[J-12-2014] 

IN THE SUPREME COURT OF PENNSYLVANIA 

MIDDLE DISTRICT 

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. 

NORENE M. MILLER, EXECUTRIX OF 

THE ESTATE OF DAVID MILLER, 

DECEASED AND I26 HOTEL 

CORPORATION , 

 Appellants 

 v. 

SOUTHEASTERN PENNSYLVANIA 

TRANSPORTATION AUTHORITY, 

 Appellee 

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No. 58 MAP 2013 

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) 

ARGUED: March 12, 2014 

OPINION 

MR. CHIEF JUSTICE CASTILLE DECIDED: October 30, 2014 

 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. 
[J-12-2014] - 2 

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 
[J-12-2014] - 3 

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.1 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 

 

1

 The parties and the Commonwealth Court refer to the governing legislation as the 

“FRSA.” In fact, the Federal Railroad Safety Act of 1970, 45 U.S.C. 431, et seq., was 

repealed and substantially reenacted in 1994 by Public Law 103-272, § 7(b), 108 Stat. 

745, 1379 (1994) (“An Act to revise, codify, and enact without substantive change 

certain general and permanent laws, related to transportation, as subtitles II, III, and V–

X of title 49, United States Code, ‘Transportation’, and to make other technical 

improvements in the Code.”). The provisions relevant here, 49 U.S.C. §§ 20101-20167, 

derive from the 1994 Act as amended, which contains no short title such as “FRSA.” 

Nevertheless, for purposes of this Opinion, we will adopt the parties’ convention and 

refer to the governing legislation as the FRSA. 
[J-12-2014] - 4 

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 1018.2

 

2

 The Commonwealth Court majority noted that SEPTA raised a statute of limitations 

argument as an alternative theory for affirming the trial court’s grant of summary 

(Mcontinued) 
[J-12-2014] - 5 

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 (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 

 

(continuedM) 

judgment, but declined to address the issue given its disposition on grounds of 

preemption. 
[J-12-2014] - 6 

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).3 

 

3

 To clarify, during all times relevant to the instant matter, there were no bridge safety 

regulations under the FRSA. As indicated, the Federal Railroad Administration (“FRA”) 

did issue a “Final Statement of Agency Policy” on August 30, 2000, effective September 

29, 2000. This advisory policy consisted of non-regulatory guidelines related to bridge 

inspection and management. “With the policy, [the] FRA established criteria for 

railroads to use to ensure the structural integrity of bridges that carry railroad tracks,” 75 

Fed. Reg. 41282-01, but again, this policy was merely advisory in nature. In 2008, 

however, President George W. Bush signed the Railroad Safety Improvement Act of 

(Mcontinued) 
[J-12-2014] - 7 

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 (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 manmade drainage facilities, the court concluded: 

 

(continuedM) 

2008, Public Law 110-432, Division A, into law, directing the FRA to issue regulations 

mandating specific bridge safety procedures. The FRA’s final rule in this regard was 

issued on July 15, 2010, effective September 13, 2010, requiring “track owners to 

implement bridge management programs, which include annual inspections of railroad 

bridges. . . .” 75 Fed. Reg. 41282-01. These recently implemented “Bridge Safety 

Standards,” found at 49 C.F.R. §§ 237.1-237.155, appear to be concerned with 

ensuring the structural integrity of bridges to the end of avoiding “[t]rain accidents 

caused by the structural failure of railroad bridges” that carry railroad tracks. 75 Fed. 

Reg. 41282-01. The Bridge Safety Standards do not appear to address any effect that 

railroad bridges might have upon local tributaries or the like, nor the causation of 

upstream flooding due to issues which have no bearing on structural integrity or railroad 

safety. In any event, the preemptive effect of the relatively recent Bridge Safety 

Standards is not an issue in this matter because this action, which was filed in 2003 for 

damages caused before that time, substantially predates the 2010 effective date of the 

FRA’s bridge safety regulations. 
[J-12-2014] - 8 

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

presumption must be that state laws regulating such action

survive . . . . 

 [Further,] the type of harm sought to be avoided by § 

213.33 is wholly different than the harm alleged by MD Mall. 

. . . . 

