Petition for Writ of Certiorari — Mindy Meyers, Etc. v. Commonwealth of Pennsylvania

Supreme Court brief1974

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Te EE CONINT TY ° 2eGn Oe

IN THE

Supreme Court of the United States

October Term, 1973

No. 73 - ee - ]

MINDY MEYERS, an infant, by her parent and natural guardian, MARVIN

MEYERS, and MARVIN MEYERS, individually, and LYNDA BIENEN-

FELD, an infant, by her parent and natural guardian, STANLEY

BIENENFELD, and STANLEY BIENENFELD, individually,

Petitioners,

—_—V.—

THE COMMONWEALTH OF PENNSYLVANIA,

Respondent.

HUBERT DAYE; TEDESCO BUS COMPANY, INC.; FRANK TEDESCO;

and ACADEMY CHARTER SERVICE, INC., each in his or its own right

and also on behalf of all passengers of Bus 2065 of the Tedesco Bus Com-

pany, Inc., injured on July 15, 1970, at New Smithville, Lehigh County,

Pennsylvania, their parents, guardians, next of kin, heirs and legal

representatives,

Petitioners,

—_—V.—

THE COMMONWEALTH OF PENNSYLVANIA, THE PENNSYLVANIA

DEPARTMENT OF TRANSPORTATION, VICTOR W. ANCKAITIS,

LESTER E. JORDAN, CHARLES C. SINCAVAGE, WILLIAM I. DAVIS,

ROBERT BROWN and EDWIN REIKER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

ZANE and ZANE,

Attorneys for Petitioners,

Meyers and Bienenfeld,

One Rockefeller Plaza,

New York, New York 10020.

(212) 245-2222

BUTZ, HUDDERS & TALLMAN,

Attorneys for Petitioners,

Daye and Tedesco, et al.,

740 Hamilton Street

Box 688, Allentown, Pennsylvania 18105

(215) 439-1451

JAMES B. ZANE,

BRADLEY IAN BERGER,

RICHARD F. STEVENS,

Of Counsel.

EARLS LTD MEE Pe OPED

Bereresssxery angry

Qi BOT eR RR SO

TABLE OF CONTENTS

PAGE

Opinions Below .................ccccocssesses bnliasdslsinibaseneaoaanennncacnidbedan 2

SE onctcc shes atiiinntcebesicireinncninininininnaneninnninacienatantanieseos 2

(Questions Presented ...........:cesseesseresseeeseeeseeeeeseesesssetsateneees 2

‘onstitutional and Statutory Provisions Involved ........ 3

Mttemment Of the CAme q......c....nccccccssscccsreccscsnsecesonccsnsasoesenones 3

IID sccicionciteriakactcdoncconen iiiineapicauch samen pemiepieniet 3

The Report of the National Transportation Safety

BN srcnininesesiibtenniicoscininticn scidiiieecnceiceespeaieiaateniinlieainaie 4

The Complaints and the Commonwealth's Motions 06

Reasons for Granting the Wit ....................cccssscsscsseenes 7

I. The Highway Safety Act of 1966 has as its pur-

pose: securing the safety of those using the

Federal Grant-inAid Highways ...........ccceeeees 7

Il. The Commonwealth of Pennsylvania, by its mean-

ingful, ongoing participation in the federal-aid

highways programs, has waived its immunity

from suit under the Eleventh Amendment .......... 2

Ill. The Federal-Aid Highways Act and Highway

Safety Act create an implied cause of action in

favor of plaintiffs to recover for their injuries 16

ia) The Theory of the Implied Cause of Action 17

(b) The Lower Courts’ Views as to the Implied

OE I ics bainciesnarccinneriamnvomceneniaita 22

COTATI oases ccecccses settle even qelscsinenaleactanenonesinnsseneta x

APPENDIX

PAGE

Judgment (3rd Circwit ) -..eceececseessesesnseensenernesseseneseeeeneents la

Opinion (District COUrt) ...--s.ssssssessssssensennsseeseeeseneteeetennees 2a

Opinion (3rd Cireit ) ...-seeceseerssesseeeceneerneesnesssnessnnecennsenees l6a

Title 23, U.S.C., Highway Act, $ LOL, et S€q. -----e 27a

Highway Safety Act, Se (1) Ba | ne 32a

TABLE OF CASES

Bell y. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct.

T73B. 1B A.L.R. 2d B83 (1946) ..----erereserererserenererseeseees 17

Bivens v. Sir Unknown Federal Narcotics Agents, 403

U.S. 388, 29 L. Ed. 24 619, 91 S. Ct. 1999 (1971)

18, 19, 21

Briggs v. Sagers, 424 F.2d 130 (10th Cir.), cert. denied,

400 U.S. 829, 27 L. Ed. 2d 59, 91 8. Ct. 58 (1970)

11, 12

Chesapeake Bay Bridge and Tunnel District v. Lau-

ritzen, 404 F. Supp. 1001 (4th Cir. 1968)... 15

Fagot v. Flintkote Co., 305 F. Supp. 407 (D.C. La. E.D.

TOGD) seccenresccevenserseresnsoscoeesnenonessncononsesonscsssnscnnsenonsnsassnssenees 18

Gomez ¥. Florida State Employment Service, 417 F.2d

569 (Dth Cir. 1969) ......escccsesessssreeeersreressseerenensneeners 22, 23

J. 1. Case Co. ¥. Borak, 377 U.S. 426, 12 L. Ed. 2d 423,

SAS. Ct. 1555 (1964) ...eeeeeeserecssessensenersenesenenennsnsererens 20

iii

PAGE

Mahler v. United States, 306 F.2d 713 (3d Cir. 1958),

cert. denied, 371 U.S. 923, 9 L. Ed. 2d 231, 83 8. Ct.

Re SE ca. ic ses pceeieennareesseeannanieaeennainnidatiennaeda 7, 9,10

Named Individual Members of the San Antonio Con-

servation Society v. Texas Highway Department,

446 F.2d 1013 (Sth Cir. 1971) «0.0... eecsccesreeeseees 15, 16

Parden vy. Terminal R. Co. of Ala., 377 U.S. 184, 12

L. Ed. 2d 233, 84 8S. Ct. 1207 (1968) ............sceeee- 12, 14

Pennsylcania Environmental Council, Inc. v. Bartlett,

454 F.2d GIS (3d Cir. 1971) .......cccrccsrsorscoccossrcsssseesrees 14

Petty v. Tennessee-Missouri Bridge Comm'n., 359 U.S.

275, 3 L. Ed. 2d 804, 79'S. Ct. T85 (1959) ........ 12, 14

Red Star Towing & Transp. Co. v. Dep't of Transp. of

New Jersey, 423 F.2d 104 (3d Cir. 1970) «0... 15

South Carolina v. United States, 199 U.S. 4387, 50 L. Ed.

8 ee I CD hciccticicresitenacscacnmnn 14

South Carolina Highway Dept v. Barnicell Bros., 303

U.S. 177, 82 L. Ed. 734, 58 8S. Ct. 510 (1938) ........ 9

Texas & Pac. Ry. v. Rigsby, 241 U.S. 33, 60 L. Ed. 874,

ee eS | Reeepenemnnennecn men rar ommnrenneen 17

CONSTITUTION OF THE UNITED STATES

Stein 5. Sis OCD sccnrscesasncicienscesenscatccvomemarions 3.6

Fe a mE eRe Lc ais ee sd Norte meat Eee Ss 2

PAGE

STATUTES

Title 23 U.S.C

SUBD. .........asssconanccveannavesserseesbannenpasnasnentusnaareconcnsonesenneneses 3,6

EPIC (i) cncecccreccccscsovovccccsereccerssnensessensnenessnsesssncvsssosonsoness 9,10

EPPS (WD) .naccnnceecrscccrccecesencenonassonsnnonnsvensscssensonsnsesonensssossoen® Ss

Z BOL ...c-ncccencecescseresevecssenenesnsssorennnsessesssessonsscnsossosees 2,3, 6,9

ZAOP (a) -.crrereccesesrccerensecnoesrrerecces sonssnssnsvensrscnnsensonsonsasorees s

