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DON T. LEAP v. COMMONWEALTH PENNSYLVANIA (07/10/74)

decided: July 10, 1974.

DON T. LEAP, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, APPELLEE



Appeal from the Order of the Department of Labor and Industry in case of In Re: Application of Don T. Leap, Case No. 680-BF-S.

COUNSEL

Norman I. White, with him McNees, Wallace & Nurick, for appellant.

Joseph M. Hill, Assistant Attorney General, with him Charles S. Solit, General Counsel, for appellee.

President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr. did not participate. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Rogers. Judge Crumlish, Jr. joins in this dissent. Dissenting Opinion by Judge Blatt.

Author: Wilkinson

[ 14 Pa. Commw. Page 326]

This case involves an appeal from a decision by the Industrial Board of the Department of Labor and Industry, appellee, denying Don T. Leap, appellant, permission to operate two German-built steam locomotives, one built in 1936 and bought by the appellant in 1969, the other built in 1927 and bought in 1970. Appellant seeks to use these locomotives in the Bedford area as tourist attractions. In 1969 and 1970, the locomotive built in 1936 was field inspected by a representative of the boiler division of the Department of Labor and Industry with the result that the locomotive was stamped with the inspector's number and the seal and

[ 14 Pa. Commw. Page 327]

    insignia of the Commonwealth. The 1927 locomotive was field inspected in 1972 with identical results.

On July 6, 1972, appellant was advised by the Industrial Board that his request for permission to operate the locomotives was "denied in view of the fact that the boilers were not designed and constructed, stamped or inspected as required by the Pennsylvania Boiler Law." An appeal was timely taken and on September 27, 1972, a hearing was held before the Industrial Board which denied appellant's application on June 27, 1973. This appeal followed.

The difficult question posed by this appeal was clearly stated in appellee's brief: Does the Department of Labor and Industry have the "legal authority to issue a permit for the operation of two steam locomotives . . . which were not shop inspected during construction for public safety before being shipped into the Commonwealth, as required by the Boiler Act of May 2, 1929, as amended"? The answer to this question must encompass a careful consideration of Sections 4 and 16 of the Act of May 2, 1929, as amended, 35 P.S. § 1304 and § 1316. These two sections read as follows:

"Section 4 [§ 1304 Inspection]

"Every boiler . . ., within the scope of this act, destined for use in this Commonwealth, shall be inspected during its construction, by an inspector who shall have been commissioned by this Commonwealth to perform such service. Every such boiler . . . which has been so inspected shall, upon completion, have placed upon it, in the presence of the said inspector, a stamp bearing a symbol and number authorized by the department for this purpose: Provided, That any boiler built prior to December 31, 1929 . . . and which ha[s] not been removed from the Commonwealth subsequent to such applicable date, shall not be required to be shop inspected.

[ 14 Pa. Commw. Page ...


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