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REMO v. UNITED STATES FAA

May 16, 1994

WILLIAM A. REMO, JR., Executor of Estates of Stephen F. Remo and Kathleen Remo, Deceased, and Administrator of the Estate of Alicia Marie Remo, Deceased,
v.
UNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION. ANJAM HANID BHATTI, Executrix of the Estate of ABDUL AZIZ KHAN, Deceased, v. UNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION. BETTYJUNE MILLER, Administratrix of the Estate of PETER C. Miller, Deceased, v. UNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION



The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

DECISION AND ORDER

 VAN ANTWERPEN, J.

 This tragic case involves the midair collision of two small-engine aircraft near the Queen City Airport in Lehigh County, Pennsylvania on July 30, 1989 in which seven persons perished. Plaintiffs *fn1" assert that the United States of America, specifically a Federal Aviation Administration (FAA) Air Traffic Controller in the radar control room at the Allentown-Bethlehem-Easton Airport who was controlling one of the two aircraft, failed to notify the pilot of that plane of the proximity of the second plane. Plaintiffs allege that the air traffic controller's failure to employ the appropriate degree of care and vigilance in the provision of air control services led to a "missed" air traffic call and, ultimately, to the fatal collision. Plaintiffs have brought this negligence action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674. From February 7 through February 15, 1994, the court sat non-jury *fn2" and heard seven days of testimony in this matter. *fn3" In addition, with the express consent of counsel on the record, on February 16, 1994 the court and counsel made an off the record, on-site view of the Radar facilities at ABE Airport, the control tower at ABE Airport, and the airstrip and other facilities at the Queen City Airport. Following the trial, the parties were given ample time to file proposed findings and fact and conclusions of law, along with reply memoranda. Based on the testimony presented and these extensive briefs, we now render our decision.

 I. FINDINGS OF FACT

 1. At 1:34:28 p.m. on Sunday, July 30, 1989, a midair collision occurred between a Beech A-36 Bonanza ("Bonanza") carrying six persons, and a Cessna 182 ("Cessna"), carrying one person. As a result of the collision, both aircraft plummeted to the ground killing all seven persons aboard. The pilot and sole occupant of the Cessna was Peter C. Miller who held a valid FAA pilot's license.

 2. The Cessna was operating as a jump aircraft for skydivers performing at the Lehigh Valley Balloon Festival, a weekend long event that began on July 28, 1989. The Cessna was equipped with a Mode C transponder, a device which, when interrogated by Air Traffic Control radar, provides information regarding the position and altitude of the aircraft. (T.T. 2/8/94, p. 52). An aircraft emitting a transponder signal is referred to as a secondary target by air traffic controllers.

 3. Queen City Airport is an uncontrolled airport located approximately five nautical miles southwest of Allentown-Bethlehem-Easton International Airport ("ABE Airport"), a controlled airport. The elevation of Queen City Airport is 399 feet above mean sea level (MSL).

 4. At the time of the collision, the Cessna was descending in a right hand turn for the purpose of landing on runway 25 at Queen City Airport. There are two runways at Queen City Airport: runway 7/25 and runway 14/32. *fn4" The collision occurred southwest of Queen City Airport approximately 1.1 nm from the intersection of the two runways and 6.4 nm from ABE Airport. (T.T. 2/15/94, p.7).

 5. At the time of the collision, the Bonanza was on an insurance check-out flight (T.T. 2/7/94, p. 72).

 6. Stephen F. Remo, a commercial airline pilot and certified flight instructor was seated in the right front seat of the Bonanza at the time of the collision. (T. 2/7/94, p. 63). Also aboard the Bonanza were two of the airplane's three owners, Dr. Abdul Kahn and Dr. Mohammed Malik, as well as Remo's wife and daughter, Kathleen Remo and Alicia Marie Remo, and the son of Dr. Malik, Raymond A. Malik.

