# Benner v. Wolf

> District Court, M.D. Pennsylvania · September 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10410740

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10410740

## How later opinions describe it (automated extraction)

- holding that sovereign immunity applied because plaintiffs “failed to establish that any negligence on the part of [defendant], if proven, falls within one of the exceptions to sovereign immunity listed in 42 Pa.C.S. § 8522(b).”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM BENNER, et al., No. 1:20-CV-00775

Plaintiffs, (Chief Judge Brann)

v.

THOMAS W. WOLF, et al.,

Defendants.

MEMORANDUM OPINION

SEPTEMBER 9, 2021
I. INTRODUCTION
On June 24, 2020, Plaintiffs William Benner, Nichole Missino, Kraig Nace,
John Williams, Stephen Cassel, and Fred Fogelman filed their First Amended
Complaint in this case. Claiming that Pennsylvania’s COVID-19 restrictions
violated state and federal law, Plaintiffs sued various Pennsylvania officials in their
official and individual capacities. Defendants included Governor Thomas W. Wolf,
then-Secretary of Health Rachel Levine, Secretary of Community and Economic
Development Dennis M. Davin, and then-Secretary of Education Pedro A. Rivera.
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
Defendants filed a motion to dismiss for lack of subject-matter jurisdiction and
failure to state a claim. The motion is ripe for disposition; for the following reasons,
it is granted with prejudice. The case is dismissed without leave to amend.
II. LEGAL STANDARD
A. Rule 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), “a court must grant a motion
to dismiss if it lacks subject-matter jurisdiction to hear a claim.”1 The first step in
evaluating a 12(b)(1) motion is to address whether it presents a “facial” or “factual”
attack on the plaintiff’s claims.2 The “distinction is significant because, among other

things, it determines whether we accept as true the non-moving party’s facts as
alleged in its pleadings.”3
A facial challenge contests the court’s subject-matter jurisdiction “without

disputing the facts alleged in the complaint, and it requires the court to ‘consider the
allegations of the complaint as true.’”4 A factual challenge, by contrast, asserts that
the underlying facts of the case do not support jurisdiction.5 When considering a
factual challenge, a court may consider evidence outside the pleadings.6 Further, the

plaintiff bears the burden of contesting a factual challenge and proving that
jurisdiction exists.7

1 In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d
Cir. 2012).
2 Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357–58 (3d Cir. 2014) (citation omitted).
3 In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 625, 632 (3d Cir. 2017)
(citation omitted).
4 Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (quoting Petruska v. Gannon Univ.,
462 F.3d 294, 392 n.3 (3d Cir. 2006)).
5 Aichele, 757 F.3d at 358.
6 Id.
B. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff has failed to “state a claim upon which
relief can be granted.” A motion to dismiss “tests the legal sufficiency of a claim”8
and “streamlines litigation by dispensing with needless discovery and factfinding.”9
“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive

issue of law.”10 This is true of any claim, “without regard to whether it is based on
an outlandish legal theory or on a close but ultimately unavailing one.”11
Following the Roberts Court’s “civil procedure revival,”12 the landmark

decisions of Bell Atlantic Corporation v. Twombly13 and Ashcroft v. Iqbal14 tightened
the standard that district courts must apply to 12(b)(6) motions.15 These cases
“retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and replaced
it with a more exacting “plausibility” standard.16

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

8 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.
Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.).
9 Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
10 Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
11 Id. at 327.
12 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.
313 (2012).
13 550 U.S. 544 (2007).
14 556 U.S. 662 (2009).
15 Id. at 670.
to relief that is plausible on its face.’”17 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”18 “Although the plausibility
standard does not impose a probability requirement, it does require a pleading to
show more than a sheer possibility that a defendant has acted unlawfully.”19

Moreover, “[a]sking for plausible grounds . . . calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of [wrongdoing].”20
The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”21 No matter

the context, however, “[w]here a complaint pleads facts that are merely consistent
with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.”22

When disposing of a motion to dismiss, the Court “accept[s] as true all factual
allegations in the complaint and draw[s] all inferences from the facts alleged in the
light most favorable to [the plaintiff].”23 However, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal

