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BERKEBILE v. BRANTLY HELICOPTER CORPORATION (09/21/71)

decided: September 21, 1971.

BERKEBILE, APPELLANT,
v.
BRANTLY HELICOPTER CORPORATION



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1963, No. 1750, in case of Catherine K. Berkebile, executrix, under the will of Cloyd G. Berkebile v. Brantly Helicopter Corporation.

COUNSEL

Laurence H. Eldredge, for appellant.

Sidney L. Wickenhaver, with him Montgomery, McCracken, Walker & Rhoads, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent.) Opinion by Jacobs, J.

Author: Jacobs

[ 219 Pa. Super. Page 480]

Cloyd G. Berkebile was killed on July 9, 1962, when the Brantly B-2 helicopter he was piloting crashed near Franklin, Pennsylvania. This action was brought by his executrix under the wrongful death and survival

[ 219 Pa. Super. Page 481]

    statutes against Brantly Helicopter Corporation which manufactured the helicopter. The case was tried before a jury and a verdict was returned for the defendant. After plaintiff's new-trial motion was denied, judgment was entered on the verdict and plaintiff appeals alleging errors in the charge and in rulings on evidentiary matters.

The case was tried on the theory of strict liability for physical harm by the supplier of a defective chattel under Restatement (Second) of Torts § 402 A (1965). Section 402 A was adopted as the law of Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). and reads in pertinent part as follows: "(1) One who sells any product in a defective condition unreasonably dangerous to the user . . . is subject to liability for physical harm thereby caused to the ultimate user . . . . (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product. . . ."

Decedent took delivery of the helicopter on January 27, 1962, and on the date of the crash it had 198.5 hours in the air. Decedent received instructions on operating the helicopter from defendant's distributor and on March 29, 1962, he was licensed to fly it. On July 9, 1962, decedent flew alone from his home to an airport at Franklin, a distance of 91 miles. There he asked for 100-octane gasoline which was not available. The airport manager offered to get the gasoline from an airport in Oil City ten miles away. Decedent, however, said he had enough gasoline to fly to Oil City and took off. When he had flown only two miles his helicopter fell into a wooded area and he was killed. While the helicopter was still in the air, and before it disappeared into the trees, a seven-foot section of one of the three rotor blades broke off.

The plaintiff advanced two theories of liability: (1) that the blade broke because it was defectively constructed

[ 219 Pa. Super. Page 482]

    and (2) that the helicopter was dangerously defective in its autorotational characteristics. The first theory was properly presented to the jury and presents no problem. On the second theory the plaintiff argues that ...


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