 7. The Bonanza was equipped with flight controls accessible to a pilot seated in the right or left front seat of the aircraft. (T.T. 2/7/94, p. 174) It is contested whether Dr. Malik or Dr. Kahn was seated in the left front seat of the A-36 at the time of the collision. *fn5"

 8. When aircraft maneuver at an airport for the purpose of taking off and landing, they maneuver in a traffic pattern. For Runway 25 at Queen City Airport on July 30, 1989, a left hand pattern was used.

 10. None of the radar data recorded at Philadelphia Approach, New York Center, or Naval Air Station Willow Grove contains any targets corresponding to the Bonanza prior to or at the time of the accident. Because of the post-crash condition of the Bonanza's transponder, it was not possible to determine whether the transponder had been activated based on an inspection of the device.

 11. The radar in use at the ABE Airport TRACON was capable of depicting aircraft with operating mode C transponder at 1,400 feet MSL and above within a six mile radius of ABE Airport.

 (T. 2/15/94, p. 183).

 12. After a period of study, in 1985 the FAA adopted the airport radar service area (ARSA) concept and began establishing ARSAs at airports throughout the United States known as primary airports. In 1987, an ARSA was established at ABE Airport (Exhibit P-15). ARSAs are part of the FAA Air Traffic Control (ATC) System. The ABE Airport ARSA consists of two concentric circles centered on the ABE Airport. The inner circle has a five nautical mile radius from the center point while the outer circle has a 10 nautical mile radius from that point. Within the inner circle, all airspace is within the ARSA from the surface of the ground to an altitude of 4,400 MSL with the exception of airspace within a one nautical mile arc centered on Queen City Airport which is excluded from the ARSA from the ground surface to an altitude of 2,200 feet MSL. The airspace between the inner and outer circles (including the airspace within the one nautical mile arc centered on Queen City Airport) is within the ARSA extending from an altitude of 2,200 to 4,400 feet MSL south and southwest of Queen City Airport and extending from an altitude of 1,900 to 4,400 feet MSL west and southwest of Queen City Airport. (Exhibit P-15).

 Witness Observations

 Raymond Frank

 13. Raymond Franke is a commercial airline pilot and a Certified Flight Instructor. Franke was flying sightseeing trips on the day in question and was located at the departure end of Runway 25 preparing to take off at the time of the collision.

 14. As he was maneuvering his Cessna from the taxiway onto Runway 25, Franke heard on the Common Traffic Advisory Frequency (CTAF) frequency: "Jump plane entering downwind, Queen City." (T. 2/8/94, p. 136).

 15. Franke testified that he had been taxiing from Queen City Aviation to Runway 25 for approximately three minutes when he observed the collision of the Bonanza and the Cessna.

 John Daniel:

 16. John Daniel is the only witness presently known to have seen the Bonanza on the ground prior to the accident flight. On the day of the accident, Mr. Daniel, a pilot, observed a Beech Bonanza on the apron in front of the apron of the upper hangar at Queen City Aviation. (T. 2/10/94, p. 226). At the time of his observations, Mr. Daniel was seated on a bench in front of the Queen City Aviation office building. (T. 2/10/94, p. 225). Mr. Daniel's location was less than 100 feet from the aircraft. (T. 2/10/94, p. 228). Based upon Mr. Daniel's familiarity with the Beech Bonanza type aircraft (T. 2/10/94, pp. 223-224), and his precise description of the number and appearance of the persons that got into the airplane (T. 2/10/94, pp. 226-227), it is clear that the airplane he observed was, in fact, the Bonanza involved in the accident.

 17. After seeing the six persons board the Bonanza, Mr. Daniel observed the aircraft start and taxi toward Runway 25. (T. 2/10/94, pp. 229-230). Although Daniel briefly lost sight of the aircraft during taxi (T. 2/10/94, p. 230), Mr. Daniel specifically recalled the takeoff and departure of the Bonanza from Queen City. (T. 2/10/94, pp. 230-231). After the aircraft's departure, Daniel lost visual contact with the Bonanza until, looking to the southwest, he saw debris, including the wing of an aircraft, falling from the sky. (T. 2/10/94, pp. 231-232). After reporting the collision to personnel at Queen City Aviation, Daniel drove to Knopf Pontiac where he saw an aircraft wreckage that he believed was the Bonanza. (T. 2/10/94, pp. 232-233). Daniel estimated that the entire sequence of events, from the time he saw the aircraft begin its taxi to the runway until the time he observed the debris falling from the sky, occurred within a 10-minute time frame. (T. 2/10/94, p. 234).

