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February 16, 1979

RICHARD J. HECKEL, Executor of the Estate of Olga J. Heckel, a/k/a Olga Josephine Heckel, Deceased


The opinion of the court was delivered by: WILLIAM W. KNOX

KNOX, District Judge

The problems of long arm jurisdiction arising in crashes of ubiquitous airplanes are seemingly endless. New facets of the problem are constantly arising necessitating a resort to the construction of the Pennsylvania Long Arm Statutes both old and new and if it is concluded that the Pennsylvania Statutes were intended to cover a situation presented in a given case, then we must answer the next question as to 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, 90 L. Ed. 95 , 66 S. Ct. 154 , (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 decedent in 78-891 was killed and plaintiff Glenn A. Shaw in 78-1178 was seriously injured.

 Plaintiff has sued the manufacturer of the aircraft being the lead defendant Beech Aircraft Corporation and a large number of aircraft maintenance and repair services scattered through Ohio, Indiana and Utah claiming that their acts in repairing or maintaining the aircraft or parts thereof were negligent and caused or contributed to the cause of the accident.

 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 of Griffith, Indiana received the crankcase in question from defendant M.J. Corbi Aircraft Sales Inc. in Ohio. It is claimed that G.N. was likewise negligent in repair and inspection of the engine and that this was a cause of 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. From affidavit it appears 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 or 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 this case, Judge Krupansky granted a motion to transfer the proceedings to the Western District of Pennsylvania by order dated November 29, 1978. The Ohio Federal Court granted the motion for change of venue under 1404(a) for the convenience of 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" It was also stated: "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 primary jurisdiction attached in this court where the action was first initiated (Citing cases.) The entire action was therefore transferred to this court and has been docketed at Civil Action No. 78-1388 on December 7, 1978. This case was likewise assigned to this member of the court.

 It will be noted that defendant Lamp and Lamp Aircraft Service likewise filed a motion to dismiss. However, defendant Lamp had already filed an answer and cross complaint 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 since they are now before this court as the result of transfer.

 This leaves us then with 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 persons repairing and servicing aircraft under 28 USC 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 then argues that there is federal question jurisdiction under the Federal Aviation Act and Regulations relative to safety of aircraft adopted thereunder. See 49 USC 1301-1542, particularly the duties of the FAA Administrator and the Federal Aviation Administration, 49 USC 1341, 1342, et seq, 1421, et seq and the Code of Regulations with 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, 45 L. Ed. 2d 26 , 95 S. Ct. 2080 (1975).

 A very good discussion of this question is found in 23 Villanova Law Review, p. 657, Vol. 23, No. 4 (May 1978). It points out that suits under federal regulations have been held not removable to federal court. Snuggs v. Eastern Airlines, 13 Aviation Cases 17,631 (S.D.Fla. 1975) D'Arcy v. Delta Airlines, 12 Aviation Cases 18,282 (S.D.N.Y. 1974). The federal regulations may be useful as supplying a standard of care for people engaged in operating, maintaining, servicing and repairing aircraft but this does 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) in which 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 stated: "Only where there is some countervailing national interest should the federal courts imply a federal private remedy when an adequate state remedy already exists." In cases involving operation, servicing, maintenance, repair and manufacture of aircraft, the remedies provided under state law for persons who are injured as result of defects are already ample and there is not need to imply a federal cause of action where state remedies for breaches of warranty, merchantability, and fitness, or for negligence or for strict liability in tort are all available.

 We therefore hold that there is no subject matter federal jurisdiction in this case. Even if there was subject matter jurisdiction under the federal act and regulations, it still would not satisfy the necessity of having in personam jurisdiction. There is nothing in the Act which gives this court nationwide jurisdiction to pursue defendants from Indiana and Utah unless they are also subject to personal jurisdiction in this court under the Pennsylvania Long Arm Statute with respect to foreign corporations and individuals doing business or causing harm in Pennsylvania of which more hereafter. We therefore hold that this court has no jurisdiction under the Federal Aviation Act and Regulations although the regulations may be considered as setting forth standards of safety.

 It is apparent therefore that jurisdiction over these defendants who have moved to dismiss for lack of in personam jurisdiction must be found if at all under the new Pennsylvania Long Arm Statute contained in the new Pennsylvania Judicial Code, effective June 27, 1978. See discussion in Lighting Systems v. International Merchandising Assn, 78-60 Erie (W.D.Pa. Jan. 22, 1979) as to differences between the new Act and the old Act, 42 PCSA 8301, et seq (Act of Nov. 15, 1972) P.L. 1063 being the act in effect at the time of the accident upon which this litigation is based.