Chapter 4 ...........ccscvscssesssssonsseensssnsenennsnssneenssnncnssnsoonerseenes 8

Title 28 U.S.C.:

3 SPDRLC DY cccsccssssssssseccsennnnnnnesssenccnnsssnnsssccennnnnnnnnnssssonnnnesen 2

PURDON'’S PENNSYLVANIA STATUTES

: Title 36, $§ STO-1LNOL, STO-1GOS .........cccereressesccsscsvsvsvscccesees 13, 14

REGULATIONS

22 ¢E RB, Subchapter B, Part 204. Uniform Standards

far State Highway Safety Programs .........0 2,8, 10

4 ARTICLES

3 li. Friendly, In Praise of Erie, 19 The Record of the

Becirasve cries nse ulead Qirdace We

Pe Le

Association of the Bar of the City of New York,

Te Gre 0) S © eennnnnnrrnrerrrrrerrnc ce Coco ooo ly ceibinenseacksoenkennee i

PAGE

Katz, The Jurisdiction of Remedies, Constitutional

Legislation and the Law of Torts in Bell y. Hood,

BES ©. 2 Bk TS. cctictnithdicinaneanen 17

Note, Federal Jurisdiction in Suits for Damages Under

Statutes Not Affording Such Remedy, 48 Colum.

Ba Flee TOD LED wncericrsiceieniesienreracisiem 21

Note, Implying Civil Remedies From Federal Regula-

tory Statutes, 77 Harv. L. Rey. 285 (1963) ....... 17, 20

OTHER MATERIAL

3 United States Code Congressional & Administrative

OR, TR) Bi DOS. costiiasseneresissancerniincccnmecnneanins 8

2 U. S. Code Congressional & Administrative News,

SOE, 0 BED scccecisiincnnnasinaetiitiadimacianinn 10

St ee ell

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PLL IT GUE FOOL OEE. opel #

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MNBL A Le a RV BONNE nO mm SN ~ Annan

IN THE

Supreme Cowt of the United States

October Term, 1973

No. _.

MINDY MEYERS, an infant, by her parent and natural guardian,

MARVIN MEYERS, and MARVIN MEYERS, individually,

and LYNDA BIENENFELD, an infant, by her parent and

natural guardian, STANLEY BIENENFELD, and STANLEY

BIENENFELD, individually,

Petitioners,

—_—Vi—

THE COMMONWEALTH OF PENNSYLVANIA,

Respondent.

HUBERT DAYE; TEDESCO BUS COMPANY, INC.; FRANK

TEDESCO; and ACADEMY CHARTER SERVICE, INC.,

each in his or its own right and also on behalf of all passen-

gers of Bus 2065 of the Tedesco Bus Company, Inc., injured

on July 15, 1970, at New Smithville, Lehigh County, Penn-

sylvania, their parents, guardians, next of kin, heirs and

legal representatives,

Petitioners,

—V.—

THE COMMONWEALTH OF PENNSYLVANIA, THE PENN-

SYLVANIA DEPARTMENT OF TRANSPORTATION,

VICTOR W. ANCKAITIS, LESTER E. JORDAN, CHARLES

C. SINCAVAGE, WILLIAM I. DAVIS, ROBERT BROWN

and EDWIN REIKER,

Respondents.

—_—_—_—.~ a

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The Petitioners pray that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals

for the Third Circuit, entered in this case on August 3,

1973 (Appendix, p. la hereto, infra).

Opinions Below

The District Court, Eastern District of Pennsylvania

(Troutman, D.J.), entered an opinion and order on June

30, 1972, reported at 344 F. Supp. 1337 (E.D. Pa., 1972),

granting the motion of the defendant, The Commonwealth

of Pennsylvania to dismiss the complaints (Appendix, p.

Ya. hereto. infra). The opinion of the Court of Appeals

for the Third Circuit was entered on August 3, 1973 and

affirmed the order of the District Court dismissing the

complaints. This opinion, as yet unreported, appears in

the Appendix at p. 16a.

Jurisdiction

The judgment of the Court of Appeals was entered

on August 3, 1973 (App., p. la hereto, infra).

The jurisdiction of this Court is invoked under 28

U.S.C., Section 1254(1).

Questions Presented

1. Did the lower courts err in dismissing plaintiffs’ com-

plaints on the grounds that Congress in enacting the

Highway Safety Act of 1966 (23 U.S.C., $401, et seq.)

did not have as its paramount purpose that those states

participating in the federal grant-in-aid highway programs

secure the safety of those using the federal-aid highways?

» Did the Commonwealth by its meaningful, ongoing

participation in the federal-aid highways programs waive

its immunity from suit under the Eleventh Amendment?

2 Did the court incorrectly rule that the Federal-Aid

Highways Act and Highway Safety Act did not create

an implied cause of action in favor of plaintiffs to recover

for their injuries?

Constitutional and Statutory Provisions Involved

1. The Eleventh Amendment to the Constitution of the

United States is involved; it provides as follows:

“The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by citizens of another state... .”

». Article I, Section 8, Clause 3 of the Constitution of

the United States is involved; it provides as follows:

“The Congress shall have power to regulate com-

merce with foreign Nations, and among the several

states, and with the Indian Tribes.”

3. The following are the pertinent parts of the relevant

statutes involved herein:

a) Federal-Aid Highways Act, 23 U.S.C.. $101, et

seq. (App., p. 27a hereto, infra).

b) Highway Safety Act, 23 U.S.C., $401, et seq.

(App., p. 32a hereto, infra).

Statement of the Case

Introduction:

The facts are undisputed. On July 15, 1970, plaintiffs

Meyers were on Tedesco’s chartered interstate tour bus then

carrying 53 children aged 10 to 17, and their counselors, on

a sightseeing educational trip from Lawrence, New York, to

the Pennsylvania Dutch country. While the bus was travel-

ling westbound on U.S. Route 22 (Interstate 78), and ap-

proximately 12 miles west of Allentown, Pennsylvania, and

traversing a slight curve to the right during a light rain

which had been preceded by a heavy shower, the bus

started to slide on the wet highway, then rotated 180°

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clockwise, overturned through a guardrail, and plunged

down an embankment. Seven children passengers were

killed in this accident, eighteen occupants of the bus

were ejected, and 47 other occupants sustained various

personal injuries.’ Plaintiff, Mindy Meyers, aged 11, sus-

tained a fractured skull, a severe cerebral concussion, mul-

tiple fractures of the left clavicle, and a ruptured spleen,

among other injuries; plaintiff, Lynda Bienenfeld, aged

18, sustained a fractured pelvis, a compression fracture

of the spine, and a cerebral concussion, among other in-

juries. Plaintiff, bus driver, Hubert Daye, also sustained

severe injuries.

The Report of the National Transportation Safety

Board:

This tragedy was designated a “major accident” as de-

fined in the regulations of the National Transportation

Safety Board (“the Safety Board”). An exhaustive inves-

tigation followed by the Safety Board which was reduced

to a printed 61 page report”.* The findings of the Safety

Board as to the probable causes of the accident are of

more than pedestrian interest. The Report said:

The National Transportation Safety Board de-

termines that the probable cause of the accident

was either dynamic or viscious hydroplaning of the

1The Daye case which has been consolidated with Meyers for

the purpose of a joint hearing and argument was originally

brought on behalf of (i) the bus driver and corporate owner of

the bus, and (ii) as a class action on behalf of all passengers

on the bus, and persons claiming under them. Daye has aban-

doned its class action claims. Meyers has no interest in the

class action portion of the Daye complaint. This is a joint peti-

tion for both Meyers and Daye.

2A copy of the Report was incorporated into Meyers’ brief

below, “.. . whose conclusions . . .” were accepted by the district

court for the purpose of the motion to dismiss. See, 344 F. Supp.

at 1340 fn. 5.

front wheels of the bus which initiated a skid from

which the driver could not recover. Contributing

factors included low basic skid resistance of the

pavement in wet weather, and the probable presence

of water draining across the pavement in an ab-

normal manner. The fatalities and injuries were

caused by an ineffective highway guardrail which

failed to prevent the bus from rolling down an

embankment . . . (emphasis added) [p. 38].

