Commonwealth Court Questioning Favors Plaintiffs in Major Lawsuit

Contact: Conner Drigotas, 844.293.1001,

June 8, 2016, HARRISBURG, Pa.—Today at the Commonwealth Court, judges repeatedly expressed skepticism at Governor Wolf’s legal defense in the Fairness Center’s lawsuit to protect home care recipients and providers from Wolf’s attempt to force unionization on them via executive order.

The suit argues that the order, issued soon after Wolf took office, circumvents the state Legislature and violates the constitutional separation of powers by making law.

Click here for a video of Dave Smith telling his story in his own words.

“Today, questions from the Court made it clear that the governor’s legal case is flimsy at best,” commented David Osborne, president and general counsel for the Fairness Center. “The paper-thin argument that Wolf’s order essentially does nothing to change existing law was shredded by the justices who recognized that the order both makes law and effectively sets up a collective bargaining agreement prohibited by state law.”

Judge McCullough, in observing that the executive order’s “memorandum of mutual understanding” constitutes a collective bargaining agreement by another name, said, “If it looks like a duck and it walks like a duck, it’s a duck.”

Judge Leavitt noted that the election process described in the order was “very specific” and “very much goes to the argument that what this executive order is attempting to do is set up a de facto collective bargaining arrangement for direct care workers who are expressly exempt from the Pennsylvania Labor Relations Act.”

The governor’s legal defense claimed the order lacks force of law and merely opens lines of communication between the governor and home care providers. Yet Judge Brobson noted, “Adding a little tag line at the end of an executive order . . . doesn’t covert it into non-law.” He continued, “You’re asking us to believe that it’s just something that can just be ripped up and put in the bottom of a bird cage?”

Brobson also highlighted United Home Care Workers of Pennsylvania fliers sent to home care workers across the state urging a vote in a “union” election, including a tear-off to authorize automatic deduction of union dues.

After the governor’s counsel disputed the idea that the order enabled unionization, Brobson asked whether the governor had contacted this union to tell them they were misinterpreting the order. The governor had not done so, according to his counsel.

“The governor’s defense lacks a legal leg on which to stand,” Osborne continued. “Today’s questions from the Court underscore that this executive order violates our state constitution and is a significant overreach of executive power.”


The Fairness Center represents Dave Smith, homebound with muscular dystrophy, and Don Lambrecht, Dave’s home care worker for 25 years. Earlier this year, Governor Wolf signed an executive order allowing unions to force representation on workers like Don and exact dues payments—up to nearly $8 million per year—from them, while stripping individuals like Dave of their rights as employers.

In April of 2015, a Commonwealth Court judge issued a preliminary injunction halting the full enforcement of Wolf’s order.

Case Documents:

David Osborne is available for comment today. Please contact Conner Drigotas, 844.293.1001, schedule an interview.

# # #

The Fairness Center is a nonprofit, public interest law firm offering free legal services to those facing unjust treatment from public employee union leaders. For more information visit