Hibble et al v. City of Harrisburg, Pennsylvania

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ELIZABETH A. HIBBLE, Personally,
on behalf of CRH, a minor, and as the
Administratrix of the Estate of Michael
W. Brook, and
ELIJAH L. ROTHELL,
Plaintiffs,
v.
CITY OF HARRISBURG,
PENNSYLVANIA,
Defendant.
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Civil No. 1:25-CV-00636
Judge Jennifer P. Wilson
MEMORANDUM
This case arises from a fatal boating accident. A mechanical failure caused
the boat carrying Michael Brook (“Brook”) and Elijah Rothell (“Rothell”) to drift
over the Dock Street Dam (“Dam”) in the Susquehanna River. While Rothell was
fortunate to survive, Brook tragically drowned. Rothell and the Administratrix of
Brook’s estate, Elizabeth Hibble (collectively with Rothell, “Plaintiffs”) now sue
the Dam’s owner, the City of Harrisburg (“Harrisburg”). Presently before the
court is Harrisburg’s motion to dismiss. The primary issue presented is whether
Plaintiffs have adequately pleaded a violation of their due process rights under the
state-created danger theory. They have not. So the court will grant Harrisburg’s
motion.
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BACKGROUND
A. Facts
The Dam crosses the Susquehanna River between Harrisburg and the
Borough of Lemoyne. (Doc. 19, ¶ 20.) Standing about six feet tall, the dam is
relatively inconspicuous and impossible to see when traveling downriver. (Id.
¶¶ 22, 36.) Harrisburg built the Dam in 1913 for three reasons: (1) “to eliminate
stagnant mosquito-breeding pools”; (2) to “control odors by submerging sewer
pipe outlets”; and (3) to create a recreational lake three miles upstream. (Id. ¶¶ 23,
24.)
The Dam is a particular type of dam known as a “a run-of-the-river low-head
dam.” (Id. ¶ 21.) This type of dam is allegedly referred to as “drowning
machines,” id. ¶ 35, due to their creating a dangerous phenomenon known as a
“submerged hydraulic jump” or “roller.” (Id. ¶ 28.) As water continuously flows
over the Dam, it entrains air into the water below. (Id. ¶ 30.) The entrained air
makes the water at the Dam’s base less dense and, therefore, reduces the buoyancy
of whatever is in the water. (Id. ¶ 31.) Due to the reduced buoyancy and the
recirculating currents created by the Dam, whatever is in the water at the Dam’s
base will sink. (See id. ¶ 32) The river’s ordinary current will then push whatever
has sunk downstream, where the water is less aerated. (Id.) Buoyancy increases in
the less aerated water, causing whatever has sunk to resurface. (Id. ¶¶ 32, 33.) 	At
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the surface, however, the recirculating currents return the resurfaced item to the
base of the dam, thereby restarting the loop. (Id. ¶ 33.) These currents “are too
strong for even experienced swimmers to escape.” (Id. ¶ 34.)
Indeed, the Dam has been the source of injury and death. Harrisburg
allegedly does not track the number or identity of Dam-related victims. (Id. ¶ 50.)
But news archives and Harrisburg agency records allegedly suggest that since
being built, “the Dam has at least killed over 30 people and injured many others.”
(Id. ¶ 51.) Harrisburg was allegedly aware of the Dam’s long history of dangerous
conditions as early as 2001. (Id. ¶ 39.) It also was allegedly aware that, as the
Dam owner, it had an obligation to comply with Pennsylvania’s Act 91 of 1998
(“Dam Safety Act”). (Id. ¶ 41.)
