MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: November 10, 2021

This case presents a challenge by five Petitioners (J.W., S.H., N.J., R.M., and C.A.), individually and on behalf of their minor children (collectively, Petitioners), to the “Order of the Acting Secretary of the Pennsylvania Department of Health Directing Face Coverings in School Entities” (Masking Order) issued on August 31, 2021, by Alison M. Beam, the Acting Secretary of Health (Acting

Secretary or Respondent), which imposed an open-ended general masking requirement effective September 7, 2021, on all teachers, students, school staff, and visitors within Pennsylvania’s schools, regardless of vaccination status, with certain exceptions. Petitioners’ underlying Petition for Review in the Nature of a Complaint (Petition for Review) seeks declarations: (1) that the Acting Secretary lacks the legal authority to require individuals to wear masks in Pennsylvania’s schools; (2) that the Masking Order does not apply in any county with a local health department; (3) that the Masking Order violates Article I, Section 3 of the Pennsylvania Constitution, Pa. Const. art. I, § 3, providing for freedom of religion within the Commonwealth;1 and (4) that the Masking Order violates procedural due process.^[2] Ultimately, the Petition for Review requests that this Court reverse and vacate the Masking Order. Before the Court currently are Petitioners’ Application for Summary Relief (Petitioners’ Application) and Respondent’s Application for Summary Relief (Respondent’s Application) filed by the Acting Secretary.^[3] For the reasons set forth herein, we dismiss this matter as moot.

This Court explained the background of the Masking Order at length in our recent decision Corman v. Acting Secretary of the Pennsylvania Department of Health (Pa. Cmwlth., No. 294 M.D. 2021, filed November 10, 2021), as follows:

On March 6, 2020, Governor Wolf issued a Proclamation of Disaster Emergency (Disaster Proclamation) pursuant to Section 7301(c) of the Emergency Management Services Code (Emergency Code), 35 Pa.C.S. § 7301(c), regarding the novel coronavirus (COVID-19) pandemic. Thereafter, the Governor implemented numerous orders designed to mitigate and stop the spread of COVID-19, which orders, inter alia, closed restaurants and bars in Pennsylvania for in-person dining, closed non-essential businesses, limited the size of in-person gatherings within the Commonwealth, and directed citizens to stay at home. Governor Wolf also issued multiple periodic amendments to the Disaster Proclamation, each of which renewed the Disaster Proclamation for an additional 90 days.

On May 18, 2021, the voters of the Commonwealth approved two amendments to the Pennsylvania Constitution that limit the Governor’s power under the Emergency Code (collectively, the Constitutional Amendments). The first of the Constitutional Amendments amended Section 9 of Article III of the Constitution to allow the General Assembly, by a simple majority vote, to extend or terminate a gubernatorial disaster emergency declaration, or a portion thereof, as declared by an executive order or proclamation. See Pa. Const. art. III, § 9. The second of the Constitutional Amendments added new Section 20 to Article IV of the Pennsylvania Constitution, which section limits the

the Record was treated as an application pursuant to Rule of Appellate Procedure 2501(a) and was granted on October 29, 2021, as a post-submission communication to the Court advising the Court of the Joint Committee Order. See Pa.R.A.P. 2501(a).

duration of a gubernatorial disaster emergency declaration to 21 days absent an extension by concurrent resolution of the General Assembly. See Pa. Const. art. IV, § 20.

Following the adoption of the Constitutional Amendments, on June 10, 2021, the General Assembly approved a concurrent resolution terminating the Disaster Proclamation (Concurrent Resolution). Governor Wolf did not issue a new proclamation of disaster emergency following the approval of the Concurrent Resolution.

