Appeal from the Order entered May 29, 2007 In the Court of Common Pleas of Philadelphia County. Civil at No(s): January Term, 2005, No. 02577.
The opinion of the court was delivered by: Stevens, J.
BEFORE: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN, KLEIN, BOWES, PANELLA, DONOHUE and SHOGAN, JJ.
¶ 1 The instant matter is an action based on claims of negligence, breach of warranty and strict liability stemming from a single engine aircraft crash.*fn1 Appellants, the adult children of decedents Ronald Moyer and Judy Moyer, appeal from the trial court's Orders granting summary judgment in favor of Appellee Teledyne Continental Motors, Inc. (hereinafter "TCM"), and Appellee Piedmont Hawthorne Aviation, Inc., (hereinafter "Piedmont") and from the Order sustaining the preliminary objections of Appellee DivCo, Inc. (hereinafter DivCo).*fn2
Upon a review of the record, we affirm and find inapplicable the exceptions to the eighteen (18) year statute of repose established by the governing federal statute, the General Aviation Revitalization Act of 1994 ("GARA"), Pub.L. No. 103-298, 108 Stat. 1552 (codified as amended at 49 U.S.C.S. 40101, Note).*fn3
¶ 2 In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court set forth the following factual background:
On January 26, 2003, Ronald and Judy Moyer were killed when their Beech V35B single engine aircraft crashed on a small island in the Delaware River. See [Appellants'] Response to TCM's Motion for Summary Judgment. The Moyers departed from Wings Field in Philadelphia, Pennsylvania and were en route to Columbia, South Carolina. Id. Ronald Moyer, a licensed pilot, was flying the plane. While in flight, Moyer reported a partial loss of engine power. Id. Although air traffic control directed Moyer to a local airport, Moyer radioed back he did not have enough power to make it to the airport. Id. Moyer landed on a small island in the Delaware, but unfortunately impacted trees on the way down which resulted in an explosion and fire that killed Mr. and Mrs. Moyer. Id.
At the time of the accident, the Moyer's [sic] aircraft contained an engine assembled by [Appellee] TCM (serial number 573483). TCM assembled and shipped the engine to Beech Aircraft in September, 1980. See Declaration of John S. Barton. Beech Aircraft then installed the engine on the aircraft and the aircraft was delivered to the original owner on April 8, 1982. Id. At the time of the accident, the crankcase*fn4 of the subject engine was a replacement, formerly in another TCM engine (serial number 519154). Id. TCM never inspected, repaired or modified either crankcase after the initial assembly. Id.
The crankcase in the aircraft at the time of the crash was repaired on previous occasions. On May 15, 1998, a crack was discovered in the original crankcase. See [Appellants'] response to TCM's Motion for Summary Judgment. The engine was sent to [Appellee] ("Piedmont") for repair. Id. Piedmont removed the crankcase and sent it to Appellee ("Div[C]o"), an FAA approved facility for repair. Id. Rather than repair the crankcase, Div[C]o replaced the crankcase and sent the replacement to Piedmont. Piedmont installed the Div[C]o crankcase in the subject aircraft. This replacement is the reason why the engine, at the time of the accident, contained a crankcase from an engine with a different serial number.
In November, 2002, the subject aircraft engine underwent additional repairs by a third party, Mr. Robert Cabaniss, Jr. Cabaniss performed a "top overhaul" of the engine, replacing cylinder assemblies and connecting rod bearings designed and manufactured by Defendant Superior Air Parts "(Superior"). See Cabaniss Deposition, pg. 73, 74, and 82. During the November, 2002 repair, a silicon sealant was applied to the cylinders of the crankcase by Cabaniss, assisted by Moyer. Id. at 109-110. The sealant was not on TCM's approved list of sealants for that engine. FN 2 Id.
FN 2 The cause of this crash obviously is disputed by the parties. [Piedmont] asserts this improper sealant was the proximate cause of the crash but for purposes of the summary judgment motion argue[s], even accepting [ ] [Appellants'] contention that improper welding pursuant to TCM's improper welding instructions caused the crash, they have no liability.*fn5
Trial Court Opinion, filed 8/17/07, at 2-3.