In summarizing the accident experience of U.S. 22 from

the Lehigh County line to a point 1,200 feet east, for both

directions of travel, for the period 1966 to July 19, 1970.

the Safety Board determined that this tragedy was any-

thing but an isolated event. The Safety Board found ®* that

during the test period there were 59 reported accidents *

resulting in 11 deaths, and injuries to 98 other persons.

No accurate records exist for the other “many property-

damage accidents” ° at this site.

The Report memorializes that the tragedy was caused

by the highway and those responsible for its maintenance.

The Complaints and the Commonwealth's Motions:

Plaintiffs Meyers alleged that on the day in question,

they embarked from the State of New York, for the

purpose, inter alia, of entering into The Commonwealth

of Pennsylvania, and engaging in commerce therein. Juris-

3 The Report at 11-12.

* Appendix E to the Report (p. 53), summarized the findings

as follows:

ACCIDENT SEVERITY

Injury Accidents 27 Persons Killed 11

Fatal Accidents 5 Persons Injured 98

P.D.O. Accidents 27 Total Property Damage $200,000

Total Accidents 59 (Reported Accidents Only)

5 The Report at 11.

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dictional bases alleged by Meyers and Daye presented fed-

eral questions under the Constitution and laws of the

United States. Aside from pleading the alleged failure

of The Commonwealth to use reasonable care in the design,

construction and maintenance * of U.S. 22, all in violation

of the Federal-Aid Highways Act, 23 U.S.C. $101, et seq.,

and the Highway Safety Act, 23 U.S.C. $401, et seq.,

plaintitfs Meyers alleged that their rights under the Com-

merce Clause of the Constitution of the United States

(Article I, Section 8, Clause 3), had been violated in that

The Commonwealth had “invited” Meyers to enter into the

state for purposes of commerce while knowingly misrepre-

senting and falsely warranting that the routes to be

travelled were safe, and that they complied with the safety

standards of the laws of the United States, when, in fact,

The Commonwealth knew such not to be so.

The motions to dismiss did not raise or challenge any

factual allegation of plaintiffs, but rather was addressed to

the adequacy of the complaints. By moving “in the alterna-

tive”, for summary judgment, The Commonwealth admitted

the verity of its responsibilities in causing the accident.

* The full text of the provisions and regulations in issue are

set forth as footnotes by the district court in its opinion. See,

344 F. Supp. at 1339, 1340, fn. 1-4, and 344 F. Supp. at 1348,

fn. 14.

Reasons for Granting the Writ

The Highway Safety Act of 1966 has as its pur-

pose: securing the safety of those using the Federal

Grant-in-Aid Highways.

Both the District Court and the Court of Appeals

relying on the holding in Mahler v. United States, 306

F.2d 713 (3d Cir. 1958), cert. denied, 371 U.S. 923, 9 L.

Ed. 2d 231, 83 S. Ct. 390 (1962), decided that the com-

plaints must be dismissed [344 F. Supp. at 1347]. In

Mahler, the Third Circuit said [306 F.2d at 721]:

In light of the legislative history traced above, it is

plain that the appellants cannot successfully rely on

the federal highway acts unless they are able to

show that legislation following the Act of 1921

has affixed to the inspection and approval sections

the additional purpose of securing the safety of

those using the federal-aid highways (emphasis

added).

It follows, a fortiori, that upon a showing of such sub-

sequent legislation, and purpose, a cause of action under

the federal-aid highways acts is stated. Since Mahler,

such legislation has been enacted. In 1965, the Baldwin

Amendment was added to Title 23 of the United States

Code, which clearly established the federal-state respon-

sibility for a program of highway safety, with uniform

standards to be approved by the Secretary.* The following

6 Pub. L. 89-139 $ 4(a), 79 Stat. 578 added a new section 135

to Title 23 U.S.C. which provided that: “After December 31,

1967, each State should have a highway safety program, approved

by the Secretary, designed to reduce traffic accidents and deaths,

[footnote continued on following page]

Bias rte eons 4

Britain aide les

year Congress passed the Highway Safety Act* in order

to provide for a coordinated national safety program.*

Such a program was required to eliminate the death and

destruction taking place on the national highways.°

injuries, and property damage resulting therefrom on the Federal-

aid system. Such highway safety program should be in accordance

with uniform standards approved by the Secretary and should in-

clude . . . provisions for an effective accident reports systems, and

measures calculated to improve . . . highway design and main-

tenance . . . and surveillance of traffic for detection and correction

of high or potentially high accident locations (emphasis added).

Unlike the case under review here, Mahler involved a claim

under the federal torts claim act against the United States.

The provisions of the former § 135 have been reworded and

made a part of the Highway Safety Act, Title 23 U.S.C., Chapter

4. The word “shall” replaced “should” in the 1966 Highway Safety

Act.

7Chapter 4, Title 23 U.S.C., added Pub. L. 89-564, Title I,

$101, 80 Stat. 731, amended Pub. L. 90-495, §13, 82 Stat. 822;

Pub. L. 91-605, Title II, §§ 202(c)-(e), 203(a), 84 Stat. 1740,

1741.

In addition to the carry-over provisions of the former § 135,

the new § 402(a), (fn. 6, supra) added the requiremnt that the

states investigate “surface treatments” of the roads as part of its

maintenance program to detect and correct high accident zones for

the purpose of reducing deaths and injuries resulting from such

accidents.

8 Title 23 U.S.C., §125(b) authorized the payment of addi-

tional funds for emergency repairs to these highways. Cf., 23

C.F.R., Subchapter B, Part 204, Uniform Standards for State

Highway Safety Programs.

° The relevant legislative history is reported in 3 United States

Code Congressional & Administrative News, 1965, at 2857, where

the House Report 681, said: “The committee is gravely concerned

about the Nation’s traffic highway accident toll. Last year 47,700

Americans were killed in traffic accidents.

+ & 2

“But the committee believes that research in this field, al-

though conceded to be incomplete, has already developed enough

information and answers to support affirmative, coordinated, State

action programs of highway safety. The important consideration

[footnote continued on following page]

In conjunction with the other provisions of Title 23, the

Highway Safety Act (23 U.S.C. § 401, et sey.), provided

positive legislation aimed to deal effectively with the prob-

lem of carnage on the federal highways. Muiler teaches

that the job of highway safety and maintenance runs to

the states. 306 F.2d at 717. Cf., 23 U.S.C. §§116(a). In

1966 the federal government renewed its efforts to insure

that states taking advantage of federal highway funds also

maintained the safety of the resulting road for its users.

Judge Troutman’s reliance on South Carolina Highway

Dep’t. v. Barnwell Bros., 303 U.S. 177, 82 L. Ed. 734, 5s

S. Ct. 510 (1938), quoted in Mahler [306 F.2d at 716], for

the proposition that The Commonwealth in constructing

U.S. 22 was engaging in a sphere ‘wholly its own’ [344 F.

Supp. at 1346], and thus did not partake in a federai

activity, overlooks some key language. In South Carolina,

supra, Mr. Justice Stone recognized that, a

[S]tate can, if it sees fit, build and maintain its

own highways, canals and railroads and that in the

absence of Congressional action their regulation is

peculiarly within its own competence, even though

interstate commerce is materially affected [303 U.S.

at 187] (emphasis supplied).

The difficulty here is that there is Congressional action,

and so regulation of the highway is no longer within the

exclusive competence of The Commonwealth. The “regula-

tion” of the highway is within the federal government: the

ministerial maintenance is the responsibility of the state.

is the fact that coordinated State action programs have generally

been missing, and should be established now. . . . In the meantime,

if one life is saved, the establishment of coordinated action pro-

grams will be a success (emphasis added).

NTE LE VOSIOR ON LER LALO IRE A Dj

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In both the Senate Report 1302 and Conference Report

1920 on the Highway Safety Act, safety standards to be

approved by the Secretary were provided for. The Reports

stated a need for surveillance, detection and correction of

high or potentially high accident locations. See, 2 U.S.

Code Congressional & Administrative News, 1966, at 2745.

