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HIMMLER v. UNITED STATES

August 14, 1979

William Himmler et al.
v.
United States of America.



The opinion of the court was delivered by: TROUTMAN

I

INTRODUCTION, PARTIES, JURISDICTION AND BACKGROUND

 This case arises out of the crash of an airplane into the home occupied by the plaintiffs in the early morning hours of August 23, 1974, injuring and killing various members of the plaintiffs' family. It is brought pursuant to the terms and provisions of the Federal Tort Claims Act, Title 28 U.S.C. §§ 1346(b), 1402(b) and 2671 Et seq. All jurisdictional and notice requirements have been met. Section 1346(b) states in applicable part that the United States shall be liable for personal injury, death or property damage caused by the negligent or wrongful act or omission of a Government employee in accordance with the law of the place where the act or omission occurred. The law of Pennsylvania, therefore, governs this action. Richards v. United States, 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962).

 The purpose of the Federal Aviation Act of 1958 is to promote aviation safety. Such purpose extends to the safety of persons on the ground. Federal Aviation Act of 1958, §§ 103, 307(c), 49 U.S.C. §§ 1303, 1348(c).

 Federal Aviation Act 49 U.S.C. § 1348(c):

 
"The administrator is further authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft, for the navigation, protection and identification of aircraft, For the protection of persons and property on the ground, and for the efficient utilization of the navigable airspace, including rules of safe altitudes of flight and rules for the prevention of collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects." (Emphasis added)

 Case law likewise establishes a duty to persons on the ground. Starr v. United States of America, 393 F. Supp. 1359 (N.D.Texas 1975).

 Plaintiffs assert a claim against the United States contending that the Air Traffic Controller at the Allentown-Bethlehem-Easton Airport, an employee of the United States, acted negligently. His negligent acts allegedly occurred after he had assumed control of a VFR (visual flight rules) pilot who was trapped in IFR (instrument flight rules) weather conditions. Plaintiffs contend that the negligence of the controller was a substantial factor in causing the subsequent crash. The defendant contends otherwise, asserting, Inter alia, that the crash was the result of spatial disorientation suffered by the pilot unrelated to the conduct of the controller and that the crash was solely the result of the negligence of the pilot.

 The burden of proving negligence on the part of the controller and that such negligence was a substantial factor in causing plaintiffs' harm is upon the plaintiffs. Conversely, the burden of proving that the sole cause of the accident was the act or negligence of the pilot is upon the defendant.

 On August 23, 1974, a single engine Cessna 172H, with FAA registration mark N8191L (91L) took off from the Queen City Airport, Allentown, Pennsylvania. The plane departed Queen City at approximately 2:30 A.M. It was piloted by Amos Rothschild and occupied by a passenger, Darold Hemphill, both of whom were killed in the crash. Mr. Rothschild held a private single engine land pilot's license. He was not an instrument rated pilot; however, he had received limited, but the required, instructions in instrument flying as part of his training for his private pilot's license. The precise weather existing at Queen City at the time of 91L's take-off is unknown except to the extent that one might assume that the weather at Queen City, located 5.6 miles from Allentown-Bethlehem-Easton Airport was similar. The parties have stipulated that at 2:47 A.M., the weather at Allentown-Bethlehem-Easton Airport was 400 foot ceiling; visibility 21/2 miles; with light rain showers and fog; temperature 72 o ; dew point 70 o ; wind 120 o at 10 knots; altimeter setting 30.14. A light rain began falling at Allentown-Bethlehem-Easton Airport at 2:45 A.M.

 The Allentown-Bethlehem-Easton Airport (ABE) is located northeast of the City of Allentown. ABE has two runways, each of which can be used from two directions. The runways are numbered 6 and 24 for the northeast-southwest traffic, and 13 and 31 for the southeast-northwest traffic. The runway in use on the morning in question was runway 6. That runway has a magnetic compass heading of 60 o . It runs in a generally northeast direction. Runway 6 is equipped with facilities to permit instrument landing system (ILS) approaches. An ASR7 radar system was in use at the ABE Airport on the morning in question. The final approach course for runway 6 starts at the outer marker. The outer marker is 6.1 miles from the threshold of runway 6. The middle marker is .6 of a mile from the threshold of runway 6. The Wilkes-Barre Airport, also a factor in this case, is located fifty statute miles or forty-three nautical miles from ABE. It also has an ASR7 radar system, a control tower, controllers and lights.

