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decided: May 21, 1968.


Appeal from orders of Superior Court, March T., 1966, Nos. 133 to 144, inclusive, and April T., 1967, Nos. 108, 109, and 110, and from orders of Pennsylvania Public Utility Commission at Petition Docket No. 7 and Complaint Docket C. 18018 for appeal No. 142, in case of Bessemer and Lake Erie Railroad Company, The Pennsylvania Railroad Company, Lehigh Valley Railroad Company et al. v. Pennsylvania Public Utility Commission.


Richard N. Clattenburg, with him Blair S. McMillin, and Reed, Smith, Shaw & McClay, Harris J. Latta, John A. Shrader, S. Keene Mitchell, Jr., William P. Quinn, Gordon E. Neuenschwander, W. L. Hill, Jr., Donald A. Brinkworth, and Thomas J. Smith and John F. Reilly, of the New York Bar, and Robert O. Smith, Jr. and Rene J. Gunning, of the Maryland Bar, and D. F. Donovan, of the Ohio Bar, for railroads, appellants.

William A. Goichman, Assistant Counsel, with him Louis J. Carter and Edward Munce, Assistant Counsel, and Joseph C. Bruno, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.

T. P. Shearer, with him Brandon & Shearer, for intervening appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Eagen joins in this dissenting opinion.

Author: Roberts

[ 430 Pa. Page 341]

With the advent of mechanical devices for controlling the movement of more than one train on a single track, many railroads in Pennsylvania have abandoned the old system of flagging, whereby a man was dispatched to the rear of a halted train to place flares and wave flags, thus insuring against rear end collisions. The abandoning of the flaggers forms the basis of this controversy.

On July 22, 1964, a union filed a complaint before the Pennsylvania Public Utility Commission against the Pittsburgh and Lake Erie R. R. Co., alleging that the railroad had amended its rule 99 to eliminate flagging in those areas controlled by automatic signal devices, that this amendment has resulted in an unsafe warning procedure, and that the interests of public safety required that the commission order the railroad to reinstate its flagging controls. In October of the same year, the same union filed a "petition" against all railroads operating in Pennsylvania, including the P. & L. E., alleging that other railroads have also

[ 430 Pa. Page 342]

    eliminated flagging, and urging the Commission to promulgate a rule to require flagging in all areas where a train stops under circumstances in which it may be overtaken by another train. As a result of these two actions, the commission heard extensive testimony by experts from both the union and the railroads, and, as a result of this testimony, issued its Rule 16 on November 22, 1965, requiring flagging in all areas, subject to certain exceptions dealing with passenger train stops, interlocking plants, storage yards, and those semi-automatic signal systems in which oncoming trains are required to come to a complete stop. The railroads immediately took an appeal to the Superior Court.

Before argument could be heard, the union and the commission successfully petitioned the Superior Court to remand the case for further hearing on the ground that many of the Rule 16 exceptions were unclear. As a result of this remand, a new, amended version of Rule 16 was issued on December 19, 1966; this new rule contains no specific exceptions to the flagging requirements. In an opinion by President Judge Ervin, the Superior Court affirmed the commission's order. 210 Pa. Superior Ct. 7, 232 A.2d 220 (1967), and we granted allocatur, limiting argument, however, to the issue of whether § 25 of the Interstate Commerce Act, 49 U.S.C. § 26,*fn1 has preempted state regulation dealing

[ 430 Pa. Page 343]

    with flag protection. Having thoroughly reviewed the applicable statutes and judicial precedents, we hold that federal legislation has preempted any state intervention in this particular area, a holding supported by three separate reasons.

First, there can be no doubt whatsoever that the mechanical devices specifically required by § 25 perform

[ 430 Pa. Page 344]

    the exact same function that manual flagging is intended to perform (i.e., increasing safety by preventing rear end collisions); second, the language used in § 25 is broad enough to indicate that Congress has chosen to regulate the entire field of rear end collision prevention; and third, the Supreme Court of the United States has announced the rule that where federal language is broad enough to indicate preemption, a state law cannot escape interdiction on the ground that it does not conflict with the federal regulations actually passed.

The first reason for our decision today, that § 25 devices perform the same function as flagging, needs little expansion. What is most significant about this identity of functions, however, is this. If one looks behind the actual mechanical devices themselves, § 25 is really nothing more than a federal statute designed to keep one train from running into the rear of another. Congress having once determined how best to avoid this type of disaster, it is no longer open to the states to decide that the federal protections are inadequate, and that additional safety measures must be taken by interstate railroads whenever their trains run through Pennsylvania.

Furthermore, the language of § 25 indicates that the Interstate Commerce Commission (now the Department of Transportation [D.O.T.])*fn2 has the power to require flag protection to supplement the safety features of mechanical collision prevention devices. In addition to requiring those types of automatic devices set out in the opening sentence of § 25(b), the Commission may also require "other similar appliances, methods, and systems intended to promote the safety of railroad operation.