 Judith Kroeger:

 18. Judith Kroeger was the only eyewitness known to have observed the path of the Bonanza immediately before the collision. Mrs. Kroeger lives at 3515 Fox Run Drive in a residential development located approximately 1.5 miles southwest of Queen City Airport. (Exhibit D-32). Mrs. Kroeger's home is located approximately on the extended centerline of Queen City Runway 25. (Exhibit D-32). Although Mrs. Kroeger is not a pilot, her husband is a pilot, and he owns and flies an A-36 Bonanza similar to that flown by Dr. Khan. (T. 2/14/94, p. 13).

 19. During the early hours of the afternoon, on July 30, 1989, Mrs. Kroeger was working in the yard of her home. (T. 2/14/94, p. 14). Mrs. Kroeger's attention was drawn to the sky when she heard the distinctive sound of an A-36 Bonanza that had just climbed over a stand of trees located along the Little Lehigh River between the Kroeger home and Queen City Airport. (T. 2/14/94, pp. 15-17). According to Mrs. Kroeger, the Bonanza was on climbout, having just taken off from Queen City Airport (T. 2/14/94, p. 15), and was positioned in a climbing attitude. (T. 2/14/94, p. 17). Although Mrs. Kroeger was not able to estimate the altitude at which she first saw the Bonanza, she stated that the aircraft appeared to be below the usual pattern altitude. (T. 2/14/94, p. 19). She added that, as the aircraft left her line of sight, it did not appear to be climbing as though it were going to proceed to a higher altitude and go someplace. (T. 2/14/94, p. 20).

 20. The aircraft, while in Mrs. Kroeger's sight, travelled in a slight-banking left turn proceeding from her left to her right in a curved path, ultimately travelling away from her. (T. 2/14/94, pp. 18, 39, 45). As the aircraft curved in front of her, Mrs. Kroeger was able to see a full profile of the airplane. (T. 2/14/94, p. 48).

 21. As the Bonanza proceeded on its flight path, Mrs. Kroeger lost sight of the airplane behind another line of trees. (T. 2/14/94, p. 20). Two seconds later, Mrs. Kroeger heard a loud sound -- a pop -- and then the absence of sound. (T. 2/14/94, p. 21). Upon hearing the noise followed by the silence, Mrs. Kroeger ran into her house and informed her husband of her assumption that the "Bonanza" had an engine failure. (T. 2/14/94, p. 21). Mrs. Kroeger and her husband then ran outside the house and saw smoke rising from the direction of Devonshire Hills, the direction in which the airplane was headed. (T. 2/14/94, p. 21). Upon observing the smoke, Mrs. Kroeger called the Lehigh Valley Emergency Dispatcher and informed them that a "Bonanza" had an engine failure and crashed. (T. 2/14/94, p. 21).

 22. After calling the Lehigh Valley Emergency Dispatcher, Mrs. Kroeger, her husband, and her daughter drove to the crash location and upon arriving learned that another aircraft had also been involved and that a midair collision had occurred. (T. 2/14/94, p. 22).

 23. Based upon the uncontroverted testimony of Mrs. Kroeger and Mr. Daniel, it is apparent that both individuals viewed the accident Bonanza at different phases of its final accident flight. Mr. Daniel's testimony indicates that the Bonanza in fact departed from Queen City Airport shortly before the collision. Mrs. Kroeger's testimony indicates that the Bonanza did not leave the traffic pattern and return to it immediately prior to the collision. If this had been the case, substantially more than a few seconds would have elapsed ...


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