 On August 23, 1974, there were five control positions at ABE to be operated by controllers. Generally, on the day and middle shifts, these positions were staffed by five controllers and a supervisor. However, on the midnight to 8:00 A.M. shift, when this crash occurred, there was only one controller on duty who operated all positions, including that of supervisor. The controller on duty on the morning in question was Karl Gasker. The radar system at ABE was installed in March, 1974. While Gasker was qualified in departure radar services, having received his certification in that service on May 21, 1974, he had not been qualified to handle arriving airplanes on radar. He was not qualified for that service until October 31, 1974, subsequent to the date of the accident. Thus, on August 23, 1974, the radar system at ABE was not effective to monitor or control radar surveillance approaches and the controller was not qualified to perform same. In fact, the record suggests that surveillance approaches are still not published as available at ABE.

 For purposes of calculation, the cruising speed of 91L was agreed to be 100 knots, or 1.66 nautical miles per minute. It had an effective altitude range of up to 10,000 feet, and with almost full fuel tanks, had at least three hours of flying time available on August 23, 1974. The plane had no ILS landing instrumentation on board.

  Two airplanes, in addition to 91L, were in the air in the vicinity of ABE on the morning in question. One was an airplane known as 87L. This was a twin engine Navajo proceeding on a flight from Rochester, New York, through the Wilkes-Barre area to ABE. 87L was leased to the Kodak Corporation on the night in question. The flight path of 87L took it on a direct route from the Wilkes-Barre area to the East Texas VOR. East Texas is north of the ABE outer marker. 87L was cleared from East Texas to the outer marker, and from there for a straight ILS landing on runway 6 at ABE. The other plane was owned by Monmouth Airlines and is referred to as Monmouth 508 (508M). It was a twin-engine Beechcraft 99, weighing about 10,000 pounds. For purposes of calculation, its cruising speed was 210 knots, and its holding pattern speed was 140 knots, or 2.33 nautical miles per minute. It was on an instrument flight plan from Newark, New Jersey, to Allentown, Pennsylvania. The captain and pilot of 508M was Frederick Cruwell. The co-pilot was John Hoffman. 508M was delivering mail for the United States Government. It carried no passengers. The flight path of 508M took it over Solberg, a VOR 32 miles east of ABE and over Spring Intersection, 18.1 miles east of the ABE outer marker. Spring Intersection is a point where two airways intersect. Neither 87L or 508M were receiving radar services from the controller, Gasker, on the morning in question. Both, however, were on instrument flight plans, and were piloted by instrument-rated pilots.

 There has been introduced as evidence in this case, as plaintiffs' Exhibit # 9 a typed transcript of the radio transmissions between ABE tower, 87L, 508M, and 91L on the morning in question covering the time period from 0239:28 A.M. to 0321:04 A.M. which was relied upon by the expert witnesses of both parties.

 II

 PLAINTIFFS' THEORIES

 Plaintiffs' theories of liability may, for convenience, be summarized as follows: First, plaintiffs contend that because of the actions and inactions of the controller, Karl Gasker, the pilot, Amos Rothschild, suffered spatial disorientation and crashed as a result thereof. Second, and closely aligned with the theory of spatial disorientation, is plaintiffs' contention that the controller had a duty to vector 91L to Wilkes-Barre, rather than to attempt a landing at Allentown because of the poor weather conditions existing there. Plaintiffs argue that the controller was negligent in failing to warn the pilot of the weather conditions at Allentown, and in failing to instruct the pilot to fly to Wilkes-Barre where much better weather conditions existed. In this respect, plaintiffs contend that the controller lured the pilot of 91L into attempting a landing at ABE and in the process, induced spatial disorientation. Third, plaintiffs argue, in the alternative, that a near-collision ("buzzing") occurred between 91L and 508M, and that this caused the pilot to lose control of the plane and to crash. In the latter case, plaintiffs contend that the controller was negligent in failing to provide for proper separation between the two aircraft.