In the Senate Report special attention is given to a Com-

mittee amendment to the standards provisions of § 402(a),

concerning surface treatment of roadways. The Senate

Report said [Id. at 2746]:

This provision is included on the basis of evidence

presented to the Committee in executive session

which demonstrated significant success in the State

of California in reducing accidents from skidding,

or hydroplaning, on wet pavement.

From the legislative history of the amendments to the

federal-aid highways acts subsequent to Mahler, it is ob-

vious that such legislation was enacted in order to prevent

the type of accident that has given rise to these actions.

It is clear, however, that even though U.S. 22 was

completed in 1958, The Commonwealth was and is under

a continuing duty to maintain the highway in accordance

with existing standards.” Such obligation continues so

long as The Commonwealth remains a participant under

the federal-aid highways program. See, 23 U.S.C. § 116

(a) [344 F. Supp. at 1339 fn. 3]. To accept Judge Trout-

man’s explanation would entirely sterilize the effect of

the Highway Safety Act by applying it only to new high-

ways constructed after passage of the Act. Such was not

10 93 U.S.C. §116(a) provides in part that: “It shall be the

duty of the State highway department to maintain, or cause to be

maintained, any project constructed under the provisions of this

chapter or constructed under the provisions of prior Acts.” See

also, 23 C.F.R. Subchapter B, Part 204, Uniform Standards for

State Highway Safety Programs.

the intent since all highways, new and old must obviously

comply with the current standards; new highways must

be constructed under these regulations and existing high-

ways maintained under the same standards. The Act and

regulations when read clearly indicate applicability to

both." Unilaterally, The Commonwealth has decided which

parts of Title 23 it chooses to obey, and which to ignore.

If The Commonwealth found that maintaining safe roads

was too burdensome, it could have withdrawn from the

system. It cannot ‘choose and pick’ which parts of the

law to obey. By continuing to operate in the system after

the passage of the Highway Safety Act, The Common-

wealth is deemed to have elected to participate burdened

by the regulations imposed by the new amendments. See,

Briggs v. Sagers, 424 F.2d 130, at 134 (10th Cir. 1970),

cert. denied, 400 U.S. 829, 27 L. Ed. 2d 59, 91 S. Ct. 58

(1970). We are not concerned that U.S. 22 was originally

built in 1958. We are concerned, however, with the fact

that The Commonwealth continued active participation

in the federal program with full knowledge of the obliga-

tions of the 1966 Highway Safety Act.

Having nursed U.S. 22 from the federal breast, The

Commonwealth has been rewarded for its cavalier indiffer-

ence to the safety of users of the highway, by the decisions

below. In the face of the long history of prior accidents

at the location in issue, the failure of The Commonwealth

to take steps to correct the conditions when viewed by the

requirements of the Highway Safety Act is so gross and

reckless as to be criminal. Everything which is decent

and honorable recoils at The Commonwealth’s conduct in

not maintaining U.S. 22. This is a case of “hit and run”:

The Commonwealth has “hit” the federal government for

funds under the program, but has “run” away from its

obligations under the Highway Safety Act. To permit this

is to completely frustrate the legislative purposes of the

Highway Safety Act of 1966.

11 See, 23 U.S.C. §403 (App., p. 33a, infra).

rte sins ee tttein tt dete a Bed 6-2!

The Commonwealth of Pennsylvania, by its

meaningful, ongoing participation in the federal-aid

highways programs, has waived its immunity from

suit under the Eleventh Amendment.

The question is one of first impression: Has The Com-

monwealth, by meaningful participation in the federal-aid

highways program, an area regulated by Congress, thereby

waived its immunity from suit under the Eleventh Amend-

ment for actions arising out of such participation?

Both the District Court and the Third Circuit have

held that a state's waiver of its Eleventh Amendment

immunity will be found only where stated in the “most ex-

press language” or when presented by “overwhelming

implication”, and that an “intentional relinquishment or

abandonment” of the protection must be shown by plaintiff.

Although, not yet fully developed, the progeny of Petty

y. Tennessee-Missouri Bridge Comm’n., 359 U.S. 275, 3

L. Ed. 2d 804, 79 S. Ct. (1959), and Parden v. Terminal R.

Co. of Ala., 377 U.S. 184, 12 L. Ed. 2d 283, 84 8. Ct. 1207

(1964), are reshaping judicial thinking on the subject of

waivers of immunity.

In Briggs v. Sagers, 424 F.2d 130 (10th Cir. 1970),

cert. denied, 400 U.S. 829, 27 L. Ed. 2d 59, 91 8. Ct. 58

(1970), the State of Utah in resisting a suit under the Fair

Labor Standards Act, raised the defense of immunity un-

der the Eleventh Amendment in that it had neither know-

ingly nor intentionally waived immunity to suit. The

State of Utah in Briggs was operating a state-owned insti-

tion for the custody and care of mentally deficient children

and adults (424 F.2d at 131). The activities were entirely

in a sphere of state concern, within Utah’s own borders,

and were begun before Congress legislated in the area.

After commenting that, “. . . in the realm of interstate

commerce, the congressional authority is supreme and con-

flicting state interests and rights must yield” (424 F.2d

at 182), the Briggs court considered it to be the present

position of the Supreme Court that regarding a state's

intent, or lack of same, to waive its immunity, or a state’s

contention that it was not aware that a waiver would

result from certain activity that, [424 F.2d at 134],

[E]ven the dissent in Parden did not view the

opinion as pivoting on the fact of an intentional

waiver. Rather, the dissenting Justices understood

the majority to hold “that with regard to sovereign

immunity, waiver of a constitutional privilege need

be neither knowing nor intelligent.” [377 U.S. at 200]

(emphasis added).

The Commonwealth has “knowingly” entered into an

area of federal regulation and has “consented” to be bound

by all requirements of the program in order to maximize

the flow of federal funds. Title 36 of Purdon’s Pennsy]l-

vania Statutes, § 670-1004, provides, in relevant part,

The Secretary [of Highways of Pennsylvania] shall

enter into all necessary contracts and agreements

with the proper agencies of the government of the

United States, and shall do all other things neces-

sary and proper in order to obtain the benefits

afforded under * * * [the federal-aid highways pro-

grams] and its supplements and amendments, or

any other act of Congress providing Federal aid

for highway purposes (emphasis supplied).

anche Fak ier «Be

pre 4

| Smee hale bcttb ate a be 0

Section 670-1005, states, in part [36 Purdon’s Pennsy1-

vania Statutes] that,

The department [Pennsylvania Highways] shall

have authority to make and carry out contracts and

to do every other act necessary to carry out any

project heretofore or hereafter undertaken which is

to be paid for in whole or in part from Federal

funds, and in every way to conform to the require-

ments and rules and regulations of the proper Fed-

eral authorities with respect to such projects . .

(emphasis added).

Thus, it can hardly be said by The Commonwealth that

it did not “know” that it would be bound to comply with

federal regulations as the result of its participation in the

program. Quite the contrary is true: its Secretary of High-

ways was directed “in every way to conform” to the re-

quirements. By engaging in the federal-aid highways pro-

gram, The Commonwealth is partaking in activities of a

paramount federal interest, and as such subjects itself

fully to such regulation. South Carolina v. United States,

199 U.S. 437, 50 L. Ed. 261, 26 S. Ct. 110 (1905).

Although Petty and Parden are self-limiting because of

their particular facts, the broad principles they stand for

are being further expanded as the situations require. The

Briggs case, supra, ruled, on the basis of the holding in

Parden that a waiver need be neither knowing nor intel-

ligent, but arises by implication from the mere engaging in

a sphere subject to congressional regulation. The Third

Circuit has recently considered the situation in Pennsyl-

rania Environmental Council, Inc. v. Bartlett, 454 F.2d

613 (3d Cir. 1971), where the panel indicated that a

state’s engaging in activities in a federally-regulated realm

would give rise to an implication of a waiver of immunity.

The Court said [454 F.2d at 625]:

But a state may, by engaging in activities of a para-

mount federal interest, waive its immunity under

the eleventh amendment [citing Petty and Parden]

(emphasis supplied).

The District Court rejected Chesapeake Bay Bridge and

Tunnel District vo Lauritzen, 404 F.2d 1001 (4th Cir.