However, on August 31, 2021, in anticipation of a Commonwealth-wide return to in-person learning in the 2021-2022 school year, the Acting Secretary issued the Masking Order, effective September 7, 2021. Initially, the Masking Order provides an introductory statement that explains the Acting Secretary imposed the Masking Order to protect the health and safety of Pennsylvania’s schoolchildren. See Masking Order at 1-3. The introductory statement outlines the Acting Secretary’s purported authority to impose the Masking Order as follows:

COVID-19 is a threat to the public’s health, for which the Secretary of Health may order general control measures. This authority is granted to the Secretary of Health pursuant to Pennsylvania law. See [S]ection 5 of the Disease Prevention and Control Law [Act of April 23, 1956, P.L. (1955) 1510 (Disease Control Law)], 35 P.S. § 521.5; [S]ection 2102(a) of The Administrative Code of 1929, 71 P.S. § 532(a); and the Department of Health’s regulation at 28 Pa. Code § 27.60 (relating to disease control measures). Particularly, the Department of Health [] has the authority to take any disease control measure appropriate to protect the public from the spread of infectious disease. See 35 P.S. § 521.5; 71 P.S. §§ 532(a), and [Section 8 of the Act of April 27, 1905, P.L. 312, as amended, 71 P.S. §] 1403(a); 28 Pa. Code § 27.60.

Masking Order at 3. Section 2 of the Masking Order contains a “General Masking Requirement” that requires:

Each teacher, child/student, staff, or visitor working, attending, or visiting a School Entity shall wear a face covering indoors, regardless of vaccination status, except as set forth in Section 3.

Masking Order at 4. Regarding the duration of the Masking Order, Section 6 indicates that, once effective, the Masking Order “shall remain in effect until otherwise terminated.” Masking Order at 6.

Corman, slip op. at 3-9 (footnotes omitted). Petitioners filed the Petition for Review in this matter on September 8, 2021, followed by an Application for Emergency Relief Seeking a Preliminary Injunction (Preliminary Injunction Application) on September 13, 2021, which seeks a preliminary injunction staying the implementation of the Masking Order and enjoining Respondent from issuing further school masking directives until the Court can determine the issues raised in the Petition for Review. The Acting Secretary filed Respondent’s Answer to Petitioners’ Application for Emergency Relief Seeking a Preliminary Injunction on September 20, 2021. Following a pre-hearing conference conducted on September 28, 2021, on agreement of the parties, by order dated September 29, 2021, the Court stayed the hearing on the Preliminary Injunction Application and directed the parties to file applications for summary relief.^[4] See Order dated September 29, 2021, at 1-2. On October 4, 2021, the parties filed Petitioners’ Application and Respondent’s Application, and the Court scheduled the matters for oral argument en banc to be argued seriately with Corman, which presented the same legal question regarding the Acting Secretary’s issuance of the Masking Order. Following oral argument, the Court issued its decision in Corman holding that the Acting Secretary improperly issued the Masking Order without complying with the rulemaking requirements of the Regulatory Review Act, Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-745.15, and in the absence of a gubernatorially-declared disaster emergency issued pursuant to the Emergency Code, 35 Pa.C.S. § 7301(c). See Corman, slip op. at 11-30. As a result, the Court declared the Masking Order to be void ab initio, an outcome which renders the claims of the instant matter moot. See Corman, slip op. at 30-31. Accordingly, based on this Court’s decision in Corman,5 we dismiss both Petitioners’ Application and Respondent’s Application as moot and dismiss the Petition for Review.

