksgiving and December holiday season, expired by their own terms at midnight on November

23, 2020 and January 4, 2021 respectively. See ECF No. 43 at ¶ 7; ECF No. 44 at ¶¶ 15, 21; ECF No. 45 at 121:19–

25, 128:22–129:2.

4 Note that the Governor’s order of November 23 and the Secretary of Health’s order of November 23 impose virtually

identical restrictions on bars and restaurants, and are therefore considered in tandem for the purposes of this Motion.

Compare ECF No. 13-6 at Section 7 with ECF No. 13-7 at Section 7.

5 See Amended Order of the Governor of the Commonwealth of Pennsylvania for Mitigation, Enforcement, and

Immunity Protections, https://www.governor.pa.gov/wp-content/uploads/2021/04/2021.4.1-TWW-v2-amended-

mitigation-enforcement-immunity-order.pdf (last visited Apr. 6, 2021); Order of the Acting Secretary of the

Pennsylvania Department of Health Amending the November 23, 2020 Order of the Secretary of the Pennsylvania

Department of Health for Mitigation and Enforcement, https://www.governor.pa.gov/wp-

content/uploads/2021/04/2021.4.1-Amendment-to-Order-of-the-Secretary-Mitigation-and-Enforcement.pdf (last

visited Apr. 6, 2021).

(including staff); prohibited bar seating; required customers to be seated at a table; required

alcohol (if consumed on-site) to be purchased in the same transaction as a meal; required sales of

alcoholic beverages to cease at 10:00 p.m. (for restaurants) or 11:00 p.m. (for bars); and required

bars and restaurants to comply with other mitigation measures, such as face coverings and physical

distancing. See ECF No. 43 at ¶ 8; ECF No. 44 at ¶ 17; ECF Nos. 13-6 and 13-7. That said, bars

and restaurants could enroll in the “Open & Certified Pennsylvania” program, administered by the

Pennsylvania Department of Community and Economic Development, by self-certifying

compliance with program requirements, such as guidelines issued by the Centers for Disease

Control (“CDC”), social distancing, and mask wearing; once enrolled, they could increase their

indoor dining capacity to 50% of the stated fire code maximum—just like gyms, museums, and

spas. See ECF No. 43 at ¶ 10; see also ECF No. 13-6 at Sections 4–7.

The Amended November Orders lessened the restrictions on bars and restaurants. See

Amended November Orders at Section 7. Bars and restaurants are now allowed to operate at 50%

of their maximum occupancy under the fire code (including staff) and may serve patrons seated at

a bar. See id. Furthermore, the requirements that on-site sales of alcohol cease by a certain time

(i.e. earlier than otherwise provided by law), or that alcohol be served in the same transaction as a

meal, have been eliminated. Id. Finally, establishments that enroll in the Open & Certified

Pennsylvania program may increase their indoor capacity to 75% of the state fire code maximum.

See id.

According to testimony provided by Pennsylvania Department of Health Policy Director

Mr. Blank at the evidentiary hearing on Plaintiff’s Motion, the restrictions mandated in the

Defendants’ mitigation orders, including the operative Amended November Orders, were

developed through a collaborative process between policy makers and medical and scientific

experts. See ECF No. 43 at ¶¶ 47, 51; see also ECF No. 45 at 60:2–61:9. This process includes

considering various indicators (case counts, hospitalization rates, death rates), guidance from the

CDC, and scientific and medical research publications. See id. at ¶¶ 48–49. Importantly, though,

the COVID-19 virus has an incubation period up to 14 days long, which means that much of the

data relied on by policy makers in formulating the Commonwealth’s mitigation strategies are

lagging indicators and that the effects of any mitigation order are not immediately felt. See id. at

¶¶ 19–21, 50.6 Mr. Blank testified that the goal of the mitigation orders is “to save lives and to

prevent an overwhelming capacity issue within our hospitals.” ECF No. 45 at 76:13–15; ECF No.

43 at ¶ 53.

According to medical and scientific experts, the COVID-19 virus is primarily spread

through respiratory droplets. See ECF No. 43 at ¶ 23. Thus, given that the use of face masks (such

as multi-layer cloth masks) is an effective means of inhibiting the spread of COVID-19, see id. at

¶¶ 24–25, eating and drinking indoors at a bar or restaurant carries increased risk (compared to,

for example, retail shopping) because individuals (1) must remove their masks to eat and/or drink

and (2) tend to “dwell” (i.e. remain seated in one place) for extended periods of time. See id. at ¶¶

27–35. As such, Defendants imposed capacity and other restrictions on all bars and restaurants,

see id. at ¶ 38–39, including certain limited time orders meant to mitigate risk during periods when

6 Indeed, a March 5, 2021 publication from the CDC “found that allowing on-premises restaurant dining was

associated with an increase in daily COVID-19 case growth rates 41–100 days after implementation and an increase

in daily death growth rates 61–100 days after implementation.” ECF No. 43 at ¶ 36. While Defendants could not

have relied on this publication for their November 23, 2020 mitigation orders, the CDC’s March 5, 2021 publication

underscores the fact that virus tracking data on any given day is reflective of policies in effect weeks beforehand.