1968), relied upon by plaintitfs [844 F. Supp. at 18387],

on the basis that Lauritzen was at variance with the hold-

ing Red Star Towing & Transp. Co. v. Dep't. of Transp.

of New Jersey, 423 F.2d 104 (3d Cir. 1970). Lauritzen

stands as a leading expansion of the Petty-Parden doctrine

for the proposition that a state’s participation in a fed-

erally controlled area will be deemed, pro tanto, a submis-

sion to federal law and a waiver of immunity. The

Third Circuit has apparently abandoned its view first

taken in Red Star and has adopted the Fourth Circuit's

Lauritzen position. This is made apparent by a reading

of the opinion in Bartlett, supra, where Lauritzen is cited

by the Court of Appeals with approval for the proposition

that whether a waiver of immunity has taken place is a

question of federal law [454 F.2d at 625]. Unfortunately

the appellate court failed to comment on this.

Judge Troutman also rejected [344 F. Supp. at 1345,

1346] as authority on the waiver of immunity issue, Judge

Thornberry’s opinion in Named Individual Members of the

San Antonio Conservation Society v. Teras Highway De-

partment, 446 F.2d 1013 (5th Cir. 1971). Judge Thorn-

berry said [446 F.2d at 1028]:

No one forced the State [Texas] to seek federal

funding, to accept federal participation, or to com-

mence construction of a federal aid highway. The

State [of Texas], by entering into this venture,

voluntarily submitted itself to federal law. It en-

tered with its eyes open, having more than adequate

warning of the controversial nature of the project

and of the applicable law.

Gao sabe AMAA fa. cs Page gt Dia i ha a

awe

phi Deal the ae iloek PA e l ite

There appears little basis for the distinction drawn by

Judge Troutman that Texas in San Antonio sought to with-

draw from the program, and thus avoid the operative pro-

visions of the Act, whereas The Commonwealth merely

seeks to withdraw from liability for failure to comply with

the maintenance provisions of the statutes. Suffice to

say, the Third Circuit’s statement in Bartlett, supra, pre-

sents a caveat that, as here, where a state participates

in a federal-aid highway program, accepts the benefits,

and then attempts to reject the attendant obligations un-

der the guise of immunity, such conduct will not be favor-

ably received. The Bartlett court indicated that that issue

was to be left for, “. . . definitive determination in a later

case” [454 F.2d at 625]. We submit that this case calls for

an answer to the question thus presented, but unanswered

in Bartlett. The Commonwealth has hid, under the trans-

parent cover of immunity all too long—now is the time

for it to be called to the bar of this Court and required

to answer for its derelictions.

The Federal-Aid Highways Act and Highway

Safety Act create an implied cause of action in favor

of plaintiffs to recover for their injuries.

Here, too, a question of first impression is presented:

Does an admitted violation by a participant state of its

obligations under the Federal-Aid Highways Act and

Highway Safety Act give rise to a private cause of action

for personal injuries sustained by a user of the road? The

Third Circuit did not comment on this question on appeal.

The concept that a federal statute otherwise silent as

to any private remedy for its breach gives rise to an im-

plied federal cause of action in favor of the injured party

Geese avcanKenicn.

has been recognized since 1916 [Teras ¢ Pac. Ry. v. Rigsby,

241 U.S. 33, 60 L. Ed. 874, 36 S. Ct. 482 (1916) }.

[D]isregard of the command of a statute is a wrong-

ful act, and where it results in damage to one of the

class for whose especial benefit the statute was en-

acted, the right to recover the damages from the

party in default is implied . . . [Id., 241 U.S. at 39].

(a) The Theory of the Implied Cause of Action:

Where a federally secured right is invaded, it is for the

federal courts to adjust their remedies so as to grant neces-

sary relief. Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66

S. Ct. 773, 13 A.L.R. 2d 383 (1946); Katz, The Juris-

prudence of Remedies, Constitutional Legislation and the

Law of Torts in Bell vy. Hood, 117 U. Pa. L. Rev. 1.

[I]mp'ying a cause of action may increase the

likelihood of compliance with the statute by giving

victims incentive to assist in its enforcement and

potential violators, faced with additional penalty,

added reason to conform their conduct to it. The

implied cause of action can also provide direct relief

for members of a class that the legislature wished to

protect. Note, Implying Civil Remedies From Fed-

eral Regulatory Statutes, 77 Harv. L. Rev. 285.

at 291 (1963).

In weighing whether to imply a cause of action the

Court must not be unmindful of alternative remedies, or

lack of remedies, available to the injured party. Id., 77

Harv. L. Rev. at 292. In the case at bar, it is clear beyond

peradventure of doubt that the accident and resultant in-

juries resulted from the wrongful conduct of The Common-

wealth. The bus driver, Daye, is without legal fault. If a

right of recovery is denied Meyers by this Court on the

dove i Nihon es Si in Lil lt hse Mile WAL Ce ih NE CE. ade oe 145

dale ot

ole 6a Tas ila Mier aed Afton

FRG cote Madar tat a

Baraeun. waht

io 4)

basis of an implied cause of action, it is obvious that the

two innocent infant plaintiffs will never be compensated

for their injuries. They will have experienced a ‘wrong

without a remedy’. The thought of such an injustice

is intolerable.

Silence as to the availability of private remedies for

breach of the Federal-Aid Highways Act and Highway

Safety Act, should not be taken as a legislative mandate

that implication of a private remedy should be denied. As

noted in Fagot v. Flintkote Co., 305 F. Supp. 40% (D.C. La.

1969) :

Where other statutes were similarly silent as to

any private relief, courts have found a cause of

action to exist—for violation, for example, of the

Securities Exchange Act, National Banking Act,

Federal Communications Act, and the Rivers and

Harbors Act.

The legislation we are concerned with here seeks to pro-

tect the users of federal-aid highways. The right, we sub-

mit, is one of constitutional dimension, for the ability to

engage in interstate commerce under the Commerce Clause

requires that travel between states be free from the threat

of, or actual injury at the hands of a foreign state.

The theory that every right protected is of value only if

there is a corresponding remedy for its breach has found

expression in the Supreme Court on many oceasions. Most

recently in Birens v. Sir Unknown Federal Narcotics

Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999

(1971), the late Mr. Justice Harlan in his concurring

opinion articulated the theory in these words [403 U.S. at

402, 29 L. Ed. 2d at 630, 91 S. Ct. at 2008]:

Thus. in suits for damages based on violations of

federal statutes lacking any express authorization of

a damage remedy, the Court has authorized such re-

lief where, in its view, damages are necessary to

effectuate the Congressional policy underpinning the

substantive provisions of the statute.

The Birens Court thus instructs us to look at the sub-

stantive social policy embodied in the legislation, and then

decide whether the implication of a private remedy would

aid in the fulfillment of the act’s goals. Would anyone

quarrel with the notion that to hold The Commonwealth

liable for the injuries it has caused would not be an impetus

to prevent a recurrence? What is the old adage: those who

refuse to learn from history are destined to relive it? To

deny a right of recovery to the plaintiffs would be reward-

ing The Commonwealth for its irresponsible conduct.

The notion of an “implied” federal cause of action aris-

ing from activities involving interstate commerce is not new

to the law. As Chief Judge Henry J. Friendly noted in his

famous article, Jn Praise of Erie, 19 The Record of The

Association of the Bar of The City of New York 64, 88

(1964) :

Statutes regulating the activities of interstate

carriers are another fertile field for implication of

rights and the filling of interstices. Fifteen years

before Erie the Supreme Court had held that the

Hepburn Act’s prohibition against an interstate rail-

road’s giving a pass to anyone except an employee

and his family made the legal consequences of such

a pass a matter of overriding federal decisional law

“to the exclusion of state laws and state policies”

[Kansas City So. Ry. v. Van Zandt, 260 U.S. 459, 469

(1923) }.

_ * e & =

So, it seems to me, the Supreme Court, in the

years since Frie, has been forging a new centripetal

tool incaleulably useful to our federal system. It has

yBM eeTpR l ci Lit N a a Shad Sp MeN: Wee ae ete

PDeritreisivemns cc sosia tte sratarctiidete ose.

employed a variety of techniques—spontaneous gen-

eration . . ., implication of a private federal cause of

action from a statute providing other sanctions, con-

struing a jurisdictional grant as a command to

fashion federal law, and the normal judicial filling

of statutory interstices. [Id. at 92].