__________________________________ CHRISTINE FIZZANO CANNON, Judge

President Judge Brobson and Judges Cohn Jubelirer, Covey, and Crompton did not participate in this decision.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.W., individually and on behalf of minor : children C.W., D.W. and M.W.; S.H., : individually and on behalf of minor : children C.H. and D.H., C.H., : individually and on behalf of minor : child M.J.L.; N.J., individually and on : behalf of minor children J.J. and J.K.; : R.M., individually and on behalf of : minor child M.M.; C.A., individually : and on behalf of minor child F.J.A., : Petitioners : : v. : : Acting Secretary of the Pennsylvania : Department of Health, Alison Beam, : No. 297 M.D. 2021 Respondent : ORDER AND NOW, this 10th day of November, 2021, Petitioners’ Application for Summary relief filed by J.W., S.H., N.J., R.M., and C.A. (collectively, Petitioners), individually and on behalf of their minor children, and Respondent’s Application for Summary Relief filed by Alison M. Beam, the Acting Secretary of Health, are DISMISSED as moot. Petitioners’ Petition for Review in the Nature of a Complaint is DISMISSED as moot. __________________________________ CHRISTINE FIZZANO CANNON, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA J.W., individually and on behalf : of minor children C.W., D.W. and : M.W.; S.H., individually and on : behalf of minor children C.H. and : D.H., C.H., individually and on behalf : of minor child M.J.L.; N.J., individually : and on behalf of minor children J.J. and : J.K.; R.M., individually and on behalf : of minor child M.M.; C.A., individually : and on behalf of minor child F.J.A., : : Petitioners : : v. : No. 297 M.D. 2021 : Argued: October 20, 2021 Acting Secretary of the Pennsylvania : Department of Health, Alison Beam, : : Respondent : BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge OPINION NOT REPORTED CONCURRING AND DISSENTING OPINION BY JUDGE WOJCIK FILED: November 10, 2021 I agree with the Majority that Petitioners’ Petition for Review in the Nature of a Complaint (PFR) should be dismissed. However, I believe that the PFR should be dismissed based on the grant of the Acting Secretary (Secretary) of the Pennsylvania Department of Health’s (DOH) Application for Summary Relief (ASR), and the denial of Petitioners’ ASR.^[1] In disposing of the cross-ASRs on the merits, with respect to Counts I and II raised in Petitioners’ PFR, I rely upon my Dissenting Opinion in Corman v. Acting Secretary of the Pennsylvania Department of Health (Pa. Cmwlth., No. 294 M.D. 2021, filed ________ __, 2021) (Wojcik, J., dissenting opinion). In Count III of the PFR, Petitioners acknowledge that “[t]he Public School Code [of 1949 (School Code)2] does not define the terms ‘medical examination’ or ‘medical treatment,’” yet they assert that “[f]ace masks constitute a 1 As this Court has recently observed: Applications for summary relief filed in this Court’s original jurisdiction are governed by Pennsylvania Rule of Appellate Procedure 1532(b), Pa. R.A.P. 1532(b), which provides that “[a]t any time after the filing of a petition for review . . . , the court may enter judgment if the right of the applicant thereto is clear.” An application for summary relief under Rule 1532(b) is evaluated according to standard for a motion for summary judgment. A motion for summary relief may only be granted when “the dispute is legal rather than factual,” there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. The evidence is to be reviewed in a light most favorable to the non- moving party. “Even if the facts are undisputed, the moving party has the burden of proving that its right to relief is so clear as a matter of law that summary relief is warranted.” “Bold unsupported assertions of conclusory accusations cannot create genuine issues of material fact.” “Summary [relief] may be entered only in cases that are clear and free from doubt.” Delaware Riverkeeper Network v. Department of Environmental Protection (Pa. Cmwlth., No. 525 M.D. 2017, filed August 3, 2021), slip op. at 13 (citations and footnote omitted); see also Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. [] Non- precedential decisions . . . may be cited for their persuasive value.”). 2 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 - 27-2702. MHW-2 form of medical treatment to which religious and/or philosophical objections guaranteed under the Pennsylvania Constitution and [School Code] apply.” PFR ¶¶69-70. Specifically, “[a]s face masks are being recommended to stop the spread of SARS-CoV-2 in order to prevent COVID-19 from occurring in humans, [by the federal Centers for Disease Control [and Prevention] and the Food and Drug Administration,] face masks are a form of prophylactic medical treatment.” Id. ¶¶71-73. Article I, section 26 of the Pennsylvania Constitution,3 Section 1419 of the School Code,4 and Section 23.84(b) of DOH’s regulations5 preclude the Secretary from requiring treatment or discriminating against students based on their religious beliefs. PFR ¶¶67-68. “[Petitioners] have religious and/or strong moral ethical convictions similar to religious belief against the requirements to force [the students] to wear face masks during in-person education.” Id. ¶75. As a result, Petitioners 3 Pa. Const. art. I, §26. Article I, section 26 states: “Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.”