 It will be noted that in § 5301 of the new Act "person" includes individuals, corporations and partnerships. Under 5322(a) (5), in personam jurisdiction is vested in the Pennsylvania courts over a person causing harm or tortious injury in this Commonwealth by an Act or omission outside this Commonwealth. In 5322(b), it is stated that jurisdiction of the tribunals of this Commonwealth (which, of course, includes federal courts sitting in the state) shall extend to all persons who are not within the scope of § 5301 "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States". It thus appears that by the wording of the Pennsylvania Long Arm Act, these defendants would be subject to the jurisdiction of the courts in this state for negligent work on the engine and the aircraft involved in this accident which negligence is alleged caused the accident or for other liability under Pennsylvania law since the harm occurred in Pennsylvania. The very purpose of the legislation appears to be to subject persons outside the jurisdiction to suit here so as to protect local residents and others injured here and not require them to go to a remote place in order to press their claims for liability.

 This, of course, is all subject to the principles of fairness as originally laid down in International Shoe Company v. Washington, 326 U.S. 310, 90 L. Ed. 95 , 66 S. Ct. 154 (1945). The Pennsylvania Legislature has thus enacted legislation broad enough to include these defendants leaving it up to the courts to determine whether such jurisdiction may be Constitutionally exercised in any such case. We conclude that this is a case where the principles of fairness under International Shoe will not permit Pennsylvania to exercise its jurisdiction over these defendants who have moved to dismiss.

 In International Shoe, the court said this:


"Conversely it has been generally recognized that the casual presence of the corporate agent or even his conduct of single or isolated items of activities in a state in the corporation's behalf are not enough to subject it to suit on causes of action unconnected with the activities there. (Cases cited). To require the corporation in such circumstances to defend the suit away from its home or other jurisdiction where it carries on more substantial activities has been thought to lay too great and unreasonable a burden on the corporation to comport with due process.


* * *


"Finally, although the commission of some single or occasional acts of the corporate agent in a state sufficient to impose an obligation or liability on the corporation has not been thought to confer upon the state authority to enforce it, (Citing cases) other such acts, because of their nature and quality and the circumstances of their commission may be deemed sufficient to render the corporation liable to suit.


* * *


"Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties or relations."

 Following International Shoe, came Hanson v. Denckla, 357 U.S. 235, 78 S Ct 1228, 2 L Ed 2d 1283 (1958) wherein the court said:


"The application of . . . [the] rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."

 See also the recent cafe of Kulko v. California Superior Court, 436 U.S. 84, 56 L Ed 2d 132, 98 S. Ct. 1690 (decided May 15, 1978) where the Supreme Court reiterated the tests in International Shoe and Hanson v. Denckla and again held that there must be some purposeful Act by which the defendant purposely avails himself of the privilege of conducting activities within the forum state and thereby availing himself of the benefits and protection of the forum state laws. In that case, the fact that a father had sent his child to be with the mother part of the year was held to be insufficient contact and insufficient conduct availing himself of the benefits and protections of California's law.

 It is, of course, true that under Sections 403 and 404 of the Restatement of Torts 2d servicers and repairers of chattels who know that their work may make the chattel dangerous are subject to the same liability as a manufacturer. This, however, is a question of substantive law and if the facts show that this is the case here, the defendants Nichels, G.N. Aircraft and Thompson Flying Service would be subject to liability but only in the appropriate forum. As was pointed out by the Court of Appeals for the Third Circuit in Witt v. Scully, 539 F.2d 950 (3d Cir. 1976), we must be careful not to confuse substantive law with jurisdiction. Also as pointed out in Kulko, each case involving jurisdiction under the doctrine of International Shoe must be evaluated separately as to the quality and nature of defendant's activity in the forum state and whether it is reasonable and fair to require him to conduct his defense in that state.

 We also recognize that the state has an interest in adjudicating claims of its residents and others injured in Pennsylvania for damages done to them here. See Empire Abrasive Equipment v. H.H. Watson, Inc. 567 F.2d 554 (3d Cir. 1977). That case also referred to the limitation upon judicial power which prevents a state of plaintiff's choosing from coercing defense of a suit in the forum which because of its remoteness from defendant's residence and from witnesses in proof would be fundamentally unfair. Where there is a large spread commercial enterprise which defendant knows will reach the forum state there is nothing unjust in requiring the defendant to defend there. See E.D. Clover Products Inc. v. NBC, 572 F.2d 119 (3d Cir. 1978) where it was held that the defendant could anticipate that its TV broadcasts would be received in New Jersey through Interstate Commerce and could anticipate copyright infringement in remote places.

 Most of the cases involve manufacturers who sell their goods in a large number of states and other manufacturers who supply them with component parts to be installed. Such a case is a recent case in the Superior Court of Pennsylvania in Washington v. US Suzuki Motor Corp, 257 Pa. Super. 482, 390 A 2d 1339 (1978) where the manufacturer of carburetors for a brand of motorcycles distributed nationwide was held subject to jurisdiction in Pennsylvania where the accident occurred. The court held that Pennsylvania had jurisdiction relying upon the decision of the Pennsylvania Supreme Court in McCrory Corp. v. Girard Rubber Corp. 459 Pa 57, 327 A 2d 8 (1974) involving a New York Corporation manufacturing rubber suction tips for use in children's arrows which tips were sold to a Tennessee corporation which made the bows and arrows and sold them to retailers nationwide. This is certainly a proper case for exercise of Long Arm jurisdiction. See also Harkins Wholesale Meats, Inc. v. Framarx Corp. 79 FRD 715 (1978) placing defective paper in the stream of commerce by a manufacturer leads to liability.