Thus, while it may be true, as Plaintiff points out, that COVID-19 “cases in the Commonwealth continued to rise

while bars and restaurants were shut down,” ECF No. 44 at ¶ 26, this is in no way surprising or unexpected—the

scientific evidence (like the CDC’s March 5, 2021 publication) indicates that the effect of such a closure would not

be reflected in case counts until weeks or months later. See ECF No. 43 at ¶ 54 (noting that “[s]ince the issuance of

the November 23, 2020 Orders, case counts in Pennsylvania have dropped substantially.”).

bar crowds are increased, such as the winter holiday season. See ECF No. 45 at 121:19–122:1

(discussing order closing bars and restaurants the night before Thanksgiving).

According to Plaintiff, North Country has suffered financially because of the mitigation

orders. See, e.g., ECF No. 44 at ¶¶ 9–11; ECF No. 15 at ¶¶ 8, 11–12. Plaintiff’s estimate of his

losses is based on a comparison of sales for 2019 (i.e. pre-pandemic) with sales for 2020, losses

attributable to food waste and spoilage, and increased relative labor costs due to staff turnover.

See ECF No. 15 at 8, 11–12; ECF No. 43 at ¶ 14; ECF No. 45 at 37:11–14, 52:11–15.

Furthermore, Plaintiff suggested that “if things don’t go well, it’s going to be tough to make it to

May [2021],” ECF No. 45 at 36:4–6, and both Plaintiff and Ms. Simmons projected that, without

relief, North Country would not survive “next winter.” ECF No. 45 at 35:6–9; 53:7–17.

Notwithstanding those projections, and although Plaintiff reported that his establishments all

comply with the required mitigation measures, see ECF No. 44 at ¶¶ 13–14, Plaintiff has not, to

date, elected to enroll any of his establishments in the Open & Certified Pennsylvania program,

which, pursuant to Amended November Orders, would allow Plaintiff to operate his

establishments at up to 75% of the stated fire code maximum occupancy. See ECF No. 43 at ¶ 11.

III. Standard of Review

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. NRDC, Inc., 555 U.S. 7, 24 (2008); Greater Phila. Chamber of Commerce v. City of Phila., 949

F.3d 116, 133 (3d Cir. 2020) (courts should grant preliminary injunctions only in “limited

circumstances”); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.

1989). Four factors inform a court’s decision as to the issuance of a preliminary injunction:

(1) The likelihood that the plaintiff will prevail on the merits at final

hearing; (2) the extent to which the plaintiff is being irreparably

harmed by the conduct complained of; (3) the extent to which the

defendant will suffer irreparable harm if the preliminary injunction

is issued; and (4) [that] the public interest [weighs in favor of

granting the injunction.]

***

Generally, the moving party must establish the first two factors and

only if these “gateway factors” are established does the district court

consider the remaining two factors. The court then determines “in

its sound discretion if all four factors, taken together, balance in

favor of granting the requested preliminary relief.”

Greater Phila. Chamber of Commerce, 949 F.3d at 133 (citations omitted)); see also Reilly v. City

of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017), as amended (June 26, 2017) (citing Del. River

Port Auth v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919–20 (3d Cir. 1974)); Ace Am.

Ins. Co. v. Wachovia Ins. Agency Inc., 306 Fed.Appx. 727, 732 (3d Cir. 2009); 13 Moore’s Federal

Practice – Civil § 65.22 (2020).

To establish a likelihood of success on the merits, the movant must “demonstrate that it

can win on the merits (which requires a showing significantly better than negligible but not

necessarily more likely than not).” Reilly, 858 F.3d at 179; see also, 42 Am. Jur. 2d Injunctions

§ 18 (2020) (explaining that to obtain a preliminary injunction, the movant must show that it is

“reasonably likely” to succeed on the merits.). That is, “the moving party must produce sufficient

evidence to satisfy the essential elements of the underlying cause of action.” Sutton v. Cerullo,

Civil No. 3:CV-10-1899, 2014 U.S. Dist. LEXIS 110116, at * 13 (M.D. Pa. Aug. 8, 2014) (citing

Punnett v. Carter, 621 F.2d 578, 582–83 (3d Cir. 1980)). And, the burdens of proof as to the

substantive merits of a claim “track the burdens at trial.” Gonzales v. O Centro Espirita

Beneficente Uniao de Vegetal, 546 U.S. 418, 429 (2006).