Section 213.33 is . . . plainly intended to prevent 

water from pooling on or around railroad tracks and thus to 

avoid potentially dangerous conditions occasioned by 

standing water, such as the presence of debris on tracks, 

icing conditions, and compromised track integrity. There is 

no indication whatsoever that it was intended to address 

storm water discharge onto a neighboring property, which is 

the harm alleged by MD Mall. . . . It is accordingly difficult to 

conclude that § 213.33 “was ... intended to prevent the harm 

plaintiff suffered,” i.e., storm water trespass, or “that the 

defendant railroad’s duty of care” with respect to state storm 

water trespass law was “subsumed by the regulation.” 

MD Mall Associates, 715 F.3d at 491-93 (some citations omitted). The U.S. Supreme 

Court denied certiorari. Thus, the published opinions of the U.S. Court of Appeals for 

the Third Circuit and the Commonwealth Court, respectively, are clearly at odds with 

one another concerning the preemptive effect of the FRSA as extended by Section 

213.33 vis-à-vis Pennsylvania law.4 

 

4

 The MD Mall court addressed two separate preemption issues: (1) express preemption 

-- whether the FRSA’s express preemption provision operated to extinguish MD Mall’s 

state claims in trespass seeking damages for personal injury, death, or property 

damage; and (2) implied conflict preemption -- whether MD Mall’s “lawsuit may be preempted by implication because the state-law principle it seeks to vindicate would conflict 

with federal law.” MD Mall, 715 F.3d at 495 (quotation marks and citation omitted). 

While the court in MD Mall held that Section 213.33 is not an express abrogation of 

state storm-water trespass law, the court remanded the matter for a determination 

(Mcontinued) 
[J-12-2014] - 9 

The resulting dilemma for a Pennsylvania plaintiff suing a Pennsylvania railservice provider such as SEPTA concerning railroad-related flood damage is that his 

claims may be unwelcomed in federal court for failure to raise a federal question, while 

at the same rejected in state court as being preempted by federal law. Therefore, this 

Court must determine whether the law of this Commonwealth will remain at odds with 

federal law on this issue of whether such Pennsylvania law claims are in fact expressly 

preempted by federal law. As we have noted in the past, while this Court is not bound 

by decisions of the federal Courts of Appeals, we may, and at times do, look to them for 

guidance. Commonwealth v. Cook, 952 A.2d 594, 608 n.12 (Pa. 2008). This may be 

especially appropriate where, as here, the issue concerns the scope and preemptive 

effect of federal statutes and regulations, which may implicate a special expertise in our 

federal judicial brethren. 

 The issue as presented by appellants is plainly stated: 

Did the Commonwealth Court’s decision conflict with 

decisions of the Pennsylvania Supreme Court and the 

United States Supreme Court where it affirmed the lower 

court’s order granting [appellee] SEPTA’s Motion for 

Summary Judgment on the basis that Congress intended to 

preempt state law claims of negligent railroad bridge 

construction and interference with riparian rights when it 

enacted the Federal Railroad Safety Act? 

 

(continuedM) 

concerning conflict preemption, concluding that the question of whether the railroad 

might employ reasonable means to comply with Section 213.33 while also complying 

with the state law at issue presented a question of fact best determined by the lower 

court. MD Mall, 715 F.3d at 495-96. Because SEPTA’s argument here is limited to 

express preemption, we do not address the issue of conflict preemption. 
[J-12-2014] - 10 

This is a purely legal issue, involving the proper construction of federal law, and thus 

our review is plenary and non-deferential. Commonwealth v. Millner, 888 A.2d 680, 686 

(Pa. 2005). 

Appellants argue that the Commonwealth Court erred because the FRSA and 

regulations issued thereunder do not preempt Pennsylvania’s common law landowner 

remedies as against the owner of a downstream bridge which acts as a dam, causing 

flooding to the property of the upper landowner. Appellants note that Section 213.33 is 

found in Part 213 of Title 49 of the Code of Federal Regulations, which pertains to 

minimum track safety standards, and provides only that drainage facilities and other 

water carrying facilities adjacent to or under the roadbed shall be kept free of 

obstruction to accommodate expected water flow. Appellants naturally highlight the 

recent holding in MD Mall that Section 213.33 is not addressed to the protection of 

neighboring property from flooding caused by a railroad facility, and therefore, it does 

not result in the preemption of Pennsylvania common law concerning the duty not to 

cause flooding on neighboring property. Appellants posit that, although the federal 

decision is not binding here, it certainly is instructive. 

Under the teaching of MD Mall, appellants argue, it is assumed that a federal 

statute does not supplant state law unless the congressional intention to do so is clear 

and manifest; and where an express preemption clause has more than one plausible 

reading, courts accept the one that disfavors preemption. Thus federal law does not 

preempt state regulation when the state-regulated activity is merely a peripheral 

concern of federal law. Applying these principles, appellants maintain, MD Mall makes 

it clear that the state law claims at issue in this case are not expressly preempted. 

