Launching of Rockets or Missiles

14 Pa. D. & C.2d 402

• Court: Pennsylvania Department of Justice
• Decided: April 30, 1958
• Status: Published

Opinion

Frank P. Lawley, Jr., Deputy Attorney General, and Thomas D. McBride, Attorney General,

You have requested an opinion as to whether the launching of rockets or missiles by school-supervised students and other persons is in violation of the Fireworks Law of May 15, 1939, P. L. 134, as amended, 35 PS §1271-1277. Further, you ask whether there is any other act which would give your department authority to adopt rules and regulations governing the launching of such rockets or missiles.

Your request calls attention to recent actions of student groups within the Commonwealth in respect to the launching of rockets or missiles. For example, we are informed that one such group is presently engaged in constructing a rocket measuring eight feet in length, approximately eight inches in diameter, equipped with an engine, radio transmitter and parachute for safe return to earth. In addition to firings by school-sponsored groups, numerous instances of “free-lance” launchings have occurred in recent months, within and without the Commonwealth, several of which have caused serious personal injury and maiming of the youths so engaged.

Section 2 of the Fireworks Law, 35 PS §1272, prohibits the sale, offering or exposing for sale, use or exploding of any fireworks. Section 1 of the law, 35 PS §1271, provides:

“The term ‘fireworks’ shall mean and include any combustible or explosive composition or any substance or combination of substances, or, except as hereinafter provided, any article prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation, and shall include blank cartridges and toy cannons in which explosives are used, the type of balloons which require fire underneath to propel the same, firecrackers, torpedoes, skyrockets, Roman candles, Daygo bombs, sparklers or other fireworks of like construction, and any fireworks containing any explosive or flammable compound or any tablets or other device containing any explosive substance. . .

The constitutional validity of the Fireworks Law has recently been upheld by the Superior Court of Pennsylvania in Commonwealth v. Bristow, 185 Pa. Superior Ct. 448, 138 A. 2d 156 (1958). That case sustained a prosecution for selling toy cannons in which explosives are used to produce a visible or an audible effect. In the course of the opinion, the Superior Court stated:

“Like all legislation, the Fireworks Law must be interpreted in the light of its general purposes. It was enacted under the general police power of the Commonwealth for the protection of the health, safety, and general welfare of the public. . . 185 Pa. Superior Ct. 448, 454.

The question at hand is whether the language of the Fireworks Law proscribes rocket and missile launchings. We believe it does.

To hold that rockets and missiles are not contained in the definition of “fireworks”, supra, requires a conclusion that the specific articles and substances covered by the act were frozen as of May 15, 1939, the date of passage of the act, despite the broad language used, and that subsequent development, sale and/or use of devices covered by this language were not within the prohibitions of the act. In view of the broad purpose of the act cited, supra, we do not believe that application of the act can be so restricted. The specific purpose was to prohibit the sale or use of articles which are combustible or explosive or the purpose of which is to produce a visible effect. Rockets and missiles fall within this prohibition.¹

Section 2 of the Fireworks Law, supra, after prohibiting the sale, offering or exposing for sale, use or exploding of any fireworks, however, permits supervised public displays of fireworks:

“. . . Provided, That the governing body of any city, borough, town or township shall have power, under reasonable rules and regulations adopted by it, to grant permits for supervised public displays of fireworks to be held therein by municipalities, fair associations, amusement parks and other organizations or groups of individuals. Every such display shall be handled by a competent operator to be approved by the governing body of the municipality in which the display is to be held, and shall be of such a character and so located, discharged or fired as in the opinion of the chief of the fire department or such other officer as 'may be designated by the governing body of the municipality after proper inspection shall not be hazardous to property or endanger any person or persons. Application for permits shall be made in writing at least fifteen (15) days in advance of the date of the display. After such privilege shall have been granted, sales, possession, use and distribution of fireworks for such display shall be lawful for that purpose only. No permit granted hereunder shall be transferable.”

Under this provision it is possible for groups, clubs or school-supervised organizations to launch rockets and missiles provided a permit is obtained from the appropriate municipal authority.

It is apparent, however, that the above provisions of the Fireworks Law, while prohibiting the actual launching of a rocket or missile, does not proscribe the collection and assembly of materials and component parts of such rockets and missiles.

Section 1 of the Act of April 27, 1927, P. L. 450, as amended, 35 PS §1181, authorizes your department to “adopt and enforce rules and regulations governing the having, using, storage, sale, and keeping of gasoline, naphtha, kerosene, or other substances of like character, blasting powder, gunpowder, dynamite, or any other inflammable or combustible chemical products or substances or materials”. Under this section your department may promulgate reasonable rules and regulations covering the storage, use and keeping of those combustible or inflammable chemicals, substances or materials used in the construction of rockets and missiles for the purpose of providing propulsion for such rockets and missiles. We do not deem it advisable at this time to enumerate the nature and extent to which such rules and regulations may be promulgated to remedy or control the hazards and ill effects resulting from construction and assembly of rockets and missiles. These questions involve administrative problems. Prior to final implementation, however, such rules and regulations should be forwarded to this department for review as to legality.

It is, therefore, our opinion and you are accordingly advised that the launching of rockets and missiles is forbidden by the Fireworks Law² unless a permit for a supervised public display is obtained from the governing body of the city, borough, town or township in which the launching is scheduled to take place. Further, with regard to the storage, use and keeping of combustible, explosive and inflammable substances or materials, your department is authorized to adopt and enforce rules and regulations³ under the provisions of the Act of April 27, 1927, supra.

1 The term “skyrocket” also specifically applies.

2 Our conclusion, of course, does not apply to those launchings conducted by officials of the Federal Government under Federal authority.

3 This opinion in no way conflicts or is intended to conflict with the powers given to the Department of Labor and Industry to regulate the manufacture, process and storage of explosives, by the Act of July 1, 1937, P. L. 2681, §§1-14, as amended, 73 PS §§151-163, and to the Department of Mines to regulate explosives and blasting operations in connection with anthracite mining operations by the Act of June 2, 1891, P. L. 176, rules 26-36, 52 PS §§421-432, in connection with strip-mining operations by the Act of June 27, 1947, P. L. 1095, sec. 20, 52 PS §681.20, and in connection with bituminous mining operations by the Act of June 9, 1911, P. L. 756, secs. 1-34, as amended, 52 PS §§1221-1237.