The Dam Safety Act allegedly requires, inter alia, low-head dam owners to
place warning signs and/or buoys upstream and downstream from their dams as
well as on the bank adjacent to them. (Id. ¶ 52.) Harrisburg allegedly twice
attempted to place warning buoys in the Susquehanna River near the Dam, once in
1999 and again in 2018. (Id. ¶¶ 53–54.) These attempts seemingly failed, as the
buoys were allegedly removed each time. (See id.) In 2018, after a mother and her
child were killed at the Dam in a boating accident, the Pennsylvania Fish & Boat
Commission (“PFBC”) directed Harrisburg to comply with the Dam Safety Act by
installing the required warning buoys. (Id. ¶¶ 55–56.) Despite this admonition,
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Harrisburg allegedly did not install any sort of enduring buoys and, rather,
requested a formal waiver from the Dam Safety Act’s requirement. (See id. ¶¶ 59–
66.) Plaintiffs do not allege whether Harrisburg ultimately received the waiver.
This background sets the stage for the events that give rise to the present
lawsuit. On April 13, 2023, Brook and Rothell took the former’s boat out on the
Susquehanna River to go boating and fishing in the recreational area upstream
from the Dam. (Id. ¶ 67.) Despite being recently serviced, Brook’s boat suffered a
mechanical failure and stalled. (Id. ¶¶ 69, 71.) The two began drifting
downstream and eventually entered a non-recreational “exclusion zone” directly
near the Dam. (Id. ¶ 76.) No warning buoys were present to demarcate the
exclusion zone, despite Harrisburg’s alleged legal obligation to place such buoys.
(Id. ¶¶ 90, 95, 96.)
The boat went over the Dam, which caused Brook and Rothell to be ejected
from the boat into the currents of the submerged hydraulic pump. (See id. ¶ 78.)
The pair struggled to stay afloat and were repeatedly sucked under water. (Id.
¶¶ 80, 84.) Fortunately, Rothell was able to repeatedly push off the river floor in
order to get his head above water long enough to take a breath. (Id. ¶ 85.)
Tragically, Brook drowned. (Id. ¶ 88.) Rothell was eventually rescued by two
boaters who courageously approached close enough to pull him to safety. (Id.
¶ 87.) This lawsuit followed.
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B. Procedural History
Plaintiffs filed their complaint on April 9, 2025. (Doc. 1.) Harrisburg
responded with a motion to dismiss. (Doc. 12.) That motion was stricken due to
defense counsel’s omission of the required certification of conference. (Doc. 13.)
Harrisburg was permitted, however, to refile its motion. (Id.) It did so along with
a brief in support on June 30, 2025. (Docs. 16 & 17.) 	Plaintiffs responded to the
properly filed motion to dismiss with an amended complaint. (Doc. 19.)
The amended complaint alleges the same core set of facts and causes of
action as the original. (Compare Doc. 1, with Doc. 19.) The claims are made
under federal and state law. The federal claim is a state-created danger claim
brought pursuant to 42 U.S.C. § 1983. (Doc. 19, ¶¶ 135–60.) The Pennsylvania
state claims consist of a negligence claim, a survival claim, and a wrongful-death
claim. (Id. ¶¶ 168–86.)
In response to the amended complaint, Harrisburg renewed its motion to
dismiss. (Doc. 22.) The brief in support of this second motion is virtually
identical to its brief in support of the first. (Compare Doc. 17, with Doc. 23.) The
court has reviewed Harrisburg’s motion, brief in support, and reply brief together
with Plaintiffs’ brief in opposition. (Docs. 22, 23, 27, 30.) The motion is now ripe
for adjudication.
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J URISDICTION
This court’s subject matter jurisdiction over Plaintiffs’ § 1983 claim derives
from 28 U.S.C. §§ 1331, 1343. The court may exercise supplemental jurisdiction
over Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367. Venue is proper in
this court pursuant to 28 U.S.C. § 1391(b).
S TANDARD OF REVIEW
In order “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to
survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.
2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint
survives a motion to dismiss, a court identifies “the elements a plaintiff must plead
to state a claim for relief,” disregards the allegations “that are no more than
conclusions and thus not entitled to the assumption of truth,” and determines
whether the remaining factual allegations “plausibly give rise to an entitlement to
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relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) abrogated on other
grounds as recognized in Mack v. Yost, 968 F.3d 311, 319 n. 7 (3rd Cir. 2020).
