McLaughlin, Kalodner and Hastie, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This controversy arose out of a complaint lodged with the Pennsylvania Public Utility Commission (P.U.C.) by the Co-Operative Legislative Committee, Railroad Brotherhoods in the State of Pennsylvania (Brotherhood) and George W. Legge, a trainman employee of the appellant, The Monongahela Connecting Railroad Company. The complaint charged an unsafe condition caused by appellant's operations on the 29th Street hot metal bridge across the Monongahela River in Pittsburgh. The P.U.C. handed down an order which stated inter alia, that appellant was required to install "air brakes of approved design on all ladle cars, spacer or reach cars, and other cars to be operated on its hot metal bridge at 29th Street", and that appellant amend its operating rules to conform with the order, providing that it could continue its operations on a limited scale until such requirements were met. The Commission's order was affirmed by the Pennsylvania Superior Court, Monongahela Connecting R.R. Co. v. Pennsylvania Public Utility Commission, 206 Pa. Super. 17, 211 A.2d 113 (1965). Appellant then filed a complaint in the United States District Court for the Western District of Pennsylvania asking that the order of the P.U.C. be declared null and void as being unconstitutional and repugnant to federal law and that the defendants (the P.U.C. and Brotherhood) be enjoined permanently from taking any action in an attempt to enforce the order. The complaint was dismissed with an opinion by Judge Dumbauld, 253 F. Supp. 50 (W.D.Pa.1966), and plaintiff appealed.
Appellant railroad conducts two freight movements across the 29th Street hot metal bridge in Pittsburgh. The bridge is a single track structure, 1,200 feet in length, with a grade in excess of two per cent. It connects the blast furnaces of the Jones & Laughlin Steel Company on the north side of the river with the open hearth furnaces on the south side of the river. It crosses mill and rail facilities on both the north and south banks of the Monongahela River as well as the river itself.
The two said freight movements are known as the hot metal movement and the Talbot movement. The hot metal movement transports hot molten metal in ladle cars from the blast furnaces on the north side of the river to the open hearth furnaces on the south side. The hot metal train is made up of a diesel locomotive, four ladle cars, each weighing approximately 180 tons when loaded, and three spacer cars which separate and distribute the weight of the ladle cars. The entire movement weighs approximately 950 tons and moves up grade and southwardly from the blast to the open hearth furnaces. The Talbot movement picks up hopper cars from trunk line railroads (Pennsylvania Railroad, Pittsburgh & Lake Erie and Baltimore & Ohio) at interchange points from which they are assembled, classified and transported by appellant over various tracks and across the 29th Street bridge. The entire operation consists of a diesel locomotive which pushes four to eighteen hopper cars, each weighing approximately 180,000 pounds when loaded, from the north side of the river to the open hearth furnaces on the south side. Both the Talbot and hot metal movements traverse tracks that are utilized by other movements which distribute commodities throughout the world.
Appellant urged before the District Court that the P.U.C. had no authority to issue an order requiring the railroad to install air brakes on its movements since the entire field has been preempted by the Federal Government with the passage of the Safety Appliance Act, 27 Stat. 531, 45 U.S.C. Sections 1-8 (1893), as amended. Judge Dumbauld in his opinion concluded that the Safety Appliance Act did not apply to the Talbot movement since it was a switching operation which is exempt from the air brake requirements of the Act, United States v. Seaboard Air Line R. Co., 361 U.S. 78, 80 S. Ct. 12, 4 L. Ed. 2d 25 (1959). The Court also found that the hot metal movement was not a true switching movement and therefore was not subject to the exemption afforded such operation, but it was further established that this same hot metal movement was "* * * 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." Monongahela Connecting R. Co. v. Pennsylvania Pub. U. Commission, 253 F. Supp. 50, 53 (W.D.Pa.1966). However, the District Judge regarded that portion of his opinion which dealt with federal occupation and preemption as "simply dictum". The action was dismissed on the decision that the case was not properly before the court since the questions concerning federal occupation and preemption were not raised before the P.U.C. or the Pennsylvania Superior Court. An additional ground for dismissal was because appellant commenced its suit in the District Court without having exhausted its appeals at the state level.