“A failure to demonstrate irreparable injury must necessarily result in the denial of a

preliminary injunction.” Ace Am. Ins. Co., 306 Fed.Appx. at 732 (citations omitted). To establish

irreparable harm, the movant must show “that it is more likely than not to suffer irreparable harm

in the absence of preliminary relief.” Reilly, 858 F.3d at 179. To do so, the movant “must

demonstrate a potential harm which cannot be redressed by a legal or an equitable remedy

following a trial.” Instant Air, 882 F.2d at 801. The risk of irreparable harm cannot be speculative;

“mere risk” of irreparable harm is insufficient—the movant must make a “clear showing of

immediate irreparable injury, or a presently existing actual threat; [an injunction] may not be used

simply to eliminate the possibility of a remote future injury, or a future invasion of rights[.]”

Holiday Inns of Am. v. B & B Corp., 409 F.2d 614, 618 (3d Cir. 1969); Continental Grp., Inc. v.

Amoco Chems. Corp., 614 F.2d 351, 359 (3d Cir. 1980); Hadeed v. Advanced Vascular Res. of

Johnstown, LLC, Case No. 3:15-cv-22, 2016 U.S. Dist. LEXIS 169709 at *8 (W.D. Pa. Dec. 8,

2016).

“In the absence of exceptional circumstances, economic loss does not qualify as irreparable

harm [and] ‘[a]n inability to precisely measure financial harm does not make that harm irreparable

or immeasurable.’” Hadeed, 2016 U.S. Dist. LEXIS 169709 at *7–8 (quoting Acierno v. New

Castle Cty., 40 F.3d 645, 655 (3d Cir. 1994)); see also, Sampson v. Murray, 415 U.S. 61, 90

(1974) (“The possibility that adequate compensatory or other corrective relief will be available at

a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable

harm.”).

IV. Discussion

A. Plaintiff Has Not Demonstrated a Likelihood of Success on His Equal

Protection Claim (Count I)

First, Plaintiff claims that Defendants have unlawfully discriminated against bars and

restaurants (as opposed to other types of businesses) in violation of the Equal Protection Clause of

the Fourteenth Amendment. See, e.g., ECF No. 1 at ¶¶ 111–113; ECF No. 14 at 7–10.

To maintain a claim for an alleged violation of the Equal Protection Clause where, as here,

no suspect classification is in play (i.e. race, sex, religion, national origin), “a plaintiff must allege

that (1) the defendant treated him differently from others similarly situated, (2) the defendant did

so intentionally, and (3) there was no rational basis for the difference in treatment.” Hill v. Bor.

of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006) (discussing Vill. of Willowbrook v. Olech, 528 U.S.

562, 564 (2000)).

1. Applicable Level of Scrutiny

There has been some debate as to whether, when considering pandemic-related government

actions, courts should apply modern tiers of scrutiny or the highly deferential “no real or substantial

relation” test articulated by the Supreme Court in Jacobson v. Massachusetts, 197 U.S. 11, 31

(1905). See M. Rae, Inc. v. Wolf, 2020 U.S. Dist. LEXIS 241961, at *12–*16 (M.D. Pa. Dec. 23,

2020) (reviewing positions taken by various courts). However, because rational basis review

would normally apply to Plaintiff’s “class of one” Equal Protection claim, see Olech, 528 U.S. at

564, and because we agree with those courts who have concluded that the Jacobson test and

rational basis review are essentially equivalent levels of scrutiny, see M. Rae, 2020 U.S. Dist.

LEXIS 241961 at *15–*16, we need not wade any further into that debate here and will apply the

more familiar rational basis test. Our result would be the same under Jacobson’s “no real or

substantial relation” test.

Under rational basis review, government policy will be upheld “‘if there is any reasonably

conceivable state of facts that could provide a rational basis’ for the differing treatment.” Newark

Cab Assoc. v. City of Newark, 901 F.3d 146, 156 (3d Cir. 2018) (quoting United States v. Walker,

473 F.3d 71, 77 (3d Cir. 2007)); see also Belle Garden Estate, LLC v. Northam, Civil Action No.

7:21-cv-00135, 2021 U.S. Dist. LEXIS 57609 (W.D. Va. Mar. 26, 2021) (“The rational basis test

is extremely forgiving to the state--proper application rarely results in invalidation of state law. As

the Supreme Court has put it, ‘the Court hardly ever strikes down a policy as illegitimate under

rational basis scrutiny. On the few occasions where we have done so, a common thread has been

that the laws at issue lack any purpose other than a “bare . . . desire to harm a politically unpopular

group.”’ Trump v. Hawaii, 138 S.Ct. 2392, 2420 (2018)”).

