        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David W. Smith and                         :
Donald Lambrecht,                          :
                           Petitioners     :
                                           :
             v.                            :   No. 177 M.D. 2015
                                           :   Argued: June 8, 2015
Governor Thomas W. Wolf, in his            :
official capacity as Governor of the       :
Commonwealth of Pennsylvania and           :
Commonwealth of Pennsylvania,              :
Department of Human Services,              :
                          Respondents      :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                           FILED: October 14, 2016

             Before this Court are the parties’ cross-applications for summary relief.
David W. Smith (Smith) and Donald Lambrecht (Lambrecht) (collectively,
Petitioners) filed a petition for declaratory and injunctive relief seeking to invalidate
an executive order (Executive Order) issued by Governor Thomas W. Wolf
(Governor Wolf) pertaining to direct care workers (DCW) whose services to
eligible aged or disabled individuals (participants) are paid by the Department of
Human Services, Office of Long Term Living (Department). The Department and
Governor Wolf (collectively, Respondents) also filed preliminary objections,
which are before us for disposition.
               Petitioners assert the Executive Order is an unauthorized exercise of
power, is unconstitutional and is in conflict with existing labor and health laws.
Respondents counter that Petitioners’ claims are not ripe and their challenge lacks
merit. Addressing similar contentions, this Court recently analyzed the validity of
the Executive Order in Markham v. Wolf, __ A.3d __ (Pa. Cmwlth., No. 176 M.D.
2015, filed September 22, 2016) (en banc) (Markham). Following Markham, we
grant Petitioners’ application for summary relief as to those provisions of the
Executive Order declared invalid (Sections 3 and 4, and parts of Sections 1 and 5).
Also, we deny Respondents’ application for summary relief as to the invalid
provisions of the Executive Order. Further, we overrule their preliminary objections
to the extent they are not mooted by our decision on the merits.


                                      I. Background
               Other than the identity of the Petitioners, the background of this case
is substantially similar to that set forth in Markham. Therefore, we incorporate the
“Background,” including terminology, from Markham by reference.


               Petitioners here filed a petition for review containing identical claims
to those contained in the petition for review the petitioners in Markham filed.
Respondents filed preliminary objections to the petition for review. Specifically,
they allege the action is not ripe because Petitioners raise purely speculative harm.
Respondents also object in the nature of a demurrer to the claims that the
Executive Order does the following: exceeds the Governor’s authority; conflicts
with statutory authority, (the Attendant Care Services Act,1 (Act 150) the

      1
          Act of December 10, 1986, P.L. 1477, as amended, 62 P.S. §§3051-3058.



                                              2
Pennsylvania Labor Relations Act2 (PLRA), and the Public Employe Relations
Act3 (PERA)); and, violates the PLRA or PERA.


               Lambrecht is a DCW who provides personal care to Smith, a
participant in a Home Care Program through Act 150. Lambrecht has provided
services to Smith for more than 25 years. Petitioners claim a direct, substantial and
present interest in the controversy.


               Petitioners allege the Executive Order interferes with the unique
relationship between a DCW providing in-home care, and the participant who
employs him. Specifically, Smith alleges “the insertion of a union between he and
his [DCW] will limit [his] authority … to make decisions about, direct the provision
of, and control his direct care services.” Pet. for Review, ¶3. Respondents thus
disturb the employment relationship, creating a barrier and alternative
communication structure regarding terms and conditions. Lambrecht also claims
injury in that his “name and home address will be made available to employee
organizations for the purpose of canvassing and recruitment, and he will be
subjected to unwanted exclusive representation by a labor organization … [that]
may materially alter the terms and conditions of [his] employment.”               Id., ¶4.
Moreover, Lambrecht alleges he did not want representation by UHCWP. As a
result, he is harmed because such representation is required for at least one year
under the Executive Order’s terms.


      2
          Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§211.1-.13.
      3
          Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101-.2301.



                                                3
             The parties entered into stipulations prior to the preliminary injunction
hearing in April 2015. Then President Judge Dan Pellegrini conducted the hearing,
after which he issued a preliminary injunction order identical to the order issued in
Markham. The parties then entered into a second stipulation in June 2015.


             After briefing, and hearing argument seriately with Markham, this
case is ready for disposition.


                                    II. Discussion
             The underlying claims are the same as those set forth in Markham.
Accordingly, we adopt our analysis that applies to this case. However, we analyze
Respondents’ preliminary objection to the ripeness of Petitioners’ claim separately.


                             A. Preliminary Objections
             “The question of standing is rooted in the notion that for a party to
maintain a challenge to an official order or action, he must be aggrieved in that his
rights have been invaded or infringed.” Franklin Twp. v. Dep’t of Envtl. Res., 452
A.2d 718, 719 (Pa. 1982). Ripeness involves a related challenge to whether the
injury alleged is speculative as opposed to real and concrete. See Robinson Twp.,
Washington Cnty. v. Com., 83 A.3d 901 (Pa. 2013) (recognizing overlap between
doctrines of standing and ripeness, especially as to allegations of speculative harm).


