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David Shulick and Cherie Shulick v. United Airlines and Us Airways

February 2, 2012

DAVID SHULICK AND CHERIE SHULICK,
PLAINTIFFS,
v.
UNITED AIRLINES AND US AIRWAYS,
DEFENDANTS.



The opinion of the court was delivered by: Gene E.K. Pratter, J.

MEMORANDUM

I. INTRODUCTION

Bad news may travel fast but it is hardly news that bad weather often stops travel altogether. For David and Cherie Shulick, however, the worst blizzard of the year was no excuse for impeding their family's slopes and seas vacations at the close of 2010.

David Shulick, a lawyer representing himself and his wife, Cherie, brings the instant action against United Airlines and U.S. Airways, for alleged violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. C. S. §§ 201-1 et seq. (the "UTPCPL"), negligent misrepresentation, negligent infliction of emotional distress, and violations of Title II of the Civil Rights Act. These claims arise out of these airlines' cancellation of several of the Shulicks' flights due to blizzard conditions, and the various problems then experienced and costs incurred by the Shulicks associated with their efforts to rearrange their travel plans. Now before the Court are the airlines' separate motions to dismiss, which the Shulicks oppose, of course. For the reasons that follow, the Court grants the motions.

II. FACTUAL AND PROCEDURAL BACKGROUND

Due to severe blizzard conditions in December of 2010, the Shulicks, along with their two children, experienced considerable difficulty returning to Philadelphia, Pennsylvania from the first half of their winter holiday in Aspen, Colorado, in time to fly to the second half of their vacation, a cruise that departed from Orlando, Florida.

The Shulicks purchased round-trip tickets from United for a flight leaving Philadelphia for Aspen, on December 21, 2010, with a return flight on December 26, 2010. They also purchased tickets from USAir for a flight from Philadelphia to Orlando on December 29, 2010, returning January 3, 2011. On December 25, 2010, while the Shulicks were in Aspen, United canceled the Shulicks' return flight from Aspen for the next day due to extreme weather conditions in the eastern part of the country, including in and around Philadelphia. For several hours after receiving notice of the cancellation, the Shulicks allege they were unable to reach United's customer service representatives by telephone or internet to re-book a flight to Philadelphia. They then elected a different course. Because their hotel in Aspen was fully booked after December 26th, the Shulicks decided to rent a car. They then drove from Aspen to the airport in Denver, Colorado. Their idea was to speak in person with airline ticketing agents, with a view toward trying to find a flight to Philadelphia that had not been canceled by the weather emergency.

The Shulicks allege that following their drive they were unable to get in-person help at the airport and were directed instead to contact the websites and toll-free telephone numbers of the defendant airlines, which they allege were not working or at least not responsive to their needs. Consequently, the Shulicks rented a hotel room at the Four Seasons Hotel in Denver on December 26th, and continued to try to book a return flight via the internet. Unfortunately, United's website "crashed" due to the volume of customers attempting to access the airline's re-booking services, and it remained non-functional for perhaps as long as 36 hours. Eventually, as the weather emergency in the eastern United States seemed to abate, the Shulicks booked a flight via the internet for December 28, 2010. However, because that December 28th flight would arrive in Philadelphia after midnight, i.e., in the early hours of December 29th, and their flight to Orlando would depart that same morning of December 29th, leaving the Shulicks little time to sleep or pack for their warm weather holiday cruise, they continued to try to book an earlier flight.

After reaching a United agent to speak with directly by phone around 1:00 a.m. on December 26th, the Shulicks were re-booked from Denver to Philadelphia, with a connection in New Orleans, Louisiana. At the time of re-booking, a United agent told the Shulicks that their connecting flight was confirmed and that the Philadelphia Airport was then operating, despite severe weather conditions. The Shulicks traveled to New Orleans on the first leg of the trip. By the time they reached New Orleans, the connecting flight to Philadelphia had been cancelled.

At the New Orleans airport, the Shulicks were at first unable to retrieve their checked baggage, in which they had packed their children's medication. The Shulicks allege that in New Orleans, the United baggage agent, an African-American woman, from whom the Shulicks (who are Caucasian) sought baggage retrieval assistance, behaved in a discriminatory fashion toward Cherie Shulick, calling her a "honkey," laughing at her and harassing the family, and refusing to help locate their baggage. During this contretemps, the United baggage agent called a New Orleans Police officer to support her in confronting Cherie Shulick. While this was occurring, David Shulick was videotaping his wife's encounter with the baggage agent (Mr. Shulick later sent the videotape to United's corporate headquarters, demanding that the New Orleans baggage employee be terminated or, at least, formally reprimanded). *fn1 Ultimately, a porter at the New Orleans airport helped the Shulicks retrieve their checked baggage. The Shulicks then rented a car at the airport, drove into the city, and stayed overnight at a hotel.

In light of the continuing blizzard conditions in the Northeast, the Shulicks determined that, in order to get to Florida in time to embark on their cruise, they would need to fly directly from New Orleans to Orlando. The Shulicks were unable to book a flight from New Orleans to Orlando through either United or USAir, so Mr. Shulick booked a flight on Southwest Airlines and rented a hotel room at the Ritz Carlton Hotel in Orlando for the remaining night prior to the departure of the cruise.

Smooth sailing was short lived. While the Shulicks were aboard the cruise, defendant USAir cancelled the January 3, 2011 return flight from Orlando to Philadelphia. The Shulicks again spent time on telephone "hold" with USAir agents while re-booking the flight. They were unable to sit with their children on the re-booked return flight to Philadelphia.

Some three weeks after returning from the cruise, and apparently giving vent to the recognizable frustrations unfortunately and seemingly inevitably experienced by travelers everywhere, the Shulicks commenced this action in the Philadelphia Court of Common Pleas on January 28, 2011. The airlines removed the action to this Court on February 25, 2011 and immediately filed a joint motion to dismiss. The Shulicks then filed an Amended Complaint, which the airlines again jointly moved to dismiss. A Second Amended Complaint was filed on April 20, 2011.

The Second Amended Complaint sets forth the following counts: violations of the UTPCPL (Count I); negligent misrepresentation (Count II); negligent infliction of emotional distress (Count III); and violations of Title II of the Civil Rights Act (Count IV). Counts ...


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