2. Discussion

Here, Plaintiff has not demonstrated that he is likely to succeed in proving that Defendants

treated his business, North Country, differently from similarly situated businesses. First, the

evidence shows that Defendants’ mitigation orders, including the Amended November Orders

(which are the only applicable mitigation orders currently in effect), applied equally to all bars and

restaurants in Pennsylvania. See ECF No. 43 at ¶ 39. Second, Plaintiff did not introduce evidence

supporting his contention that other types of businesses (i.e. grocery stores, barbershops, gyms,

etc.), which are subject to different restrictions under the Amended November Orders, are

“similarly situated” to bars and restaurants when it comes to the risk of spreading COVID-19.

Indeed, based on Mr. Blank’s testimony and on the scientific and medical research relied

on by Mr. Blank and the team (including medical experts) advising Defendants, see ECF No. 43

at ¶¶ 27–35, the Court concludes that bars and restaurants are not similarly situated to other types

of businesses, at least with regard to indoor dining and COVID-19 restrictions. Eating and

drinking necessarily require patrons to remove their masks, thereby creating a heightened risk of

transmission that does not exist at other types of businesses where masks can be worn at all times.

Mr. Blank also testified about the extended dwell time at restaurants and bars, noting that “as

individuals…gather at restaurants or bars for meals and drinking, those individuals remain together

for longer periods of time than perhaps other retail establishments.” ECF No. 45 at 74:7–11. These

critical differences between bars and restaurants as opposed to other types of businesses are

directly relevant to their differing treatment under Defendants’ mitigation orders. Specifically, the

scientific and medical consensus is that the COVID-19 virus is spread by respiratory droplets and

mask-wearing is an effective means of reducing transmission risk, while, on the other hand,

remaining in close proximity with others indoors for extended periods of time, particularly

unmasked, increases transmission risk. ECF No. 43 at ¶¶ 22–29. On each of these factors—the

ability of patrons to wear masks and maintain social distancing, as well as the typical length of

time patrons spend in proximity with each other in the establishment, see ECF No. 45 at 74:7–

16—indoor dining and drinking present risks to public health and safety that other types of retail

establishment simply do not. As such, Defendants’ treatment of bars and restaurants is rationally

and directly related to Defendants’ goal of limiting deaths and preventing hospitals from being

overwhelmed due to the spread of COVID-19. Plaintiff has not demonstrated a likelihood of

success on the merits of his Equal Protection claim.

B. Plaintiff Has Not Demonstrated a Likelihood of Success on His Procedural

Due Process Claim (Count II)

Next, Plaintiff challenges Defendants’ mitigation orders, and the operative Amended

November Orders in particular, on the ground that Defendants have not provided business owners

with any means of contesting the restrictions imposed by the mitigation orders, in violation of the

Due Process Clause of the Fourteenth Amendment. See ECF No. 1 at ¶¶ 133–137; ECF No. 14

at 10–12. The Court finds that Plaintiff has not met his burden to demonstrate a likelihood of

success on the merits with regard to his procedural due process claim.

To state a claim for deprivation of procedural due process, a plaintiff “must allege that they

were deprived of an interest ‘encompassed within the Fourteenth Amendment's protection of life,

liberty, or property,’ and that available procedures ‘did not provide due process of law.’” Ass’n

N.J. Rifle & Pistol Clubs v. Governor of N.J., 707 F.3d 238, 240 (3d Cir. 2013) (quoting Hill, 455

F.3d at 233–34 (internal quotation omitted)).

As a threshold matter, Plaintiff has not satisfied his burden of identifying a right protected

by the Due Process Clause that Defendants’ mitigation orders impair. Plaintiff contends that he

has “a legitimate entitlement to operate his restaurants, as such is both a property right and a liberty

right protected by procedural due process.” ECF No. 14 at 11. As the Court understands it,

Plaintiff claims a right to do business, free from what he considers to be the arbitrary and

purposeless restrictions imposed by Defendants’ mitigation orders. See id.

However, according to the Supreme Court,

The assets of a business (including its good will) unquestionably are

property, and any state taking of those assets is unquestionably a

"deprivation" under the Fourteenth Amendment. But business in the

sense of the activity of doing business, or the activity of making a

profit is not property in the ordinary sense.

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999).

Stated otherwise, “the assertion of a ‘general right to do business’ has not been recognized as a

constitutionally protected right.” Talleywhacker, Inc. v. Cooper, 465 F.Supp.3d 523, 541

(E.D.N.C. 2020) (finding no likelihood of success on challenge to COVID-19 restrictions where

“plaintiffs fail[ed] to identify a constitutionally cognizable life, liberty, or property interest.”)

