[J-94-2019] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
JASMINE WEEKS, VANESSA WILLIAMS, : No. 22 EAP 2019
ARNELL HOWARD, PATRICIA :
SHALLICK, INDIVIDUALLY AND ON : Appeal from the Order entered on
BEHALF OF ALL OTHERS SIMILARLY : August 1, 2019 in the Commonwealth
SITUATED, : Court at No. 409 MD 2019.
:
Petitioners : ARGUED: October 16, 2019
:
:
v. :
:
:
DEPARTMENT OF HUMAN SERVICES :
OF THE COMMONWEALTH OF :
PENNSYLVANIA, :
:
Appellee :
DISSENTING OPINION
JUSTICE WECHT DECIDED: December 18, 2019
Of the six factors that one must satisfy to establish a basis for a court to enter a
preliminary injunction pending final resolution of a constitutional challenge to a statute,
the Department of Human Services (“DHS”) contested only two in this case. The first of
these requires Petitioners to establish that the injunction is necessary to prevent harm
that could not be compensated fully by a later cash award, in the event that their
constitutional challenge succeeds (i.e., “irreparable harm”). See Summit Towne Ctr., Inc.
v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003). The second factor
at issue here requires Petitioners to establish that they are “likely to prevail on the merits,”
id., a factor the meaning of which is less than clear in our case law.1 In resolving this
appeal, the Majority has set the bar so high on the “likely to prevail” factor as to call into
question whether preliminary injunctive relief can ever be granted without persuading the
court, on a necessarily limited record, that the requesting party is certain to succeed on
the merits.
A court should enter a preliminary injunction where such temporary relief will
prevent “irreparable injury or gross injustice until the legality of the challenged action can
be determined.” Fischer v. Dep’t of Pub. Welfare, 439 A.2d 1172, 1174 (Pa. 1982). This
Court reviews the entry of an order granting or denying a request for a preliminary
injunction for an abuse of discretion. Marcellus Shale Coal. v. Dep’t of Envtl. Prot., 185
A.3d 985, 995 (Pa. 2018). We must determine whether “any apparently reasonable
grounds” exist in the record to support the lower court’s denial of the preliminary
injunction. SEIU Healthcare Pa. v. Commonwealth, 104 A.3d 495, 506 (Pa. 2014). But
our law is clear that we should “not inquire into the merits of the controversy.” Roberts v.
Bd. of Dirs. of Sch. Dist. of City of Scranton, 341 A.2d 475, 478 (Pa. 1975). Yet, the
Majority does exactly that. Because I disagree with the Majority’s broad approach, as
well as its consequent conclusion regarding the narrow question we are called upon to
answer, I respectfully dissent.
1 The moving party also must show that “greater injury would result from refusing an
injunction than from granting it, and, concomitantly, that issuance of an injunction will not
substantially harm other interested parties in the proceeding”; “that a preliminary
injunction will properly restore the parties to their status as it existed immediately prior to
the alleged wrongful conduct”; “that the injunction it seeks is reasonably suited to abate
the offending activity”; and “that a preliminary injunction will not adversely affect the public
interest.” Summit Towne Ctr., 828 A.2d at 1001. These factors are not before us.
[J-94-2019] [MO: Saylor, C.J.] - 2
I. Petitioners established that they will suffer irreparable harm from the
cessation of general assistance payments.
Finding that Petitioners’ request for an injunction fails on the likelihood of success
factor, the Majority declines to address irreparable harm. See Maj. Op. at 13 (noting that
the failure of any one factor is fatal to a request for a preliminary injunction). However,
the lower court found that Petitioners had failed to establish irreparable harm, ostensibly
because the action sought to be enjoined involves the termination of cash assistance. As
such, according to the lower court, should Petitioners prevail on the merits, “Petitioners’
‘harm’ would consist of only a delay in receiving a cash benefit. The eventual receipt of
the benefit repairs the harm.” Weeks v. Dep’t of Human Servs., 409 M.D. 2019, Slip Op.
at 5 (Pa. Cmwlth. Aug. 1, 2019) (“scare quotes” in original). In light of Petitioners’
circumstances, this conclusion is patently untenable.
General Assistance is a program administered by DHS. Prior to the enactment of
Act 12,2 DHS disbursed up to $215 in monthly cash assistance payments3 to individuals
who are unable to work and have no other source of income because they have physical
or mental disabilities, or they are pregnant, or they are victims of domestic violence
receiving protective services from DHS, or they are enrolled in a substance abuse
treatment program that imposes conditions precluding them from working, or they are
non-parental caretakers of children under the age of thirteen or of an individual suffering
2 See Act of June 28, 2019, P.L. 42, No. 12.
3 There are two types of General Assistance: cash assistance and medical
assistance. This appeal concerns only the legislature’s elimination of the former, because
Act 12 does not disturb General Assistance medical assistance. Unless context indicates
otherwise, all references to General Assistance in this opinion concern cash assistance.
[J-94-2019] [MO: Saylor, C.J.] - 3
from a physical or mental disability. See 62 P.S. § 432(3). Speaking generally, to qualify
for General Assistance, recipients must be penniless and lack any source of income.
These qualifying conditions provide critical context. As evidence of the irreparable
harm they will suffer, Petitioners provided sworn declarations from ten General
Assistance recipients, professionals from agencies that serve recipients, public officials
who oversee programs serving recipients, and attorneys representing recipients, all of
whom describe the specific harms recipients will suffer from the loss of these payments.
Petitioners argue that the Commonwealth Court erred in deeming such harm “speculation
and conjecture.” Weeks, Slip Op. at 6 (citing Reed v. Harrisburg City Council, 927 A.2d
698, 706 (Pa. Cmwlth. 2007)).
