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May 20, 1981

JULES KUTNER AND TODD BERGER, ANDREW BERGER AND H. TONY BERGER, minors, by CAROL BERGER, individually and in her own right

The opinion of the court was delivered by: BRODERICK


The defendant has filed a motion for summary judgment. This action was brought under the Federal Aviation Act of 1958, § 404(a), (b), 49 U.S.C. § 1374(a), (b), and state tort and contract law. The plaintiffs, Jules Kutner, his daughter, Carol Berger, and her three sons, were passengers on defendant Eastern Airlines' Flight 38F on February 21, 1979. The flight was scheduled to depart from Miami, Florida at 5:30 P. M. for Philadelphia, Pennsylvania and Syracuse, New York. In fact, it departed from Miami at 6:14 P. M. and, because of weather conditions in the Philadelphia area, did not land there but flew directly to Syracuse. Only 29 of the 294 passengers on board intended Syracuse to be their destination; the other 265, including the plaintiffs, were Philadelphia-bound passengers. On arrival in Syracuse, the Philadelphia passengers were entitled to various services under a tariff filed by the defendant pursuant to federal law. Relevant here is the defendant's duty under this tariff to provide meals, lodgings, and local ground transport, and to advise all diverted passengers of the availability of these services.

 According to Eastern, shortly after their arrival in Syracuse at about 10:10 P. M., the diverted passengers were offered a choice of two alternatives: 1) overnight lodgings in Syracuse with transport to and from the airport and first available space on flights to Philadelphia the next morning, or 2) immediate charter bus transportation to Philadelphia. Eastern claims that approximately 70-80 passengers chose the former alternative, that approximately 185 chose the latter, and that the busses to Philadelphia departed at about 12:30 A. M. on the 22nd of February.

 Plaintiffs' view of the incident is somewhat different. Summarizing the deposition testimony of Jules Kutner and Carol Berger, the plaintiffs received no assistance from the airline when they deplaned in Syracuse. At least four Eastern officials whom they asked about the airline's plans to care for the diverted passengers were "baffled," "had no answers," or were "evasive." An announcement made by Eastern failed to calm the plaintiffs because it stated only that the airline was "looking into modes of getting us home the next day" and "trying to work it out" without mentioning provisions for lodgings that night. After waiting the better part of an hour with no further relief forthcoming, and the three boys, who were then 12, 9 and 6 years old, becoming cranky, tired, and hungry, the plaintiffs decided to rent a car and drive back to Philadelphia. Despite the prospect of driving all night through what proved to be "icy conditions and fog," plaintiffs made no attempt to find lodgings in the Syracuse area on their own. They arrived in Philadelphia at 6:15 A. M. on the 22nd of February, safe but anguished and outraged by their all night drive in "ungodly" conditions. Plaintiffs later found out that a fellow passenger who had accepted the proffered bus trip arrived in Philadelphia at about 11:00 A. M. on the same day.

 Shortly after their arrival in Philadelphia, plaintiffs were told by an unidentified party that Philadelphia International Airport had been closed due to bad weather even before the time of their scheduled departure from Miami. Plaintiffs sought to confirm this allegation, one that Eastern categorically denies, by calling the airline and the airport, and they soon obtained a letter from the Facility Chief of the Philadelphia Airport International Tower stating that "Philadelphia International Airport was below published landing minima from February 21, 1979 at 5:03 P. M. until February 22, 1979 at 8:22 A. M." Plaintiffs then initiated this suit against Eastern.

 In their complaint, the plaintiffs alleged that Eastern's conduct violated its own tariff and the Federal Aviation Act of 1958, § 404(a)-(b), 49 U.S.C. § 1374(a)-(b) but they have since requested leave to amend their complaint to allege instead a violation of § 403 of that Act, 49 U.S.C. § 1373, which amendment is hereby granted. They further claim that as Eastern personnel knew or should have known of conditions at the Philadelphia airport, the airline's conduct in allowing Flight 38F to depart from Miami without informing plaintiffs of these conditions was "extreme, outrageous, intentional and/or reckless." Plaintiffs characterize the conduct of Eastern personnel at the Syracuse airport in a like manner. They maintain that solely as a consequence of Eastern's conduct they "were made to undergo great mental anguish and severe shock to their nerves and nervous system," to the extent of $ 15,000.00 in compensatory and $ 15,000.00 in punitive damages for each of the five plaintiffs. Further, each plaintiff claims damages in these amounts under a second cause of action, which alleges that Eastern, by the conduct described above, breached its contract of carriage, resulting in the aforementioned or similar mental and nervous consequences. Plaintiffs also claimed for the out-of-pocket expenses incident to their automotive journey, but they have since been reimbursed by Eastern for these expenses.

 After the taking of depositions and the exchange of interrogatories and answers, the case was referred to arbitration pursuant to Local Civil Rule 49, Section 4(a)(1) on March 3, 1980. On April 8, 1980, the arbitrators heard and decided the case in favor of the defendant. Plaintiffs then filed a demand for a trial de novo, whereupon the defendant moved for summary judgment under Federal Rule of Civil Procedure 56.

 In deciding the motion for summary judgment, the Court has accepted the plaintiffs' contentions as to all of the controverted facts. None of the controverted facts are "material" as to whether the plaintiffs have a cause of action. Furthermore, all of the evidence has been construed in favor of the plaintiffs, the parties opposing the motion, and the plaintiffs' evidence has been given the benefit of all favorable inferences. It is on this basis that the Court has determined that for the purpose of this summary judgment motion there are no genuine issues of material fact. For the reasons that follow the motion for summary judgment will be granted.


 Neither 49 U.S.C. § 1373 nor 49 U.S.C. § 1374 expressly authorizes a private right of action to enforce its provisions. In determining whether a private remedy is implicit in this or any such statute, a court must consider four factors:

 First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," - that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? (citations omitted)

  Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26 (1975).

 The Court of Appeals for the Third Circuit has applied the Cort test to claims brought under the afore-mentioned sections of the Federal Aviation Act in two recent cases. Wolf v. Trans World Airlines, 544 F.2d 134 (3d Cir. 1976), cert. denied, 430 U.S. 915, 97 S. Ct. 327, 516 L. Ed. 2d 593 (1977) (construing 49 U.S.C. § 1373(b)), Polansky v. Trans World Airlines, Inc., 523 F.2d 332 (3d Cir. 1975) (construing 49 U.S.C. §§ 1374(b) and 1381). In each case the court rejected the plaintiffs' contention that the statutory section or sections ...

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