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KUCHINIC ET AL. v. MCCRORY (07/08/70)

decided: July 8, 1970.

KUCHINIC ET AL., APPELLANTS,
v.
MCCRORY



Appeals from judgments of Court of Common Pleas of Allegheny County, Jan. T., 1959, No. 385, Oct. T., 1958, No. 2477, and July T., 1958, No. 1002, in case of Robert M. Kuchinic, administrator of estate of John Albert Kuchinic et al. v. Leo A. McCrory, administrator of estate of Henry P. McCrory, Jr., deceased.

COUNSEL

William W. McVay, with him Edwin H. Beachler, and McArdle, McLaughlin, Paletta & McVay, for plaintiffs, appellants.

Milton D. Rosenberg, and Bloom, Bloom, Rosenberg & Bloom, for plaintiff, appellant.

Randall J. McConnell, Jr., with him Dickie, McCamey & Chilcote, for defendant, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Eagen concurs in the result. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts.

Author: Jones

[ 439 Pa. Page 315]

The instant appeals involve three consolidated trespass actions which arose out of an airplane crash which occurred on December 8, 1957, at a point 25 miles south

[ 439 Pa. Page 316]

    of Brunswick, Georgia. The four occupants of the airplane -- the pilot and three passengers -- were killed in the crash. Trespass actions were instituted by the personal representatives of the three passengers (appellants) against the estate of the pilot in the Court of Common Pleas of Allegheny County and, after a jury trial in September of 1968, the jury returned a verdict against appellants and in favor of the pilot's estate. From the judgments entered on the verdicts the instant appeals ensued.*fn1

On the afternoon of December 8, 1957, a privately owned light airplane left Miami, Florida, having as its proposed destination Pittsburgh, Pa. The owner and pilot of the plane was Henry P. McCrory, Jr. (McCrory) and his three passengers were John A. Kuchinic (Kuchinic), George Airhart, Jr. (Airhart) and John O'Hara (O'Hara). McCrory and his passengers, residents of Pittsburgh, were personal friends who had gone to Miami to attend a football game.

Prior to boarding the plane, in Miami, McCrory called the weather bureau, received its report, and McCrory, in turn, reported to the three passengers that the weather was bad further north in certain portions of the proposed flight route, and asked their opinions as to whether they should proceed with the flight. After a discussion of approximately 30 minutes, it was agreed that they would proceed at least as far as Jacksonville, Florida, and, possibly, further provided the weather was favorable. At approximately 4:30 p.m., someone in the plane contacted Joseph Koon, flight

[ 439 Pa. Page 317]

    controller at the Jacksonville Airport, to close out the flight plan between Miami and Jacksonville as required by federal regulations and this was done at 4:37 p.m. Koon testified that he then notified the person in the plane with whom he was conversing of a weather forecast which indicated a cold front in the area of Brunswick, Georgia, and turbulences along the edge of the cold front. According to his testimony, he was then requested to "stand by", to await a further message. ...


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