17 Id. at 678 (quoting Twombly, 550 U.S. at 570).
18 Id.
19 Connelly v. Lane Constr. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (cleaned up).
20 Twombly, 550 U.S. at 556.
21 Iqbal, 556 U.S. at 679.
22 Id. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotation marks omitted)).
conclusions.”24 “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”25

As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.26
III. FACTUAL AND PROCEDURAL BACKGROUND
On March 6, 2020, Governor Wolf issued a Proclamation of Disaster
Emergency in response to the COVID-19 pandemic.27 Following Wolf’s
Proclamation, Defendants issued business-closure orders, stay-at-home orders, a
reopening scheme, and a school-closure order.28
On May 11, 2020, Plaintiffs filed suit, alleging that the school-closure order
and several of the business-closure and stay-at-home orders violated the United
States and Pennsylvania Constitutions.29 The next day, Plaintiffs filed a motion for

24 Iqbal, 556 U.S. at 678 (internal citations omitted).
25 Id. See also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.)
(“After Iqbal, it is clear that conclusory or ‘bare-bones’ allegations will no longer survive a
motion to dismiss.”).
26 Connelly, 809 F.3d at 787 (internal quotation marks and citations omitted).
27 Doc. 20 at 5–6.
28 Doc. 20, Exhibit A.
a temporary restraining order.30 After holding a hearing on May 14, 2020, this Court
denied Plaintiff’s motion for a temporary restraining order on May 21, 2020.31

On June 3, 2020, Defendants filed a motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6).32 Plaintiffs responded by filing an
amended complaint on June 24, 2020.33 This amended complaint adds new parties

and challenges the business-closure orders, stay-at-home orders, reopening scheme,
and school-closure order.
In this ten-count First Amended Complaint, Plaintiffs raise various claims
under state and federal law. Under state law, Plaintiffs allege that the business-

closure orders violate 35 Pa.C.S. § 7313, which authorizes the Pennsylvania
Emergency Management Agency to pay to use private property in a disaster
emergency. Plaintiffs further allege that the school-closure order violates the
Pennsylvania Constitution’s Right to Public Education.34

In the federal claims they bring through 42 U.S.C. §§ 1983 and 1988,
Plaintiffs allege that the COVID-19 restrictions exceed Pennsylvania’s police
powers, lack a statutory basis, and violate the First, Fifth, and Fourteenth

Amendments to the United States Constitution. As relief, Plaintiffs seek a
declaratory judgment that the challenged COVID-19 restrictions are

30 Doc. 3.
31 Doc. 15.
32 Doc. 16.
33 Doc. 20.
unconstitutional, both facially and as applied. Plaintiffs also seek monetary damages
against Defendants in their individual capacities.

In response to this amended complaint, Defendants filed a motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).35 That motion
is now before this Court.

IV. DISCUSSION
A. Declaratory Relief
First, Plaintiffs seek a declaratory judgment that the COVID-19 restrictions
are unconstitutional, both facially and as applied. As a jurisdictional matter, this

Court must address whether these claims for declaratory relief are moot.36 “If
developments occur during the course of adjudication that eliminate a plaintiff’s
personal stake in the outcome of a suit or prevent a court from being able to grant
the requested relief, the case must be dismissed as moot.”37

Last month, the Third Circuit issued a precedential opinion in County of Butler
v. Governor of Pennsylvania.38 There, plaintiffs challenged COVID-19 restrictions
including “stay-at-home orders, business closure orders, and orders setting

congregation limits in secular settings.”39 “The United States District Court for the

35 Doc. 25.
36 See Freeh v. Spanier, No. 4:14-CV-1310, 2014 WL 4060223, at *1 (M.D. Pa. Aug. 15, 2014)
(“Mootness is a jurisdictional issue, and as such may be addressed by the court sua sponte.”)
(citing Chong v. Dist. Dir., I.N.S., 264 F.3d 378, 383 (3d Cir. 2001)).
37 Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698–99 (3d Cir. 1996).
38 No. 20-2936, 2021 WL 3520610, at *1 (3d Cir. Aug. 11, 2021).
Western District of Pennsylvania concluded that the orders violated the United
States Constitution” and granted declaratory judgment in plaintiffs’ favor.40