DISCUSSION
Harrisburg identifies two reasons the court should dismiss Plaintiffs’ state-
created danger claim. The first is a failure to adequately allege certain elements of
the claim. The second is a failure to satisfy the municipal-liability standard set
forth in Monell v. Department of Social Services of New York, 436 U.S. 658
(1978). Harrisburg further argues the court should decline to exercise
supplemental jurisdiction over Plaintiffs’ remaining state law claims. The court
explores these issues, as necessary, in turn.
A. State-Created Danger Claim
The Due Process Clause of the Fourteenth Amendment imposes a
prohibition on the “State” from depriving individuals of life, liberty, or property
without due process of law. DeShaney v. Winnebago Cty. Dep’t of Social Servs.,
489 U.S. 189, 195 (1989). It does not “impose an affirmative obligation on the
State to ensure that those interests do not come to harm through other means.” Id.
Accordingly, “[a]s a general matter, . . . a State's failure to protect an individual
against private violence simply does not constitute a violation of the Due Process
Clause.” Id. at 197. This principle comports “with our general conception of the
Constitution as a document of negative restraints, not positive entitlements.”
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Pinder v. Johnson, 54 F.3d 1169, 1174 (4th Cir. 1995); accord Hilton v. City of
Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000) (“[W]e have repeated many times,
the Constitution, insofar as it creates or protects liberties, is . . . a charter of
negative liberties.”)
Nevertheless, two exceptions to this general rule exist. Sanford v. Stiles, 456
F.3d 298, 304 (3d Cir. 2006). One applies when a “special relationship” exists
between the state and an individual. Id. This exception is “very limited” and
“requires a custodial relationship,” id. n.4, such as “incarceration,
institutionalization, or other similar restraints of personal liberty.” D.R. ex rel. L.R.
v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1370 (3d Cir. 1992)
(quoting DeShaney, 489 U.S. at 200). Plaintiffs disclaim any reliance on this
exception. (Doc. 27, p. 3 n.2.)
Instead, they rely solely on the second exception, which arises “when a
‘state-created danger’ is involved.” Sanford, 456 F.3d at 304. Simply put, a state
“assumes” a “duty to keep people safe . . . ‘when it affirmatively places [a] person
in a position of danger [that] the person would not otherwise have faced.’” Mears
v. Connolly, 24 F.4th 880, 883 (3d Cir. 2022) (quoting Kamara v. Att’y Gen. of
U.S., 420 F.3d 202, 216 (3d Cir. 2005)).
To plead a constitutional violation under the state-created danger theory,
Plaintiffs must adequately allege four elements:
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(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the
conscience;
(3) a relationship between the state and the plaintiff existed such that
the plaintiff was a foreseeable victim of the defendant's acts, or a
member of a discrete class of persons subjected to the potential harm
brought about by the state's actions, as opposed to a member of the
public in general; and
(4) a state actor affirmatively used his or her authority in a way that
created a danger to the citizen or that rendered the citizen more
vulnerable to danger than had the state not acted at all.
Sanford, 456 F.3d at 304–05 (quoting Bright v. Westmoreland County, 443 F.3d
276, 281 (3d Cir. 2006)).
Harrisburg contends that Plaintiffs have failed to plausibly plead the third
and fourth elements. 1 (Doc. 23, pp. 10–11.) The court agrees with respect to the
third element, so it need not analyze the fourth.
Despite similar nomenclature, the relationship element of a state-created
danger claim does not require the same custodial relationship contemplated by the
“special relationship” theory. Kneipp v. Tedder, 95 F.3d 1199, 1209 n. 22 (3d Cir.
1996). Rather, the element “contemplates some contact such that the plaintiff was
a foreseeable victim of a defendant's acts in a tort sense.” Id. This does not mean
1 Harrisburg also argued for the first time in its reply brief that Plaintiffs failed to adequately
allege elements one and two. (Doc. 30, pp. 7–12.) That argument comes too late. The court will
not consider arguments first made in a reply brief. United States v. Brabham, No. 21-cr-00342,
2024 WL 897834, at *6 n.8 (M.D. Pa. Mar. 1, 2024).
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that state-created danger claims are limited to “instances where a specific
individual is placed in danger.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902,
913 (3d Cir. 1997). A plaintiff may also “bring a state-created danger claim if the
plaintiff was a member of a discrete class of persons subjected to the potential
harm brought about by the state's actions.” Id.