(citing Coll. Sav. Bank, 527 U.S. at 675); cf. Nekrilov v. City of Jersey City, Civ. No. 19-22182

(KM) (JBC), 2021 U.S. Dist. LEXIS 57920, at *17–19 (D.N.J. Mar. 24, 2021) (rejecting claim

that forward-looking right to pursue short-term rental business is protected under Fourteenth

Amendment); Ferrone v. Onorato, Civil Action No. 05-0484, 2006 U.S. Dist. LEXIS 105110, at

*35–36 (W.D. Pa. May 26, 2006) (noting that “[i]t is recognized that the procedural due process

clause protects possessory interests in property” and therefore rejecting due process claim where

“Plaintiffs have not alleged that they have been deprived of a business asset because of Defendants'

conduct, they allege that Defendants interfered with their business activities.”) (emphasis added).

In other words, while Defendants’ mitigation orders no doubt impinge on Plaintiff’s ability to

operate his business as he sees fit, Plaintiff has not identified a cognizable property interest

protected by the Fourteenth Amendment which Defendants’ mitigation orders violate.

Furthermore, to the extent Plaintiff asserts a protected liberty interest in being able to pursue his

chosen occupation, see ECF No. 1 at ¶ 133; ECF No. 14 at 11, such a claim is not cognizable

absent a more serious or permanent intrusion. See Conn v. Gabbert, 526 U.S. 286, 291–92 (1999)

(noting that right to pursue employment is “subject to reasonable government regulation” and

distinguishing between “a complete prohibition of the right to engage in a calling, and...the sort of

brief interruption which occurred here”); see also Cole v. Encapera, 758 Fed.Appx. 252, 255–56

(3d Cir. 2018) (rejecting due process claim on qualified immunity grounds because right to pursue

occupation free from brief interruption caused by government action was not clearly established).

Thus, while Plaintiff claims that his asserted liberty and property interests are protected by

the Fourteenth Amendment, the Court does not perceive a difference between the rights asserted

by Plaintiff and the “general right to do business” rejected by the Supreme Court in College

Savings Bank or the “generalized…right to choose one’s field of private employment” discussed

in Conn, nor does Plaintiff point the Court to any contrary authority. As such, Plaintiff has not

demonstrated a likelihood of succeeding on the merits of his procedural due process claim.

1. Pre-Deprivation Process

Next, even if Plaintiff had asserted a constitutionally cognizable interest protected by the

Fourteenth Amendment, he has not met his burden of establishing a reasonable likelihood of

proving that Defendants’ mitigation orders failed to satisfy due process under the circumstances.

Although “the fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner,” Mathews, 424 U.S. at 333, “[p]rocedural due

process is ‘not a technical conception with a fixed content unrelated to time, place, and

circumstance.’” Benner v. Wolf, 461 F.Supp.3d 154, 161 (M.D. Pa. 2020) (quoting Gilbert v.

Homar, 520 U.S. 924, 930 (1997)). As such, “due process is flexible and calls for such procedural

protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481(1972).

Accordingly, pre-deprivation process is not necessarily required in all situations. See, e.g.,

Elsmere Park Club, L.P. v. Twp. of Elsmere, 542 F.3d 412, 417 (3d Cir. 2008) (“It is beyond

question ‘that summary administrative action may be justified in emergency situations.’”) (quoting

Hodel v. Va. Surface Mining & Recl. Ass'n, 452 U.S. 264, 300 (1981). Indeed, “‘[p]rotection of

the health and safety of the public is a paramount governmental interest which justifies summary

administrative action…deprivation of property to protect the public health and safety is “[o]ne of

the oldest examples” of permissible summary action.’” Id. at 162 (quoting Hodel, 452 U.S. at 300)

(citation omitted)).

In Benner, the district court determined that the lack of pre-deprivation process related to

Governor Wolf’s order closing non-essential businesses in March 2020 was not a violation of due

process. See 461 F.Supp.3d at 161–62. Likewise, the court determined that the waiver process

implemented by the Commonwealth—whereby businesses categorized as “non-essential” could

apply for permission to continue operations, see, e.g., ECF No. 45 at 134:4–9 (example of distillery

receiving waiver to operate producing hand sanitizer)—was sufficient post-deprivation process

under the circumstances. See Benner, 461 F.Supp.3d at 162–164. Indeed, the Benner court’s

analysis is consonant with that of district courts across the country, which have generally found

that temporary measures implemented to mitigate the COVID-19 pandemic do not offend

constitutional due process requirements. See, e.g., Xponential Fitness v. Arizona, No. CV-20-

01310-PHX-DJH, 2020 U.S. Dist. LEXIS 123379, at *17 (D. Ariz. July 14, 2020) (no violation

where Governor’s executive order provided for waiver, even though waiver process had not been

implemented); Steel MMA, LLC v. Newsom, Case No. 21-CV-49-CAB-AGS, 2021 U.S. Dist.

