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