             Our Supreme Court recognized DCWs and participants are
sufficiently impacted by the Executive Order “from a standing perspective.”
Markham v. Wolf, 136 A.3d 134, 146 (Pa. 2016). Here, Petitioners are a DCW



                                           4
and a participant who fostered a unique relationship over more than 25 years.
They have an interest in maintaining the integrity of their relationship. Moreover,
participants have a direct, substantial and immediate interest in maintaining control
over their relationship with DCWs, which control is protected by Act 150.


             Petitioners allege the Executive Order causes harm in that it interferes
with the unique DCW-participant relationship by inserting the Department in a
position of authority and influence, without input from participants. Further, the
Executive Order created a process for unionizing DCWs, and empowering a
Designated Representative to negotiate terms and conditions of employment with
the Department. That negotiation process, called “meet and confer,” is designed to
result in a MOU that may bind participants in terms of wages, hours and benefits.


             Although the specifics as to how that relationship would be altered are
not now known, the interference with the relationship is concrete, and presently
occurring. Participants’ abilities to control and direct their care are undermined
when they are excluded from a negotiation process designed to affect terms and
conditions of employment. As employers, participants have a real and concrete
interest in maintaining the status quo that the Executive Order disturbs. Contrary
to Respondents’ characterization, that harm is not speculative.


             For these and the reasons set forth more thoroughly in Markham, we
overrule Respondents’ preliminary objection to the ripeness of Petitioners’ claims.




                                         5
                                    B. Summary Relief
               From our review, Petitioners’ application for summary relief is
substantively similar to the application the petitioners filed in Markham. Thus, we
adopt and apply our analysis in Markham to the declaratory and injunctive relief
claims here.


                                     III. Conclusion
               For the reasons set forth above and as incorporated from Markham,
we grant Petitioners’ application for summary relief in part as to those sections of
the Executive Order we declared invalid in Markham, (E.O. Sections 1(d) and 1(e),
3 and 4, and Sections 5(b) through 5(g)).        Respondents are also enjoined from
enforcing those sections of the Executive Order or taking any actions in accordance
with those sections. Pa. Pub. Util. Comm’n v. Israel, 52 A.2d 317 (Pa. 1947).
Conversely, we deny Respondents’ application for summary relief in part, as to the
invalid sections and subsections of the Executive Order. Respondents’ application
for summary relief is granted in part, only as to the provisions of the Executive
Order that retain their validity.


               As a result, the preliminary objections of Respondents in the nature of
a demurrer are rendered moot. See Leach v. Turzai, 118 A.3d 1271 (Pa. Cmwlth.
2015), aff’d, 141 A.3d 426 (Pa. 2016). We overrule Respondents’ preliminary
objection challenging the ripeness of Petitioners’ claims.



                                         ROBERT SIMPSON, Judge
Judge Covey did not participate in the decision in this case.


                                           6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David W. Smith and                        :
Donald Lambrecht,                         :
                          Petitioners     :
                                          :
             v.                           :     No. 177 M.D. 2015
                                          :
Governor Thomas W. Wolf, in his           :
official capacity as Governor of the      :
Commonwealth of Pennsylvania and          :
Commonwealth of Pennsylvania,             :
Department of Human Services,             :
                          Respondents     :


                                    ORDER

             AND NOW, this 14th day of October, 2016, having declared certain
sections and subsections of Executive Order 2015-05 INVALID in Markham v.
Wolf, __ A.3d __ (Pa. Cmwlth., No. 176 M.D. 2015, filed September 22, 2016) (en
banc), Petitioners’ Application for Summary Relief pursuant to Pa. R.A.P. 1532(b)
is GRANTED in PART, only as to Sections 1(d) and 1(e), 3, 4, and Sections 5(b)
through 5(g) of the Executive Order; and JUDGMENT is entered in their favor as
to those sections and subsections only. Respondents’ Application for Summary
Relief is DENIED in PART, as to Sections 1(d) and (e), 3 and 4, and Sections 5(b)
through 5(g) of Executive Order 2015-05, and GRANTED in PART, and
JUDGMENT is entered in their favor as to the remaining provisions.


             Pursuant   to   Markham,         Respondents   are   ENJOINED      from
prospectively enforcing the sections of Executive Order 2015-05 declared invalid
and void ab initio, or taking any future actions in accordance with those sections.
            AND FURTHER, Respondents’ preliminary objection to the ripeness
of Petitioners’ claims is OVERRULED for the reasons set forth in the foregoing
opinion. Respondents’ preliminary objections in the nature of a demurrer are
DISMISSED as MOOT.




                                    ROBERT SIMPSON, Judge
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David W. Smith and                       :
Donald Lambrecht,                        : No. 177 M.D. 2015
                                         : Argued: June 8, 2016
                         Petitioners     :
                                         :
                  v.                     :
                                         :
Governor Thomas W. Wolf, in his          :
official capacity as Governor of the     :
Commonwealth of Pennsylvania and         :
Commonwealth of Pennsylvania,            :
Department of Human Services,            :
                                         :
                         Respondents     :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge


DISSENTING OPINION
BY JUDGE WOJCIK                                      FILED: October 14, 2016

            I respectfully dissent for the reasons stated in my dissenting opinion in
Markham v. Wolf, __ A.3d __ (Pa. Cmwlth., No. 176 M.D. 2015, filed September
22, 2016) (en banc).




                                       MICHAEL H. WOJCIK, Judge