[ 430 Pa. Page 345]

. . ." The argument advanced by appellees that the § 25 language is limited only to mechanical devices, whereas flagging cannot be classified as a device at all, falls flat in the face of this language. For the statute, in addition to permitting the Commission to require "appliances" not specified in the statute itself, also permits the establishment of additional "methods and systems" to prevent rear end collisions. Flagging can certainly be classified as either a "method" or a "system."

Admittedly, neither the ICC nor the DOT has ever issued any blanket regulations pursuant to § 25 covering flag protection. However, not only is the federal agency's failure to regulate flagging itself not dispositive when the issue of preemption is raised, see cases cited and discussed infra, but furthermore, the ICC, in 1947, did issue an order requiring railroads under certain specified circumstances to supplement their automatic controls with flag protection. See Order No. 29543, issued pursuant to Appliances, Methods, and Systems Intended To Promote Safety of Railroad Operation, 268 I.C.C. 547, 560-61 (1947).*fn3

[ 430 Pa. Page 346]

It is certainly too late in the development of constitutional law to say that Congress may not preempt an entire field by the passage of a broad based statute, even though the regulations passed pursuant to that statute do not in fact cover every possible situation. Moreover, once such a statute is passed, and the intention to preempt state law in the area becomes manifest, the various states may not pass legislation even supplemental to the federal rules, so long as the area affected by these supplemental acts coincides with the federal bailiwick. For example, in Napier v. Atlantic Coast Line R.R. Co., 272 U.S. 605, 47 S. Ct. 207 (1926), two state statutes which required automatic fire doors and cab curtains on locomotives were declared unconstitutional on the ground that the federal Locomotive Boiler Inspection Act was the exclusive pronouncement on mandatory locomotive equipment. No one in Napier contended that the federal act actually had any provisions relating to such cab curtains and fire doors. The Supreme Court nevertheless held that the states were powerless to supplement the federal equipment requirements with additional safeguards of their own. The appellee in the present case attempts to distinguish Napier by relying on In Re Complaint of Brotherhood of R.R. Trainmen v. Public Utility Commissioners of New Jersey, 49 N.J. 174, 229 A.2d 505 (1967). However, in our view, New Jersey's explanation of Napier is unsatisfactory.

According to the Brotherhood decision, Napier does not control because it dealt with equipment actually attached to the locomotive and passing from state to

[ 430 Pa. Page 347]

    state, rather than with a requirement styled by the New Jersey Court as a "supplemental local emergency safety device." We believe this to be a distinction without legal substance. Just as in the present case, an attempt was made in Napier to show that the state law was aimed at a completely different evil than that covered by the Boiler Inspection Act. It was there contended that the federal locomotive requirements were intended to keep trains from having accidents, whereas the local fire door and cab curtain statutes were designed for engineer health and safety. That argument failed to persuade the Supreme Court of the United States. So also is this Court unmoved by an argument based on the purely "supplemental" nature of flagging. In fact, it would seem that Napier is a much weaker case for a finding of federal preemption than this insofar as the state statute there was intended to remedy a different problem than the federal law, whereas in the present case, the appellee's best argument is that flagging "supplements" automatic devices.

Finally, on this issue of supplemental state legislation, we shall follow the case of Pennsylvania R. Co. v. Public Service Commission of Pennsylvania, 250 U.S. 566, 40 S. Ct. 36 (1919). Pennsylvania had enacted a statute requiring cabooses to be equipped with rear platforms of certain minimum dimensions, even though the applicable federal statute permitted cabooses with no such platforms. In answer to the argument that the Pennsylvania statute merely "supplemented" the federal law by making cabooses safer, Mr. Justice Holmes had only to say: "when the United States has exercised its exclusive powers over interstate commerce as far as to take possession of the field, the States no more can supplement its requirements than they can annul them." 250 U.S. at 569, 40 S. Ct. at 37.

[ 430 Pa. Page 348]

Agreeing with this great Justice, and believing that his words are just as applicable to the present case, we reverse the orders of the Superior Court and Public Utility Commission.


Orders of Superior Court and Public Utility Commission reversed.

Dissenting Opinion by Mr. Justice Musmanno:

The Majority Opinion hitches the wagon of its argument to the star of Oliver Wendell Holmes by quoting the illustrious jurist who said: "[w]hen the United States has exercised its exclusive powers over interstate commerce as far as to take possession of the field, the States no more can supplement its requirements than they can annul them."

This is epigrammatic, it is brilliant, -- but it is untrue.

It is untrue that, by providing an additional measure of safety to a dangerous situation, the original forces of safety are annulled. Thus, I cannot go along with the Majority's reasoning that because Justice Oliver Wendell Holmes said something some fifty years ago, life and limb on the railroads of Pennsylvania should be denied the protection proclaimed by the sovereign state of Pennsylvania.

I bow to no one in my admiration for Justice Oliver Wendell Holmes. There is no question that in the constellation of juristic eminence his star is a bright one indeed, but no jurisprudential astronomer has asserted that it was a star that shone all the time with impeccable infallibility. I personally know of an occasion when that luminary failed to scintillate with the sapient effulgence assigned to it by the Majority Opinion. I was one of the attorneys in the Sacco-Vanzetti case who called on Justice Holmes at his home in Beverly, ...

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