LEXIS 37709, at *13 (S.D. Cal. Mar. 1, 2021) (no due process violation where restrictions were

“legislative in nature”); Hernandez v. Grisham, No. Civ. 20-0942 JB\GBW, 2020 U.S. Dist.

LEXIS 238477, at *160–161 (D.N.M. Dec. 18, 2020) (collecting cases).

The Court concurs with the analysis of the district court in Benner, which found that “the

nature of the COVID-19 emergency justifies the lack of pre-deprivation process.” 461 F.Supp.3d

at 162. Although that case dealt with business closure and stay-at-home orders from early in the

pandemic, see id. at 158–59, the record here shows that the crisis has not abated. Indeed, “waves”

of new cases over the past year have required swift government action to mitigate the spread of

the virus, while increased knowledge about how the virus spreads has allowed Defendants to draw

a better balance between public health and economic activity. See ECF No. 45 at 92:1–9; ECF

No. 19 at ¶ 5. With respect to the November 23 Orders, there was a surge in cases during the fall

of 2020, see ECF No. 45 at 8–9, which led to “daily COVID-19 cases and hospitalizations in

greater numbers than at any other time during this pandemic.” ECF No. 43 at ¶ 16. This sort of

situation is precisely why public health and safety emergencies justify government action without

pre-deprivation process: The necessity of swift action by the government does not allow for the

time required to provide individualized process to each person or business affected. See Benner,

461 F. Supp. 3d at 162 (noting that requiring pre-deprivation process “would have rendered

ineffective any public health measures meant to combat viral spread.”). As such, the Court is not

persuaded that Plaintiff has demonstrated a likelihood of succeeding on the theory that pre-

deprivation process was required here.

2. Post-Deprivation Process

The Court also is not persuaded that Plaintiff has demonstrated a likelihood of success in

proving that more or different post-deprivation process is required here. In order “[t]o determine

what process is due in a particular situation, courts consider three factors: first, the private interest

at stake; second, the risk of erroneous deprivation of that interest through the procedures used and

the probable value of different procedures; and third, the government’s interest.” Mulholland v.

Gov’t Cnty. of Berks, 706 F.3d 227, 238 (2013) (citing Mathews v. Eldridge, 424 U.S. 319, 335

(1976)). Importantly, at its core, “[p]rocedural due process rules are meant to protect persons not

from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”

Friends of Devito v. Wolf, 227 A.3d 872, 889 (Pa. 2020) (finding post-deprivation waiver process

sufficient to satisfy due process requirement with respect to March 2020 shut down orders)

(quoting Carey v. Piphus, 435 U.S. 247, 259 (1978)).

Turning to the Mathews factors, the Court finds that the government’s interest in preserving

the life and health of citizens of the Commonwealth greatly outweighs Plaintiff’s private interest

in operating his business free from the restrictions imposed by the Defendants’ mitigation orders.

Moreover, the risk of erroneous deprivation (i.e. that a person in Plaintiff’s position would be

wrongfully deprived of his liberty or property interest) is quite low, because the mitigation orders

themselves are based on “fairly robust public health research,” ECF No. 45 at 64:7, applicable to

all bars and restaurants. That is, the scientific consensus indicates that indoor dining creates

substantially increased transmission risk because the virus is spread by respiratory droplets and

because bar and restaurant patrons must remove their masks and typically remain in relatively

close proximity to one another for extended periods. See ECF No. 43 at ¶¶ 23–35. Indeed, this

consensus was reinforced recently in the CDC’s March 5, 2021 Morbidity and Mortality Report,

which “found that allowing on-premises restaurant dining was associated with an increase in daily

COVID-19 case growth rates.” Id. at ¶ 36. Furthermore, Plaintiff is not faced with a complete or

permanent deprivation of his business: The Amended November Orders (like the earlier

November 23 Orders) are temporary and do not prohibit indoor dining. See ECF Nos. 13-6, 13-7;

see also Amended November Orders. These orders also provide a mechanism through which bars

and restaurants have been able to self-certify compliance with mitigation measures and obtain

permission to operate with higher capacity limits. Plaintiff testified that his establishments

complied with all mitigation measures, but that he chose never to apply for the Open & Certified

Pennsylvania program, and therefore his restaurants remained at lower capacity limits. See ECF

No. 45 at 23:4–18, 25:22–26:7, 41:15–18. With all this in mind, the Court is not persuaded that

additional, individualized process would protect Plaintiff—or any other bar or restaurant owner—

from “mistaken” deprivation under the circumstances.

