Purell container and sign announcing court's partial closure due to the coronavirus at Manhattan state courthouse March 17, 2020. Photo: Ryland West/ALM

Pennsylvania lawyers this week have been struggling to keep themselves and their clients up to date as one by one courts across the state began to close or alter their services in an effort to help stem the outbreak of the coronavirus.

The Pennsylvania Supreme Court offered some statewide guidance late Wednesday, ordering that all state courts be generally closed starting Friday. Although the decree has brought court systems in sync across the state, according to attorneys, some questions remain.

"It certainly provides guidance and clarity, but there are still lots of questions," criminal defense attorney Steven Fairlie of Fairlie & Lippy said. However, he added that local leaders have been rapidly responding to the issues. "Fortunately, on the local level, the court leaders are still actively putting out these fires."

Fairlie is chairman of the Montgomery Bar Association's criminal defense committee. The virus has so far hit Montgomery County in southeastern Pennsylvania particularly hard, and its court system was the first in the state to seek an emergency declaration from the state Supreme Court. It was also the first to significantly alter its procedures, shutting down all jury trials starting March 13.

Following Montgomery County's lead, courts across the state began asking the Pennsylvania Supreme Court to declare their districts as being in a state of judicial emergency. By Wednesday, nearly 50 court systems had made the request, which mean that many, but not all courts were operating in either a severely limited capacity, or closed down almost entirely.

According to attorneys, the rapidly changing patchwork was difficult to navigate.

"Every county around here is different. … We have to call from county to county," Pittsburgh criminal defense attorney Anthony Jackson of Justin Ketchel Law told The Legal on Wednesday. "It would be a lot easier if they said, 'Hey, this is what we're doing across the board.'"

By Wednesday evening, the justices issued a 10-page per curiam order directing all state courts to close beginning at the end of the day Thursday and "lasting through at least April 3, 2020." The move came after Pennsylvania Secretary of Health Dr. Rachel Levine sent a letter Wednesday to Chief Justice Thomas Saylor, urging him to close the courts for a period of 14 days.

The order allows courts to continue operating certain "essential functions," including emergency bail review, bench warrant hearings, juvenile delinquency detention, juvenile shelter hearings, protection from abuse hearings, emergency guardian petitions, civil mental health reviews and "any other function deemed by a president judge to be essential consistent with constitutional requirements."

It also suspended all new jury trials, said jurors no longer have to report in, and postponed all calendars, scheduling notices, subpoenas or other court matters compelling lawyers or litigants to appear. The order also encouraged the use of enhanced videoconferencing when possible.

Although attorneys are no longer faced with a changing patchwork of court procedures, each operating in a slightly different manner, there are some case-by-case issues that are continuing to arise that the Supreme Court's order does not directly address.

Fairlie gave the example of nonviolent offenders on work-release, who would normally be in the prisons at night and then going outside into the community to work during the day. With prison crowding and little access to hygiene products, there is a growing concern about how to manage prisons. Also, numerous businesses have been ordered to shut down to help contain the virus, which has also stopped some of the inmates' ability to work. As questions arose about how to manage this specialty population, Fairlie said, prison and court officials were looking into the matter "in a matter of minutes" after attorneys raised questions.

"It seems like the leaders are behind the scenes making all the decisions that need to be made rapidly," Fairlie said.

One question that has come up a lot, according to Fairlie, is what courts have meant when they have sought to suspend Pennsylvania Rule of Criminal Procedure 600, which grants defendants the right to a speedy trial. Specifically, Rule 600 says prosecutors "must bring a defendant to trial within 365 days from the date upon which a written criminal complaint is filed."

The Supreme Court's order, and other emergency orders before that was issued, directed that time calculations, including calculations for the purposes of Rule 600, should be suspended.

According to Fairlie, suspending the rules should not have any constitutional implications because Rule 600 only deals with delays caused by prosecutors, and has never been construed to apply to public health emergencies.

"The case law has been pretty clear on that," he said. "If the DA's not responsible for causing the delay, if it's a court delay … there's no remedy."

Another issue of broad concern deals with the orders language about tolling deadlines. Echoing language used in several requests for emergency declarations, the Supreme Court's order said "calculations for purposes of time computation relevant to court cases or other judicial business, as well as time deadlines, are suspended."

Both Fairlie and Schmidt Kramer attorney Scott Cooper in Harrisburg said the language could lead some attorneys to believe that the statute of limitations on their claims may be tolled, but both attorneys said that did not appear to be the case, based on the language of the order.

"It doesn't stay statute of limitations," Cooper said.

Fairlie noted that defendants could make the argument that complaints are not emergency filings, and therefore would not fit under the criteria of things that are supposed to be filed under the emergency orders. However, he also said that, since statutes of limitation are set by the state General Assembly, it is unlikely courts can simply suspend them.

"For me, personally, it doesn't [answer all the questions]," Fairlie said about the Supreme Court's latest order. "There are still some issues out there that I'm hoping they will clarify."