Cases “implying” a federal cause of action to fill the

“statutory interstices” in the words of Judge Friendly, and

in order to give effect to the “reasons related to the sub-

stantive social policy embodied in an act of positive law”

in the words of Mr. Justice Harlan, are now legion. See,

Note, 77 Harv. L. Rev. 285 (1963), supra.

J. I. Case Co. vy. Borak, 377 U.S. 426, 12 L. Ed. 2d 423,

84 S. Ct. 1555 (1964), involved a violation of the Securities

and Exchange Act of 1934. The statute did not, however,

define the relief which could be obtained in a private suit

for violation of its provisions. In fact, the statute did not

even make any reference to a private right of action for a

violation of its regulations. One thing was clear however:

the purpose of the act—to protect the investors (just as the

Highway Safety Act is aimed to protect users of the high-

ways). In implying a right to relief by implication, the

Court concluded that implication of a private cause of ac-

tion was necessary to fulfill the purposes of the act. In

concluding that the duty evolved on the federal courts to

fashion remedies in order to protect federal rights, the

Court observed [377 U.S. at 433, 12 L. Ed. 2d at 433, 84

S. Ct. at 1560]:

We, therefore, believe that under the circumstances

here it is the duty of the courts to be alert to provide

such remedies as are necessary to make effective the

congressional purpose.

The Borak decision has been analyzed as resting on three

factors: (1) What are the protective purposes of the act

under review; (2) Absent is any clear contrary legislative

expression against the implication of a private remedy,

[see, Note, Federal Jurisdiction in Suits for Damages Under

Statutes Not Affording Such Remedy, 48 Colum. L. Rev.

1090, 1094 (1948) ], and (3) the federal courts are fulfilling

its trust to grant protection of the statute to those intended

by the legislature.

Further explaining the Borak approach, Mr. Justice

Harlan explained in Bivens, supra, 403 U.S. at 402 fn. 4, 29

L. Ed. 2d at 630 fn. 4, 91 S. Ct. at 2008 fn. 4:

The Borak case is an especially clear example of

the exercise of federal judicial power to accord dam-

ages as an appropriate remedy in the absence of any

express statutory authorization of a federal cause of

action. There we “implied”—from what can only be

characterized as an “exclusively procedural provi-

sion” affording access to a federal forum... a private

cause of action for damages for violation of § 14(a)

of the Securities Act of 1934. .. . We did so in an

area where federal regulation has been singularly

comprehensive and elaborate administrative enforce-

ment machinery has been provided * * * The exercise

of judicial power involved in Borak simply cannot

be justified in terms of statutory construction .. .

nor did the Borak Court purport to do so... . The

notion of “implying” a remedy, therefore, . . . can

only refer to a process whereby the federal judiciary

exercises a choice among traditionally available reme-

dies according to reasons related to the substantive

social policy embodied in an act of positive law

(emphasis supplied).

Implication of a federal cause of action is thus a safety

valve available to the federal courts. It permits internal

expansion of the protective aegis of a statute, where justice

so dictates, and it restricts such expansion where to do so

would overreach the intent or mandate of Congress.

BO ARAN he Deal ie

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(b) The Lower Courts’ Views as to the Implied

Cause of Action:

Judge Troutman summarily rejected any implication of

a federal cause of action, without citation of any authority,

by holding that, “. . . the Secretary is authorized to dis-

continue the apportionment of funds under the Act. Thus,

the power of the federal government to cut off federal funds

provides the only sanction expressly authorized under the

Act.” 344 F. Supp. at 1348. The Court of Appeals did not

comment on this point.

In Gomez v. Florida State Employment Service, 417 F.2d

569 (5th Cir. 1969), action was brought by migratory

workers for alleged violations of wage payments and work-

ing conditions. The act in Gomez, as the act under review

here, provided that the only express remedy for a violation

by a participant state was for the Secretary to cut off the

flow of federal funds to that state. Holding the mere cut-

ting off of federal funds to the violating state to be inade-

quate relief, and a remedy which would in no way benefit

the workers injured, and in creating an implied cause of

action in favor of the workers, the Gomez court said [417

F.2d at 576]:

This Act, its setting and the regulations call im-

peratively for implied remedies here if the purpose

of the regulations—the protection of migratory farm

workers—is to be achieved. * * * Absent an implied

remedy, the workers have no protection. They would

not have even the protection of a criminal sanction.

It is unthinkable that Congress, obviously con-

cerned with people, would have left the Secretary

with only the sanction of cutting off funds to the

state.

Moreover, the private civil remedy is a method of

policy enforcement long honored explicitly in statutes

and by implication with the help of courts (emphasis

added).

RAL TTP SILLY STL, ODA DLT le ETE BT ER RY SE Ty SUN TT

ooo

The Gomez opinion, in reviewing a statute similar to

that in the instant case as far as providing for express

remedies for a breach, reached the opposite conclusion to

that of Judge Troutman in the case under review here. The

Gomez result, we believe, is the sounder view. To imply a

civil remedy to the plaintiffs here does not appear offensive

to the senses, but to the contrary, commends itself as giving

voice and hand to the undeniable intent of the Highway

Safety Act—to foster the safety of federal-aid highways

for users such as the plaintiffs here.

CONCLUSION

For the foregoing reasons, this petition for a writ

of certiorari should be granted.

Respectfully submitted,

ZANE and ZANE,

Attorneys for Petitioners,

Meyers and Bienenfeld,

One Rockefeller Plaza,

New York, New York 10020

(212) 245-2222

Butz, HtppErs & TALLMAN,

Attorneys for Petitioners,

Daye and Tedesco, et al.,

740 Hamilton Street,

Box 688, Allentown, Pa. 18105

(215) 439-1451

JAMES B. ZANE,

BRADLEY JAN BERGER,

RICHARD F. STEVENS,

Of Counsel.

October, 1973.

eon,

li ed

Cee Lower ee

APPENDIX

ET Sy ea

Se TS

Judgment (3rd Circuit)

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

[ SAME TITLE ]

On APPEALS FROM THE UNITED STATES District COURT

For THE EASTERN DISTRICT OF PENNSYLVANIA

Present: VAN DUSEN, Gippons and ROSENN,

Circuit Judges

JUDGMENT

These causes came on to be heard on the records from

the United States District Court for the Eastern District

of Pennsylvania and were argued by counsel,

On consideration whereof, it is now here ordered and

adjudged by this Court that the order of the said District

Court, filed June 30, 1972, be, and the same is hereby af-

firmed. Costs taxed against appellants.

ATTEST:

M. ELIZABETH FERGUSON

Chief Deputy Clerk

August 3, 1973

Certified as a true copy and issued in lieu

of a formal mandate on August 27, 1973

in Nos. 72-1769 and 72-1840.

M. ELIZABETH FERGUSON

Chief Deputy Clerk, United States Court

of Appeals for the Third Circuit.

Costs taxed in favor of appellees

Anckaitis, et al. in No. 72-1769 as

follows:

Brief for appellees .......... $100.70

inh ot

cht Ra et RA ARI lat le FOE HO

i PRR RL Ah ty REE AE LA ee a

SOREL FEELERS its Eig ee edie 5

Opinion (District Court)

Opinion (3rd Circuit)

[For the Convenience of Court and Counsel this

Exhibit is printed on the following pages.)

TEED ens. PS Peete

hag AE, DY,

Cite as 344 F.Supp. 1337 (1972)

Hubert DAYE et al.

Vv.

1e COMMONWEALTH OF PENN-

SYLVANIA ct al.

lindy MEYERS, an infant, by her

parent and natural guardian,

Marvin Meyers, et al.

The COMMONWEALTH OF

PENNSYLVANIA,

Civ. A. Nos, 71-1726, 71-2167.

United States District Court,

E. D. Pennsylvania.

June 30, 1972.

