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April 18, 1966

PENNSYLVANIA PUBLIC UTILITY COMMISSION and George I. Bloom, P. Stephen Stahlnecker, William F. O'Hara, John L. Dorris and Maurice H. Claster, Commissioners, and Co-Operative Legislative Committee, Railroad Brotherhoods in the State of Pennsylvania, Defendants

The opinion of the court was delivered by: DUMBAULD

 Plaintiff, a short-line industrial railroad, sues to restrain enforcement of an order of the Pennsylvania Public Utility Commission (hereinafter referred to as P.U.C.) requiring the use of airbrakes on certain train movements via the 29th Street bridge across the Monongahela River in Pittsburgh. A three-judge court was requested, but Chief Judge Harry E. Kalodner of the Third Circuit concluded that such a tribunal was not appropriate. The order of October 25, 1965, to that effect was corroborated by the order of December 2, 1965, following confirmation of his judgment by the decision of the Supreme Court in Swift and Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194, decided on November 22, 1965. The facts underlying the instant case appear in the opinion of the Pennsylvania Superior Court, upholding the P.U.C. order, in Monongahela Connecting Railroad Company v. Pennsylvania P.U.C., 206 Pa. Super. 17, 211 A.2d 113, decided June 17, 1965.

 Plaintiff's contention now is that the police power of the State is superseded by federal occupation or pre-emption of the entire field of airbrake regulation by Congressional legislation. Through oversight and inadvertence, or as a matter of tactical advantage, plaintiff failed to raise this issue either before the P.U.C. or in the Superior Court. However, on October 4, 1965, plaintiff filed with the P.U.C. a petition seeking to raise that issue, and on October 11, 1965, filed another similar petition. Apparently these petitions were denied by the P.U.C. and no supplemental relief was sought by plaintiff in the State courts, although the record is not clear on these points.

 It is elementary that in the absence of federal occupation of the field the police power of a State extends to matters involving protection of the public safety. Chicago, R.I. & P. Ry. Co. v. State of Arkansas, 219 U.S. 453, 465, 31 S. Ct. 275, 55 L. Ed. 290 (1911); Maurer v. Hamilton, 309 U.S. 598, 603, 60 S. Ct. 726, 84 L. Ed. 969 (1940); Terminal R.R. Ass'n of St. Louis v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 7, 63 S. Ct. 420, 87 L. Ed. 571 (1943); Dumbauld, The Constitution of the United States 126 (1964). The question therefore is, what is the scope and extent of federal legislation concerning airbrakes?

 One might have supposed that, like other features of the federal Safety Appliance Acts (relating to couplers and the like), the airbrake requirements would be applicable to all vehicles used on any railroad which is a highway of interstate commerce, whether the particular vehicles were used in moving interstate traffic or intrastate traffic. Southern Ry. Co. v. United States, 222 U.S. 20, 26, 32 S. Ct. 2, 56 L. Ed. 72 (1911).

 However, careful inspection of the pertinent airbrake legislation shows that such requirements apply only to (1) "trains" which are (2) moving in interstate commerce. First enacted on March 2, 1893, 27 Stat. 531, 45 U.S.C. § 1 provides:

"It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose."

 United States v. Seaboard Air Line Railroad Co., 361 U.S. 78, 80, 82, 80 S. Ct. 12, 4 L. Ed. 2d 25 (1959), clearly shows that the airbrake requirements apply only to "trains" and not to "true switching operations".

 What is the essential difference between these two types of railroad operations? We believe that switching operations involve movements of a small number of cars, over a short distance, where frequent stops and starts must be made to pick up or "spot" cars at many different locations, in connection with assembling or breaking up trains which are about to move or have moved in line-haul travel.

 Accordingly, we believe that what is called the "Talbot movement" in this case is a true switching operating. It involves delivery to open hearth furnaces of the Jones & Laughlin Steel Company on the south side of the Monongahela River of shipments of raw material in "foreign cars" (belonging to other railroads) which have been received by plaintiff from numerous points of origin in interchange with line-haul carriers in interstate commerce.