Further, the state law claims are not subject to field preemption because, as the court 

held in MD Mall, Congress has not legislated to occupy the entire field. And, lastly, 
[J-12-2014] - 11 

there is no implied conflict preemption because compliance with both Pennsylvania law 

and Section 213.33 is not impossible. While many federal regulations address safety of 

trains and track, none address protection of neighboring landowners or purport to set 

standards for allowable flooding. On the other hand, Pennsylvania law does address 

such issues. Finally, appellants argue that a stream is not a water carrying facility as 

defined in the relevant regulations, and no case law says otherwise. For these reasons, 

appellants contend that the Commonwealth Court’s decision should be reversed. 

SEPTA contends that the Commonwealth Court properly affirmed the order of 

summary judgment in its favor because prior controlling case law establishing the 

standards for preemption clearly require a finding of express preemption here. In 

SEPTA’s view, there is no conflict between the decision below and controlling prior case 

law because “the preemptive effect of Section 213.33” upon a state common law 

riparian rights claim for flood damage has never been addressed by either this Court or 

the U.S. Supreme Court. Appellee’s Brief at 26. Both courts have, however, addressed 

other preemption issues, developing standards that SEPTA believes were correctly 

followed below. Thus, under CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 

664 (1993), SEPTA says, appellants’ claims are expressly preempted by the FRSA and 

Section 213.33 because Section 213.33 covers or “substantially subsume[s]” the 

subject matter of appellants’ claims. SEPTA reads Easterwood as specifically 

instructing “that courts are not to look at the purpose of a FRSA regulation when 

determining whether it preempts state law”; rather, the determination is simply one of 

whether regulations have been adopted that cover the subject matter. Appellee’s Brief 

at 12. 

While requesting modification of the issue presented to address “state law claims 

of negligent railroad bridge inspection and maintenance,” as opposed to claims of 
[J-12-2014] - 12 

negligent railroad bridge “construction,” since SEPTA had no role in the original design 

or construction of the bridge at issue, SEPTA insists that the gravamen of appellants’ 

claim is improper maintenance and inspection regarding drainage and potential 

obstructions under and adjacent to the bridge which allegedly caused the flooding.5 

SEPTA insists that this claim is specifically covered by Section 213.33, which is entitled 

“Drainage.” SEPTA notes that the Track Safety Standards as a whole cover and 

regulate every aspect of track roadbed maintenance and inspection; in its view, Part 

213 covers every area of track roadbed design, construction, maintenance and 

inspection. The drainage and maintenance requirements of the regulation -- keeping 

drainage and other water carrying facilities free of obstruction -- necessarily involve the 

prevention of flooding. Thus, SEPTA argues, railway safety relative to improper 

drainage under and on property around the railroad roadbed is thoroughly covered by 

the FRSA and Section 213.33. SEPTA further posits that Easterwood and its progeny 

were all decided with an eye toward the congressional goal of nationally uniform railroad 

regulation, and allowing riparian rights claims against rail service providers conflicts with 

this goal. SEPTA contends that juries cannot be allowed to determine the standards for 

maintenance and inspection of tracks and roadbed. SEPTA goes so far as to claim that 

 

5

 We decline the invitation to modify appellants’ issue presented to account for any 

possible discrepancy in characterizing the cause of action as one for negligent 

construction as opposed to negligent maintenance, as we deem the distinction between 

construction and maintenance to be inconsequential for purposes of our preemption 

analysis. The extent to which that distinction may become relevant in the lower courts 

for some other purpose is a matter that we will leave for resolution by the lower courts 

and this Court if and when necessary. Notably, however, appellants have long 

maintained that the bridge at issue “was defectively designed, built and maintained such 

that it acted as a dam creating a ‘choke point’ which failed to allow for a sufficient lateral 

flow of water.” Plaintiffs’ Memorandum of Law Contra Defendant [SEPTA’s] Motion for 

Summary Judgment, at 2. 
[J-12-2014] - 13 

the fact that Pennsylvania plaintiffs may be left with no remedy under its view of the 

matter is inconsequential. 