Notwithstanding the Commonwealth Court’s contrary suggestion, a party seeking
preliminary injunctive relief need not establish the anticipated harm with certainty. The
purpose of a preliminary injunction is to “prevent imminent and irreparable harm that might
occur before the merits of a case can be heard and determined.” SEIU, 104 A.3d at 500-
01 (emphasis added). Thus, a party satisfies the irreparable harm factor when he or she
establishes that a preliminary injunction is necessary to prevent anticipated harm to
individuals’ health and well-being. See id. at 508-09 (reducing public health services by
closing of public health centers and eliminating nursing staff constituted immediate and
irreparable harm).
Other courts have endorsed the common-sense expectation that eliminating
General Assistance and similar programs is likely to disrupt recipients’ lives in severe,
immediate ways that belated monetary damages cannot undo. The Commonwealth
Court, itself, has acknowledged as much:
[J-94-2019] [MO: Saylor, C.J.] - 4
[T]he cessation of public assistance payments would result in disastrous
hardship and inhumane living conditions for a great number of assistance
recipients. For [General Assistance] alone, over 145,000 persons in
Pennsylvania are recipients with 26,000 of them being children. For the
recipients, the [General Assistance] payments are normally the only means
for obtaining shelter, clothing, utility services and transportation, while
temporarily unemployed or while applying for social security benefits.
Although these recipients receive food stamps, they usually must also use
money from their public assistance grants every month after food stamps
are exhausted.
Knoll v. White, 595 A.2d 665, 667-68 (Pa. Cmwlth. 1991); accord Hill v. O’Bannon,
554 F. Supp. 190, 197 (E.D. Pa. 1982) (“There can be no question that class members
will suffer irreparable injury pending the litigation [over the termination of General
Assistance] if injunctive relief is not granted. . . . By hypothesis, a welfare recipient is
destitute, without funds or assets. His need for benefits has been characterized as a
brutal need.” (cleaned up)); Nelson v. Likins, 389 F. Supp. 1234, 1237 (D. Minn. 1974)
(“While the loss of money is normally not considered irreparable, . . . those affected are
not the average citizens but rather those who are in the grip of poverty. The loss to them
of a certain sum of money each month is much more of an injury than it is to the average
individual. And it is this average individual who is the basis for the rule that the loss of
money is not considered irreparable harm.”).
The sworn declarations of General Assistance recipients detail the extensive,
multifarious harms they will suffer from the loss of benefits. Petitioners have
demonstrated that the loss of General Assistance imminently threatens their ability to
acquire basic necessities, diminishing their ability to see to their own well-being and that
of their dependents. See, e.g., Decl. of Patricia Shallick, 7/19/2019, ¶ 11 (Exh. E to
Petition for Review) (“I already have no running water. Without General Assistance, I will
have no way to use the laundromat to wash clothes, no way to buy the hand sanitizer and
[J-94-2019] [MO: Saylor, C.J.] - 5
wipes I need to clean myself without water . . . .”), Decl. of Michael McLaughlin,
7/17/2019, ¶ 9 (Exh. 4 to Application for Special Relief) (“I cannot afford to live without
General Assistance. . . . I also will have no way to . . . pay my friends and family members
who allow me to sleep on their couches.”); Decl. of Arnell Howard, 7/16/2019, ¶¶ 12-13
(Exh. C to Petition for Review) (“I use the $205 I receive in [General Assistance] to make
payments on the electric, gas, and water bills. I still owe money on all of these bills, but I
have been able to keep all of my utilities on since I started getting [General
Assistance]. . . . Without General Assistance, I will have no way to pay my utility bills.”).
Further undercutting any suggestion that the harm is speculative are the
testimonies of social service providers who served General Assistance recipients the last
time the program was eliminated—by Act 80 of 2012. See Washington v. Dep’t of Pub.
Welfare, 188 A.3d 1135 (Pa. 2018) (deeming Act 80 unconstitutional).4 Many submitted
sworn declarations recounting their observations of human hardship in the aftermath.
See, e.g., Decl. of Marc Cherna, Dir., Allegheny Cty. Dep’t of Human Servs., 7/16/2019,
¶ 9 (Exh. 9 to Application for Special Relief) (“For many people, losing General Assistance
[in 2012] meant becoming housing unstable and/or homeless, as they were no longer
able to keep up with rent or utilities, or afford security deposits to move into new
housing.”); Declaration of Ann Sanders, Pub. Policy Advocate, Just Harvest, 7/18/2019,
¶ 5 (Exh. 18 to Application for Special Relief) (“In the summer of 2012, [General
Assistance] was eliminated, and we quickly saw an increase in the need for emergency
4 Although Act 80 was not held unconstitutional until 2018, General Assistance
payments were suspended during the six-year pendency of that litigation. Thus, these
service providers are well and recently acquainted with the consequences of terminating
cash assistance.
[J-94-2019] [MO: Saylor, C.J.] - 6
food assistance, and an increase in homelessness.”); Decl. of Kathy Wellbank, Program
Dir., Interim House, Inc., 7/19/2019, ¶ 9 (Exh. 20 to Application for Special Relief) (noting
that when General Assistance ended in 2012, “[w]omen returned to abusive partners to
have a place to stay”).
Petitioners have presented compelling evidence that losing General Assistance
would impair their abilities to meet their most basic human needs. Recipients will suffer
cascading and multiplying harms to their physical and mental health, impaired family
relationships, and will endure manifold threats to their personal safety and well-being that
monetary damages awarded at some remote time in the future cannot begin to rectify.
Thus, I reject the Commonwealth Court’s conclusion that Petitioners’ showing was
insufficient to support a preliminary injunction.
II. Act 12’s introduction, amendment, and enactment.
To assess the likelihood of success on the merits factor, we must situate
Petitioners’ constitutional challenge in its proper context. To do so, it is necessary first to
review Act 12’s journey from proposal to enactment.
