such item of equipment is not offered for sale in the Commonwealth and must obtain from the wholesalers and dealers all unsold inventory of the item which had been distributed after approval was sought and before it was denied. After state approval is granted, it may be revoked and an injunction against its sale in Pennsylvania may be sought.
Approval may be sought from the American Association of Motor Vehicle Administrators ("AAMVA") a voluntary association of state officials, of which Pennsylvania is a member and which is Pennsylvania's approval agent, or from the Department of Transportation directly. In either event fees must be paid by the manufacturer for testing and approval of the equipment. AAMVA also requires reapproval of lighting equipment every five years with the submission of a new laboratory test report and the payment of another fee.
Although both AAMVA and the Commonwealth through the Secretary of Transportation require the testing of equipment for compliance with safety standards neither entity has ever had any testing facilities.
A test report to satisfy AAMVA must come from a laboratory approved by AAMVA or from a manufacturer's laboratory providing it meets certain qualifications, all at additional expense to the manufacturer.
Apart from the testing and retesting, AAMVA conducts on a random basis a check on the market of safety equipment for approval status. Unapproved means only that AAMVA has not been paid a fee or been furnished photographs or a test report from an approved laboratory and not that it is unsafe or not certified under the National Safety Act. AAMVA maintains a list of unapproved items which is not always current.
When a manufacturer elects to seek approval from the Pennsylvania Department of Transportation ("PennDot") he must submit an application, a copy of a laboratory test report prepared by a laboratory approved either by AAMVA or PennDot, a sample of the item or a photograph of it and pay a fee ranging from $ 25 to $ 100.
If in the course of its required market surveillance program it is revealed that an item of equipment which is certified as being in compliance with applicable FMVSS, but which has not been submitted for approval or which has been disapproved by PennDot the New Vehicle Code (75 Pa.C.S.A. § 4106(c)) directs that written notice of such unapproved status be given to the dealer, distributor, wholesaler or manufacturer and the dealer thereafter shall not sell the equipment and the distributor, wholesaler or manufacturer shall recall all of the equipment from all dealers. This is so even though the item is in compliance with all requirements of federal law.
A good portion of the Plaintiff manufacturers' sales of automobile headlamps, stoplamps, turn signals, etc., all regulated by the National Safety Act, are for use in Pennsylvania and must satisfy Pennsylvania's approval requirements.
The New Vehicle Code contains a number of sections to force the compliance with the Commonwealth's approval requirements, including the prohibition against registration or reregistration of vehicles on which equipment has not been submitted for approval and the prohibition against the driving of such vehicle.
The stipulated facts disclose that to comply with the Pennsylvania approval program would cost the Plaintiffs substantial amounts of money. For example, Dietz paid to AAMVA from 1970 through 1974,.$ 19,000 approval and reapproval fees and Grote paid $ 22,900 fees during the same period. These two Plaintiffs together during this period were obliged to spend more than $ 120,000 for the required laboratory test reports to be filed with AAMVA before approval could be granted. Additionally, there are administrative expenses the manufacturers are obliged to incur in preparing and filing forms and in some cases great expense to supply samples to the laboratories.
Manufacturers are delayed sometimes for months in placing their already federally certified items of safety equipment on the market in Pennsylvania because of the Pennsylvania approval program. In some instances approval is held up because of a dispute over the proper filing fee; whether approval is required for a previously approved item that has been changed in an apparently insignificant way or over a question of what parts of lighting equipment require approval.
With that recital of the pertinent facts we turn now to the legal issues.
It is appropriate to consider this preemptive matter on motions for summary judgment since the material facts have all been stipulated. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S. Ct. 988, 55 L. Ed. 2d 179 (1978).
As far as we can determine none of the cases dealing with the question of preemption under the National Safety Act dealt with the problem of the Enforcement by the states of standards Identical with those promulgated under the National Act. See Chrysler v. Rhodes, 416 F.2d 319 (1st Cir. 1969); Chrysler Corp. v. Malloy, 294 F.Supp. 524 (D.Vt.1968) rev'd sub nom. Chrysler Corp. v. Tofany, 419 F.2d 499 (2d Cir. 1969) which generally deal with regulations by the states of state standards not Clearly governed by the Federal standards.
The Commonwealth's regulations concerning safety on the highway pursuant to the Motor Vehicle Code have their basis in the police power and it is well-settled that where a state's police power is involved, preemption will not be presumed, Chrysler Corp. v. Rhodes, supra n. 8; Chrysler Corp. v. Tofany at 511; Locomotive Engineers v. Chicago R.I. & P.R. Co., 382 U.S. 423, 86 S. Ct. 594, 15 L. Ed. 2d 501 (1966).
The Commonwealth maintains that where, as here, the state standards are identical to those of the federal government the state may "complement" the federal Enforcement of such standards and that such enforcement would not in any way interfere with the federal regulations. We are constrained to conclude otherwise.
It is not contended that the federal government cannot regulate in this area. It must be conceded that the field of highway safety in interstate commerce is particularly susceptible to Congressional control. The declaration of purpose of the Act discloses that:
" . . . the purpose of this chapter is to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents. Therefore, Congress determines that it is necessary to establish motor vehicle safety standards for motor vehicles and equipment in interstate commerce; to undertake and support necessary safety research and development; . . . ." 15 U.S.C. § 1381.
The question is whether or not Congress has, by this Act, excluded the states from the type of enforcement the Commonwealth here is attempting to exert.
There are certain tests established by case law to determine when Congress has in fact preempted a field.
Basically it was held in Florida Lime and Avocado Growers Inc. v. Paul, 373 U.S. 132, 83 S. Ct. 1210, 10 L. Ed. 2d 248 at 257 (1963) that preemption Must be found where it is impossible for both federal and state regulations to exist, a situation not present in the instant case. But the Supreme Court said in passing that it is not important whether the state and federal regulations were aimed at similar or different objectives, the test "is whether both regulations can be Enforced without impairing the federal superintendence of the field ".
We next consider the statute. Congress has said (15 U.S.C. § 1392(d)) in part:
"(d) Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment Which is not identical to the Federal standard."