With classic understatement that could have been considered British were it not happening on this side of the Atlantic Ocean, Hermitage officials referred Wednesday Mercer County District Attorney Peter C. Acker’s decision to withdraw misdemeanor citations against the P.R.E.P. fitness center as a “change in position.”
You could say that.
Acker approved the citations — based on charges that P.R.E.P. and owner, Joseph Anthony Joseph II, resumed operations Friday, May 1, in violation of Gov. Tom Wolf’s shutdown orders — May 8. The very next business day, Monday, he “changed position” and withdrew the citations.
In explaining his “changed position,” the district attorney characterized laws supporting the governor’s emergency powers to close businesses and order people to stay at home in response to the COVID-19 pandemic as “poorly drafted,” with fines that are too low and “lack meaningful sanctions.”
Acker also referred to a possible backlog of cases, including felonies and homicides, that could burden the county court system once the state lifts its pandemic restrictions.
“In the scope of the number of cases we have and their severity, I cannot justify the resources necessary to prosecute several dozen summary offenses,” he said.
The district attorney’s language fails to recognize the severity of these particular summary offenses, both in terms of public safety and fairness. And although we’re not mind readers, he appears to be doing it in a dismissive, cavalier fashion.
This is about how Joseph’s actions affect the businesses that follow the rules and comply with the law. By failing to punish P.R.E.P., Acker is punishing all of them.
Joseph had been accused of violating the state’s administrative code and the Disease Prevention and Control Act. Total fines for the two offenses could have ranged from $35 to $350, plus court costs. And police could have issued the citations every day P.R.E.P. remained open.
Had Hermitage police cited Joseph as often as it legally could, that amounted to fines ranging from $800 to $8,000 just for the rest of this month.
By Acker’s own admission, Joseph is breaking the law, which makes the district attorney’s “change in position” even more baffling. Because this isn’t about a few summary offenses, or even “several dozen,” to use Acker’s language.
This is about how Joseph’s actions affect businesses that follow the rules and comply with the law. By failing to punish P.R.E.P., Acker is punishing all of them.
In the fitness center business alone, Joseph has carved out a competitive advantage for himself. If you want to go pump iron and you don’t have a training center in the garage, P.R.E.P. is, literally, the only game in town.
How many people who hold memberships at other gyms are working out at Joseph’s fitness center because they have nowhere else to go? And how many of them will reward him with their loyalty when the pandemic restrictions are lifted?
Let’s be clear. We’re not accusing Joseph of opening his gym to get a leg up on the competition. Again, we’re not mind readers. We don’t know what his intent is.
But Joseph’s intent is irrelevant. The effect is that he now has a distinct competitive advantage.
And he gained that advantage illegitimately, not by providing better services or offering better prices than other fitness centers, but by illegally opening his doors while his law-abiding competitors remain shuttered.
State law and tradition give state governors — including Wolf — certain emergency powers. There are, and should be, questions about whether the governor is abusing his authority.
But that’s not a question to be determined by gym owners, or even district attorneys.
That’s for the courts and legislatures to work out. Through his “change in position,” Acker has deprived the legal system of an opportunity to figure out answers.
Worse, he has failed to protect Mercer County’s law-abiding business owners.