NORENE M. MILLER, EXECUTRIX OF THE ESTATE OF DAVID MILLER, DECEASED AND I26 HOTEL CORPORATION, Appellants
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellee
Argued March 12, 2014
Appeal from the Order of the Commonwealth Court entered on March 7, 2013 at 1876 C.D. 2011, affirming the Order of the Court of Common Pleas of Montgomery County entered on April 20, 2011 at No. 2003-10787. 65 A.3d 1006 (Pa. Cmwlth. 2013) DelRicci, Thomas M., Judge, Trial Court Judge. Pellegrini, Dan, President Judge, McGinley, Bernard L., Judge, Cohn Jubelirer, Renee, Judge, Simpson, Robert E., Judge, Leavitt, Mary Hannah, Judge, McCullough, Patricia A., Judge, Covey, Anne E., Judge, Intermediate Court Judges. .
For Norene M. Miller, Executor of the Estate of David Miller, Deceased & 126 Hotel Corporation, Appellant: David Rogers Jacquette, Esq., Donald J. Martin, Esq.; Robert F. Morris, Esq., Morris & Clemm, P.C.
For Southeastern Pennsylvania Transportation Authority, Appellee: Gaetan J. Alfano, Esq., Daniel J. McGravey, Esq., Pietragalio, Gordon, Alfano, Bosick & Raspanti, L.L.P.; George B. Ditter, Esq.
BEFORE: MR. CHIEF JUSTICE CASTILLE. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Former Justice McCaffery did not participate in the decision of this case. Messrs. Justice Saylor and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion. Mr. Justice Eakin files a dissenting opinion.
MR. CASTILLE, CHIEF
This case concerns the continued viability of the historic police power of this Commonwealth in validating and regulating riparian rights and remedies where it is alleged that a downstream landowner which is subject to federal rail-safety regulations obstructed a natural watercourse causing upstream flooding and significant
damage as a result. As this is an area of law that has been regulated by the Commonwealth for centuries, and since we are not persuaded that there is a clear and manifest federal congressional intention to preempt Pennsylvania law on the issue presented -- as corroborated by the view of the local federal court -- we decline to invalidate the rights and remedies afforded to appellants under the laws of this Commonwealth. Accordingly, we reverse the order below and remand the case to the Commonwealth Court for proceedings consistent with this Opinion.
Hotel owner David Miller and his hotel (appellants) sought to hold the Southeastern Pennsylvania Transportation Authority (" SEPTA" ) liable for water damage allegedly resulting from the negligent construction and/or maintenance of a nearby SEPTA-owned railroad bridge. Appellants purchased hotel property in Fort Washington, Pennsylvania, in 1996, and they claimed that the bridge thereafter obstructed the flow of a creek which ran under the bridge, causing the creek to flood appellants' upstream hotel on three separate occasions of extreme weather conditions. On each occasion, appellants experienced flooding that filled the hotel basement and first floor. In 2001, the hotel closed and appellants declared bankruptcy.
The bridge at issue, constructed in 1912 by the Philadelphia Reading Railroad and later acquired by SEPTA, was a stone arch railroad bridge that crossed Sandy Run Creek. In June of 2001 the bridge collapsed. In his deposition, Miller testified that the floods caused a " sort of Biblical destruction" to the hotel's basement and first floor, at an estimated cost of two million dollars in damages per flood. When the bridge collapsed during the 2001 flood, however, Miller noticed that the flooding receded more quickly than on prior occasions. He also noticed that SEPTA's replacement bridge was built with wider spans between the supporting piers, thereby providing more space for a swollen creek to pass through. In 2003, appellants filed a complaint against SEPTA alleging negligence in failing to properly care for, repair, inspect and maintain the bridge, seeking damages for recovery of repair costs, lost profits and lost earnings.
On October 6, 2008, Miller secured a report from an engineering consultant who concluded that the twin arches of the original bridge acted as a choke point that restricted the flow of the creek and caused a backup of upstream waters near the location of the hotel. He also opined that a silt deposit under the bridge had exacerbated the choke point.
When discovery closed, SEPTA moved for summary judgment asserting appellants' common law negligence claim was preempted by the Federal Railroad Safety Act (" FRSA" ), since it was based upon SEPTA's alleged faulty maintenance of a railroad bridge. The trial court agreed, relying upon Mastrocola v. SEPTA, 941 A.2d 81 (Pa. Cmwlth. 2008) (determining
common law tort claim against SEPTA regarding alleged negligent construction of temporary train tracks, for damage to homes allegedly caused by vibrations from passing trains, to be preempted by FRSA because FRSA's regulations covered subject matter of track construction). Thus, the trial court entered judgment in favor of SEPTA, and appellants appealed to the Commonwealth Court.
A divided Commonwealth Court, sitting en banc, affirmed in a published 4-3 decision, agreeing with the trial court that appellants' claims are preempted by the FRSA. The majority reasoned that, in 49 U.S.C. § 20106(a)(2), Congress authorized state law to remain in force only until the Secretary of Transportation prescribes a regulation covering the subject matter of the relevant state requirement, and here, the Secretary had, in fact, issued a regulation addressing drainage issues posed by railroad tracks, which was dispositive of the preemption issue. Specifically, Section 213.33 of the " Track Safety Standards" regulations states: " Each drainage or other water carrying facility under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned." 49 C.F.R. § 213.33. In the majority's view, the regulation required SEPTA to " accommodate expected water flow for the area concerned" lying " under . . . the roadbed," i.e., water must be allowed to flow under a bridge without obstruction. That stated, the court held that appellants' common law action was preempted by the FRSA because its subject matter, the duty to maintain a water course " under . . . the roadbed" and " kept free of obstruction," was the subject of Section 213.33. 65 A.3d at 1014.
