Wolf eviction ban, now expired, faces pending challenge in court

(*This story was updated on Tuesday, 9/1/20 to include comment from Senate Republicans.)

As tenants across Pennsylvania prepare to face new eviction claims for the first time in six months, the Wolf administration is under deadline to defend its now-lapsed eviction moratorium in Commonwealth Court, court documents show.

The state Supreme Court has tossed other challenges to Gov. Tom Wolf’s eviction moratorium, including one from a statewide landlords association and another from a Clarion County attorney.

But the Commonwealth Court ruled on Aug. 3 that a case brought by Lebanon-based lawyer David Warner could proceed, and ordered attorneys representing Wolf to submit briefs responding to Warner’s petition by Sept. 2, a court docket shows.

Warner petitioned the Commonwealth Court on May 12 for an emergency review of Wolf’s May 7 executive order, which banned new eviction and foreclosure proceedings through the end of August.

This isn’t the first time Warner has challenged Wolf’s executive powers. 

A partner at a Lebanon law firm and solicitor for Lebanon County, Warner represented the Lebanon County Commissioners when they sued Wolf in May, arguing Wolf had no authority to withhold federal CARES assistance because the county tried to circumvent his phased reopening plan.

The parties reached a settlement in mid-August.

Warner could not be immediately reached for comment Tuesday morning. A call to the Lebanon Rental Property Owners Association, to which Warner belongs, also went unanswered Tuesday. 

He posted about the suit on the association’s Facebook page in May, telling fellow members that “I fully expect to lose.”

Warner’s suit may have nonetheless affected Wolf’s executive actions. The Governor’s latest ban expired Monday, permitting courts statewide to start processing eviction claims.

His office said it was unable to enact more protections for tenants.

“The issue is in litigation,” spokeswoman Lyndsay Kensinger said in a written statement Monday evening. 

Tenants in Pennsylvania have been shielded from evictions and foreclosures for more than six months, first under an order from the state Supreme Court and then under a pair of orders from Wolf. 

Housing advocates have warned of an imminent eviction crisis as landlords move to eject tenants who fell behind on rent during a period of record-high unemployment. 

They have called on Wolf to issue a new moratorium, which would shield tenants from eviction while lawmakers try to fix a bungled rent assistance program. 

Wolf has equivocated on the issue, claiming last week that he was unable to extend the ban. He then said Monday that he “might” order a new one, before his office doubled down on its stance that new tenant protections would have to come from the legislature.  

Wolf reiterated that position during a press conference Tuesday, when he appeared with Senate Minority Leader Jay Costa, D-Allegheny, to call on the Legislature to help tenants. 

“We have the capacity to do this,” Wolf said. “We have the resources, we need the will.”

Republican leaders have rejected Wolf’s calls to action, saying the Governor has not broached the topic of evictions with the Legislature since July.

*”He has offered zero language that would provide guidance to the legislature on how to achieve what he wants,” Senate Majority Leader Jake Corman, R-Centre, said in a prepared statement Tuesday. “Governor Wolf is playing politics with people’s lives.”

Wolf could not say on Tuesday what section of state law prevented him from issuing a new executive order. 

Legal analysts have cast doubt on Wolf’s claim that his hands are tied. They told the Capital-Star last week that state law permitted Wolf to issue a new emergency order to forestall evictions, just as he did in June when his first order expired. 

Matthew Rich, a housing attorney at Midd Penn Legal Services in Harrisburg, said Warner’s case appeared similar to the petitions the Supreme Court rejected this summer, though he declined to comment on its merits Tuesday. 

But Rich found it credible that Wolf might decline to issue a new executive order as long as another one was the subject of a pending lawsuit. 

“The longer the executive order is in place, it does open up the door for there to be legal challenges to his authority,” Rich said. 

Pa.’s moratorium on evictions has ended. Here’s what that means.