The opinion of the court was delivered by: KNOX
The problems of long arm jurisdiction arising out of crashes of ubiquitous airplanes are seemingly endless. New facets of the problems are constantly arising necessitating a resort to the construction of the Pennsylvania long arm statutes both old and new. If we were to conclude that the Pennsylvania Statutes cover a given situation, then we must determine whether exercise of jurisdiction is fair under constitutional requirements laid down by the Supreme Court in the landmark case of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945).
The instant litigation arises out of a crash which occurred on Schenley Golf Course in Pittsburgh, Allegheny County, Pennsylvania on August 21, 1977, when the engine failed shortly after takeoff and an emergency landing was attempted which resulted in disaster. Olga J. Heckel, plaintiff's decedent in 78-891 was killed and Glenn A. Shaw, plaintiff in 78-1178, was seriously injured.
There are presently before us motions to dismiss for lack of in personam jurisdiction by the following: (1) Nichels Engineering, an aircraft certified repair station located in Griffith, Indiana, which allegedly performed maintenance work on the crankcase in the aircraft one year before the accident. It appears that the work was performed under contract with defendant G. N. Aircraft and that after the crankcase was repaired Nichels repaired and inspected parts of the engine and certified the same fit for service. (2) G. N. Aircraft, Inc. also located in Griffith, Indiana, received the crankcase in question from defendant, M. J. Corbi Aircraft Sales Inc. in Ohio. It is claimed that G. N. Aircraft was negligent in repair and inspection of the engine and that such negligence proximately caused the accident. (3) Thompson Flying Service Inc., Salt Lake City, Utah, is a fixed base operator at Salt Lake International Airport performing repairs and maintenance. Thompson's affidavit discloses that in the year 1968 it performed a major overhaul of the engine in question for one William B. Ambrose of Corte Madera, California. It would appear that this is the engine which failed upon takeoff which failure caused the crash.
The other defendants, Poorman Aircraft Service, Leon Lamp and Lamp Aircraft Service and M. J. Corbi Aircraft, Inc. were located in Ohio and were sued by plaintiffs in the Northern District of Ohio, Eastern Division at Civil Action No. 78-1023Y. In that case, Judge Krupansky granted a motion to transfer the proceedings to the Western District of Pennsylvania, by order dated November 29, 1978. The Ohio court granted the motion for change of venue under 28 U.S.C. § 1404(a) for the convenience of the parties and witnesses in the interest of justice. Judge Krupansky held that: "The facts presented in the pleadings and affidavits filed herein disclosed that venue also lies in the Western District of Pennsylvania where the plaintiffs reside and where the claim arose. * * * "The court therefore determines that this action could have been initiated in the Western District of Pennsylvania." It was further pointed out that the Heckel case in the Western District of Pennsylvania was filed first and that, therefore, jurisdiction attached in this court where the action was initiated. The entire action therefore, was transferred to this court docketed at Civil Action No. 78-1388 on December 7, 1978 and assigned to this member of the court.
It will be noted that defendants Lamp and Lamp Aircraft Service also filed a motion to dismiss. However, defendant Lamp had already filed an answer and cross claim in the Ohio action and since the entire Ohio action has been transferred to this court, it would appear that Lamp's motion to dismiss has been rendered moot.
Pending before us then are the motions to dismiss for lack of in personam jurisdiction filed by defendants Nichels, G. N. Aircraft and Thompson Flying Service.
We will first turn to plaintiff's argument that this court has jurisdiction over these defendants under 28 U.S.C. § 1337 which reads as follows:
"The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies."
Plaintiff argues that there is federal question jurisdiction under the Federal Aviation Act and regulations promulgated thereunder relative to safety of aircraft. See 49 U.S.C. §§ 1301 et seq., particularly the duties of the FAA Administrator and the safety requirements contained in 40 CFR 91.9, et seq.
Neither the Federal Aviation Act nor the regulations provide for subject matter jurisdiction in the federal courts. The question is whether there can be an implied cause of action in a private individual under Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975).
A very good discussion of this question is found in Crawford and Schneider, The Implied Private Cause of Action and the Federal Aviation Act: A Practical Application of Cort v. Ash, 23 Vill.L.Rev. 657 (1978), which points out that suits under federal regulations have been held not removable to federal court. See Snuggs v. Eastern Airlines, 13 Av.Cas. (CCH) 17,631 (S.D.Fla.1975); D'Arcy v. Delta Airlines, 12 Av.Cas. (CCH) 18,282 (S.D.N.Y.1974). The federal regulations may supply a standard of care for people engaged in operating, maintaining, servicing and repairing aircraft, but may not necessarily give rise to a private cause of action as a basis for jurisdiction.
This question has been squarely answered by the Court of Appeals for our Circuit in Rauch v. United Instruments, Inc., 548 F.2d 452 (3d Cir. 1976), wherein it was held that the fourth requirement for subject matter jurisdiction under Cort v. Ash, supra, had not been met, since such causes of action are traditionally relegated to state law. The court reasoned that there is no need to imply a federal cause of action in personal injury cases involving the operation, servicing, maintenance, repair and manufacture of aircraft since ample state remedies for negligence, strict liability in tort, and breaches of warranty, merchantability and fitness are available. Only where there is some countervailing national interest should the federal courts imply a federal private remedy when an adequate state remedy already exists. This court has no jurisdiction under the Federal Aviation Act and the regulations promulgated thereunder although the regulations may be considered as setting forth standards of safety.
We hold, therefore, that there is no subject matter jurisdiction in this case. Even if there were subject matter jurisdiction under the Act and the regulations, the requirement of in personam jurisdiction is not satisfied under the same. There is nothing in the Act which gives this court nationwide jurisdiction to pursue defendants from Utah and Indiana unless they are also subject to personal jurisdiction in this court under the Pennsylvania long ...