The court further reasoned that while the FRSA's saving clause, 49 U.S.C. § 20106(a)(2)(A)-(C), allows states to impose stricter regulations than those in the FRSA, the saving clause only saves state law from preemption in limited circumstances which were not met here. Specifically, a state may impose stricter standards only when such regulation: " (A) is necessary to eliminate or reduce an essentially local safety or security hazard; (B) is not incompatible with a law, regulation, or order of the United States Government; and (C) does not unreasonably burden interstate commerce." Id. Here, the court found, first, that the common law of negligence was statewide in scope, not addressing a local hazard. Second, the maintenance of a railroad bridge " to accommodate expected water flow" was a subject occupied by Section 213.33, leaving no place for state regulation. And finally, complying with the common law of fifty states on the matter of railroad bed drainage would burden interstate commerce. Thus the Commonwealth Court majority concluded that the trial court did not err in granting summary judgment in SEPTA's favor. 65 A.3d at 1018.
Judges Cohn Jubelirer (joined by President Judge Pellegrini and Judge McCullough) and McCullough (joined by President Judge Pellegrini and Judge Cohn Jubelirer) filed separate dissents. The collective dissenting view emphasized the presumption in favor of state sovereignty with respect to state law causes of action which insists that " the historic police powers of the States [are] not to be superseded . . . unless that [is] the clear and manifest purpose of Congress." Id. (Cohn Jubelirer, J., dissenting, joined by Pellegrini, P.J., & McCullough, J.) (quoting
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). In the dissenting view, the requisite clear and manifest congressional purpose to preempt has not been expressed. Judge McCullough noted that the purpose of the FRSA is " to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 65 A.3d at 1022 (McCullough, J., dissenting, joined by Pellegrini, P.J., & Cohn Jubelirer J.) (quoting 49 U.S.C. § 20101). To meet this purpose, the FRSA mandates that the Secretary of Transportation prescribe regulations as needed to address railroad safety. 49 U.S.C. § 20103(a). Here, Judge McCullough observed, the flow of a creek underneath the railroad bridge neither directly nor indirectly impacted railroad safety or railroad operations, particularly because the flooding at issue occurred upstream, and there is no allegation that the flooding encompassed or otherwise affected the railroad tracks on the bridge.
Further, specific to the " Track Safety Standards" regulation at issue, the dissenting view noted that Section 213.33 does not cover the actual subject matter in dispute, i.e., this dispute is not about drainage issues relating to railroad tracks. Section 213.33 relates to man-made drainage systems, not a natural creek which runs beneath a railroad bridge, or the maintenance thereof. While the " Track Safety Standards" regulations do not define the phrase " water carrying facility," Judge McCullough noted, a preceding section in the same chapter defines " facility" as: " railroad tracks, right-of-way, fixed equipment and facilities, real-property appurtenant thereto, [including] signal systems, passenger station and repair tracks, station buildings, platforms, and adjunct facilities such as water, fuel, steam, electric, and air lines." 49 C.F.R. § 200.3. Additionally, she noted, Black's Law Dictionary defines " facility" as " [s]omething that is built or installed to perform some particular function[.]" Black's Law Dictionary 591 (6th ed. 1990). Neither the regulation itself, nor the referenced definitions encompass a creek or maintenance of a creek bed so as to prevent the accumulation of sediment caused by the railroad bridge's restriction of the creek's flow, which, of course, was the basis of the common law negligence claim at issue.
Finally, the dissenting view maintained, while the regulation expressly governs " roadbed," the term is not defined in the FRSA or the regulations. Even if the regulation at issue applied in this context, Judge Cohn Jubelirer posed, it expressly prescribes only " minimum requirements for roadbed and areas immediately adjacent to roadbed." 49 C.F.R. § 213.31. More importantly, the regulation simply does not relate to bridges. In fact, there are no regulations for " bridges" or " bridge safety" under the FRSA, only an advisory Policy on the Safety of Railroad Bridges. Policy on the Safety of Railroad Bridges, 65 Fed. Reg. 52667-01 (August 30, 2000) (Final Statement of Agency Policy).
The Railroad Bridge Policy expressly states that it does not preempt state regulation. In the dissent's view, this express statement, in conjunction with the presumption against preemption, showed there is no clear congressional purpose to preempt the state law at issue here. Neither the policies of the FRSA nor the regulations (which set only minimum standards) conflict with existing riparian rights or other state law.
While the Commonwealth Court issued its sharply-divided decision on March 7, 2013, holding that the FRSA preempts state law in this matter because the maintenance of a railroad bridge to accommodate expected water flow is a subject occupied by Section 213.33, leaving no place for state regulation, the U.S. Court of Appeals for the Third Circuit decided otherwise the very next month, on April 30, 2013. In MD Mall Associates, LLC v. CSX Transportation, Inc., 715 F.3d 479 (3d Cir. 2013), cert. denied, 134 S.Ct. 905, 187 L.Ed.2d 778 (Jan. 13, 2014), a case concerning flood damage caused by storm-water drainage from the roadbed of certain railroad tracks, occasioned by the failure of man-made drainage facilities, the court concluded:
We cannot read the silence of § 213.33 on a railroad's duties to its neighbors when addressing track drainage as an express abrogation of state storm water trespass law. Given that the FRSA provides no express authorization for disposing of drainage onto an adjoining property, the ...