Actions against state and others to

rer damages on account of highway

lent. The District Court, Troutman,

eld, inter alia, that Pennsylvania did

waive its Eleventh Amendment im-

ity by voluntarily applying for and

iting federal funds and by entering

interstate commerce in construction

terstate highways.

Dismissed.

1. Courts €>307(1)

State is not a person for purposes

of diversity jurisdiction.

2. Courts ©307(1)

State cannot waive its lack of status

as citizen for diversity jurisdiction pur-

poses,

3. Courts C@282(1), 284

Questions whether state's accepting

highway grants and its entry into field

of interstate commerce constituted waiv-

er of Eleventh Amendment immunity

and whether alleged violations of federal

highway statutes gave rise to cause of

action for damages presented federal

questions sustaining jurisdiction in ac-

tion against state arising out of high-

way accident. U.S.C.A.Const. Amend.

11.

4. Federal Civil Procedure @161

Plaintiff has burden to establish

right to proceed as class.

5. Federal Civil Procedure 181

Action by bus driver, bus company,

and others against state arising out of

highway accident could not be main-

tained on behalf of class consisting of

passengers killed or injured, since plain-

tiffs were not members, there was sub-

stantial question of adequacy of repre-

sentation, damages would differ as to

different members, and members had in-

terest in individually controlling prose-

cution of separate actions. U.S.C.A.

Const. Amend. 11.

6. Federal Civil Procedure 164

Plaintiff-representative must be

member of class which he purports to

represent.

7. Federal Civil Procedure @1Hi4

Adequacy of representation not only

requires coextensive interest between

class and its representatives but also ab-

sence of antagonistic interests.

8. Courts 303(1)

Eleventh Amendment denies author-

ity to federal courts to entertain suit by

private parties against state without its

4, oat

= Neen ak Miah alkaline illa aii eal eGR I ame ee ELI ET en I IE , : ]

8 $44 FEDERAL SUPPLEMENT

* 9, Courts -303(1)

i Mere presence of federal question

~ does not divest state of Eleventh

Amendment immunity. U.S.C.A.Const.

Amend. 11.

10. Courts <—303(1)

State may consent to be sued in fed-

eral court and thereby waive its immu-

nity but waiver will be found only where

stated in most express language or

presented by such overwhelming implica-

tion from text so as to leave no room for

any other reasonable construction and

plaintiff has heavy burden to show

- waiver. U.S.C.A.Const. Amend. 11.

——————

— Saal ate

11. Courts <=303(1)

Pennsylvania did not waive its

Eleventh Amendment immunity, with re-

spect to action arising out of highway

accident, by voluntarily applying for and

accepting federal funds and by entering

_ into interstate commerce in construction

of interstate highways. 23 U.S.C.A. §

101 et seq.; U.S.C.A.Const. Amend. 11.

| 12. Automobiles C253

Neither the Federal-Aid Highway

Act nor the Highway Safety Act create

implied cause of action to recover for

personal injury sustained as a result of

statutory standards or regulations pro-

mulgated thereunder. 21 U.S.C.A. §§

106(a), 109(a, d, e), 114(a), 116(a, c);

23 U.S.C.A, § 402(a, c).

' 13. Automobiles 290

Officers of Pennsylvania Depart-

ment of Transportation were immune

_ from liability with respect to highway

accident, in absence of allegation of mal-

ice or wanton and reckless conduct.

14. Courts 359

Whether Pennsylvania Department

of Transportation is immune from tort

liability is question of state law.

15. Automobiles C=252

Pennsylvania Department of Trans-

portation was protected by governmental

| Smmnity from —T: ey out of

$9 TFA

16. Courts 96, 365(2)

District court was bound by recent

decision of Pennsylvania Supreme Court

maintaining doctrine cf governmental

immunity and by Court of Appeals deci-

sion expressly refusing to reexamine

doctrine. ;

for

James Zane, New York City,

plaintiffs

~ Richard Stevens, see, Pa., for

plaintiffs

D. J. Ryan, Philadelphia, Pa., Edward

A. Hosey, Asst. Atty. Gen., Harrisburg,

Pa., for defendant Com. of Pa.

- OPINION AND ORDER

TROUTMAN, District Judge.

On July 15, 1970, a chartered bus,

carrying a group of school-age children

and their counsellors, left Lawrence,

New York, enroute to the Pennsylvania

Dutch country. In an intermittent rain,

the bus proceeded in a westerly direction

along U.S. Route 22 (Interstate 78) in

Pennsylvania [hereinafter U.S. 22].

The wet pavement allegedly precipitated

a skid, causing the bus to rotate clock-

wise 180°, crash into the guardrails,

and tumble over an embankment. As a

result of the accident, seven students

were killed and forty-seven others in-

jured.

Thereafter, two suits, arising out of

this accident, were instituted in this

Court against the Commonwealth of

Pennsylvania. The first suit purports

to be a class action, filed by Hubert

Daye (the bus driver) and Tedesco Bus

Company (the bus owner), each in their

own right and on behalf of all passen-

gers on the bus at the time of the acci-

dent. [Daye] The second suit was filed

on behalf of two children who were pas-

sengers ers in t the bus and injured in the ac-

Se RE eer ks

_— ere wy

> oer EE ¥

DAYE v. COMMONWEALTH OF PENNSYLVANIA

1339

Cite as 344 F.Supp. 1337 (1972)

cident. Both actions base the liability

of the Commonwealth on its alleged fail-

1. 23 U.S.C. & 1066(a) provides:

“(a) Except as provided in seetion

117 of this title, the State highway

department shall submit to the Secre-

tary for his approval, as soon as

practicable after program approval,

such surveys, plans, specifications, and

estimates for each proposed project

included in an approved prograin as

the Seeretary may require. The Sec-

retary shall act upon such surveys,

plans, specifications, and estimates as

soon as practicable after the same

have been submitted, and his approval

of any such project shall be deemed

a contractual obligation of the Federal

Government for the payment of its

proportional contribution thereto. In

taking such action, the Secretary shall

be guided by the provisions of section

109 of this title.”

23 U.S.C. § 109(a) provides:

“(a) The Seeretary shall not ap-

prove plans and specifications for pro-

posed projects on any Federal-aid sys-

tem if they fail to provide for a fa-

cility (1) that will adequately meet

the existing and probable future traffic

needs and conditions in a manner con-

ducive to safety, durability, snd econ-

omy of maintenauce; (2) that will be

designed aud constructed in accordance

with standards best suited to accom

plish the foregoing objectives and to

conform to the particular needs of

each Jocatity.”

23 U.S.C. § 10d) provides:

“(d) On any highway) project in

which Federal funds hereafter partici-

pate, or on any such project construct-

ed since December 20, 1944, the loea-

tion, fori and character of informa-

tional, regulatory and warning sizus,

curb and pavement or other markings,

and traffie signals installed or placed

by any publie anthority or other agen-

cy, shall be subject to the approval

of the State highway department with

the coneurre.ce of the Secretary, who

ix directed to concur only in such in-

stallations as will promote the safe

and efficient utilization of the high-

ways.”

23 U.S.C. § leftte) provides:

“(e) No fumis shall be approved for

expenditure on any Federal-aid high-

way, or highway affeeted under chap-

ter 2 of this tithe, unless proper safety

protective devices complying with safe-

ty standards determined by the Secre-

ary at that being adequate

shall be justalied or be in operation

time as

ure to use reasonable care in the

design,' construction ® and maintenance ?

at any highway and railroad grade

crossing or drawbridge on that por-

tion of the highway with respert to

which such expenditures sre to be

made.”

2. 23 U.S.C. § 114(a) provides:

“(a) The construction of any high-

ways or portions of highways located

on a Federal-aid system shall be un-

dertaken by the respective State high-

way departments or under their direct

supervision. Except as provided in

section 117 of this title, such construc-

tion shall be subject to the inspection

and approval of the Secretary. The

construction work and labor in each

State shall be performed under the

direct supervision of the State high-

way department and in accordance

with the laws of that State and ap-

plicable Federal laws. Construction

may be begun as soon as funds are

availuble for expenditure pursuant to

subsection (a) of section 118 of this

title. On any project where actual

construction is in progress and visible

to highway users, the State highway

department shall erect such informa-

tional sigu or sigus as prescribed by

the Secretary, identifying the project

and the respective amounts contributed

therefor by the State and Federal Gov-

ernments.”