While County of Butler’s appeal was pending, voters amended the
Pennsylvania Constitution, limiting the Governor’s authority to declare emergencies
through executive orders and proclamations.41 Shortly thereafter, the Pennsylvania

General Assembly passed a concurrent resolution ending the Governor’s
Proclamation of Disaster Emergency.42 Also, the challenged COVID-19 restrictions
had expired on their own.43 Because the challenged restrictions were “no longer in
effect” and Governor Wolf had “been stripped of his power to unilaterally act in

connection with this pandemic,” the Third Circuit vacated the declaratory judgment
and remanded with instructions to dismiss the case as moot.44
Applying County of Butler’s binding precedent here, Plaintiffs’ claims for

declaratory relief are similarly moot. As the Third Circuit explained, the
Proclamation of Disaster Emergency, business-closure orders, and stay-at-home
orders are no longer in effect.45 The remaining challenged restrictions, including the
school-closure order, are not in effect either.46 Moreover, “there is no reasonable

40 Id.
41 Pa. Const. art. IV § 20(d).
42 H.R. 106, 2021 Gen. Assemb., Reg. Sess. (Pa. 2021).
43 Cnty. of Butler, 2021 WL 3520610, at *1.
44 Id. at *1, *3.
45 Id. at *1.
expectation that they will be re-imposed.”47 Accordingly, Plaintiffs’ claims for
declaratory relief are moot and are dismissed for lack of jurisdiction.

B. Monetary Damages
Plaintiffs also seek monetary damages against Defendants in their individual
capacities.48 Defendants assert sovereign and qualified immunity in response. This

Court addresses each immunity in turn.
1. Sovereign Immunity
Defendants are entitled to sovereign immunity from Plaintiffs’ damages
claims arising under Pennsylvania law. “The doctrine of sovereign immunity,

codified at 1 Pa.C.S. § 2310, protects the Commonwealth and its employees from
such a suit for monetary damages unless the cause of action falls within one of
several statutory exceptions . . . .”49 These statutory exceptions include vehicle

liability; medical-professional liability; care, custody, or control of personal
property; Commonwealth real estate, highways, and sidewalks; potholes and other
dangerous conditions; care, custody, or control of animals; liquor store sales;
National Guard activities; toxoids and vaccines; and sexual abuse.50

47 Cnty. of Butler, 2021 WL 3520610, at *3 (Jordan, J., concurring).
48 Doc. 35 at 37 (“[I]n the case at bar, Plaintiffs are suing the Defendants for monetary damages
in their individual capacities.”).
49 Johnson v. Townsend, 314 F. App’x 436, 439 (3d Cir. 2008).
Plaintiffs do not argue that any of these statutory exceptions apply.51 Nor do
Plaintiffs allege facts supporting an inference that these statutory exceptions apply.52

Accordingly, sovereign immunity protects Defendants from Plaintiffs’ state-law
damages claims.53
Plaintiffs counter that the Pennsylvania General Assembly waived sovereign

immunity through 35 Pa.C.S. § 7313, which authorizes the Pennsylvania Emergency
Management Agency to pay to use private property in a disaster emergency.54 But
§ 7313 does not mention sovereign immunity, much less waive it. Because § 7313
does not “specifically waive the immunity,” Defendants are still entitled to sovereign

immunity from Plaintiffs’ state-law damages claims.55 Thus, Plaintiffs’ damages
claims arising under state law are dismissed for failure to state a claim.56
2. Qualified Immunity

Defendants are also entitled to qualified immunity from the damages claims
Plaintiffs bring under 42 U.S.C. §§ 1983 and 1988. “Qualified immunity shields
federal and state officials from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or constitutional right, and (2) that