In the wake of our July 18, 2018 decision in Washington, which deemed
unconstitutional the General Assembly’s 2012 bill eliminating General Assistance,
legislative supporters of the invalidated law promptly resumed their efforts to eliminate
General Assistance, introducing House Bill 33 only six months later, in January 2019.
This bill was three pages long and made only three substantive changes to the Public
Welfare Code: it defined “General assistance-related categorically needy medical
assistance”; provided for the termination of the General Assistance program; and deleted
Subsection 442.1(a)(3)(i) of the Public Welfare Code, which automatically classified an
individual as “medically needy” and, thus, eligible for medical assistance if he or she
[J-94-2019] [MO: Saylor, C.J.] - 7
received General Assistance. H.B. 33, P.N. 0047. All of these provisions worked
exclusively to terminate General Assistance cash payments while leaving related
statutory provisions unchanged. This bill was considered twice by the full House and then
re-committed to the House Appropriations Committee on March 27, 2019.
The Committee amended Bill 33 to add provisions that: (1) doubled the
appropriation of funds to DHS (the existing appropriation was due to expire on June 30,
2019) to distribute to private nursing homes for fiscal year 2019-2020 under the
“Nonpublic Nursing Facility Medical Assistance Day-One” program, an incentive program
to encourage private nursing homes to accept more Medicaid patients; (2) reauthorized
municipalities to levy annual assessments on “general acute care hospitals” and “high
volume Medicaid hospitals,” which authorization was also due to expire on June 30, 2019;
(3) changed the eligibility requirements for hospitals to be classified as “high volume
Medicaid hospitals”; (4) changed the definition of hospitals’ “Net operating revenue” to
“Net patient revenue,” and changed the definitional criteria for “Net inpatient revenue,”
altering how the annual assessments are levied; and (5) allowed hospital assessments
levied by municipalities to be paid to Medical Assistance managed care organizations for
the provision of “health care services within the municipality.” H.B. 33, P.N. 2182 (2019),
§§ 4-8. This amended bill, now fifteen pages long, was reported out of the Appropriations
Committee and passed by the full House on June 19, 2019, by a vote of 106-95. Bill 33
then went to the Senate, which passed it by a vote of 26-24 on June 26, 2019. Governor
Wolf signed the bill into law on June 28, 2019. At the time he signed the bill, Governor
Wolf noted his objection to the elimination of General Assistance payments, to which he
[J-94-2019] [MO: Saylor, C.J.] - 8
had repeatedly voiced opposition, but explained that other provisions of the bill effectively
precluded his veto.5
III. The Commonwealth Court had no reasonable basis for determining
that Petitioners failed to establish a sufficient likelihood of success on
the merits to support injunctive relief.
To establish a likelihood of success on the merits, Petitioners need not, and should
not be expected to, prove the merits of the underlying claim. They “need only
demonstrate that substantial legal questions must be resolved to determine the rights of
the parties.” SEIU, 104 A.3d at 506. As a general matter, of course, “[l]egislation enacted
by the General Assembly enjoys a presumption of constitutionality.” Germantown Cab v.
Phila. Parking Auth., 206 A.3d 1030, 1041 (Pa. 2019). Thus, to prevail on their claim,
Petitioners ultimately must shoulder the heavy burden of showing that the legislative
process by which the General Assembly enacted Act 12 “clearly and palpably violate[d]
the Constitution.” Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa. 2013). However, to
obtain preliminary injunctive relief Petitioners must establish only that a substantial legal
5 For various press reports on Governor Wolf’s ambivalence and preference to
preserve General Assistance, see Brief for Petitioners at 8-10. According to one report,
after signing the bill, Governor Wolf “told reporters he was sorry he had to do it but the bill
that the General Assembly sent him contained language that provided ‘tens of millions of
dollars for hospitals in areas that really need that money.’ He added, ‘In a perfect world I
would not have to make this Hobson’s choice.’” Id. at 10 (quoting Jan Murphy, “Dems:
Revive Cash Assistance,” Patriot News, July 5, 2019 (available at
https://www.pennlive.com/news/2019/07/pa-democratic-lawmakers-want-to-revive-cash-
assistance-for-states-poorest-residents-hoping-moral-compass-emerges-in-those-who-
voted-to-shut-it-down.html). Although this Court’s single subject case law has focused
upon logrolling within legislative bodies, other courts have observed that the single-
subject rule “prevent[s] the legislature from forcing the governor into a take-it-or-leave-it
choice when a bill addresses one subject in an odious manner and another subject in a
way the governor finds meritorious.” Hammerschmidt v. Boone Cty., 877 S.W.2d 98, 102
(Mo. 1994). Nothing in our constitution or case law suggests that we should interpret our
single subject rule differently.
[J-94-2019] [MO: Saylor, C.J.] - 9
question exists concerning whether the enactment of Act 12 was infected by fatal
constitutional deficiencies. They have done so.
Petitioners’ constitutional challenges arise under Sections 1 and 3 of Article III of
the Pennsylvania Constitution. Section 1 provides: “No law shall be passed except by
bill, and no bill shall be so altered or amended, on its passage through either House, as
to change its original purpose.” PA. CONST. art. III, § 1. This has come to be known as
the “original purpose” requirement. Petitioners contend that the transformation of the bill
from one originally tailored to eliminate General Assistance payments to one dominated
by numerous unrelated assessment and disbursement provisions directed at a broad
swath of health care providers fatally deviated from the bill’s original purpose.
Section 3 provides: “No bill shall be passed containing more than one subject,
which shall be clearly expressed in its title, except a general appropriation bill or a bill
codifying or compiling the law or a part thereof.” PA. CONST. art. III, § 3. Petitioners
maintain that Act 12 in its final form embraced more than one subject, and, as such,
violated Section 3.
