Daye v. Commonwealth (344 F. Supp. 1337, 1972)

OPINION AND ORDER

TROUTMAN, District Judge.

I.

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 clockwise 180°, crash into the guardrails, and tumble over an embankment. As a result of the accident, seven students were killed and forty-seven others injured.

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 passengers on the bus at the time of the accident. [Daye] The second suit was filed on behalf of two children who were passengers in the bus and injured in the accident. Both actions base the liability of the Commonwealth on its alleged failure to use reasonable care in the design, construction and maintenance 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. Specifically, the gravamen of plaintiffs’ allegations 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 roadway and to insure the installation of adequate guardrails .

“(a) Each State shall have a highway safety program approved by the Secretary, designed to reduce traffic accidents and deaths, injuries, and property damage resulting therefrom. Such programs shall be in accordance with uniform standards promulgated by tlie Secretary. Such uniform standards shall be expressed in terms of performance 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 accidents (including injuries and deaths resulting therefrom), accident investi- , gations to determine the probable causes of accidents, injuries, and deaths, vehicle registration, operation, and inspection, highway design and maintenance (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 administered areas where a Federal department or agency controls the highways or supervises traffic operations. The Secretary shall be authorized to amend or waive standards on a temporary basis for the purpose of evaluating new or different highway safety 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.”

The Commonwealth has moved to dismiss both complaints on three grounds, alleging that (1) the Court lacks jurisdiction to entertain these actions; (2) these actions are barred by the Commonwealth’s immunity under the Eleventh Amendment, and its sovereign immunity; 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 federal funds under the Federal-Aid Highway Act and by entering into interstate commerce in the construction of interstate highways, the Commonwealth waived any immunity which ordinarily would have been available to it. Plaintiffs 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 regulations promulgated thereunder.

A. Jurisdiction

Both actions have alleged as their jurisdictional basis a federal question arising under the Constitution and laws of the United States. In the Daye case, plaintiffs have alleged diversity of citizenship as an alternative jurisdictional 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 person for the purposes of diversity jurisdiction. State 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. Harris v. Pennsylvania Turnpike Comm’n., 410 F.2d 1332, 1334 n.l (3rd Cir. 1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 558, 24 L.Ed.2d 497 (1970); Krisel v. Duran, 386 F.2d 179, 181 (2d Cir. 1967), cert. denied 390 U.S. 1042, 88 S.Ct. 1635, 20 L.Ed.2d 303 (1968).

Plaintiffs have alleged that this Court has jurisdiction over these actions in that their subject-matter raises substantial 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, holding:

“Where a State’s consent to suit is alleged to arise from an act not wholly within its own sphere of authority but within a sphere — whether it be interstate compacts or interstate commerce —subject to the constitutional power of the Federal Government, the question whether the State’s act constitutes the alleged consent is one of federal law.” 377 U.S. at 197, 84 S.Ct. at 1215.

See also Chesapeake Bay Bridge & Tunnel Dist. v. Lauritzen, 404 F.2d 1001, 1003-1004 (4th Cir. 1968). In the instant case, the issue whether Pennsylvania’s affirmative actions in accepting federal highway grants and in its entry into the field of interstate commerce constitutes a waiver of its Eleventh Amendment immunity manifestly presents a federal question within the purview of the Parden decision.

In further support of this Court’s jurisdiction, plaintiffs maintain that the issue whether a violation of the standards established in the Federal-Aid Highway Act or the Highway Safety Act gives rise to an implied cause of action to recover damages for personal injuries also constitutes a federal question. We conclude that this issue presents a federal question, for in Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921), the Supreme Court stated the test as follows:

“[W]here it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the Constitution or laws of the United States, and that such federal claim is not merely colorable, and rests upon a reasonable foundation, the District Court has jurisdiction * * * ”. 255 U.S. at 199, 41 S.Ct. at 245.

Since plaintiffs’ right to relief, if any, depends on our construction of the federal highway legislation, we have jurisdiction to determine whether such statutes create, by implication, a cognizable civil remedy.

B. The Class Action

In the Daye case, the named plaintiffs, Hubert Daye, Tedesco Bus Company, Frank Tedesco, and Academy Charter Service, Inc., purport to represent a class consisting of those passengers killed or injured in the accident of July 15, 1970. In order to proceed as a class, the burden is on the plaintiff to establish the right to do so. Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 457 (E.D.Pa. 1968). In the instant case, plaintiffs must satisfy the prerequisites of Rule 23(a) and Rule 23(b) (3) of the Federal Rules of Civil Procedure. Plaintiffs vigorously argue that since the liability of the Commonwealth of Pennsylvania is a question common to all members of the purported class and since this question predominates over all others, this suit is appropriate for determination as a class action. Several considerations, however, have convinced us that this suit is not properly maintainable as a class action.

Initially, it is well established that the plaintiff-representative must be a member of the class which he purports to represent. Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). In this case, the purported class consists of those injured or killed in the bus accident in question. The only named plaintiff who could conceivably represent this class as a member is Hubert Daye, the driver himself. The remaining named plaintiffs are, in no way, representative of this class. Secondly, there arises a substantial question of adequacy of representation by the named plaintiffs. Adequacy of representation not only requires a coextensiveness of interests between the class and its representatives (present here in the common question of the liability of Pennsylvania), but also requires an absence of antagonistic interests. 3B J. Moore, Federal Practice j[23.07 [1], TJ23.07 [3] (2d ed. 1969). Several actions, arising from this accident, have already been filed against the bus company not only in this Court, but also in New York. Thirdly, we have found the Notes of the Advisory Committee to Rule 23 as revised in 1966 instructive. There, the Committee noted that “mass accidents” resulting in injuries to numerous persons are ordinarily inappropriate because of the likelihood that significant questions would arise not only of damages, but also of liability and defenses to liability. To permit such cases to continue as class actions, the Committee continued, would cause the case