51 Docs. 20, 35.
52 Doc. 20.
53 See Donnelly v. Se. Pa. Transp. Auth., 708 A.2d 145, 149 (Pa. Commw. Ct. 1998) (holding
that sovereign immunity applied because plaintiffs “failed to establish that any negligence on
the part of [defendant], if proven, falls within one of the exceptions to sovereign immunity
listed in 42 Pa.C.S. § 8522(b).”).
54 Doc. 35 at 37.
55 1 Pa.C.S. § 2310.
56 See Johnson, 314 F. App’x at 439–40 (affirming state-law claims’ dismissal for failure to state
the right was ‘clearly established’ at the time of the challenged conduct.”57
Exercising its “discretion to decide which of the two prongs of qualified-immunity

analysis to tackle first,” this Court will resolve this issue on the clearly-established
prong.58
“A Government official’s conduct violates clearly established law when, at

the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently
clear’ that every ‘reasonable official would [have understood] that what he is doing
violates that right.’”59 “[C]learly established rights are derived either from binding
Supreme Court and Third Circuit precedent or from a ‘robust consensus of cases of

persuasive authority in the Courts of Appeals.’”60 And “[u]nless the plaintiff’s
allegations state a claim of violation of clearly established law, a defendant pleading
qualified immunity is entitled to dismissal before the commencement of
discovery.”61

When Defendants imposed the challenged COVID-19 restrictions, “no
Supreme Court precedent, Third Circuit precedent, or robust consensus of persuasive
authority had held that” similar restrictions violated clearly established law.62 To be

57 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted).
58 Id.
59 Id. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
60 Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir. 2018) (quoting Fields v. City of Phila., 862
F.3d 353, 361 (3d Cir. 2017)).
61 Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
sure, Plaintiffs cite various cases to support their claims. But none of these cases
show that Defendants violated clearly established law.

For example, Plaintiffs cite Jew Ho v. Williamson.63 There, the Northern
District of California invalidated a quarantine order because it was “enforced against
persons of the Chinese race and nationality only, and not against persons of other
races.”64 But Plaintiffs do not allege racial discrimination here.65 So Jew Ho does

not apply.
Plaintiffs also cite Hickox v. Christie, a case from the District of New Jersey.66
Hickox sued various New Jersey officials for monetary damages after they required

her to quarantine during the 2014–16 Ebola epidemic.67 The district court found that
no “directly applicable quarantine case law or the analogous civil commitment case
law placed defendants on notice that their conduct violated clearly established
federal constitutional or statutory rights,” granting the officials qualified immunity.68

Because Hickox held that the officials did not violate clearly established law, it does
not show that Defendants violated clearly established law here.
Finally, Plaintiffs cite County of Butler, in which the Western District of

Pennsylvania granted a declaratory judgment against COVID-19 restrictions.69 But

63 103 F. 10 (C.C.N.D. Cal. 1900).
64 Id. at 13.
65 Doc. 20.
66 205 F. Supp. 3d 579 (D.N.J. 2016).
67 Id. at 584.
68 Id. at 603.
as explained above, the Third Circuit reversed this declaratory judgment and
remanded with instructions to dismiss the case as moot.70 So County of Butler does

not show that Defendants violated clearly established law either.
In short, Plaintiffs “have identified neither Supreme Court precedent nor a
robust consensus of cases of persuasive authority” demonstrating that Defendants

violated clearly established law.71 Indeed, this Court has not found any such
precedent. Defendants are therefore entitled to qualified immunity from Plaintiffs’
federal damages claims, which are dismissed.
V. CONCLUSION

Defendants’ motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) is
granted with prejudice. Leave to amend is not granted. “Among the grounds that
could justify a denial of leave to amend are undue delay, bad faith, dilatory motive,
prejudice, and futility.”72 A complaint is “futile” if even, as amended, it would fail

to state a claim upon which relief could be granted.73 Given that: (1) Plaintiffs have
already amended once as of right; (2) the challenged COVID-19 restrictions are no
longer in effect; and (3) sovereign immunity and qualified immunity protect

Defendants from the monetary damages claims, amendment would be futile.

70 Cnty. of Butler, 2021 WL 3520610, at *3.
71 Mirabella v. Villard, 853 F.3d 641, 653 (3d Cir. 2017) (internal quotations marks and citation
omitted) (holding that defendants were entitled to qualified immunity at the pleading stage).
72 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) (quoting In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410740. Public record. Not legal advice.