A discrete class is “limited in both time and scope.” Crockett v. Se. Pa.
Transp. Ass’n, No. 12-cv-4230, 2013 WL 2983117, at *6 (E.D. Pa. June 14, 2013)
(quoting Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 828 (7th Cir.
2009)). By definition, “only a limited group of potential plaintiffs” can be
members of a discrete class. Morse, 132 F.3d at 913 n.12. So a plaintiff cannot be
said to be “part of a discrete class” if “thousands, or even hundreds, of people” risk
the same harm or if that “risk[] exists for an ‘indefinite’ duration of time.”
Crockett, 2013 WL 2983117, at *6.
The restrained scope of state-created danger claims serves an important
purpose, which “is to circumscribe the number of potential plaintiffs stemming
from any particular exercise of state authority and shield state actors from liability
for any act for which any member of the general public could sue.” O’Donnell v.
Scranton Sch. Dist., 615 F. Supp. 3d 262, 280 (M.D. Pa. 2022) (quoting Van Orden
v. Borough of Woodstown, 5 F. Supp. 3d 676, 688 (D.N.J. 2014)). This point is
worth stressing. State-created danger claims do not permit plaintiffs to sue for
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harm caused by “danger [directed] towards the public generally.” Morse, 132 F.3d
at 913 n.12. Permitting so would “would expand the scope of the state-created
danger theory beyond its useful and intended limits.” Id. After all, it is well
settled that “the Due Process Clause of the Fourteenth Amendment . . . does not
transform every tort committed by a state actor into a constitutional violation.”
DeShaney, 489 U.S. at 202; accord County of Sacramento v. Lewis, 523 U.S. 833,
848 (1998) (“[W]e have made it clear that the due process guarantee does not
entail a body of constitutional law imposing liability whenever someone cloaked
with state authority causes harm.”); Collins v. City of Harker Heights, 503 U.S.
115, 128 (1992) (“[W]e have previously rejected claims that the Due Process
Clause should be interpreted to impose federal duties that are analogous to those
traditionally imposed by state tort law . . . .”); Daniels v. Williams, 474 U.S. 327,
332 (1986) (“Our Constitution deals with the large concerns of the governors and
the governed, but it does not purport to supplant traditional tort law in laying down
rules of conduct to regulate liability for injuries that attend living together in
society.”); Paul v. Davis, 424 U.S. 693, 701 (1976) (rejecting the notion that the
Due Process Clause is “a font of tort law to be superimposed upon whatever
systems may already be administered by the States”).
Plaintiffs insist they are members of the following discrete class: “boaters in
the exclusion zone.” (Doc. 19, ¶ 137.) Plaintiffs define the class as such
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seemingly because they claim the Dam Safety Act was passed in order to protect
boaters and, therefore, Harrisburg owed a duty to that class. (See Doc. 27, pp. 9–
10.) Plaintiffs cite no authority to suggest that courts should define a “discrete
class” in cases like this by considering whether the defendant had a statutory duty
towards a particular group. Such a method is untenable, since it would effectively
and wrongly transform every statutory duty into a constitutional one. 2 See
DeShaney, 489 U.S. at 202.
Putting this aside, Plaintiffs argue that their purported class is sufficiently
discrete because it is limited to “specific people in a specific location.” (Doc. 27,
p. 9.) Upon closer examination, however, the metes and bounds of Plaintiffs’
supposedly discrete class vanish, revealing that the class subjected to potential
harm by the Dam is not as discrete as Plaintiffs suggest.
To begin, Plaintiffs’ proposed class is underinclusive with respect to both
persons subject to the risk of harm and the geographic scope of where that risk
exists. The Dam creates a risk for many more people than just boaters in the
exclusion zone. Anyone on or in the Susquehanna River near the Dam would face
the same risk, whether they are boaters or a person who by happenstance finds
themselves in the river near the Dam. Moreover, the tragic facts of this case
2 The court takes no position on whether Harrisburg, in fact, had such a duty under the Dam
Safety Act.