SEPTA next notes that the Federal Railroad Administration (“FRA”) has a track 

and rail compliance manual that addresses Section 213.33, detailing requirements and 

identifying what inspectors are to examine. The manual calls for inspection of 

“Drainage facilities (bridges, trestles or culverts),” and states drainage openings must be 

inspected for accumulated debris to the extent that expected water flow cannot be 

accommodated. In SEPTA’s view, this manual demonstrates that bridges are drainage 

facilities, and that inspection of the same is to be included among federally mandated 

inspections, which further establishes that Section 213.33 covers the same subject as 

appellants’ claims. Additionally, the FRA’s Bridge Safety Standards also address 

various issues relating to the structural integrity of railroad bridges, including inspections 

following floods, further evidencing the goal of nationally uniform and comprehensive 

railroad safety regulation. 

Finally, SEPTA emphasizes that MD Mall is not binding in Pennsylvania state 

court, and argues that the panel majority in that case misapplied and ignored the 

established standards and instructions set forth in Easterwood, which this Court must 

follow, by examining the purposes behind Section 213.33. In SEPTA’s view, the MD 

Mall court erroneously compared the type of harm sought to be avoided by Section 

213.33 and the harm the plaintiff alleged, and wrongly based its decision on the 

regulation’s silence on railroad duties to neighbors. SEPTA argues that this approach is 

in direct contravention of Easterwood; thus, MD Mall should not be regarded as 

persuasive. Drainage onto neighboring property is clearly implicit in Section 213.33, 

SEPTA reiterates; it would be illogical to assert that the regulation only covers the tracks 

themselves, since overflowing water would eventually go onto neighboring property. 
[J-12-2014] - 14 

SEPTA, therefore, contends that the order of the Commonwealth Court should be 

affirmed.6

This appeal has been well-briefed, and after due deliberation, we must reject 

SEPTA’s core contentions. We view the case, in its essence, as implicating concerns of 

federalism. Generally speaking, the federal government exists by reason of agreement 

by and among the states of this land to be united by a centralized, and yet limited, 

federal government. Pursuant to that agreement “the People of the United States, in 

Order to form a more perfect Union . . .” ordained and established the U.S. Constitution. 

U.S. CONST. pmbl. Therein, the people established that “Th[e] Constitution, and the 

Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in 

every State shall be bound thereby, any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.” U.S. CONST. art. VI cl. 2 (the “Supremacy Clause”) 

 

6

 The Pennsylvania Public Transportation Association, the American Public 

Transportation Association, the Association of American Railroads and the American 

Short Line and Regional Railroad Association have filed amicus curiae briefs in support 

of SEPTA. In the aggregate, these associations argue that Section 213.33 preempts 

the claims at issue because the claims pertain to damage caused by the obstruction of 

a creek by a railroad bridge, while Section 213.33 required SEPTA to maintain the 

bridge in a manner to accommodate, not obstruct, the expected flow of watercourses. 

Thus, amici say, the regulation addresses the same conduct as the Pennsylvania 

common law principles at issue and, as a result, appellants’ claims are preempted 

under Easterwood. The associations challenge the U.S. Court of Appeals’ decision in 

MD Mall, claiming that the rule articulated therein calls for a harm-based approach 

which is at odds with Easterwood, and will result in a morass of confusion and 

uncertainty in railroad regulation. Amici further claim that overturning the decision 

below will subject public rail service providers to monstrous tort liabilities and massive 

costs while jeopardizing the continuation of public rail transportation as we know it. 

Finally, they call for maintenance of a uniform national policy with federal regulations 

establishing the applicable standard of care, rather than state-based standards 

established by what they denigrate as ill-equipped and unqualified juries, which will 

force service providers into inefficient use of limited funding as they react to shifting jury 

perceptions. 
[J-12-2014] - 15 

(emphasis added). What is understood then, is that the laws of any State (or 

Commonwealth as the case may be) which are not contrary to the “supreme Law of the 

Land” retain full force and effect because the allocation of powers in our federal system 

is designed to preserve “the integrity, dignity, and residual sovereignty of the States[,]” 

not to abrogate or abolish them. Bond v. U.S., 131 S.Ct. 2355, 2364 (2011) (emphasis 

added). Put differently, “the States retain substantial sovereign powers under our 

constitutional scheme, powers with which Congress does not readily interfere.” Gregory 

v. Ashcroft, 501 U.S. 452, 461 (1991). 