¶ 3 In August of 2005, DivCo, an Oklahoma corporation with its sole place of business in Tulsa, was dismissed from the instant action after it had filed Preliminary Objections to Appellants' Complaint asserting the trial court's lack of personal jurisdiction over it. Thereafter, TCM and Piedmont successfully moved for summary judgment, the former pleading several GARA provisions, and the latter claiming no party had advanced a theory of liability against it. This appeal followed, and in response to the trial court's Order entered on June 4, 2007, Appellants filed a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) on June 13, 2007, wherein they raised the following issues:
1. The [c]court erred in granting summary judgment in favor of [TCM] pursuant to the 18-year statute of repose contained within the General Aviation Revitalization Act of 1994, Pub. L. No. 103-298, 108 Stat. 1552 (codified as amended at 49 U.S.C. § 40101, Note) ("GARA") because TCM Service Bulletin M90-17 was issued on August 23, 1990 (12 1/2 years before the accident), is considered a 'replacement part' under the cases interpreting GARA, and was a proximate cause of the crash that killed [Appellants'] decedents.
2. The [c]court erred in granting summary judgment in favor of [TCM] pursuant to GARA's 18-year statute of repose because [Appellants] have presented substantial evidence that [this Appellee] 'knowingly misrepresented to the Federal Aviation Administration, or concealed or withheld from the Federal Aviation Administration' required information that is causally related to the harm which [Appellants'] suffered, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
3. The [c]court erred in granting summary judgment in favor of ["Piedmont"] without permitting oral argument despite [Appellants'] specific request pursuant to Pa.R.Civ.P. 211.
4. The [c]court erred in granting summary judgment in favor of [Piedmont] because their sole argument, that 'no party has advanced a theory of liability against [it] and there are no expert reports criticizing [it],' was clearly erroneous as [Appellants'] maintenance expert opined that [this Appellee] violated Federal Aviation Regulation § 43.13 by using a crankcase that had a repair weld in a highly stressed area and that such conduct was a proximate cause of the fatal crash.
5. The [c]court erred in sustaining the preliminary objections of [DivCo] and dismissing [Appellants'] claims pursuant to Pa.R.Civ.P. 1028(a)(2) for lack of personal jurisdiction, because this [Appellee] at all times material hereto, maintained a highly 'interactive' webpage, admittedly directed its sales activities toward the Commonwealth of Pennsylvania, and sold its products and services to residents of the Commonwealth of Pennsylvania thus making the exercise of personal jurisdiction appropriate under 42 Pa.C.S. § 5301, et seq., and the Due Process Clause of the Fourteenth Amendment.
¶ 4 In an Opinion filed on August 20, 2008, a panel of this Court affirmed the trial court's Orders which are the subject of the within appeal. Thereafter, on October 23, 2008, that Opinion was withdrawn in this Court's Per Curiam Order which also granted a rehearing en banc.*fn6
¶ 5 In their Substituted Brief on Reargument En Banc, Appellants raise the following four (4) issues for our review:
1. Are an aircraft engine manufacturer's Instructions for Continuing Airworthiness "Parts" of an aircraft such that their date of publication or amendment triggers the "rolling" 18-year statute of repose under the General Aviation Revitalization Act when they are required to be issued by the Federal Aviation Regulations and the engine could not exist without them?
2. Does uncontroverted evidence of a manufacturer's concealment of its secret in-house prohibition of welding critical areas of engine crankcases, which contradicts affirmative representations made to the Federal Aviation Administration and outside maintenance and welding facilities about the safety of welding crankcases in those critical areas, satisfy GARA's Knowing Misrepresentation, Concealment and Witholding Exception?
3. Does [Appellants'] expert's conclusion that an engine overhaul shop breached its duty of care in supplying a defective and improperly welded engine crankcase to a consumer satisfy the requisite quantum of proof under summary a judgment [sic] standard to establish a genuine issue of material fact as to that [Appellee's] liability under theories of negligence and strict liability?
4. May a Pennsylvania Court exercise personal jurisdiction over a foreign corporation that sells repaired aircraft engine crankcases which enters into over thirty transactions with Pennsylvania companies per year, generates over $30,000 in revenue from such sales per year, has at least 19-20 regular Pennsylvania customers, sends direct mailings to Pennsylvania residents, regularly purchases supplies through a Pennsylvania business, advertises on ...