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illustrate that the risk of harm is present far beyond the exclusion zone. Plaintiffs
never intended to enter the exclusion zone; they drifted three miles from the
recreational lake into it due to the malfunction of Brook’s boat. (See Doc. 19, ¶¶
24, 67, 71, 76.)
Such a class will not support a state-created danger claim in any event. As
seen in an analogous case involving an allegedly dangerous road design, the
Eastern District of Pennsylvania rejected the plaintiffs’ proposed class of “drivers
on Route 1.” Solum v. Yerusalim, No. 98-cv-4056, 1999 WL 395720, at *5 (E.D.
Pa. June 17, 1999), aff’d, 211 F.3d 1262 (3d Cir. 2000). That court reasoned the
class did not actually represent who faced the dangers of the road design, since
“[n]o reason exist[ed] for providing recovery to drivers and not passengers.” Id.
So, too, here, no reason exists for ignoring the potential dangers faced by non-
boaters such as their passengers or others who are in the river. Similarly, when a
plaintiff was injured in an alley by a recklessly driving police officer, this court
rejected the proposed class that only encompassed those living along the alley
where the plaintiff lived. Long v. Rogers, No. 24-cv-00128, 2025 WL 26869, at *5
(M.D. Pa. Jan. 3, 2025). The court reasoned, “[t]he harm here . . . is a harm faced
by the whole jurisdiction [in which the officer worked], not just those living along
the alley.” Id. Likewise, here, the risk of harm created by the Dam reaches
beyond the exclusion zone.
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Even if one defined the class as anyone in the Susquehanna River within a
reasonable distance of the Dam, that still would not be sufficiently discrete. Cases
involving traffic-related dangers prove usefully analogous. In those cases, courts
have consistently rejected proposed classes involving all travelers on a particular
road. In Solum, for example, the court explained that “travelers on Route 1” is a
class that “contains an unquantifiable and virtually unidentifiable mass of potential
plaintiffs.” 1999 WL 395720, at *5; cf. Hammon v. Kennett Twp., 746 F. App’x
146, 149 (3d Cir. 2018) (“[W]e have held that drivers on a particular road are not
identifiable [as a discrete class].”); Stover v. Camp, 181 F. App’x 305, 308 (3d Cir.
2006) (holding that a class comprised of “persons who regularly traveled on Atlas-
Cherry Valley Road” was not a discrete class); Watson v. Methacton Sch. Dist.,
513 F. Supp. 2d 360, 377 (E.D. Pa. 2007) (explaining that a class of “motorists
traveling within the ‘vicinity’” of a school—which would encompass drivers
within a 19.3-mile radius—“suffers from the same problems of breadth as the class
that was rejected in Solum”). There is no meaningful distinction between defining
a class as all travelers on a road versus all those who use a river. In both instances,
the proposed class contains an indeterminate number of potential plaintiffs.
This breadth issue is exacerbated here because the risk of harm created by
the Dam is not temporally limited. The Dam was built in 1913, Doc. 19, ¶ 19,
meaning the dangers created by the Dam have existed for approximately 113 years
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and will presumably exist for as long as the Dam remains in its current state. A
risk of such indefinite duration strongly suggests that the danger is directed at the
public, not at a discrete class. Compare, e.g., Chickis v. Campbell, No. 24-cv-673,
2025 WL 346554, at *6 (W.D. Pa. Jan. 30, 2025) (finding that a danger was
directed towards the general public when it “existed for an indefinite period of
time” and “[a]nyone who drove that road ‘for years’ was potentially subject to the
same danger.”), with Van Orden, 5 F. Supp. 3d at 688 (finding danger was not
directed at the public—when a mother drowned in her car after officials opened a
dam’s floodgates without closing an affected road—in part because the “[o]pening
of the floodgates did not create an ongoing threat” that lasted months or years).