To that end, the Tenth Amendment to the U.S. Constitution states: “The powers 

not delegated to the United States by the Constitution, nor prohibited by it to the States, 

are reserved to the States respectively, or to the people.” Notably, the U.S. Supreme 

Court has recognized that the Tenth Amendment’s restraint on congressional authority 

is not derived from the amendment itself, but the amendment merely confirms the state 

sovereignty that predates it, and indeed, the state sovereignty that predates the federal 

government itself. New York v. U.S., 505 U.S. 144, 156-57 (1992). The founding 

fathers’ vision of these “united states,” was never a system in which the federal 

government would replace and do away with state government. The predominant 

theory underlying our federalist system has always been to secure the rights of the 

people, striking a proper balance between state and federal governments to promote 

“double security,” for individual freedom, while allowing local policies that are sensitive 

to the varying needs of a heterogeneous union. Gregory, 501 U.S. at 458-59; see also 

Bond, 131 S.Ct. at 2364. Federalism continues to allow state responsiveness to those 

who seek a voice in relatively local government issues without reliance upon politics 

controlling the remote central government. Bond. As James Madison explained it: 

If angels were to govern men, neither external nor internal 

controls on government would be necessary. In framing a
[J-12-2014] - 16 

government which is to be administered by men over men, 

the great difficulty lies in this: you must first enable the 

government to control the governed; and in the next place 

oblige it to control itself. . . . 

. . . . 

. . . In the compound republic of America, the power 

surrendered by the people is first divided between two

distinct governments, and then the portion allotted to each 

subdivided among distinct and separate departments. 

Hence a double security arises to the rights of the people. 

The different governments will control each other, at the 

same time that each will be controlled by itself. 

The Federalist No. 51, p. 322-23 (C. Rossiter ed. 1961). 

 While the theoretical goal is to maintain a constitutional balance between federal 

and state powers, it is true that the federal government has a limited, yet substantial, 

precedence by virtue of the Supremacy Clause. “As long as it is acting within the 

powers granted it under the Constitution, Congress may impose its will on the States. 

Congress may legislate in areas traditionally regulated by the States.” Gregory, 501 

U.S. at 460. Because this is an “extraordinary” power within the context of a federalist 

system, it is assumed that Congress does not exercise such power lightly. Id. The 

appropriate effects of this assumption are readily seen in preemption jurisprudence. 

The High Court, with an eye toward the proper balance in our federal structure, has 

taught: 

If Congress intends to alter the usual constitutional balance 

between the States and the Federal Government, it must 

make its intention to do so unmistakably clear in the 

language of the statute. . . . Congress should make its 

intention clear and manifest if it intends to pre-empt the 

historic powers of the States. . . . [T]he requirement of clear 

statement assures that the legislature has in fact faced, and 

intended to bring into issue, the critical matters involved in 

the judicial decision. . . . This plain statement rule is nothing 

more than an acknowledgment that the States retain 
[J-12-2014] - 17 

substantial sovereign powers under our constitutional 

scheme, powers with which Congress does not readily 

interfere. 

Gregory, 501 U.S. at 460-61 (citations and quotation marks omitted). Thus, the High 

Court has held: “‘it is incumbent upon the federal courts to be certain of Congress’ intent 

before finding that federal law overrides’ this balance.” Id. at 460 (quoting Atascadero 

State Hospital v. Scanlon, 473 U.S. 234, 243 (1985)). 

In Wyeth v. Levine, 555 U.S. 555, 565 (2009), the High Court further explained 

that “the purpose of Congress is the ultimate touchstone in every pre-emption case”; 

therefore, in such cases, the federal courts “start with the assumption that the historic 

police powers of the States were not to be superseded by the Federal Act unless that 

was the clear and manifest purpose of Congress.” The federal courts rely on this 

presumption “because respect for the States as independent sovereigns in our federal 

system leads [the High Court] to assume that Congress does not cavalierly pre-empt 

state-law causes of action.” Id. at 565 n.3. 

Similarly, given that this Court’s powers are derived from the citizens of 

Pennsylvania, we do not lightly set aside their existing rights or remedies in deference 

to uncertain federal law, particularly where doing so would leave Pennsylvania citizens 

without any remedy at all in an area where a remedy otherwise might obtain. Thus, 

independent of the teaching of the High Court, there is good reason for this Court to be 

certain of federal congressional intent before allowing federal law to divest 

Pennsylvanians of the rights and remedies afforded under the laws of this 

Commonwealth. Thus, this Court has held: “concepts of federalism and state 

sovereignty make clear that in discerning whether Congress intended to preempt state 

law, there is a presumption against preemption[,]” as we also require a clear 

manifestation of congressional intent to preempt. Dooner v. DiDonato, 971 A.2d 1187, 
[J-12-2014] - 18 

1194 (Pa. 2009). We have emphasized that, even where federal law contains an 

express preemption clause, our duty is to further inquire as to the scope and substance 

of any displacement of our state laws. Id. at 1193. As a final point of framing 

background, and as stated earlier, we recognize that we are not bound by the lower 

federal courts’ decisions as to the preemption issue before us, but may look to them for 

guidance. After conducting an independent analysis considering the facts before this 

Court, however, we agree with the view of the U.S. Court of Appeals for the Third Circuit 

concerning the preemptive effect of the FRSA as extended by Section 213.33. 