We have explored at length the historical underpinnings of Sections 1 and 3 in
Washington and earlier cases like Neiman and City of Philadelphia v. Commonwealth,
838 A.2d 566 (Pa. 2003). The voters adopted Article III, § 1, at the 1873 constitutional
convention to resist the then-prevailing practice of attaching “riders” to an existing bill
containing subject matter unrelated to the original subject of the bill. Washington,
188 A.3d at 1146. “[I]ts objective was to give legislators considering a bill sufficient notice
of all of its provisions so that they might vote on it with circumspection.” Id. (cleaned up).
[J-94-2019] [MO: Saylor, C.J.] - 10
To cure related abuses, Article III, § 3, first ratified by the voters in 1864, sought to
prevent the use of “omnibus bills.”
[Omnibus bills] combined multiple pieces of legislation, each pertaining to a
different subject, into one bill. Limiting each bill to a single subject matter
serves to ensure that every piece of legislation receives a considered and
thorough review by legislators, and it safeguards the ability of all residents
of the Commonwealth who will be impacted by a bill to have the opportunity
to make their views on its provisions known to their elected representatives
prior to their final vote on the measure.
Washington, 188 A.3d at 1146 (cleaned up).
The purpose of these and other Article III restrictions on the legislative process is
undisputed:
[T]o furnish essential constitutional safeguards to ensure our
Commonwealth’s government is open, deliberative, and accountable to the
people it serves. Such procedural requirements are integral to the
preservation of the people’s freedom from the yoke of secretive laws passed
without full public awareness and debate. Consequently, as these
provisions are mandatory constitutional directives from the people, not mere
advisory guidelines, the General Assembly must comply with them in the
course of the legislative process. For the same reason, the judicial branch
cannot ignore a clear violation because of a false sense of deference to the
prerogatives of a sister branch of government.
Id. at 1147 (cleaned up; emphasis added). Thus, while we must grant the General
Assembly the benefit of some degree of doubt, see Germantown Cab, supra, it is our duty
to interpret the Constitution in a fashion that protects the citizens of the Commonwealth
against the threat of “stealth legislation,”6 which leaves legislators unaware of the full the
contents of a bill, as well as the practice of “log-rolling,” i.e., “embracing in one bill several
distinct matters, none of which could singly obtain the assent of the legislature, and
6 This term is taken from John L. Gedid, History of the Pennsylvania Constitution,
THE PENNSYLVANIA CONSTITUTION: A TREATISE ON RIGHTS AND LIBERTIES 68 (2004) (Ken
Gormley, ed.).
[J-94-2019] [MO: Saylor, C.J.] - 11
procuring its passage by combining the minorities who favored the individual matters to
form a majority that would adopt them all.” Neiman, 84 A.3d at 611 (Pa. 2013) (quoting
City of Phila., 838 A.2d at 586).
To comply with Article III, § 1, legislative amendments must be germane to, and
not change, the original subject of the bill. Washington, 188 A.3d at 1151 (quoting Stilp
v. Commonwealth, 905 A.2d 918, 959 (Pa. 2006)). Amendments to a bill are germane to
its original subject only when the subject of the amendments and the subject of the original
bill “have a nexus to a common purpose.” Washington, 188 A.3d at 1151 (quoting
Neiman, 84 A.3d at 612). Our Court also utilizes this “germaneness test” for a claimed
single subject violation of Article III, § 3. In that connection, we compare the various
provisions of an enactment to determine whether they are germane to a single subject
matter. Leach v. Commonwealth, 141 A.3d 426, 433 (Pa. 2016). The subject of the
amendments and the subject of the original bill must constitute “a unifying scheme to
accomplish a single purpose.” Id. at 430 (quoting City of Phila., 838 A.2d at 589). The
general thrust of these combined constitutional requirements is that a bill not only must
remain broadly faithful to its original subject, but also cannot become festooned during
the amendment process with provisions that are not germane to that unifying subject.
In deference to legislative prerogatives, in considering whether amendments are
germane to a bill’s subject, a court may hypothesize a reasonably broad original purpose
for the bill that encompasses the original text and amendments thereto, regardless of
whether that hypothesized subject is proposed by the party defending the legislation or is
conceived by the court of its own accord. However, when the court must hypothesize an
[J-94-2019] [MO: Saylor, C.J.] - 12
“unduly expansive” subject to sustain an enactment, the General Assembly has violated
its mandate. See id. at 1152.
Before Act 12 can be measured against these constitutional requirements for the
limited purpose of assessing Petitioners’ likelihood of success, it is necessary to
recognize that the phrase is a term of legal art with parameters that have evolved over
time and appeared in different guises. Sometimes we describe the likelihood of success
factor in surpassingly narrow language. For example, we have held that “[a] preliminary
injunction of any kind should not be granted unless both the right of the plaintiff is clear
and immediate and irreparable injury would result were the preliminary injunction not
granted.” McMullan v. Wohlgemuth, 281 A.2d 836, 840 (Pa. 1971). In that case, we
observed that the petitioner’s right to relief was not “clear,” because “[t]he legal issues
raised are complex, and anything but free from doubt.” Id. at 841. Similarly, in Albee
Homes, Inc. v. Caddie Homes, Inc., 207 A.2d 768 (Pa. 1965), we held that a preliminary
injunction is appropriate only where “the plaintiff’s right is clear and the wrong is manifest.”
Id. at 771. Self-evidently, though, to require that a petitioner establish that “the wrong is
manifest” and the right to relief “clear” and “free from doubt,” must be informed by the
countervailing principle that a petitioner “need not prove the merits of the underlying
claim” in seeking a preliminary injunction. See SEIU, 104 A.3d at 506 (emphasis added).
