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BESSEMER & LAKE ERIE RAILROAD COMPANY ET AL. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (02/04/77)

decided: February 4, 1977.

BESSEMER & LAKE ERIE RAILROAD COMPANY ET AL., PLAINTIFFS
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, DEFENDANT. PENNSYLVANIA STATE LEGISLATIVE BOARD, UNITED TRANSPORTATION UNION AND COMMONWEALTH OF PENNSYLVANIA, PARTY DEFENDANTS



Original jurisdiction in case of Bessemer & Lake Erie Railroad Company, et al., Plaintiff v. Pennsylvania Public Utility Commission, Defendant v. The Commonwealth of Pennsylvania, Defendant v. The Pennsylvania State Legislative Board, United Transportation Union, Defendant.

COUNSEL

Gilbert J. Helwig, with him James R. Orr, Roger C. Wiegand, and Reed, Smith, Shaw & McClay, for plaintiffs.

Gordon P. MacDougall, Special Assistant Attorney General, and Thomas P. Shearer, with them Allen E. Warshaw, Deputy Attorney General; Robert P. Kane, Attorney General; Edward J. Morris, Counsel; Candace N. Kreiger, Assistant Counsel; and John B. Wilson, Assistant Counsel, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 28 Pa. Commw. Page 463]

This is a declaratory judgment action, under the Act of June 18, 1923, P.L. 840, as amended, 12 P.S. ยงยง 831-853, seeking to determine whether Act 142,*fn1 requiring

[ 28 Pa. Commw. Page 464]

    flag protection be provided against trains occupying the same track, is valid and constitutional.

While, the history of Act 142 is long and entwined, we will attempt to be brief.*fn2 Act 142 was enacted several months after the Pennsylvania Public Utility Commission (PUC) decided to reinstate Rule 16,*fn3 a rule which is substantially similar to Act 142. Contemporaneously, the Federal Railroad Administration (FRA) was considering a proposed rule on the same subject matter.*fn4

Plaintiffs filed this action on February 10, 1976, naming the PUC as defendant. Petitions to intervene by the Attorney General of Pennsylvania and by the United Transportation Union (UTU) were granted by this Court, on April 2, 1976. There being no issues of fact to be heard, this case is now before this Court on defendants' Motion for Summary Judgment.

The controversy began in the early 1960's. At that time the Co-Operative Legislative Committee, Railroad Brotherhoods in the State of Pennsylvania, brought action before the PUC to stop railroad companies operating in the Commonwealth from terminating

[ 28 Pa. Commw. Page 465]

    flag protection. In response to these actions the PUC promulgated Rule 16 on November 22, 1965. Several railroad companies then brought suit to prohibit enforcement of Rule 16 by the PUC.*fn5 The Superior Court affirmed the action of the PUC,*fn6 in promulgating Rule 16, but on appeal to the Pennsylvania Supreme Court, the decision of the Superior Court was reversed and Rule 16 was declared to be null and void.*fn7

Since 1968, when the Supreme Court handed down its decision in Bessemer, supra note 7, the Congress of the United States enacted the Federal Railroad Safety Act of 1970 (FRSA).*fn8 Relying on Section 205 of the FRSA the PUC reinstated Rule 16 in September of 1975.*fn9 Several months later, as stated above, Act 142 was enacted which is substantially similar to restated Rule 16.

Section 205 of the FRSA*fn10 states that:

The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or ...


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