Demmy v. Pennsylvania State Police

611 A.2d 782, 148 Pa. Commw. 401, 1992 Pa. Commw. LEXIS 419
CourtCommonwealth Court of Pennsylvania
DecidedJune 5, 1992
DocketNo. 2035 C.D. 1991
StatusPublished
Cited by1 cases

This text of 611 A.2d 782 (Demmy v. Pennsylvania State Police) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Demmy v. Pennsylvania State Police, 611 A.2d 782, 148 Pa. Commw. 401, 1992 Pa. Commw. LEXIS 419 (Pa. Ct. App. 1992).

Opinion

LORD, Senior Judge.

Janice L. Demmy appeals to this Court from the determination made by the Commissioner of the Pennsylvania State Police (PSP) that she is physically unfit to carry a lethal weapon. Since 1980, Demmy has been employed by General Public Utilities Nuclear Company (GPU) at the Three Mile Island Nuclear Generating Station as an armed security guard. The PSP administers the Lethal Weapons Training Act (LWTA), Act of October 10, 1974, P.L. 705, as amended, 22 P.S. §§ 41-50.1, which provides for the training and licensing (ie. certification) of privately employed armed security guards and investigators.

Demmy was certified pursuant to the provisions of the LWTA in 1980 and was recertified in 1985 and 1990. 37 Pa.Code § 21.11(3)(iv) requires all persons desiring certification to “have a visual acuity of at least 20/70, uncorrected in the stronger eye, correctable to at least 20/20; and 20/200, uncorrected in the weaker eye, correctable to at least 20/40

On February 6, 1991, Dr. Mark Mastervich examined Dem-my and determined that her corrected vision is 20/20 in both eyes; however, her uncorrected vision is 20/800 in her right eye and 20/1000 in her left eye. These levels of uncorrected vision do not conform to the visual acuity requirements set forth in the Code.

The PSP notified Demmy on February 13, 1991, that her Lethal Weapons Certification was to be revoked because she no longer physically qualified for certification based on the results of her eye examination. Demmy made a timely request for an administrative hearing, and such hearing was held on May 8, 1991.

[403]*403At the hearing, Demmy argued that her vision conforms to the federal regulations promulgated by the Nuclear Regulatory Commission (NRC) governing visual acuity for armed security at nuclear power plants. Demmy contended that the federal regulations pre-empt the regulations promulgated pursuant to the LWTA; therefore, she was entitled to carry a lethal weapon while working at GPU. Demmy also presented the argument that she was entitled to certification because her physical circumstances had not changed from the time of her original certification when there were no visual acuity standards.

On August 1, 1991, the hearing examiner sustained the revocation of Demmy’s certification. The Commissioner of the PSP concurred with the hearing examiner’s findings and, based on the results of Demmy’s eye examination, found that she was not qualified for certification. This appeal followed.

Demmy’s first argument in this appeal arises from the admitted fact that she meets the NRC’s standards for visual acuity. From that fact Demmy argues that the federal regulations regarding the required visual acuity have pre-empted this field and, therefore, any state regulations may not lawfully be applied to deprive her of her security guard position.

In order to fully examine this interesting argument, it is necessary to evaluate some of the general principles applicable to the question of pre-emption.

Both parties have cited to us Pacific Gas & Electric v. Energy Resources Conservation and Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), a case involving pre-emption by virtue of the Atomic Energy Act (AEA), 42 U.S.C. §§ 2011-2296 (1954) also involved here. Thus, we turn to that case for the general preemption principles. In Pacific Gas, the United States Supreme Court said:

It is well established that within constitutional limits Congress may pre-empt state authority by so stating in express terms. Jones v. Rath Packing Co., 430 US 519, 525, 51 L Ed 2d 604, 97 S Ct 1305 [1309] (1977). Absent explicit pre-emptive language, Congress’ intent to supersede [404]*404state law altogether may be found from a “ ‘scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,’ because the Act ‘of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,’ or because ‘the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.’ ” Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 US 141, 153, 73 L Ed 2d 664, 102 S Ct 3014 [3022] (1982), quoting Rice v. Santa Fe Elevator Corp., 331 US 218, 230, 91 L Ed 1447, 67 S Ct 1146 [1152] (1947). Even where Congress has not entirely displaced state regulation in a specific area, state law is pre-empted to the extent that it actually conflicts with federal law. Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 US 132, 142-143, 10 L Ed 2d 248, 83 S Ct 1210 [1217-1218] (1963), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 US 52, 67, 85 L Ed 581, 61 S Ct 399 [404] (1941). Id. at 203-204, 103 S.Ct. at 1722.
The Court then held:
Congress, in passing the 1954 Act and in subsequently amending it, intended that the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but that the States retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concerns. Id. at 205, 103 S.Ct. at 1723.

The Court further opined: “ ‘So we 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.’ Rice v. Santa Fe Eleva[405]*405tor Corp., supra, at 230, 91 L Ed 1447, 67 S Ct 1146 [at 1152].” Id. at 206, 103 S.Ct. at 1723.

The Supreme Court then held that a California statute conditioning the construction of nuclear plants on the State Energy Resources Conservation and Development Commission’s findings that adequate storage facilities and means of disposal are available for nuclear waste was not pre-empted by the AEA when construed to have an economic purpose.

Obviously, the question Demmy presents to this Court does not have the breadth or universal importance of the relationship between the AEA and the California statute mentioned above, but that fact does not detract from its importance to the parties involved.

The question at issue here is whether the AEA and the regulations adopted thereto are so pervasive that the state’s more stringent visual acuity requirements to carry firearms, embodied in 37 Pa.Code § 21.11(3)(iv) and implemented pursuant to the LWTA’s provisions, must be held unconstitutional. We think not for the following reasons.

First, the AEA itself does not have explicit terms which preempt state authority. This point is illustrated by the Supreme Court’s opinion in Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed.

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611 A.2d 782, 148 Pa. Commw. 401, 1992 Pa. Commw. LEXIS 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demmy-v-pennsylvania-state-police-pacommwct-1992.