In other decisions, however, we have described and applied a standard more
harmonious with the idea that preliminary injunction proceedings should not become an
arena to decide the underlying challenge. In doing so, we have more convincingly married
the likelihood of success factor to the underlying purpose of preserving the status quo
while a substantial legal challenge is litigated fully. Thus, we have explained:
[J-94-2019] [MO: Saylor, C.J.] - 13
We have stated in many of our decisions that the movant must demonstrate
a clear right to relief. However, since a preliminary injunction is designed
to preserve the status quo pending final resolution of the underlying issues,
it is obvious that the “clear right” requirement is not intended to mandate
that one seeking a preliminary injunction establish his or her claim
absolutely. Where the threat of immediate and irreparable harm to the
petitioning party is evident, that the injunction does no more than restore
the status quo and the greater injury would result by refusing the requested
injunction than granting it, an injunction may properly be granted where
substantial legal questions must be resolved to determine the rights of the
respective parties.
Fischer, 439 A.2d at 1174 (cleaned up); cf. Valley Forge Historical Soc. v. Wash. Mem.
Chapel, 426 A.2d 1123, 1129 (Pa. 1981) (hereinafter “Valley Forge”) (“[W]here, as in the
present case, the status quo sought to be altered has continued undisturbed for more
than sixty years, the merits of the litigation cannot be reached until completion of
discovery and full hearing, it is not clear that the petitioner’s claim is purely speculative
and the three prongs of the test for issuance of a preliminary injunction have been
satisfied, it is unreasonable to deny injunctive relief pending a definitive ruling on the
merits.”7).
Our more recent case law generally has embraced this broader account. Thus, in
SEIU, this Court held that “to establish a clear right to relief, the party seeking an
injunction . . . need only demonstrate that substantial legal questions must be resolved to
determine the rights of the parties.” 104 A.3d at 506. And in Marcellus Shale Coalition,
we repeated SEIU’s formulation, adding that the “substantial legal question” construct
7 The Valley Forge Court perceived a simplified version of the test, relative to our
contemporary six-factor formulation, although I count four factors rather than three. A
close reading reveals that the difference is essentially semantic. None of the
considerations in our six-factor formulation are alien to the earlier cases.
[J-94-2019] [MO: Saylor, C.J.] - 14
“implicates a less deferential standard . . . than would be applicable to a trial court’s final
merits determination.” Marcellus Shale Coal., 185 A.3d at 995.
The distinction is not trivial. As this case illustrates, parties seeking a preliminary
injunction do so because harm is imminent and time is of the essence. Here, for example,
the challenged law was not signed by the Governor until June 28, 2019, with the
challenged provisions scheduled to take effect approximately one month later. Against
this brief run-up to the commencement of Act 12’s harmful effects, Petitioners
simultaneously filed their petition for review and their request for a preliminary injunction
on July 22, 2019. Thus, Petitioners filed both their challenge and their request for an
injunction, including collecting numerous affidavits attesting to irreparable harm, fewer
than four weeks after Governor Wolf signed the bill. DHS filed its response seven days
later; Petitioners filed a reply the very next day; and the court ruled only two days after
that without conducting the hearing that Petitioners had requested. Moreover, it did so in
a six-page per curiam Memorandum Opinion and Order that dedicated only one
conclusory paragraph each to the two factors that DHS argued were unsatisfied.
Such haste, necessary or advisable though it may be in addressing a request for
a preliminary injunction in the face of imminent irreparable harm, invites abbreviated
advocacy and hurried judicial assessments of the relative merit of constitutional
challenges for purposes of determining the likelihood of success on the merits. However,
no such haste is required in litigating the merits themselves. Indeed, the chief function of
a preliminary injunction is, where warranted, to preserve the status quo while the
underlying challenge runs its full course, with each side given ample opportunity to utilize
all of the customary tools and the lengthier time periods typically granted litigants to fully
[J-94-2019] [MO: Saylor, C.J.] - 15
develop and advocate their positions. Put simply, to serve its purpose, a preliminary
injunction must be litigated at a sprint, while the underlying constitutional challenge should
more closely resemble a marathon.8
Before explaining my disagreement with the Majority’s analysis, I first must
emphasize that the Commonwealth Court’s rejection of the likelihood of success factor
relied upon clearly erroneous reasoning.9 The court did not even seek to assess the
potential constitutional merit of Petitioners’ original purpose and single subject
challenges. Instead, it relied upon its dubious objection to Petitioners’ request that the
court enjoin only those provisions of Act 12 that terminate General Assistance payments,
allowing the various revenue and assessment provisions that did not affect those
payments to continue in effect.
The court reasoned that Petitioners could seek preliminary injunctive relief only by
insisting that the court enjoin operation of Act 12 in its entirety. See Weeks, Slip Op. at 5
(opining that Petitioners’ “request for a piecemeal injunction of Act 12 is improper”). This
conclusion appears to have arisen from a clear misapprehension of our decisions in
Neiman and City of Philadelphia. Neither of those cases concerned a preliminary
injunction. In both Neiman and City of Philadelphia, our Court rendered a final decision
on the merits of single subject challenges to the statutes under review. Finding such
violations, it was necessary to strike the unconstitutionally enacted statutes in toto to
8 By way of example, this Court did not finally rule upon the constitutionality of Act 80
in Washington until approximately six years after its effective date.
9 Finding an alternative reasonable basis for sustaining the lower court’s denial of
an injunction, the Majority declines to address the only basis the Commonwealth Court
ventured to support its determination. See Maj. Op. at 5 n.3.
