Pennsylvania Gov. Tom Wolf's order closing all "non-life-sustaining" businesses as a means to combat the spread of the coronavirus constitutes an uncompensated taking in violation of the Fifth Amendment, a federal class action lawsuit has claimed.

Bucks County-based handbell production company Schulmerich Bells and several recently laid-off employees filed a class action lawsuit Thursday in the U.S. District Court for the Eastern District of Pennsylvania. The suit raises substantive and procedural due process claims under the 14th Amendment, and argues that Wolf's decision to shut down most businesses constitutes an uncompensated seizure in violation of the Fifth Amendment.

"The question we've raised is, who pays for it? You cannot idle a business, you cannot idle workers, taking a right to earn a living away from the workers, and expect those costs to be borne privately," Goldstein Law Partners attorney Jonathan Goldstein, who filed the lawsuit and is chairman of Schulmerich, said. "If the public wants businesses closed for a public purpose, than the public must pay."

On March 19, Wolf issued an order saying all non-life-sustaining businesses must close to prevent further spread of the novel coronavirus. The order has since been modified to allow for things like law firms and gun sellers to be able to operate in a limited capacity. However, most businesses in the state have been shuttered since the order went into effect.

Schulmerich Bells' lawsuit joins a host of other challenges to Wolf's orders. However, according to Goldstein, most of those efforts have focused on Wolf's legal authority to issue the closure orders. Schulmerich Bells, he said, appears to be the first lawsuit in the wake of the closures that alleges violations of the takings clause, rather than focusing on challenging Wolf's authority.

According to Schulmerich Bells' 40-page complaint, the company operates a very time-sensitive business, and the timing of the shutdown has caused serious disruptions in the refurbishing portion of its business. The closure, it said, has already led it to lay off nine employees. Two of those former employees, Frank Carbalo and Wendy Helverson, were part of the lawsuit as well, representing the class of workers affected by the closure.

The complaint contends that the governor and the Pennsylvania Department of Health Secretary Dr. Rachel Levine, who is also a defendant, acted in an "arbitrary and capricious" manner in determining which businesses to close and failing to create any oversight or appeals process in which those decisions could be challenged.

Regarding the Fifth Amendment claims, the plaintiffs argued that the order denied the parties the use of their physical property while the closure orders were in effect.

According to Goldstein, the claims fall squarely within U.S. Supreme Court cases, including Penn Central Transportation v. City of New York and Lucas v. South Carolina Coastal Council, which have held that the government has a duty to pay just compensation when it takes private property.

Along with seeking compensatory and punitive damages, the lawsuit seeks an injunction barring enforcement of the order and establishing an appellate review process for challenges to what businesses constitute "life-sustaining" businesses.

Goldstein said the lawsuit is likely headed for appellate review, and, as similar challenges begin to be brought in other states facing shutdowns across the country, the issue might even end up before the U.S. Supreme Court.

"This is not going to be the only state where these kinds of suits are brought," he said. "Stay tuned. This will not go away."

Wolf's press office did not return a message seeking comment.

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