The Court finds that Plaintiff has not demonstrated a likelihood of success on the merits of

his procedural due process claim.

C. Substantive Due Process

Finally, Plaintiff asserts in Count III that Defendants’ mitigation orders violate substantive

due process by unlawfully interfering with Plaintiff’s ability to freely operate his businesses and

pursue his chosen profession. See, e.g., ECF No. 1 at ¶¶ 158, 161.

“‘Substantive due process protects citizens from arbitrary and irrational acts of

government.’” S. Allegheny Pittsburgh Rest. Enters., LLC v. City of Pittsburgh, 806 Fed.Appx.

134, 142 (3d Cir. 2020) (citation omitted). To prevail on a substantive due process claim, “a

plaintiff must prove the particular interest at issue is protected by the substantive due process

clause and the government's deprivation of that protected interest shocks the conscience.” Chainey

v. Street, 523 F.3d 200, 219 (3d Cir. 2008) (citing United Artists Theatre Circuit v. Twp. of

Warrington, 316 F.3d 392, 400–02 (3d Cir. 2003)).

At the outset, we note that the parties dispute whether the property and liberty interests

asserted by Plaintiff in this case fall within the ambit of those fundamental rights protected by

substantive due process. Compare ECF No. 14 at 13 with ECF No. 20 at 10–11. Even assuming

Plaintiff’s asserted property and liberty interests are protected by substantive due process, Plaintiff

has failed to demonstrate that he is likely to succeed on the merits of proving that Defendants’

COVID-19 mitigation orders “shock the conscience.”

Importantly, while “the meaning of this [shocks the conscience] standard varies depending

on the factual context,” United Artists, 316 F.3d at 400, it “encompasses ‘only the most egregious

official conduct.’” Chainey, 523 F.3d at 219 (quoting United Artists, 316 F.3d at 400).

Conscience-shocking behavior has been described by the Supreme Court “as ‘conduct intended to

injure in some way unjustifiable by any government interest,’ and conduct ‘so “brutal” and

“offensive” that it d[oes] not comport with traditional notions of fair play and decency.’” S.

Allegheny, 806 Fed.Appx. at 142 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)

and Breithaupt v. Abram, 352 U.S. 432, 435 (1957)). Indeed, the Third Circuit has declined to

find that government action shocks the conscience where there were no “allegations of corruption,

self-dealing, bias against an ethnic group, or additional facts that suggested conscience-shocking

behavior.” Chainey, 523 F.3d at 220 (citing Eichenlaub v. Twp. of Ind., 385 F.3d 274, 286 (3d

Cir. 2004)).

Plaintiff here has not demonstrated a likelihood of surmounting this “high bar.” S.

Allegheny, 806 Fed.Appx. at 142. The record shows that Defendants, in light of the scientific and

medical information available to them, took considered steps to attempt to mitigate the spread of

a deadly disease, one of which was to impose certain restrictions on the operations of bars and

restaurants. Furthermore, Plaintiff has not put forward any evidence to suggest that Defendants’

mitigation orders were developed with any improper motive, were the result of corruption, self-

dealing, or were otherwise “intended to injure in some way unjustifiable by any government

interest.” Id. As such, Plaintiff has failed to meet his burden to demonstrate a likelihood of success

on the merits with regard to his substantive due process claim.

D. Plaintiff Has Not Demonstrated He Will Suffer Immediate Irreparable Harm

Unless Injunctive Relief is Granted

Even if Plaintiff could establish a reasonable likelihood of success on the merits, a

preliminary injunction is still inappropriate because Plaintiff has not demonstrated that he will

suffer immediate irreparable harm without an injunction.

Although Plaintiff’s injuries are generally couched in financial terms, see, e.g., ECF No.

15 at ¶¶ 8–12, which is not a proper ground for preliminary injunctive relief, see Adams v. Freedom

Forge Corp., 204 F.3d 475, 484–85 (3d Cir. 2000) (noting that “the irreparable harm requirement

is met if a plaintiff demonstrates a significant risk that he or she will experience harm that cannot

adequately be compensated after the fact by monetary damages”), Plaintiff contends in his Motion

that “Plaintiff is facing the loss and destruction of his entire company, and everything he has

worked for over twenty years.” ECF No. 14 at 15. On that basis, and citing Beilowitz v. GMC,

233 F.Supp.2d 631, 644 (D.N.J. 2002), Plaintiff argues that damages alone are not sufficient and

injunctive relief is necessary. See id. at 14–15; see also, ECF No. 44 at ¶¶ 68–70.