3. 23 U.S.C. § 116(a) provides:

“(a) It shall be the duty of the State

highway department to miaiutsin, or

cause to be maintained, ams

constructed under the pres!

this chapter or constructed under the

provisions of prior Acts. Tl«

obligation to the United States to

maintain any such project shail cease

when it no longer constitutes a part

of a Federal-aid system.”

23 U.S.C. § 116(c) provides:

“(c) If at any time the Seeretary

shall find that any project constructed

under the provisions ef this chapter,

or constructed under the

of prior Acts, is not

project

sons of

State's

provisions

being properixy

maintained, he shall call such fact to

the attention of the State highway

department. If, within ninety days

after receipt of such notice, such prej-

ect has not been put in preper condi-

tien of maintenance, the Secretary

shall withheld approval of further

projects of all types in the entire

State nntil such project) shall have

been put in proper condition ef muuin-

tenance, unless such project is subject

ee ee

SS aT Re

— LR TOMI TONE ROO

} of U.S. Route 22 in violation of the

. Federal-Aid Highway Act, 23 U.S.C. §

101 et seq., and the Highway Safety

Act, 23 U.S.C. § 401 et seq.4 Specifical-

ly, the gravamen of plaintiffs’ allega-

tions is that in the light of the high

number of reported accidents along this

portion of U.S. 22, the Commonwealth

failed to use reasonable care to prevent

the drainage of surface water across the

to an agreement pursuant to subsec-

tion (b) of this section, in which case

approval shall be withheld only for

secondary or urban projects in the

county or municipality where such

project is located.”

4. 23 U.S.C. § 402(a) provides:

“(a) Each State shall have a_ high-

way safety program approved by the

Secretary, designed to reduce traffic

accidents and deaths, injuries, and prop-

erty damage resulting therefrom. Such

programs shall be in accordance with

uniform standards promulgated by the

Secretary. Such uniform standards

shall be expressed in terms of perform-

ance criteria. Such uniform standards

shall be promulgated by the Secretary

so as to improve driver performance

(including, but not limited to, driver

education, driver testing to determine

proficiency to operate motor vehicles,

driver examinations (both physical and

mental) and driver licensing) and to

improve pedestrian performance. In

addition such uniform standards shall

include, but not be limited to, provisions

for an effective record system of acci-

dents (including injuries and deaths

resulting therefrom), accident investi-

gations to determine the probable

causes of accidents, injuries, and deaths,

vehicle registration, operation, and in-

spection, highway design and mainte-

nance (including lighting, markings,

and surface treatment), traffic control,

vehicle codes and laws, surveillance of

traffic for detection and correction of

high or potentially high accident loca-

tions, and emergency services. Such

Standards as are applicable to State

highway safety programs shall, to the

extent determined appropriate by the

Secretary, be applicable to federally ad-

ministered areas where a Federal de-

partment or agency controls the high-

ways or supervises traffic operations. ~

The Secretary shall be authorized to

amend or waive standards on a tempo-

rary basis for the purpose of evaluat-

ing new or different highway safety

$44 FEDERAL SUPPLEMENT

roadway and to insure the installation of

adequate guardrails 5.

The Commonwealth has moved to dis-

miss both complaints on three grounds,

alleging that (1) the Court lacks juris-

diction to entertain these actions; (2)

these actions are barred by the Common-

wealth’s immunity under the Eleventh

Amendment,® and its sovereign im-

programs instituted on an experimental, -

pilot, or demonstration basis by one

or more States, where the Secretary

finds that the public interest would be

served by such amendment or waiver.”

5. The plaintiffs in the Meyers case have

incorporated into their brief the Highway ~

Accident Report of the National Safety

Board, whose conclusions we shall accept

for the purpose of these motions. As

to the probable cause of this accident,

the Board concluded :

“The National Transportation Safety

Board determines that the probable

eause of this accident was either dynam-

ic or viscous hydroplaning of the

front wheels of the bus which initiated

a skid from which the driver could not

recover. Contributing factors included

low basic skid resistance of the pave-

ment in wet weather, and the probable

presence of water draining across the

pavement in an abnormul manner. The

fatalities and injuries were caused by

an ineffective highway guardrail which

failed to prevent the bus from rolling

down an embankment, by bus windows

which failed to prevent ejection of some

passengers, and in some cases, by the

absence of occupant restraints.”

For the purpose of these motions we s)iall

not refer to other portions of the report

suggesting additional or other contribut-

ing causes of this unfortunate accident.

6. The Eleventh Amendment to the United

States Constitution provides:

“The Judicial power of the United

States shall not be construed to ex-

ten? to any suit in law or equity, com-

menced or prosecuted against one of the

United States by Citizens of another

State, or by Citizens or Subjects of any

Foreign State”.

Thus, under the Eleventh Amendment the

federal courts lack authority to entertain

a suit brought by a private party against

a state without its consent. Ford Motor

Co. v. Dep't. of Treasury, State of Indi-

ana, 323 U.S. 459, 464, 65 S.Ct. 347, 89

I.Ed. 389 (1945).

munity;* and (3) the complaint fails

to state a claim upon which relief can be

granted. Plaintiffs, on the other hand,

argue that by voluntarily accepting fed-

eral funds under the Federal-Aid High-

way Act and by entering into interstate

commerce in the construction of inter-

state highways, the Commonwealth

waived any immunity which ordinarily

would have been available to it. Plain-

tiffs further argue that the Federal-Aid

Highway Act and the Highway Safety

Act create an implied cause of action for

injuries resulting from any violation of

the standards set forth therein or regu-

lations promulgated thereunder.

A. Jurisdiction

{1,2} Both actions have alleged as

their jurisdictional basis a federal ques-

tion arising under the Constitution and

laws of the United States. In the Daye

case, plaintiffs have alleged diversity of

citizenship as an alternative jurisdic-

tional basis. In so far as jurisdiction

over the Commonwealth in Daye is

based on diversity of citizenship, this

Court lacks such jurisdiction, for it is

well established that a state is not a per-

son for the purposes of diversity juris-

diction. Stute Highway Comm'n. of

Wyoming v. Utah Construction Co., 278

U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262

(1929); O'Neill v. Commonwealth of

Pennsylvania, 459 F.2d 1 (3rd Cir...

1972). Moreover, a state cannot waive

its lack of status as a citizen for the

purpose of diversity jurisdiction. Har-

ris v. Pennsylvania Turnpike Comm’n..

410 F.2d 1332, 1334 n.1 (3rd Cir. 1969),

cert. denied, 396 U.S. 1005, 90 S.Ct. 558,

24 L.Ed.2d 497 (1970); Krisel vy. Duran,

3886 F.2d 179, 181 (2d Cir. 1967), cert.

denied 390 U.S. 1042, 88 S.Ct. 1635, 20

L.Ed.2d 303 (1968).

7. Article 1, Section 11 of the I nnsylvania

Constitution, P.S., provides :

“es * * Suits may be brought

against the Commonwealth in such man-

ner, in such courts, and in such cases

as the Legislature may by law direct.”

The Pennssivania courts have held that in

DAYE v. COMMONWEALTH OF PENNSYLVANIA

Cite as 344 F.Supp. 1337 (1972)

1341

[3] Plaintiffs have alleged that this

Court has jurisdiction over these actions

in that their subject-matter raises sub-

stantial federal questions. Initially,

plaintiffs argue that the issue whether

the Commonwealth waived its Eleventh

Amendment immunity presents a federal

question. In Parden v. Terminal R. Co.

of Ala., 377 U.S. 184, 84 S.Ct. 1207, 12

L.Ed.2d 233 (1964), the Supreme Court

considered this identical question, hold-

ing:

“Where a State’s consent to suit is al-

leged to arise from an act not wholly

within its own sphere of authority but

within a sphere—whether it be inter-

state compacts or interstate commerce

—subject to the constitutional power

of the Federal Government, the ques-

tion whether the State’s act consti-

tutes the alleged consent is one of fed-

eral law.” 377 U.S. at 197, 84 S.Ct. at

1215.