Ultimately, naming a supposedly discrete class is not enough to adequately
plead a state-created danger claim. Solum, 1999 WL 395720, at *5. Yet, that is all
Plaintiffs have done. They have failed to allege that Brook and Rothell faced a
danger distinguishable from that directed at the general public. Accordingly, if
permitted to proceed, Plaintiffs’ claim “would expand the scope of the state-
created danger theory beyond its useful and intended limits.” Morse, 132 F.3d at
913 n.12. For this reason, the court will dismiss Plaintiffs’ § 1983 claim.
Dismissal will be with prejudice. Plaintiffs amended their complaint in
response to Harrisburg’s first motion to dismiss. The amended complaint does not
include any materially different factual allegations than the original. (Compare
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Doc. 1, with Doc. 19) In response to the amended complaint, Harrisburg filed a
second motion to dismiss with a brief in support that was virtually identical to the
brief in support of the first motion. (Compare Doc. 17, with Doc. 23.) Therefore,
Plaintiffs were on notice of their claim’s potential defects and did not remedy them
in amending their complaint. Under these circumstances, the court finds that
further amendment would be futile. Mims v. City of Philadelphia, No. 09-cv-4288,
2010 WL 2077140, at *14 (E.D. Pa. May 19, 2010).
B. Monell Liability
Plaintiffs have failed to adequately allege a state-created danger claim for
the reasons set forth above. Thus, the court need not consider whether Plaintiffs
satisfied the Monell framework.
C. Supplemental Jurisdiction
The court now must decide whether to exercise supplemental jurisdiction
over Plaintiffs’ remaining state law claims. The supplemental jurisdiction statute
states, in relevant part, that this “court[] may decline to exercise supplemental
jurisdiction” if it “has dismissed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c)(3). As § 1367 makes plain, the decision to exercise
supplemental jurisdiction lies within the court’s discretion. Kach v. Hose, 589
F.3d 626, 650 (3d Cir. 2009). The exercise of discretion, however, “should be
based on considerations of ‘judicial economy, convenience and fairness to the
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litigants.’” Id. (quoting New Rock Asset Partners, L.P. v. Preferred Entity
Advancements, Inc., 101 F.3d 1492, 1505 (3d Cir. 1996)). Ordinarily, “courts . . .
decline to exercise supplemental jurisdiction when all federal claims have been
dismissed and only state law claims remain.” Chapman v. United States, 480 F.
Supp. 3d 601, 614 (M.D. Pa. 2020); accord United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before
trial, even though not insubstantial in a jurisdictional sense, the state claims should
be dismissed as well.”).
Plaintiffs argue that the court should exercise supplemental jurisdiction,
because their case is likely to involve federal law issues if the court grants their
request for equitable relief. (Doc. 27, pp. 13–14.) The equitable relief sought is an
order directing Harrisburg to comply with the Dam Safety Act and to remove the
hydraulic pump. (Doc. 19, p. 23.) Plaintiffs’ position that this relief will trigger
federal law issues is premised on previous litigation that occurred when Harrisburg
attempted to replace the Dam with a hydroelectric project. (Doc. 27, p. 13.)
According to Plaintiffs, Harrisburg attempted to get a license for that project from
the Federal Energy Regulatory Commission (“FERC”), which required the city to
obtain a Clean Water Act certification from the Pennsylvania Department of
Environmental Protection (“PADEP”). (Id.) PADEP denied the certification
request and litigation ensued. (Id. at 14.) Plaintiffs argue that if they obtain the
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equitable relief sought, Harrisburg would be forced to pursue the hydroelectric
project and litigation with FERC would necessarily follow. (Id.)
Plaintiffs assume a lot. They assume their state law claims will succeed; that
they will be awarded equitable relief; that Harrisburg will want to pursue a
hydroelectric project to comply with a hypothetical injunction; that FERC and
other governmental agencies will oppose such a project; that litigation over federal
law issues will flow from this opposition; and that the litigation will proceed in the
context of this case. This chain of assumptions is simply too speculative to depart
from the typical rule that dismissal of the state claims is preferred. Accordingly,
the court will dismiss Plaintiffs’ state law claims without prejudice. See Booth v.