However, for Plaintiff to prevail on his Motion, “more than a risk of irreparable harm must

be demonstrated. The requisite for injunctive relief has been characterized as a ‘clear showing of

immediate irreparable injury,’ or a ‘presently existing actual threat;’ [an injunction] may not be

used simply to eliminate a possibility of a remote future injury.” White v. Pompeo, Civil Action

No. 18-5434, 2019 U.S. Dist. LEXIS 70386, at *6 (E.D. Pa. Apr. 25, 2019) (quoting Acierno v.

New Castle County, 40 F.3d 645, 655 (3d Cir. 1994)). And, “[t]o be imminent, the injury cannot

be remote or speculative; it must be poised to occur before the District Court can hold a trial on

the merits.” Par Pharm., Inc. v. Quva Pharm, Inc., 746 Fed.Appx. 273, 279 (3d Cir. 2019) (citing

BP Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 263-64 (3d Cir. 2000)).

While Plaintiff correctly points out that, in some cases, the threatened wholesale

destruction of a business, even where money damages are available, has been deemed a sufficiently

irreparable injury to warrant the entry of injunctive relief, see, e.g. Beilowitz, 233 F.Supp.2d at

644–45, this is not that case. In Beilowitz, plaintiff-franchisee obtained a preliminary injunction

where defendant-franchisor had decided to implement new geographical boundaries on plaintiff’s

sales territory, such that plaintiff stood to lose approximately 40% of its annual revenue. See id.

at 645. Stated otherwise, although his alleged injury was financial in nature, plaintiff in Beilowitz

was faced with certain destruction of his business if defendant was allowed to carry out its plans.

Here, there is no such certainty. The potential loss of part of all of Plaintiff’s business is

speculative. Indeed, his testimony about the timing and scope of possible future business loss

differed significantly from the testimony of his Director of Operations, Ms. Simmons. At the

preliminary injunction hearing, Plaintiff initially testified that “I’m really honestly not sure how

we’re going to make it through next winter [2021–2022]”. ECF No. 45 at 35:8–9 (emphasis

added). Later in the hearing, though, Plaintiff testified that “if things don't go well, it’s going to

be tough to make it to May [2021].” Id. at 36:5–6 (emphasis added). In contrast, Ms. Simmons

testified that

If we have another shutdown, we will—we will have to—we will

have to shut a location down. There is no doubt in my mind. We

cannot handle another one. I give us—if we have a nice summer,

we'll be fine up until fall [of 2021]. We will not make it through

next winter. . .

Id. at 53:11–15 (emphasis added). Thus, in contrast to the situation faced by the plaintiff in

Beilowitz—where the loss of 40% of his revenue was a certainty if defendant was allowed to

proceed—Plaintiff’s alleged prospective irreparable harm is contingent on a number of factors.

Since the time of Plaintiff’s and Ms. Simmons’ testimony, no complete closures of

restaurants or bars have occurred, and the Amended November Orders were enacted, increasing

permissible occupancy for restaurants and bars, permitting alcohol to be served without ordering

a meal, and permitting patrons to be served while seated at a bar. See Amended November Orders.

Furthermore, as of April 6, 2021, Pennsylvania moved to Phase 1B of its vaccination program, and

projected that all adult Pennsylvanians would be eligible to be vaccinated by the end of April

2021.7 Higher permissible capacity for restaurants and bars, coupled with more widely available

vaccination, will likely increase patronage of restaurants and bars. In considering the potential

irreparable harm to Plaintiff – possible future loss of part or all of his business – the Court notes

that Plaintiff never availed himself of the Open and Certified Pennsylvania program, which would

have significantly mitigated his past and present monetary losses, and significantly reduced the

likelihood of a potential future loss of part or all of his business.

The Court recognizes that the negative effects of the COVID-19 pandemic have been

significant for Plaintiff and other restaurant and bar owners. However, considering all of the

evidence, dissolution of part or all of Plaintiff’s business is by no means certain or imminent and,

therefore, Plaintiff has not made the requisite showing of irreparable harm.

7 See Vaccine Rollout Timeline, https://www.health.pa.gov/topics/disease/coronavirus/Vaccine/Pages/Vaccine.aspx

(last visited April 9, 2021).

V. Conclusion

For the foregoing reasons, Plaintiff’s Motion for Preliminary Injunction, ECF No. 13, is

hereby DENIED.

DATED this 9th day of April, 2021.

BY THE COURT:

/s/ Christy Criswell Wiegand

CHRISTY CRISWELL WIEGAND

United States District Judge

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