 Another such case is Gill v. Fairchild Hiller Corp., 312 FS 916 (D. N. Hampshire 1970) heavily relied on by plaintiff here where the defendants manufactured instruments or parts for the aircraft that crashed and it was held that it was reasonable that a manufacturer of component parts be held liable under the Long Arm Statute. This is a similar case to Washington v. U.S. Suzuki, supra, and should be distinguished for the same reason. Other Pennsylvania cases such as Commonwealth v. Bisland, 29 Pa. Commw. 388, 371 A.2d 529 (1977), 371 A.2d 529 involved finding of sufficient contacts. In that case, the non resident defendant filed a claim for allegedly false claim against the Commonwealth for flood damages.

 We do not have here a case of a manufacturer placing its product in the stream of commerce to be distributed to all the 50 states of the United States nor a manufacturer of component parts for such a product. Rather, here we have the case of small service and repair shops for airplanes located in foreign states which have never had any contact with Pennsylvania except that the airplane on which they worked after some length of time crashed in Pennsylvania. We hold that under such circumstances the contacts of these moving defendants are insufficient to establish jurisdiction in Pennsylvania.

 In Knapp v. Franklin Coach Co., 365 FS 305 (W.D.Pa. 1973) the facts showed that a repair shop in Western Ohio near the Ohio Turnpike worked on a vehicle with, Indiana license plates. It was claimed that the work was done in a faulty manner and caused an accident in Pennsylvania because of improper installation of a muffler. In that case this court found insufficient contacts with Pennsylvania and that it was unfair under International Shoe to attempt to bring this defendant in by Long Arm Statute. If such were allowed then any person who performed repair work on an automobile which later was involved in an accident would be subject to suit in any of the 50 Continental United States, the provinces of Canada and the States of Mexico where the vehicle might travel.

 See also Kerrigan v. Clarke Gravely Corp, 71 FRD 480 (M.D. Pa. 1975) where there were negligent repairs by a New Jersey partnership to a domestic tractor propelling a snow blower. This was a two man partnership with twelve employees located 40 miles from the Pennsylvania border. They had not solicited or advertised in Pennsylvania. The court held that under Hansen v. Denckla, supra, there must be some indication that the defendant purposely availed itself of privileges conducting some activities in Pennsylvania or else there can be no jurisdiction here.

 In Lebkuecher v. Loquasto, 389 A.2d 143, 255 Pa. Super. 608 (1978) a doctor who was licensed in Pennsylvania and whose name was in the classified advertising but whose practice was entirely in New Jersey was held to have insufficient contacts in Pennsylvania to justify suit here.

 In Miller v. Cousins Properties Inc 378 FS 711 (D. Vt 1974) a jet aircraft crashed in Lake Champlain after takeoff from Burlington, Vermont. It appeared that maintenance on the plane had been performed in Atlanta. Georgia, but that the repair or maintenance shop had no knowledge of the pilot's flight plan which would take it to Vermont and was held that there were insufficient contacts and activities in Vermont to justify jurisdiction over this defendant.

 On the other hand, also considering airplane problems, we have Johnson v. Helicopter and Airplane Services Corp (D. Md. 1974) 389 FS 509 which again is a marketing of products case and it was held that where the defendant allows its products to be marketed in a state which is the state of injury, jurisdiction may be exercised.

 The plaintiff has strenuously argued the fact that when the Wright Brothers invented the flying machine, they fully intended it was to fly everywhere at great speeds crossing state lines at will. This is true. The same is also true of an automobile or other motor vehicles which may appear anywhere in the United States and be involved in a crash. In such case the forum state undoubtedly has the right to insist that manufacturers of component parts which are defective should answer for liability there. But what we do hold is that it is unfair for a small repair shop which has no contacts with the forum state to be brought in by the Long Arm Statute and that this violates the principles of International Shoe and Hansen v. Denckla.

 We will therefore grant the motions to dismiss filed by these moving defendants.

 William W. Knox, U.S. District Judge


 AND NOW, to wit, February 16, 1979, for reasons set forth in the accompanying opinion,

 IT IS ORDERED that the motions to dismiss for lack of in personam jurisdiction filed by the defendants Nichels Engineering Company, Inc., G.N. Aircraft, Inc. and Thompson Flying Service Inc. be and the same hereby are granted.

 IT IS FURTHER ORDERED that the complaint as against said defendants be dismissed for lack of in personam jurisdiction.

 IT IS FURTHER ORDERED that the motion to dismiss filed by Leon Lamp and Lamp Aircraft Service be and the same hereby is denied as moot.

 William W. Knox, U.S. District Judge


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