As we see it, under all the circumstances, appellant was entitled to bring this federal complaint. There is some evidence that prior to so doing it had presented the question of federal occupation and preemption to the P.U.C.*fn1 Irrespective of that, it was and is entitled to have the issues set forth in its complaint determined by the Federal Courts irrespective of whether they had ever been passed upon by the Commonwealth Courts. Appellant's objective in this appeal has no affinity to the type of proceedings where the moving party must raise every issue in the state tribunals prior to coming into the Federal Court. The latter's primary initial concern with respect to this appeal is whether it possesses jurisdiction of the cause of action alleged. There was some passing mention in the District Court of possible doubt about the venue of this action. Though the point is not raised on appeal, we have examined it and find it without merit.
Considering the second ground for dismissal i.e. the failure to exhaust the state remedy, the Trial Court stated that " the proper procedure for ensuring uniform interpretation of federal law is through the appellate route leading to the Supreme Court of the United States." 253 F. Supp. 50, 53. That method is more commonly known as the abstention doctrine and has been applied inter alia in situations dealing with facts somewhat akin to our problem, Alabama Public Service Commission v. Southern R. Co., 341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002 (1951). Where the Federal District Court has jurisdiction by reason of an existing federal question, under the abstention doctrine if complainant has not exhausted his appeals on the state level the District Court, depending on the particular circumstances, may refuse to dispose of the merits of the dispute until after the state courts have decided it. That discretionary abstention is based on the "* * * desirability of avoiding unseemly conflict between two sovereignties, the unnecessary impairment of state functions, and the premature determination of constitutional questions." Martin v. Creasy, 360 U.S. 219, 224, 79 S. Ct. 1034, 1037, 3 L. Ed. 2d 1186 (1959).
From the facts before us a dismissal of this suit, on the authority of the abstention doctrine was not indicated. The order of the P.U.C. was dated April 13, 1964. An appeal was taken to the Superior Court of Pennsylvania which handed down its opinion on June 17, 1965, affirming the P.U.C. On July 6, 1965 appellant filed a petition with the P.U.C. requesting that the Commission modify its order of April 13, 1964 but it appears that the Commission did nothing. On October 4, 1965 appellant filed a petition with the P.U.C. entitled "Petition Raising New Matter and Question of Jurisdiction" and for the first time the allegations of federal occupation and preemption were injected into the litigation as a challenge to the order of the P.U.C. On October 11, 1965 appellant filed another petition asking for a hearing on the October 4th petition and again raising the preemption question. It appears that the Commission either denied or took no action on those petitions, although as noted by the District Court "the record is not clear on these points." 253 F. Supp. 50, 52. It was after that that appellant filed its complaint in the United States District Court for the Western District of Pennsylvania.
Appellant sought the aid of the District Court because it was evident that all efforts to raise the federal question on the state level had failed. It would have been futile for appellant to continue appeals in the courts of Pennsylvania since the very point it wishes to make (preemption) could not be heard because it had not been before the P.U.C. or the Superior Court. In the petitions of October 4th and 11th appellant made a good faith effort to bring the problem to the attention of the Commission and when that attempt failed appellant's sole remaining recourse was to the Federal Courts.
The District Judge felt that the power and authority of the P.U.C. should be tested by seeking an injunction in the Common Pleas Court of Dauphin County, Pennsylvania under 66 P.S. § 1441. However, the absence of a state remedy is not the sine qua non of federal jurisdiction in this instance. Admittedly there existed jurisdiction in both Commonwealth and Federal Courts but the choice was for appellant. If the latter had selected the Commonwealth Court it would probably have faced dismissal for failure to raise the federal question below. In Willcox v. Consolidated Gas Co., 212 U.S. 19, 29 S. Ct. 192, 53 L. Ed. 382 (1909), the Court stated:
"When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction (Cohens v. Com. of Virginia, 19 U.S. 264, 6 Wheat. 264, 404, 5 L. Ed. 257, 291), and, in taking it, that court cannot be truthfully spoken of as precipitate in its conduct. That the case may be one of local interest only is entirely immaterial, so long as the parties are citizens of different states or a question is involved which, by law, brings the case within the jurisdiction of a Federal court. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied." (212 U.S. 19 at 40, 29 S. Ct. 192 at 195, 53 L. Ed. 382).
Abstention is not a rule of law but rather a matter of judicial discretion, Baggett v. Bullitt, 377 U.S. 360, 375, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964); Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S. Ct. 643, 85 L. Ed. 971 (1941). The doctrine furnishes an alternate route of appeal through the state court system to the Supreme Court of the United States, but where as clearly appears in this appeal the plaintiff is confronted with a serious block at the state level and ...