 We hold that the instant state law riparian rights claim is neither covered by the 

FRSA’s preemption provision, nor Section 213.33 of the federal Track Safety Standards 

regulations. In the first place, as noted, “[t]he purpose of [the FRSA] is to promote 

safety in every area of railroad operations and reduce railroad-related accidents and 

incidents.” 49 U.S.C. § 20101. To that end, Congress provided that “[l]aws, 

regulations, and orders related to railroad safety . . . shall be nationally uniform to the 

extent practicable.” Id. § 20106(a)(1) (emphasis added). In order to accomplish such 

uniformity, while simultaneously respecting state sovereignty, Congress promulgated an 

express preemption provision to delineate where state railroad safety laws would 

remain in effect, and where federal regulation would control instead. Congress 

provided: 

A State may adopt or continue in force a law, regulation, or 

order related to railroad safety . . . until the Secretary of 

Transportation (with respect to railroad safety matters) . . . 

prescribes a regulation or issues an order covering the 

subject matter of the State requirement. . . . 

 Id. § 20106(a)(2) (emphasis added). 

The above language is a clear statement of preemption, but as to a very narrowly 

defined area. Thus, this Court has held that this express preemption provision 
[J-12-2014] - 19 

pertaining to “[l]aws, regulations, and orders related to railroad safety” only applies if, 

first of all, “the Executive Branch has taken an action that ‘cover[s] the subject matter’ of 

the state enactment”; and if, secondarily, “the state enactment fails to satisfy all three 

requirements enumerated in Section 106 of the Act[,]” i.e., if the state law is (a) 

necessary to reduce an essentially local safety hazard, (b) is not incompatible with laws 

of the U.S., and (c) does not unreasonably burden interstate commerce. Krentz v. 

Consolidated Rail Corp., 910 A.2d 20, 32 (Pa. 2006). This Court further clarified that in 

order “[t]o prevail on the claim that regulations have pre-emptive effect, the party 

advocating preemption must establish more than that they ‘touch upon’ or ‘relate to’ that 

subject matter, for ‘covering’ is a more restrictive term which indicates that pre-emption 

will lie only if the federal regulations substantially subsume the subject matter of the 

relevant state law.” Id. at 33 (quoting Easterwood, 507 U.S. at 664-65). 

 The instant lawsuit does not pertain to any state railroad safety law, but pertains 

instead to riparian rights under Pennsylvania’s common law, a field which Pennsylvania 

has traditionally occupied, as other states have, vis-à-vis the riparian rights afforded 

therein. Appellants reference case law from this Court dating as early as 1855. See

Mertz v. Dorney, 25 Pa. 519, 520 (Pa. 1855) (“If therefore the plaintiff’s land was 

flooded by means of the repairs to the dam to a greater extent than it had been for a 

period of twenty-one years, the defendant was liable for the injury.”). In 1962, this Court 

summarized Pennsylvania law in the area as follows: 

The law is well settled that the owner of land through 

or over which a natural watercourse flows may not obstruct 

the stream so as to damage the land higher up on the 

stream. One buys land as it is and he knows that rivers, 

creeks and tributaries are destined by natural laws to move 

toward larger bodies of water. There is in each moving 

stream an irresistible force which cannot be stopped or 

harnessed without in some way affecting the land which it 

touches. Thus, the owner of land on the higher level of a 
[J-12-2014] - 20 

stream has the right to have that stream move away from 

him and every subservient owner has the obligation to let it 

continue on its way. . . . 

. . . The lower owner has no right to obstruct the flow 

of the stream by a dam so as to flood the land of the upper 

owner, or to raise the level of the water in its bed to his 

detriment. 

What the subservient owner may not do through 

intention he may equally not accomplish through neglect. 

Helms v. Zeitzeff, 181 A.2d 277, 278-79 (Pa. 1962) (citations and quotations omitted). 