Drissell, No. 23-3004, 2024 WL 3811624, at *2 n.5 (3d Cir. Aug. 14, 2024)
(“When a district court declines to exercise supplemental jurisdiction, as here
under 28 U.S.C. § 1367(c)(3), or otherwise, dismissal of the state law claims
should be without prejudice.”).
D. Consequences of Dismissal
In their briefing, Plaintiffs highlight what they see as the consequences that
dismissal of this litigation will have in preventing future harm by the Dam. They
write:
The simple truth is that if the Court grants the Defendant’s Motion to
Dismiss, business will continue as usual, and the 30-person death toll
will rise. This is because if the Court puts the Plaintiffs out of federal
court, the City’s exposure in this and the next death cases will be limited
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to $500,000 per incident (not per death) with no requirement that the
City even pay attorney’s fees and litigation costs (which will further
discourage litigation). If, however, the Court denies the City’s motion,
the cost risk to the City in continuing business as usual is simply too
high.
As previously stated in response to the City’s Motion to Disqualify, few
issues are truly a matter of life and death. But with now over 30 deaths
and over 30 near deaths already, it is not a question of whether another
person will die, but rather when the next person will die. 	This is
evidenced by the fact that since the filing of this lawsuit, two additional
people were almost killed by the Defendant’s continuing conduct.
At the risk of sounding overly dramatic, how the Court decides the
Defendants’ Motion to Dismiss is a matter of life and death. 	If the
Court denies the City’s motion, the City will have no choice but to
correct the hidden dangerous condition that it created. 	On the other
hand, if the Court grants the City’s motion, more people will die.
(Doc. 27, pp. 3–4 (footnote omitted).) The court would be remiss not to address
this argument.
Plaintiffs are clearly concerned that the Pennsylvania Political Subdivision
Tort Claims Act (“PSTCA”) will limit Harrisburg’s potential liability on their state
law claims. See generally 42 Pa. Cons. Stat § 8553 (PSTCA’s limitations-on-
damages provision). They are also concerned that limiting Harrisburg’s potential
liability will correspondingly reduce the city’s motive to remediate the Dam’s
propensity to cause harm. These are understandable concerns. But Plaintiffs invite
the court to ignore its judicial duty because of these concerns. This is an invitation
the court must emphatically decline.
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The court renders judgments by applying the law to the facts of each case.
No room exists in this decisionmaking process to consider the wisdom of
legislation, like the PSTCA. See Ferguson v. Skrupa, 372 U.S. 726, 730 (1963)
(“[C]ourts do not substitute their social and economic beliefs for the judgment of
legislative bodies, who are elected to pass laws.”); Louisville & Nashville R.R. Co.
v. Kentucky, 183 U.S. 503, 512 (1902) (“It is scarcely necessary to say that courts
do not sit in judgment on the wisdom of legislative or constitutional enactments.”).
To permit such room would risk forsaking the principle that courts “do not sit as a
super-legislature to weigh the wisdom of legislation nor to decide whether the
policy which it expresses offends the public welfare.” Day-Brite Lighting Inc. v.
Missouri, 342 U.S. 421, 423 (1952). If Plaintiffs wish to argue that the PSTCA—a
duly enacted statute of Pennsylvania—is an obstruction to eliminating the Dam’s
dangers, the proper audience for such an argument is the Pennsylvania legislature,
not this court.
It is worth emphasizing what question the court presently is and is not
answering. It does not answer whether Harrisburg ultimately should be liable to
Plaintiffs and, if so, to what degree. That question is left for another court to
answer. Instead, the court answers whether Harrisburg’s alleged behavior rises to
the level of a constitutional violation. Based on a neutral application of the law to
the facts, the answer to that question is no.
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CONCLUSION
For the reasons explained, the court will grant Harrisburg’s motion to
dismiss. An appropriate order will issue.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: February 5, 2026
Case 1:25-cv-00636-JPW Document 33 Filed 02/05/26 Page 21 of 21