(D.C. Civil No. 71-1726) (D.C. Civil No. 71-2167) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
VAN DUSEN, Circuit Judge.
This is an appeal from the opinion and order of the United States District court for the Eastern District of Pennsylvania entered on June 30, 1972*fn1 which granted the motions of defendants to dismiss the complaints brought in a tort action for damages arising out of a bus accident allegedly caused by the improper design, construction and maintenance of an interstate highway and its safety devices.
The plaintiffs in No. 72-1769 are the driver and the corporate owner of the bus (hereafter jointly referred to as Daye). They demanded damages for injuries suffered in the accident by the driver and the bus company. They also sought to bring a class action under F.R.C.P. 23 on behalf of the injured and deceased passengers.*fn2 The defendants in Daye are the Commonwealth of Pennsylvania, the Department of Transportation in that state and named individuals, who were officials with the Department of Transportation.
The complaint in No. 72-1840 was filed by Marvin Meyers on behalf of his daughter Mindy, and by Stanley Bienenfeld on behalf of his daughter Lynda (hereafter jointly referred to as Meyers). In this action the defendants were the Commonwealth of Pennsylvania and the County of Lehigh, Pennsylvania.*fn3
The tragedy occurred on July 15, 1970 when a chartered tour bus carrying a group of young people, aged 10 to 17, and their counselors was proceeding westbound on U.S. 22 (Interstate 78) about 12 miles west of Allentown, Pennsylvania. A light rain was falling at the time and had been preceded by a heavy shower. The wet pavement allegedly caused the front wheels of the bus to hydroplane, which initiated a skid from which the driver was unable to recover. The bus rotated one hundred and eighty degrees (180 degree) clockwise through the guardrail alongside the highway and off the northern embankment. It overturned at the bottom of the embankment, ejecting eighteen persons and pinning six of them under the left side of the bus. Seven children were fatally injured.*fn4
The study by the National Transportation Safety Board suggested that contributing factors to the accident included:
"low basic skid resistance of the pavement in wet weather, and the probable presence of water draining across the pavement in an abnormal 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, in some cases, by the absence of occupant restraints."*fn5
Motions to dismiss were filed by the defendants in both Daye and Meyers. The Commonwealth in essence argued that it had not waived its immunity under the Eleventh Amendment of the Constitution,*fn6 that the action was not authorized by the laws of the Commonwealth and it was in violation of Article I, Section 11 of the Pennsylvania Constitution.*fn7 The Department of Transportation entered a similar motion to dismiss. The named defendants in their motion to dismiss contended that the motion was not maintainable as a class action; and that the defendants were public employees and officials of the Commonwealth and were acting within the course and scope of their official duties. The motions to dismiss were granted and this appeal followed.
The parties raise a number of contentions, but the issue central to both their appeals is whether the Commonwealth by its acceptance of funds under the Federal-Aid Highway Act*fn8 entered into an area of federal preemption resulting in a waiver of its Eleventh Amendment immunity from suit, or whether Congress in enacting the Highway Safety Act*fn9 intended to create implied causes of action that would permit private parties to pierce the states' sovereign immunity statutes in order to be compensated for injuries sustained as a result of a state's violation of the regulations promulgated under that Act?
Both Daye and Meyers suggest that since our decision in Mahler v. United States, 306 F.2d 713 (3rd Cir. 1962) the Congress has enacted legislation which clearly establishes an intention that states receiving federal highway funds will waive their immunity from suit.*fn10 They also contend that the recently enacted Highway Safety Act indicates an implied, if not an express, intention by Congress to regulate the interstate highway systems,*fn11 and thus subjects the states to Congressional regulation under the power reserved to the federal government by the commerce clause of the Constitution.*fn12
In Mahler the contention was made by the plaintiff that the United States failed to fulfill its duty by causing to be approved defective highway plans, by failing to discover faulty construction, and by failing to provide for and make inspections after construction on the interstate ...