These principles of Pennsylvania common law have no direct or significant relation to 

railroad safety. Moreover, these riparian rights principles fall within the historic police 

powers of Pennsylvania, and are not to be superseded by a federal act unless 

superseding these common law principles is the clear and manifest purpose of 

Congress. Given the clear congressional emphasis within the FRSA on relation to 

railroad safety, we perceive no clear or manifest congressional purpose to supersede 

Pennsylvania law as pertaining to riparian rights, particularly because the Pennsylvania 

law invoked by appellants has no apparent relation to railroad safety. We hold, 

therefore, that Pennsylvania common law governing riparian rights is not preempted by 

the FRSA, as such common law lies outside of the scope of the FRSA. 

 Alternatively, even were we to conclude otherwise, we note that the task would 

still require interpretation, as we would be left to apply the FRSA’s express preemption 

provision. And in doing so, we would conclude that the Commonwealth Court majority 

erred in holding that Pennsylvania riparian rights common law is preempted by the 

FRSA under that preemption provision.7 In our respectful view, the Commonwealth 

 

7

 By way of “[c]larification regarding State law causes of action,” as related to the 

FRSA’s express preemption provision, 49 U.S.C. § 20106(b)(1) now provides, in part, 

“Nothing in this section shall be construed to preempt an action under State law seeking 

(Mcontinued) 
[J-12-2014] - 21 

Court majority’s holding that Section 213.33 of the Track Safety Standards is dispositive 

of preemption as a regulation which covers the subject matter of the governing state 

law, the court was plainly incorrect. Section 213.33 simply does not address, much less 

cover, the subject matter of Pennsylvania’s common law riparian rights. 

 To begin with, Part 213 is identified specifically as setting forth “Track Safety 

Standards.” The scope of that part is expressly limited to “minimum safety requirements 

for railroad track,” and “[i]n general, the requirements prescribed in this part apply to 

specific track conditions. . . .” 49 C.F.R. § 213.1 (emphases added). Moreover, 

Section 213.33 falls within Subpart B to the Track Safety Standards, which is expressly 

limited in scope to “minimum requirements for roadbed and areas immediately adjacent 

to roadbed.” 49 C.F.R. § 213.31 (emphases added). Notably, the provision identified 

by the Commonwealth Court majority as dispositive here, Section 213.33, pertains 

specifically to “Drainage.” It provides: “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.” (emphasis 

added). Given the plainly limited scope of the Track Safety Standards, including 

Section 213.33, and the further limited scope of the Roadbed subpart, it is clear that the 

 

(continuedM) 

damages for [inter alia] property damage alleging that a party . . . (C) has failed to 

comply with a State law . . . that is not incompatible with subsection (a)(2).” Because 

the state law at issue does not relate to railroad safety, we conclude that it is not 

incompatible with subsection (a)(2), and therefore, according to the preemption 

provision, Section 20106 should not be construed to preempt the present action. We 

recognize, however, that Section 20106(b)’s clarification expressly applies to causes of 

action arising on or after January 18, 2002, while the events underlying this action 

occurred before then. Thus, we do not rely upon Section 20106(b) in resolving the 

issue presented herein, but do note that this “clarification” is telling as a counterpoint to 

the arguments of SEPTA and amici regarding supposed congressional intentions vis-àvis Section 20106(a). 
[J-12-2014] - 22 

“area concerned,” specifically for safety purposes, is the railroad track and the track’s 

roadbed. Under Section 213.33, expected water flow (presumably primarily storm-water 

flow) upon the track and roadbed must be accommodated by drainage or other water 

carrying facilities, quite obviously to prevent the track safety issue which would 

otherwise be presented by the accumulation of standing water on railroad tracks, and 

corresponding interference with railroad operations. To be sure, attention to the tracks, 

drainage, and obstructions may inure to the benefit of neighboring landowners. But the 

concerns addressed have no express relation to the riparian rights at issue in this case. 

 To the extent that SEPTA argues that this case falls within the purview of Section 

213.33 because the bridge at issue was a “drainage or other water carrying facility,” we 

are unconvinced because this case does not concern allegations of upstream damages 

to a neighbor resulting from drainage from the track roadbed upon SEPTA’s bridge; the 

claim arises from an allegation involving the obstruction of a creek and resulting 

upstream flooding. There has been no suggestion that the creek at issue had ever 

risen, or could ever have risen to the height of the roadbed upon SEPTA’s bridge, 

thereby creating an actual track safety issue. Therefore, whether or not the bridge 

constituted a drainage facility by definition does not bear upon the issue of whether 

Section 213.33 covers and thereby effectively displaces the subject matter of 

Pennsylvania’s common law riparian rights; it does not. 