  On the other hand, we believe that the so-called "hot metal movement" is not a true switching operation and that it is a purely intrastate movement. It is basically merely a part of the manufacturing operations of the steel company, although handled by plaintiff as a separately incorporated carrier. This movement consists of a Diesel locomotive pushing four ladle cars which are filled with hot molten metal at blast furnaces of the steel company on the north side of the river and are then moved to the open hearth furnaces located on the south side of the river. The hot metal cars are separated by spacer cars which simply serve for operating convenience and safety. It is true that some switching is done on the south side, and the spacer cars are put together on the return movement when they are no longer needed as separators. But this also is simply a matter of operating convenience. The only "revenue freight" (if it may be so described) is the hot metal. Such freight originates in one part of the Jones & Laughlin plant, in Pennsylvania, and is delivered to another part of the same plant in the same State. There is no interstate movement. The hot metal cars have not been received from other railroads in interchange, and have not had any prior or subsequent line-haul movement. The entire transportation service consists of a single, continuous movement from the blast furnaces to the open hearth furnaces. Such movement is not incident to the assembling or breaking up of a train about to move, or which has moved, in line-haul travel or in interstate commerce.

 We therefore conclude that the hot metal movement is not a true switching operation and is therefore not subject to the exemption accorded to such operations. But it is likewise not within the terms of the federally-imposed requirements for airbrakes under 45 U.S.C. § 1, since the metal cars do not move in interstate traffic. It therefore remains subject to State regulations. The Talbot movement, however, we believe is exempt from State regulation.

 Speculations as to the significance of the silence of Congress are always dubious. See Bikle, "The Silence of Congress", 41 Harvard Law Review 200 (1927). The general rule in a case relating to federal occupation of the field is that State power is excluded, not only where there would be actual conflict between the federal and State regulations, but also where the scope and structure of the federal regulations is such that an exercise of State power would interfere with, hinder, obstruct, or frustrate the scheme of federal regulations. Southern Ry. Co. v. Railroad Comm. of Indiana, 236 U.S. 439, 446-447, 35 S. Ct. 304, 59 L. Ed. 661 (1915); Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 157, 62 S. Ct. 491, 86 L. Ed. 754 (1942); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947); People of State of California v. Zook, 336 U.S. 725, 729, 69 S. Ct. 841, 93 L. Ed. 1005 (1949); Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960); Campbell v. Hussey, 368 U.S. 297, 300-302, 82 S. Ct. 327, 7 L. Ed. 2d 299 (1961); Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963); Local 20, Teamsters, etc., Union v. Morton, 377 U.S. 252, 258, 84 S. Ct. 1253, 12 L. Ed. 2d 280 (1964); O'Brien v. Western Union Tel. Co., 113 F.2d 539, 541 (C.A.1, 1940). The issue of pre-emption must always be determined on a case-by-case basis. Pennsylvania R.R. Co. v. Public Service Comm'n, 250 U.S. 566, 569, 40 S. Ct. 36, 63 L. Ed. 1142 (1919); People of State of California v. Zook, 336 U.S. 725, 731, 69 S. Ct. 841, 93 L. Ed. 1005 (1949).

 Accordingly, we conclude that federal regulation of airbrakes is exclusive so far as it extends. In other words, with respect to interstate movement, we believe that Congress intended to occupy the field, and established requirements applicable to "train" movements. The distinction between train movements and switching movement implies a recognition that it would be inconvenient, impractical, or burdensome to require the use of brakes on movements that are true switching operations; that is to say movements of a small number of cars, for short distances, frequently interrupted by the need to pick up or drop off individual cars at particular locations, in connection with the assembling or breaking up of line-haul trains. Therefore, the lack of a Congressionally-imposed requirement for the use of airbrakes in these ...

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