 III

 SPATIAL DISORIENTATION

 The defendant denies improper separation of aircraft, denies a "buzzing", but admits that the pilot of 91L, Amos Rothschild, suffered spatial disorientation. Whereas the plaintiffs contend that the spatial disorientation suffered by Rothschild was induced by the actions and inactions of the controller, the defendant contends that spatial disorientation was the mere result of Rothschild's flying into IFR weather conditions without the requisite instrument rating and capabilities.

 Spatial disorientation is a well-known phenomenon to people in aviation. Pilots are taught about the possibility of becoming spatially disoriented and how to combat it. Likewise, controllers are trained with respect to spatial disorientation, and how to cope with it in dealing with a pilot lost in instrument weather conditions. One of the ways of combatting spatial disorientation is for a pilot to concentrate on the plane's instruments. Avoiding sudden movements of the head is particularly important. Repeatedly looking out of the plane's windows in an attempt to see the ground, or, as in this case, in an attempt to see an airport, is an extremely dangerous procedure when flying in IFR conditions and is likely to induce spatial disorientation. A controller trained with respect to the dangers of spatial disorientation should advise a non-instrument-rated pilot to keep his eyes on his instruments. A non-instrument-rated pilot should watch his altitude and attitude indicators and should not be instructed to do otherwise unless there is good reason to believe that in doing otherwise, such as looking out the window, what he sees will serve to orient him rather than disorient him. Importantly, in this case, the controller should have talked to the pilot frequently and with reasonable continuity, reassuring him, advising him to observe his instruments rather than communicating on an intermittent basis; and, by no means, should the pilot have been left alone in complete radio silence for protracted periods within the limited time frame involved.

 On the morning in question, 91L had been flying in IFR conditions from within a few minutes of his take-off from Queen City at or about 2:30 A.M. During the almost twenty-five-minute period between take-off at 2:30 A.M. and 0254:57, 91L's first contact with ABE tower, the pilot had experienced no recognizable difficulty in flying the aircraft, other than the fact that he was lost in instrument-weather conditions. Significantly, after contacting ABE tower at 0254:57, and seeking to follow and respond to the controller's intermittent and sometimes confusing instructions and inquiries, 91L crashed within approximately eight minutes. Interestingly, the defendant's expert witnesses have stated that spatial disorientation will occur within twenty seconds to eight minutes after a non-instrument-rated pilot has flown into IFR weather conditions. The question then becomes, what caused the pilot of 91L to become spatially disoriented on the morning in question?

 Controllers are trained to frequently communicate with a pilot lost in IFR weather conditions. From 0254:57 until the time of the crash, seven minutes and thirty seconds elapsed. A review of the transcript shows that of the total elapsed time, the controller spent only two minutes, seventeen seconds talking to the pilot of 91L. The pilot's responses took a total of fifty-six seconds. Thus, three minutes, thirteen seconds, less than half of the time of the emergency, was spent communicating with the lost pilot of 91L. Moreover, during the total elapsed time, there were three minutes, thirty-six seconds of radio silence. Controllers are taught not to allow long periods of time to elapse without talking to a lost pilot. The controller's failure in these two fundamental areas was a breach of his duties and a violation of the provisions of the Air Traffic Control Manual. The controller's failure to communicate with the pilot of 91L on a more frequent basis and with greater continuity during the course of this emergency obviously contributed to the pilot's becoming spatially disoriented.

 While the failure to communicate with greater continuity was an act of omission on the part of the controller, his acts of commission likewise contributed to spatial disorientation of the pilot. At 0255:36 ABE gave a clearance to 87L to land. This was the second clearance which 87L had received, the first having occurred at 0253:42 after 87L had passed the outer marker inbound. By 0255:36, 87L was already well into his final landing approach and no second clearance was necessary. Moreover, this second clearance to 87L followed directly after a response by the tower to 91L. At 0255:34, 91L responded to a query by the controller, "I'm flying about two four". Two seconds later the tower responded, "Okay, uh, 87Lima's cleared to land, runway six". 91L responded at 0255:42, "Yeah, but I don't know where you are". Obviously, and all witnesses at trial seem to concur, 91L mistook the clearance given to 87L to be a clearance to 91L to land. Even the controller, Gasker, testified at trial that 91L had misinterpreted 87L's clearance to land as his own. However, Gasker never attempted to correct 91L's misinterpretation. This was clearly a major contribution to the pilot's subsequent confusion and ultimate disorientation.

