On Oct. 16, Silvana Drill, owner of Palmyra restaurant Taste of Sicily, appeared before Magisterial District Judge Carl Garver and was found not guilty of operating her restaurant in violation of Gov. Tom Wolf’s COVID-19 pandemic mitigation orders.

Taste of Sicily had become a prominent symbol of the opposition by business owners and some local elected officials to the governor’s anti-coronavirus measures, which required closing or restricting the operation of many businesses, and mandated face masks in certain situations.

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Lebanon County District Attorney Pier Hess Graf had announced on several occasions, including at a public protest rally at the restaurant, that her office would not prosecute violations of the governor’s COVID mitigation orders.

One media outlet initially incorrectly reported that Taste of Sicily “has won a lawsuit against Governor Tom Wolf.” That story was later updated to remove references to a “lawsuit,” but still incorrectly described the case as being “against Governor Tom Wolf.”

In fact, Drill was charged before Magisterial District Judge Carl Garver with a “Non-Traffic Citation,” which was filed by the Commonwealth of Pennsylvania’s Department of Agriculture. Gov. Wolf did not file the citation, was not named in it, and Drill did not file a lawsuit against the governor.

The citation filed against Drill was not a “lawsuit,” but a “summary offense” under Pennsylvania law. Summary offenses are the lowest level of criminal offenses in Pennsylvania.

“Lawsuits” are generally considered by the legal system to be civil proceedings, where the plaintiff wants money or some other relief, but is not seeking to imprison the defendant or impose fines.

Some summary offenses can result in short jail sentences. Many, including the specific offense Drill was charged with, do not allow for jail. Instead, defendants found guilty simply pay fines and court costs.

Drill was charged with allowing her restaurant to violate “the Targeted Mitigation Order issued by issued by the Secretary of Health on 7/15/2020 under the authority of the Disease and Control Law.”

The citation referred to an Aug. 25 visit to the restaurant by a Department of Agriculture inspector who found “employees not wearing masks. No social distancing markers or barriers at checkout. No signage stating masks required.”

Drill faced fines and costs totaling $112.75 had she been convicted.

Guilt or innocence in summary cases is determined in much the same way as in more serious criminal cases. Anyone charged with a summary offense can plead not guilty, as Drill did, and get a non-jury trial before a Magisterial District Judge.

Just as a murder defendant would be, a summary defendant starts out presumed to be not guilty, and never has to prove her innocence. Instead, the prosecution is required to prove all the facts of the charged offense, beyond a reasonable doubt, before a guilty verdict can be reached.

Calls to Pennsylvania Department of Agriculture Inspector Douglas Martin, who prepared the citation, filed it at MDJ Garver’s office, and testified at the trial, were not returned. Instead, an Agriculture Department spokeswoman directed all inquiries to the Pennsylvania Department of Health.

Department of Health attorney Kevin Hoffman represented the Commonwealth at Drill’s trial. The Department of Health would not make Hoffman available for comment.

LebTown was able to speak by telephone with Drill’s lawyer, Eric Winter of Bechtelsville.

Winter said that Inspector Martin, the lone witness at the trial, testified that on his Aug. 25 visit to the restaurant he saw no employees wearing masks, no plexiglass barriers, and no social distancing. “We didn’t dispute any of that testimony,” Winter admitted.

Instead, Winter said he made several legal arguments on behalf of Drill, in essence saying that, even if the facts alleged were true, she still could not be found guilty under the law.

Winter argued to MDJ Garver that a Department of Health Attorney could not prosecute a charge filed by the Department of Agriculture, that violations of COVID-19 mitigation orders could only be enforced in civil actions, and that the violations alleged were not actual food safety violations, so the Agriculture Department had no enforcement power.

Winter also said that he believes that a viral pandemic such as COVID-19 is not a “natural disaster” as contemplated by the state law that Governor Wolf and the Department of Health are basing their orders on.

Winter concluded by saying that he has no idea if MDJ Garver based his not guilty verdict on any of the arguments he made, or on something else.

“He didn’t give a reason for his decision,” Winter said. “He just announced ‘not guilty.'”

Because the charge against Drill was a criminal offense, the Commonwealth cannot appeal the not guilty verdict. However, that charge related only to what happened on Aug. 25. Similar charges against Drill could be filed for violations at Taste of Sicily that happen on other days.

MDJ Garver’s decision is not binding on any other courts or in any other cases.

The Department of Health released the following statement on Oct. 21:

“The verdict has no impact upon the legal validity of the current mitigation orders. It does not impact any other case brought against any other defendant, nor does it deter the administration from taking action against violators who jeopardize public health by violating common sense mitigation measures.”

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Chris Coyle writes primarily on government, the courts, and business. He retired as an attorney at the end of 2018, after concentrating for nearly four decades on civil and criminal litigation and trials. A career highlight was successfully defending a retired Pennsylvania state trooper who was accused,...


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