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decided: February 4, 1977.


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.


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. §§ 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 continue in force any law, rule, regulation, order,

[ 28 Pa. Commw. Page 466]

    or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.

This section indicates very clearly the intent of Congress as to the extent of participation of individual states in the regulation of railroad safety. There are two distinct instances in which the states may regulate; first, the states may regulate railroad safety until the Secretary adopts a rule, regulation, order, or standard covering the subject matter of the state regulation;*fn11 and second, where it is necessary to eliminate or alleviate an essentially local safety hazard.*fn12 Since both parties agree that Act 142 cannot fit into the second instance described above under Section 205, our discussion will center on whether Act 142 is encompassed by the subject matter of any rule, regulation, order or standard adopted by the Secretary of the Federal Railroad Administration and thus preempted by Section 205 of the FRSA.

Plaintiffs' principal argument is that Bessemer is still good law and thus, is controlling. The Supreme Court of Pennsylvania stated in its decision:

Having thoroughly reviewed the applicable statutes and judicial precedents, we hold that federal legislation has preempted any state intervention

[ 28 Pa. Commw. Page 467]

    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 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.

Bessemer, supra, 430 Pa. at 343-44, 243 A.2d at 360. (Emphasis in original.)

At the time of the decision in Bessemer, the Supreme Court of Pennsylvania was writing upon a clean slate. Given no clear indication from Congress of their intent as to preemption (as later given in the FRSA), it very properly found the field to have been preempted, using as their authority the words of Justice Holmes, who stated:

'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.'

Bessemer, supra, 430 Pa. at 347, 243 A.2d at 362. (Citation omitted.)

Now, however, with the very clear manifestation of Congress' intent as to preemption in the FRSA, which specifically allows for state participation in the regulation of railroad safety, the preemption argument

[ 28 Pa. Commw. Page 468]

    of the Pennsylvania Court in Bessemer, is no longer valid.*fn13

In Bessemer, the Court came to the conclusion that a section of the Interstate Commerce Code, Section 25,*fn14 and Order No. 29543*fn15 promulgated thereunder,

[ 28 Pa. Commw. Page 469]

    performed the same function as Rule 16, and thus indicated Congressional intent to preempt the field.*fn16

[ 28 Pa. Commw. Page 470]

While we agree that the function of all three is, hopefully, to prevent the rear-end collisions of trains, our focus in analyzing these laws is different. As stated above, Section 205 allows for state regulation in the first instance, where the Secretary of the FRA has not adopted a rule, regulation, order or standard covering the subject matter of a state rule, regulation, order, or standard. All parties appear to agree that if there is a rule, regulation, order or standard covering the subject matter of Act 142, it is Section 25 and Order No. 29543.

A careful reading of Section 25, Order No. 29543 and Act 142, reveals many distinct differences in the subjects encompassed by each. Act 142 specifies flagging in two distinct situations; first, when a train is stopped; and second, where there is a possibility that a train may be overtaken. On the other hand, Section 25 is general, giving the FRA very broad, non-specific, non-comprehensive powers over the safety of railroad operations by the use of mechanical safety appliances.*fn17 Order No. 29543 promulgated under Section 25 redefines medium and low speed, lays down the specifications and reporting requirements for the installation of automatic block signal systems, and specifies flagging in only one very specific instance -- where a passenger train is to be admitted to block or where another enters a block occupied by a passenger train. This is very different from the flag protection requirements of Act 142 and certainly not a comprehensive regulation of flag protection. The conclusion is inescapable that Section 25, Order No. 29543 and Act 142 cover different subjects.

This conclusion is further buttressed by the statements of the FRA when it proposed rule making in

[ 28 Pa. Commw. Page 471]

    the area of railroad operations, particularly in the area of flag protection.*fn18

At present there are no federally prescribed operating rules. The Association of American Railroads Standard Code of Operating Rules is the foundation on which most railroads have constructed their own rule books. Each Railroad then constructs, interprets and implies its rules as it sees fit according to the conditions under which it operates. The resulting ambiguous construction and varying interpretations of existing rules were cited by the National Transportation Safety Board (NTSB) as a major factor contributing to the property damage and loss of life due to train accidents.

Recognizing the serious safety hazards inherent in the existing operating rules system, the FRA is considering rule making with respect to the three most troublesome causes of serious accidents resulting from human factors.

These causes are: . . .

(3) failure of crew members to provide adequate flag protection when a train is operating under circumstances under which it may be overtaken by another train. (Citations omitted.)*fn19

The FRA recognizes that flag protection is a subject where there has been no action taken by the Federal Government. The FRA does not state that it is revising Section 25 or Order No. 29543, nor does it state that it is replacing them. The conclusion is simply

[ 28 Pa. Commw. Page 472]

    that the FRA is proposing new operating rules where there have been none before.

One further fact compels our conclusion. When the Co-Operative Legislative Committee, Railroad Brotherhoods in the State of Pennsylvania, petitioned the PUC in the early 1960's there was an exchange of correspondence between the attorneys representing the railroads and the Interstate Commerce Commission (ICC) and the FRA. The essence of this correspondence was whether Order No. 29543 was then in effect and if so did it encompass flagging as a method or system under Section 25. The reply to the inquiries by the attorneys was that yes, Order No. 29543 was in effect, but no, the Commission never construed flag protection as being within Section 25.*fn20

[ 28 Pa. Commw. Page 473]

While our review of the case law interpreting the FRSA and particularly Section 205 revealed no case to be on point,*fn21 the Fifth Circuit's decision in Southern Pacific Transportation Company v. Usery, 539 F.2d 386 (5th Cir. 1976), is very enlightening. In discussing the possible conflicts between the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq. (1970), and the FRSA, the Fifth Circuit indicated in relation to railroad fire protection, that:

     comprehensive FRA treatment of the general

[ 28 Pa. Commw. Page 474]

    problem of railroad fire protection will displace all OSHA regulations on fire protection, even if the FRA activity does not encompass every detail of the OSHA fire protection standards, but FRA regulations of portable fire extinguishers will not displace OSHA standards on fire alarm signaling systems.

Southern Pacific Transportation Co. v. Usery, supra, at 391.

The Fifth Circuit's discussion of the possible conflicts between the FRA and OSHA is apropos here. Analogizing the instant case to the situation before the Fifth Circuit, the FRA's adoption of Section 25 and Order No. 29543 is not a comprehensive treatment of the general problem of the prevention of rear-end collisions. Rather, the adoption by the FRA of Section 25 and Order No. 29543 is tantamount to the regulation, in the Southern Pacific Transportation Co. v. Usery, supra, of portable fire extinguishers. The point being made by the Fifth Circuit is that the regulation of one part of a very general area, fire protection or in the instant case, rear-end collisions, while performing the same overall purpose as standards set by OSHA will not oust or displace OSHA standards. Likewise, the effect of Section 25 and Order No. 19543, while having the same purpose as Act 142, the prevention of rear-end collisions, should not act to oust or displace Act 142.

Therefore, on the basis of the above, we will enter a decree holding Act 142 to be valid and constitutional.


Now, February 4, 1977, judgment is entered declaring Act No. 142 valid and constitutional.


Statute declared valid and constitutional.

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