 Finally, as concerning SEPTA’s argument that Easterwood instructed that courts 

are not to look upon the purpose of a FRSA regulation when determining whether it 

preempts state law, SEPTA stretches Easterwood’s holding beyond the High Court’s 

intention (while SEPTA and its amici themselves include argument respecting supposed 

congressional purposes). Easterwood’s holding is clear that the preemption 

determination under the FRSA is one of whether regulations have been adopted 
[J-12-2014] - 23 

(pursuant to the governing statute) that cover the subject matter of the allegations which 

may be assumed to state a valid cause of action. Notably, consistent with the 

federalism principles addressed above, the High Court stated: 

In the interest of avoiding unintended encroachment on the 

authority of the States . . . a court interpreting a federal 

statute pertaining to a subject traditionally governed by state 

law will be reluctant to find pre-emption. Thus, pre-emption 

will not lie unless it is ‘the clear and manifest purpose of 

Congress.’ . . . Evidence of pre-emptive purpose is sought in 

the text and structure of the statute at issue. . . . If the statute 

contains an express pre-emption clause, the task of statutory 

construction must in the first instance focus on the plain 

wording of the clause, which necessarily contains the best 

evidence of Congress’ pre-emptive intent. 

Easterwood, 507 U.S. at 663-64 (citations omitted). The High Court did state that the 

prior governing statute, 45 U.S.C. § 434, “does not . . . call for an inquiry into the 

Secretary’s purposes, but instead directs the courts to determine whether regulations 

have been adopted that in fact cover the subject matter . . . .” Easterwood, 507 U.S. at 

675.8 We do not read that observation, however, as a mandate to ignore congressional 

 

8

 We note that the prior governing statute, 45 U.S.C. § 434, was substantially the same 

as the statute at issue herein, 49 U.S.C. § 20106(a). Under the heading “National 

uniformity of laws, rules, regulations, orders, and standards relating to railroad safety; 

State regulation,” the prior statute read: 

The Congress declares that laws, rules, regulations, 

orders, and standards relating to railroad safety shall be 

nationally uniform to the extent practicable. A State may 

adopt or continue in force any law, rule, regulation, order, or 

standard relating to railroad safety until such time as the 

Secretary has adopted a rule, regulation, order, or standard 

covering the subject matter of such State requirement. A 

State may adopt or continue in force an additional or more 

stringent law, rule, regulation, order, or standard relating to 

railroad safety when necessary to eliminate or reduce an 

essentially local safety hazard, and when not incompatible 

(Mcontinued) 
[J-12-2014] - 24 

and regulatory purpose when engaged in a plain language interpretation of the 

operative language in the course of determining whether a regulation covers the subject 

matter at issue. When interpreting otherwise undefined regulatory terms such as 

“drainage or other water carrying facility,” “roadbed” and “area concerned,” to determine 

whether Section 213.33 covers causing a back-up of creek-water at a remote upstream 

location, in determining the meaning and import of those terms and phrases, it is 

appropriate to consider the context of the regulation, as well as whether the terms and 

phrases utilized therein were intended to cover the subject matter. Easterwood simply 

does not counsel otherwise.9

 In conclusion, we hold that the FRSA does not preempt the state law riparian 

rights claim at issue in this case because the matter is entirely unrelated to railroad 

safety. We further hold that Section 213.33 of the federal Track Safety Standards 

regulations does not cover the subject matter at issue herein. Similar to the U.S. Court 

of Appeals for the Third Circuit’s holding in MD Mall, we likewise conclude that Section 

213.33 does not extend the FRSA to abrogate Pennsylvania law as it pertains to 

potential railroad liability for flood damages to neighbors allegedly caused by the 

railroad. 

 

(continuedM) 

with any Federal law, rule, regulation, order, or standard, 

and when not creating an undue burden on interstate 

commerce. 

9

 Moreover, if the Third Circuit’s interpretation was both erroneous and a deviation from 

Easterwood, the Court with the corrective power and obligation is the U.S. Supreme 

Court, which declined review. It would be a strange circumstance indeed for this Court 

to act to extinguish state law remedies in a federal Circuit where the controlling federal 

law sees no basis for such a displacement. 

 
[J-12-2014] - 25 

Order reversed and remanded to the Commonwealth Court for proceedings 

consistent with this Opinion. 

Jurisdiction is relinquished. 

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.