 Gasker, on the morning in question, knew what the weather conditions at ABE were. He knew that the visibility was, in his words, "up and down quite a bit between 21/2 to 3 miles", and that the ceiling was 400 feet overcast. Despite his knowledge of the weather conditions, the controller, at 0257:42, made the following transmission to 91L:

 
"Okay, 91L, I have you in radar contact, and you are only one mile from the Allentown Airport, it's off to your right side, I'll turn the approach lights up as high as they go, uh, let me know if you have them in sight off to your right side."

 Predictably, 91L, after having been told that the airport was off to his right, made a right turn. This is confirmed in the transcript at 0258:18. It is also reasonable to believe that the pilot looked for the airport. After all, the controller had instructed Rothschild to let him know if he had the approach lights in sight. How the controller, with an overcast of 400 feet and 91L at an altitude of 2,000 feet, ever expected the pilot to be able to see the approach lights is unexplained. If the defendant's theory with respect to spatial disorientation occurring within a time frame of 20 seconds to 8 minutes is correct *fn1" , it should have been clear then and is certainly clear now that an inexperienced, non-instrument-rated pilot, given such instruction, was going to become spatially disoriented. Rather than warning the pilot about the possibility of disorientation, and rather than instructing the pilot to keep a close and constant vigil on his instruments, Gasker in effect instructed the pilot to remove his gaze from the instruments and to begin looking for the airport which, under the existing weather conditions, was impossible for the pilot to locate at his elevation in the prevailing weather conditions.

 Further, the controller made more transmissions to the pilot which could have done nothing but induce him to continue to look for the airport. At 0258:20, ABE said, "Okay, very good, you're going to go right over the Allentown Airport, you're almost over at this time, I'll turn, uh, all the airport lights on, uh, as high as they go for you". At 0258:38, ABE said, "And, nine one lima, can you see the ground at all?" The result of these transmissions is that the controller had induced the pilot of 91L to alter his course and look for the airport and/or its lights for a period of about one minute. Rather, the pilot should have been instructed to keep an eye on his instruments, and to maintain straight and level flight. The controller, in the three above-quoted transmissions, violated the provisions of the Air Traffic Control Manual, and ignored his training with respect to dealing with non-instrument-rated pilots lost in IFR weather conditions. Interestingly, Gasker testified that the instructions aforementioned were exactly the kind of instructions which would be given to a lost VFR pilot in VFR, not IFR, conditions. Such a pilot would, of course, be expected to look out of his plane to find the airport visually. However, a pilot in VFR conditions is not likely to become spatially disoriented.

 Importantly, the defendant produced a witness, Charles Wotring, for the purpose of demonstrating the Barony Chair to demonstrate the effects of spatial disorientation. The in-Court demonstration of the Barony Chair illustrated that the subject spinning in the chair had no problem of disorientation until he was instructed to put his head down in the area of his right shoulder, simulating a pilot looking out of the window for an airport or its lights. When he did that, he evidenced symptoms of disorientation. The chair demonstrated that each time the pilot of 91L, following the controller's instructions, looked out and down in a futile effort to find the airport or its lights, he was increasing the potentiality of suffering spatial disorientation. *fn2" The only logical inference which may be drawn from the transmissions at 0257:42, 0258:20 and 0258:38 is that the controller, by those transmissions, induced or contributed to spatial disorientation of the pilot which ultimately led to the crash.

 Unfortunately, the spatially disorienting transmissions did not cease. At 0258:41, 91L had reported his altitude at 2300 feet. At 0259:22, Gasker directed 91L to "* * * maintain two thousand five hundred on the altitude. * * * " That instruction was closely followed at 0259:55 with an instruction to " * * * turn to the left to a heading of two seven zero * * *". Thus, the controller instructed the pilot to climb and to make a turn at the same time. Since 91L's last reported heading, at 0259:37 was "I'm heading six now" meaning 60 o, the controller's instruction required a turn of 150 o . This was a very severe and constant turn. Controllers are taught that the proper method for turning a VFR pilot lost in instrument conditions is to give 30 o turns and to instruct the pilot to make these gradually, and to make certain, after having made each turn, that the plane is stabilized. Thus, what the controller should have done in this situation, if he wanted a heading change from 60 o to 270 o, would have been to give a series of lesser turns. Such procedure is not something with which controllers are unfamiliar. In fact, Section 1851, Radar Assistance Techniques of the ATCM, instructs controllers as follows:

 
"Use the following techniques to the extent possible when you provide radar assistance to a pilot not qualified to operate in IFR conditions: . . . (d.) Avoid requiring a climb or descent while in a turn if in IFR conditions . . . (e.) Avoid abrupt maneuvers."