[J-94-2019] [MO: Saylor, C.J.] - 16
permanently rectify the constitutional violation. However, a preliminary injunction seeks
not to finally determine the rights of the parties, but only to “preserve the status quo as it
exists or previously existed before the acts complained of, thereby preventing irreparable
injury or gross injustice.” Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d
1277, 1286 (Pa. 1992) (emphasis in original). Moreover, a preliminary injunction must be
narrowly tailored in order to achieve that objective. See Summit Towne Ctr., 828 A.2d
at 1001 (citing John G. Bryant, Inc. v. Sling Testing & Repair, Inc., 369 A.2d 1164, 1167
(Pa. 1977)) (preliminary injunction must be “reasonably suited to abate the offending
activity”). Consistent with these principles, it is best to enter a preliminary injunction that
enjoins only those provisions of a challenged legislative enactment that will cause
irreparable harm if they take effect. Only if Petitioners were to prevail on the merits will
the court be obligated to strike down Act 12 in its entirety. Neither Neiman, nor City of
Philadelphia, nor any other case of which I am aware precludes issuing a preliminary
injunction of the narrow scope that Petitioners have sought, where it is fashioned to abate
irreparable harm while doing no violence to the continued operation of provisions that are
not alleged to cause such harm.
In any event, the Commonwealth Court conducted no analysis of Petitioners’
likelihood of prevailing on their substantive challenges. However, the Majority directly
confronts, and unequivocally rejects, the merits of Petitioners’ constitutional challenges
to Act 12. I address the Majority’s analyses in the order in which it presents them.
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First, the Majority addresses Article I, § 3’s single subject requirement, and cites
numerous opinions in which single subject challenges were successful,10 before
examining two decisions by this Court denying such challenges. See Maj. Op. at 9-10
(reviewing Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth,
877 A.2d 383 (Pa. 2005) (hereinafter, “PAGE”); Spahn v. Zoning Bd. of Adjustment,
977 A.2d 1132 (Pa. 2009)). In Spahn, the bill at issue amended the Home Rule Act,
which affects only first-class cities, i.e., the City of Philadelphia. The original bill at issue
increased penalties and forfeitures for violations of the Philadelphia Code, modifying
53 P.S. § 13131 concerning the Home Rule Act’s “[g]eneral grant of power and authority.”
Spahn, 977 A.2d at 1148. The amendment that challengers suggested rendered the bill
violative of the single-subject rule addressed standing in an amendment to
Section 13131’s companion provision, 53 P.S. § 13131.1, defining “[s]pecific powers.”
Spahn, 977 A.2d at 1148. This Court rejected the single-subject challenge because “both
proposed amendments involved changes directly related to the grants of powers and
limitations on Philadelphia Home Rule,” a “single unifying subject” that passed
constitutional muster. Id. at 1148-49.
In PAGE as well, this Court found no single subject violation. The statute at issue
in PAGE had begun as a one-page bill that concerned only the Pennsylvania State
Police’s support role in “performing criminal history checks and the verification of
fingerprints of applicants for licensure under the Race Horse Industry Reform Act of
1981.” PAGE, 877 A.2d at 391. Before the bill’s third and final consideration in the
10 The Majority collects cases finding single subject violations decided by this Court
and the intermediate appellate courts, see Maj. Op. at 8 & n.5, but discusses at length
only this Court’s decision in City of Philadelphia, supra. See id. at 6-7.
[J-94-2019] [MO: Saylor, C.J.] - 18
Senate, amendments increased the bill to 145 pages in length, including seven chapters
and eighty-six sections. A bill that started as one concerning only background checks
under a 1981 Act governing horse-racing now created the Pennsylvania Gaming Control
Board, and included a panoply of licensing, regulatory, and revenue generation and
disbursement issues orbiting around the General Assembly’s legalization of slot machine
casinos. In addition to creating the Pennsylvania gaming industry from whole cloth, the
bill in PAGE touched upon such disparate topics as economic development and tourism,
property tax relief, and other matters with attenuated connections to the burgeoning
industry. Id. at 392.
The Court divided the single-subject challenge into two discrete concerns. First,
the Court found a single unifying subject, specifically “the regulation of gaming,” which
was not as broad as “municipalities,” the subject the Court found unsustainably broad in
City of Philadelphia. Id. at 396. In the second phase of its analysis, the Court separately
considered the argument that the many provisions governing the bill’s distribution of
gaming revenues lay outside the purpose of the bill, which challengers characterized as
“development of the ‘horse race industry.’” Id. Under the amended act, gaming revenues
would be distributed to airports, convention centers, urban development debt service,
volunteer fire departments, general law enforcement, and other disparate public
purposes. This Court identified this issue as implicating “a more specialized aspect” of
single subject law, concerning the “creation and treatment of special funds generated
ancillary to substantive legislation.” Id. at 397. The question was whether “a source-only
subject nexus” passes the germaneness test—i.e., whether the fact that the monies in
question derived from gaming brought the specifics of those monies’ disbursement under
[J-94-2019] [MO: Saylor, C.J.] - 19
gaming regulation’s umbrella. Id. Ultimately, this Court found that the “source-only”
nexus sufficed.
In applying these cases presently, the Majority posits the following unifying subject:
[Act 12] as a whole relates to the provision of benefits pertaining to the basic
necessities of life to certain low-income individuals. Some of these benefits
may be in the form of cash assistance for such items as basic utility
services, food, clothing, and personal hygiene products, while others may
be supplied through medical or nursing-home care, the delivery of which is
incentivized by payments to providers. Regardless, such a topic is, in our
view, both unifying and sufficiently narrow to fit within the single-subject
rubric as that concept has been spelled out in the reported decisions of
Pennsylvania appellate courts.
Maj. Op. at 10. Hence, the Majority not only finds no substantial question with regard to
the single-subject challenge, the only question we are called upon to consider, but it
effectively decides that question on the merits in favor of DHS, the consummation of its
decision a mere formality on remand.
