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April 26, 1984

MARY V. KIEHN, Individually, as Executrix of the Estate of James Henry Kiehn, Deceased, and as Natural Guardian of her minor children, Ryan A. Kiehn, Mark W. Kiehn, Sara E. Kiehn and Ross Kiehn, Plaintiff

The opinion of the court was delivered by: CALDWELL

Before the court is plaintiff's motion for determination of the application of applicable damage law. The issues have been thoroughly briefed by the parties and are now ripe for our decision.

Plaintiff's husband, James Henry Kiehn, now deceased, was formerly an executive in the Pyrotek offices in Carlisle, Pennsylvania. Plaintiff still resides in Carlisle with her children. Mr. Kiehn was killed while on a business trip to Norway to visit the offices of defendant, a Norwegian corporation with which Pyrotek has dealings. While there on November 10, 1981 Mr. Kiehn and one of defendant's employees, Holger Walde, embarked on a trip in a small airplane which they had rented and which Walde piloted. Their intended destination as well as their point of departure were in Norway. They did not reach their destination, and were both killed when the airplane crashed near Mandel, Norway. Now for determination is whether Pennsylvania or Norwegian damage law applies. In an earlier memorandum in which we discussed the issue of forum non conveniens, we suggested, but did not decide, that Pennsylvania damage law would apply. We now re-examine our position.

 Any discussion of choice of law in Pennsylvania, whose law we are bound to apply, must begin with the case of Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964). In Griffith, plaintiff's decedent, a Pennsylvania citizen, was a passenger on a United flight from Philadelphia to Phoenix, Arizona. United was incorporated in Delaware. The plane crashed en route in Denver, Colorado, and plaintiff's decedent was killed. Suit was brought in Pennsylvania. The court abandoned the maxim of lex loci delicti "in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court." 203 A.2d at 805. The court went on to explain the benefits of this approach:

"The merit of such a rule is that it gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context and thereby allows the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of [the] particular litigation."

 The court, balancing the interests, found Pennsylvania's to be the greater, since the contractual relationship between defendant and plaintiff's decedent was entered into there and since Pennsylvania had an interest in granting full recovery to the decedent's heirs and dependent survivors. Specific to damages, the court noted:

"The state in which the injury occurred, as such has relatively little interest in the measure of damages to be recovered unless it can be said with reasonable certainty that defendant acted in reliance on that state's rule. Moreover, where the tort is unintentional, the reliance argument is almost totally untenable."

 203 A.2d at 806.

 There are two problems which prevent us from applying Griffith easily to the facts before us. First, Griffith is factually a case of "false conflict" as is the subsequent case of Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966). That is, the conflict arises only by reason of the outmoded and rejected lex loci delicti rule. The site of the accident in both cases was purely fortuitous, and the state in which the accident occurred had no real interest in the resolution of the parties' conflict. *fn1"

 The second problem in the application of Griffith is the tension created by the subsequent case of Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). This tension has been characterized as "between two important considerations: the liberal compensation policy of Pennsylvania, as in Griffith and Kuchinic versus the basic territorial approach of Elston2 and Cipolla," Broome v. Antlers' Hunting Club, 595 F.2d 921, 924 (3d Cir. 1979). In Cipolla, the plaintiff, a citizen of Pennsylvania, was injured in an automobile accident in Delaware while en route from Wilmington, Delaware to Pennsylvania. At the time of the accident, he was a passenger in a car driven by the defendant, a citizen of Delaware, and owned by the defendant's father, also a Delaware citizen. Delaware had a guest statute which barred recovery by a guest on an action for a host's negligence. The court professed to engage in a qualitative analysis of each state's contacts with the accident, but in reality appeared to find that Delaware law was applicable because of that state's greater number of contacts with the accident. It recognized in Pennsylvania only the interest in permitting the guest (a Pennsylvania citizen) to recover for the host's negligence, while it identified in Delaware a countervailing interest in protecting the host (a Delaware citizen). The court also acknowledged that Delaware would have an interest in the insurance rates which would be affected by the outcome of the litigation since the car involved was housed and registered in Delaware. The court went on to observe:

"Also, it seems only fair to permit a defendant to rely on his home state law when he is acting within that state. . . . Inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state's laws just because a visitor from a state offering higher protection decides to visit there. This is, of course, a highly territorial approach, but departures from the territorial view of torts ought not to be taken lightly. The very use of the term true conflict implies that there is no one correct answer, but as a general approach a territorial view seems preferable to a personal view."

 267 A.2d at 856-57.

 The derivation of a rule of law from the tension thus generated between Griffith and Cipolla is difficult. *fn3" We believe that Pennsylvania has a "flexible rule" which requires the court to determine which state has the greater interest in applying its law to a particular issue, Reyno v. Piper Aircraft Co., 630 F.2d 149 (3d Cir. 1980) rev'd on other grounds, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981), Cipolla. In this regard, significant contacts with a state may be relevant:

"In determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident. The contacts being relevant only if they relate to the 'policies and interests underlying the particular issue before the court.' When doing this it must be remembered that a mere counting of contacts is not what is involved. The weight ...

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