 Accordingly, we conclude that the action of the controller in ordering a 150 o turn while in a climb, was a violation of the Air Traffic Control Manual and a breach of the standard of due care expected of a controller acting in an emergency situation. Further, we conclude that the controller, in having encouraged the pilot to look for the airport, under the prevailing and known conditions, created a situation where the pilot of 91L was a certain candidate for spatial disorientation (likely to occur within twenty seconds to eight minutes, says the defendant).

 Following the instruction to turn given at 0259:55, the controller did not communicate with 91L again until 0301:31. This absence of communication occurred without any notice to 91L or warning from the controller. Thus, 91L was climbing and in a difficult turn of 150o, and was without any communication from the controller. The Court has listened to the tape recording made of the transmissions from ABE tower to 91L. The Court is impressed by the lack of communication between 0259:55 and 0301:31. When one listens to that silence, one can visualize what must have been occurring in the cockpit of 91L during that time period. One can picture the pilot in the cockpit, lost in the clouds, becoming more frightened by the moment while waiting for the controller to further assure and advise him. Suddenly his only link to the world outside that cloud, his radio, was silent. No help was being received from the controller upon whom he was depending. Although the controller was otherwise occupied, it is apparent that the silence of a minute and a half was a violation of good operating practice and procedure. If necessary, Gasker could have utilized the pilot of 508M to obtain the Wilkes-Barre weather or to talk to 91L during the time that he was off the radio. We conclude that the failure to utilize the pilot of 508M, and the failure of the controller to keep in more constant communication with 91L was likewise a substantial contributing factor in the cause of the pilot's spatial disorientation and the resulting accident.

 Having left the pilot alone for over a minute and a half, the controller, at 0301:31, finally came back on the radio and gave 91L the weather at Wilkes-Barre. Following the weather report, he told 91L, " * * * now I can attempt to vector you to the Allentown Airport, or if you like, You can navigate up there in VFR conditions, it's your choice sir." No offer was made to Vector 91L to Wilkes-Barre. Rather it was the pilot's exclusive responsibility to navigate to Wilkes-Barre on his own. Thus, the controller placed the pilot 91L in the position of having to make a crucial determination after having been left alone for over a minute and a half, and after having made a turn of 150 o while climbing in altitude. Moreover, the controller at no time had given 91L the weather conditions at Allentown. Thus, the pilot was in the position of making this crucial decision in a vacuum. He did not know what the weather conditions were in terms of ceiling or visibility and it was not suggested that he could be vectored elsewhere. He was not given the information necessary and essential to the informed decision to be made by the pilot in command.

 Controllers are taught that in an emergency situation they have to take charge. They are supposed to take command of the situation. Here, the controller did not take command. He gave to the pilot a choice between Wilkes-Barre and Allentown. When 91L responded, "let me try Allentown one time", the controller, instead of warning him against Allentown or at least giving him necessary weather information, confirmed his choice and said, "alright sir, fine". There is no provision in the ATCM expressly permitting a controller to give such an option to a VFR pilot flying under instrument weather conditions. The ATCM requires controllers to vector such an airplane to a location where VFR conditions exist. Under the facts of this case, VFR conditions existed at the Wilkes-Barre Airport. They did not exist at ABE Airport. However, instead of offering 91L a vector to Wilkes-Barre, the controller said, "I can attempt to vector you to the Allentown Airport". Such a vector was futile under the existing weather conditions and should never have been suggested by the controller absent, at least, a viable alternative, including vectoring to Wilkes-Barre. The failure on the part of the controller to suggest the possibility of flying to Wilkes-Barre and to offer him a vector for that purpose was a clear violation of the ATCM, good operating practices, and the standard of care owed by a controller to a pilot under the circumstances existing that morning.