With regard to Article III, § 1, the Majority relies upon our decision in Stilp. In that
case, this Court explained that, in assessing an alleged original purpose violation, a court
“must consider the original purpose of the legislation in ‘reasonably broad terms,’
compare it to the final purpose, and then decide whether there has been an alteration or
amendment that changed the original purpose.” Stilp, 905 A.2d at 956 (quoting PAGE,
877 A.2d at 409).
PAGE provides important insight into the care we must take to honor the
constitutional original purpose directive. In PAGE, this Court offered a corrective to its
earlier decision in Consumer Party of Pa. v. Commonwealth, 507 A.2d 323 (Pa. 1986),
which had diverged from the original purpose (as it were) of Article III, § 1. PAGE
described the flaws of the then-prevailing Consumer Party approach as follows:
[J-94-2019] [MO: Saylor, C.J.] - 20
A unanimous Court, while stressing the mandatory nature of Article III,
Section 1, set a very high bar for finding a violation of this provision. Our
Court recognized the practical realities of passing legislation and narrowly
focused the inquiry. It reached its decision that Article III, Section 1 was not
violated, not by comparing the original purpose to the purpose at final
passage, but by considering only the bill at final passage. Consistent with
this concentration, our Court inquired as to whether the legislation put the
members of the General Assembly and others interested on notice so that
they could “act with circumspection.” [Consumer Party, 507 A.2d at 335.]
As stated by the Court, “here the bill in final form with a title that clearly
stated its contents, was presented to each house for its consideration and
adoption. Under these circumstances, there is no basis for sustaining a
challenge under Article III, Section 1.” Id.
****
Upon closer inspection of our now close to twenty-year-old decision, we find
that the analysis offered in Consumer Party resembles the analysis set forth
for reviewing challenges under Article III, Section 3 and fails to give full
significance to the language employed in the constitutional provision itself—
“change its original purpose.” This verbiage certainly suggests a
comparative analysis, that is, some form of comparison between an
“original” purpose and a final purpose to determine whether an
unconstitutional alteration or amendment has occurred so as to change the
original purpose of the bill. . . .
[W]e now hold that a court entertaining a challenge to legislation under
Article III, Section 1 must conduct a two-part inquiry. First, the court will
consider the original purpose of the legislation and compare it to the final
purpose and determine whether there has been an alteration or amendment
so as to change the original purpose. Second, a court will consider, whether
in its final form, the title and contents of the bill are deceptive.[11]
PAGE, 877 A.2d at 407-09.
The Majority gleans from Stilp the proposition that “a potential unifying purpose is
not judged solely according to the provision with which the bill started, but by reference
to a sufficiently broad (albeit not overly-broad) purpose within which all the amendments
in the final bill may also fit.” Maj. Op. at 12. I question whether this approach is true to
11 Petitioners do not claim in this case that the title of Act 12 is misleading.
[J-94-2019] [MO: Saylor, C.J.] - 21
the purpose of Section 1, as described by the Court in PAGE, which called for a
reasonably broad account of the original purpose followed by the prescribed comparison
to subsequent amendments.
The least we can ask is that any reasonably broad subject we superimpose upon
a bill for purposes of original purpose analysis should be one that a reasonable reader
might glean from the original text without the benefit of hindsight informed by later
amendments. The Majority finds that the same unifying purpose quoted above
necessitates a ruling in favor of DHS. By implication, then, we must assume that a
reasonable reader might describe a bill that in its original form only contained provisions
specifically tailored to eliminate General Assistance payments as “relat[ing] to the
provision of benefits pertaining to the basic necessities of life to certain low-income
individuals.” Maj. Op. at 11.
On the substance of this point, filtered through the narrow reasonable likelihood of
success inquiry to which we should limit our consideration, I find this Court’s decision in
Washington especially instructive. In that case, the Court held that Act 80, the
legislature’s earlier attempt to eliminate General Assistance payments, was
unconstitutional under Article III, § 4, of the Pennsylvania Constitution and did not
definitively rule on the alternative original purpose and single subject challenges.
However, we strongly suggested that the ultimate bill in that case, which in material ways
anticipated Act 12 in subject matter and scope, would not survive a single subject
challenge. Specifically, the Court expressed skepticism that germaneness could be
achieved under the proposed subject, “the regulation and funding of human service
programs regulated by [DPW].” Washington, 188 A.3d at 1154 n.36. We found that
[J-94-2019] [MO: Saylor, C.J.] - 22
formulation “entirely too expansive, as it involve[d] a wide panoply of human service
programs established by a multiplicity of statutes, not all of which are contained in the
Public Welfare Code.” Id. Moreover, we specifically found a nursing home assessment
program not unlike the assessments added by amendment to Act 12 in this case to be
unlike other provisions, including those terminating General Assistance payments. Id.
The Majority’s proposed purpose appears to me very nearly as broad as the one we
characterized in Washington as “entirely too expansive.” At a bare minimum, this aspect
of our decision in Washington makes it difficult to conclude that Petitioners do not present
a substantial germaneness question with implications for their original purpose and single
subject challenges.
In issuing its apparently conclusive assessment of the merits of the underlying
challenge, the Majority illustrates why a merits challenge should be litigated outside the
context of the preliminary injunction inquiry and in the fullness of time. The degree to
which it has preempted what might be more thoroughly developed is best illustrated in
the above-quoted passage, which I reproduce for ease of reference:
[Act 12] as a whole relates to the provision of benefits pertaining to the basic
necessities of life to certain low-income individuals. Some of these benefits
may be in the form of cash assistance for such items as basic utility
services, food, clothing, and personal hygiene products, while others may
be supplied through medical or nursing-home care, the delivery of which is
incentivized by payments to providers. Regardless, such a topic is, in our
view, both unifying and sufficiently narrow to fit within the single-subject
rubric as that concept has been spelled out in the reported decisions of
Pennsylvania appellate courts.
Maj. Op. at 10.
The Majority’s conclusion assumes far more than it explains. Who are the “certain
low-income individuals” benefitted by the various hospital assessments and incentives?