 Shortly after receiving the Wilkes-Barre weather and the option from the controller, 91L reported, at 0302:08, that another airplane had just buzzed him. Since Gasker contends that such a buzzing was impossible because there were no other aircraft observed within fifteen miles of 91L at the time, it is clear that the communication from 91L with respect to a buzzing should have been an obvious indication to the controller that the pilot was disoriented. However, instead of taking immediate action by way of calling the pilot's attention, first, to his instruments to insure that the pilot would at least attempt to stabilize the aircraft and maintain a safe altitude, and, second, to the fact that he was not buzzed, the controller missed the first transmission and continued to question the pilot about the buzzing for approximately twenty seconds. As the defendant contends, if 91L had not been buzzed, then he must have drifted down from his altitude of 2500 feet to some lesser altitude where he observed a ground light which misled him into believing that he had been buzzed by another airplane. It is recognized that light can cause a type of spatial disorientation. This phenomenon is recognized in Air Traffic literature and is known as flicker vertigo. Gasker should have recognized this as a possibility and should have taken immediate corrective action. Clearly, Gasker had the last clear chance to avoid this accident and failed.

 Thus, we find and conclude that the inactions of the controller in failing to communicate to the pilot on a frequent basis, in failing to draw the pilot's attention to his instruments so that he could maintain straight and level flight at a safe altitude, were a contributing cause to spatial disorientation. We further find and conclude that the actions of the controller in giving the transmissions and instructions which he gave, induced the pilot to divert his attention from his instruments in a futile effort to locate the Allentown Airport and contributed to causing the pilot to become spatially disoriented. We find and conclude further that the controller's failure to take immediate action after the reported buzzing was a contributing factor in worsening spatial disorientation, that the pilot, in fact, became spatially disoriented, that such disorientation caused the pilot to lose control of his aircraft and to crash into the home of the plaintiffs. We find that the actions and inactions of the controller were negligent and were the proximate cause of and a substantial factor in this tragic crash.

 IV

 WILKES-BARRE

 Plaintiffs contend that a reasonable controller, faced with the weather conditions existing at Allentown, had only one viable option open to him; i. e., to direct 91L to Wilkes-Barre. Admittedly, VFR conditions existed at Wilkes-Barre, and a safe journey there was possible, under IFR conditions given "tops" of not more than 10,000 feet. (91L had an altitude range of 10,000 feet). Plaintiffs contend that since 91L had been successfully flying in IFR conditions for more than the time necessary to reach Wilkes-Barre, that with proper advice from a trained controller, there was no reason to expect other than a safe journey, and that Wilkes-Barre was clearly the only feasible choice. Defendant contends, on the other hand, that for 91L to have attempted to fly to Wilkes-Barre in IFR conditions would have resulted in a crash, albeit at a different location, but a crash nonetheless. Defendant argues that spatial disorientation would have attacked or overcome 91L before his reaching Wilkes-Barre, and that, therefore, Allentown offered the safest place to land.

 Both sides seem to be in agreement that assuming that the tops of the cloud cover had been at 5,000 feet, or thereabouts, (A) a safe journey to Wilkes-Barre was to be expected, and (B) the controller was under a duty to have advised 91L to climb to that level and then to provide a VFR vector to Wilkes-Barre. Thus, the threshold question is what were the controller's duties relative to knowing or learning what the overall weather conditions were at Wilkes-Barre, and particularly between ABE and Wilkes-Barre.

 On August 23, 1974, Karl Gasker reported for work as an air traffic controller at the Allentown-Bethlehem-Easton Airport. He was there for the midnight to 8:00 A.M. shift to work all five control positions, and was the only air traffic controller on duty at the airport that night. Upon reporting for duty, it was his obligation to act in accordance with the Air Traffic Control Manual which has been described by the controller and others as the "bible" or "the law for air traffic controllers". Section 60 of that manual requires a controller to "become familiar with pertinent weather information when coming on duty". In the performance of that mandatory duty, Gasker says he did report to the weather office, and found out the pertinent weather information when he came on duty, and was briefed by the controller who was going off duty. However, at the time of the trial, he testified that he could not remember what that report indicated in regard to the weather for Allentown and surrounding area, other than the published report which made no mention of "tops", i. e., the uppermost limit of the overcast. Section 60 also imposes a continuing duty on the controller ...


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