Do they substantially overlap or subsume the narrow class of approximately 12,000
[J-94-2019] [MO: Saylor, C.J.] - 23
General Assistance recipients represented by Petitioners in this case, the only people
affected by House Bill 33 in its original form? Are the incentive payments to providers
earmarked for medical care to General Assistance cash recipients or anyone else, or is
that left to the discretionary disbursement of hospital administrators? Relatedly, may any
class of those providers fulfill their obligations even if they render no services to General
Assistance cash recipients at all? Precisely what medical or nursing home care is
facilitated by the non-General Assistance provisions of Act 12—to whom, in what fashion,
and to what end? In what specific way is the delivery of such care “incentivized” by
Act 12? In what direct way do General Assistance recipients benefit from any of these
provisions? How much narrower is the Majority’s proposed subject, really, than “the
regulation and funding of human services programs regulated by” DHS, which we
pointedly called into question in Washington?
Some of these questions may find answers in statutes, others in regulations
promulgated thereunder. Still others may require factual inquiries. What matters, though,
especially with respect to any fact-finding that may be warranted, is that these questions
have not yet been litigated in search of the correct merits ruling, and the lower court
should be the first tribunal to assess the relevance and effect of these questions.
Cf. Valley Forge, 426 A.2d at 1129 (deeming it “unreasonable to deny injunctive relief
pending a definitive ruling on the merits” where “the merits of the litigation cannot be
reached until completion of discovery and full hearing”). But the Majority either assumes
their answers or deems them irrelevant to the constitutional inquiry, effectively denying
Petitioners an opportunity to fully develop their challenges and present them to the lower
court.
[J-94-2019] [MO: Saylor, C.J.] - 24
In light of these concerns, and informed by what I believe to be a fair understanding
of the competing interests that a court must balance in determining whether to grant
injunctive relief, I believe that Petitioners have demonstrated that substantial legal
questions exist regarding whether the General Assembly satisfied Article III, §§ 1 and 3,
in enacting Act 12, questions we acknowledged and indeed fueled in Washington. These
questions deserve a full and fair hearing in the Commonwealth Court, without this Court’s
heavy thumb on the scale. In tandem with the other relevant factors,12 these questions
support the entry of preliminary injunctive relief pending a final determination.
It is not at all clear that there is a common nexus between the subject of the original
bill, ending General Assistance payments, and that of the later amendments, the
generation and disbursement of revenue for the provision of health care services, such
that they may be considered part of a unifying scheme to accomplish a single overarching
purpose discernible in the original bill. This same problem suggests an open single
subject question as well. That we can identify sound reasons for rejecting Petitioners’
constitutional challenges on the merits—perhaps by analogy to Spahn and PAGE, as the
Majority has it—does not by itself warrant the conclusion that there is no sound basis for
the lower court to rule in Petitioners’ favor after full development and advocacy, an
outcome perhaps sustainable under City of Philadelphia as informed by our dicta in
Washington. All we should be determining in this necessarily abbreviated proceeding is
whether Petitioners have presented a substantial question, and these competing cases
12 DHS’s perfunctory refutations of the remaining four factors were little more than
boilerplate, and they do not even mention them on appeal, despite the fact that Petitioners
address them in their brief to this Court.
[J-94-2019] [MO: Saylor, C.J.] - 25
illustrate that they have. The standard articulated in SEIU and Marcellus Shale Coalition
requires no greater showing.
Given the magnitude of the harm to General Assistance recipients, the apparent
lack of substantial countervailing harm to DHS, and the lower court’s cursory and at least
partially erroneous resolution of the relevant questions, I discern no reasonable basis for
sustaining that court’s denial of Petitioners’ request for preliminary injunctive relief. Thus,
I would conclude that Petitioners met their burden of demonstrating their likelihood of
success on the merits in light of the substantial legal questions that exist regarding the
constitutionality of Act 12 under Article III, §§ 1 and 3, and that their harm is irreparable.
Accordingly, I would reverse the lower court’s order.
IV. The Majority’s analysis renders the proceedings on remand an
unnecessary formality.
This leads me to a final observation. The Majority leaves no doubt about how it
views the merits of the underlying challenge, even if it closes by framing its disposition
relative to our deferential standard of review. See Maj. Op. at 13 (finding that the lower
court “did not abuse its discretion in determining that [Petitioners] failed to carry their
burden with regard to the likelihood-of-success-on-the-merits aspect of the standard for
preliminary injunctive relief”). Nothing about the Majority’s observations suggests that its
views of the original purpose and single subject challenges are provisional or will change
in light of further proceedings below. Indeed, it defies credulity to speculate that the
Commonwealth Court, confronted with the Majority’s analysis, might rule in Petitioners’
favor.
Notably, this Court may exercise extraordinary jurisdiction under the Judicial Code:
Notwithstanding any other provision of law, the Supreme Court may, on its
own motion or upon petition of any party, in any matter pending before any
[J-94-2019] [MO: Saylor, C.J.] - 26
court or magisterial district judge of this Commonwealth involving an issue
of immediate public importance, assume plenary jurisdiction of such matter
at any stage thereof and enter a final order or otherwise cause right and
justice to be done.
42 Pa.C.S. § 726. Clearly, this litigation involves a matter of immediate public importance.
At Petitioners’ invitation, the lower court and this Court have considered and decided the
injunction litigation on an expedited basis. Although extraordinary jurisdiction “is invoked
sparingly and only in circumstances where the record clearly demonstrates the
petitioners’ rights,” Bd. of Revision of Taxes, City of Phila. v. City of Phila., 4 A.3d 610,
620 (Pa. 2010), the Majority’s opinion leaves no practical doubt how it views the rights of
the parties. Under such circumstances, it would be better simply to put the matter to bed
than to invite parties, attorneys, and the lower court to continue to litigate a fait accompli.
[J-94-2019] [MO: Saylor, C.J.] - 27
Weeks, J., Aplts. v. DHS
Combined Opinion