Opinion
No. 1402 EDA 2007.
Filed: August 20, 2008.
Appeal from the Order entered May 7, 2007, In the Court of Common Pleas of Philadelphia County, Civil No. January Term, 2005, No. 02577.
BEFORE: FORD ELLIOTT, PJ, PANELLA and KELLY, JJ.
¶ 1 This is an appeal from an order rendering final the judgments in favor of Appellees/defendants below in an action based on claims of strict liability, negligence and breach of warranty stemming from an aviation accident.
Appellants also raise a claim of "Willful, Deliberate, Outrageous and Wanton Conduct" against Appellee Teledyne Technologies only.
The first decision sustains the preliminary objections of DivCo, Inc., and the second and third enter summary judgment in favor of, respectively, Piedmont Hawthorne Aviation, Inc., and its affiliates (Piedmont), and Teledyne Technologies and its affiliates (TCM). We affirm, finding inapplicable the exceptions to the 18 year statute of repose established by the governing statute in this matter, the federal 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) .
¶ 2 In January of 2003, Appellants' decedents Ronald and Judy Moyer were killed when the single engine Beech V35B airplane piloted by Ronald Moyer crashed into some trees during an emergency landing on a small island in the Delaware River. Moyer had reported a partial loss of engine power and was unable to reach the local airport to which he had been directed by air traffic control.
Apparently the crash actually occurred in Delaware. Appellants are the adult children of the decedents and reside in Pennsylvania.
¶ 3 Although the reason for the crash is in dispute, Appellants have assigned causation to, principally, the failure of a repair weld in the crankcase, which was itself a replacement part for a cracked original. Appellees, against whom suit was filed in January of 2005, are respectively the manufacturer of the aircraft engine (TCM), the facility to which the original crankcase was sent for overhaul (Piedmont), and the business which supplied the replacement crankcase (DivCo).
Appellee TCM reports that the National Transportation Safety Board's (NTSB) investigation attributed the crash in large measure to a mechanic's improper overhaul of the engine during which an unapproved silicone sealant was applied to the cylinders of the crankcase. ( See NTSB Brief of Accident, adopted 2/5/04, at 2); (Brief of Appellee TCM at 7). Another defendant, Superior Auto Parts, which manufactured the cylinder assemblies and rod bearings to which the adhesive was applied is not party to this appeal.
A crankcase houses major engine components, is made of cast aluminum alloy, and is comprised of two matching parts which are joined along the vertical center plane. ( See Permold Series Maintenance Manual, Plaintiff's Exhibit 8, at 20-3). The accident engine was fabricated by TCM in 1980. (Brief of Appellee TCM at 6).
¶ 4 In August of 2005, DivCo, an Oklahoma corporation with its sole place of business in Tulsa, was dismissed from the action on preliminary objections asserting the court's lack of personal jurisdiction. Thereafter, the remaining Appellees successfully moved for summary judgment on various grounds: TCM pleading several GARA provisions, and Piedmont on the basis that no party had advanced a theory of liability against it. This appeal followed, raising seven issues which we have reordered slightly for ease of disposition.
¶ 5 We first note that
[i]n reviewing a grant of summary judgment, an appellate court may disturb the order of the trial court only where there has been an error of law or a clear or manifest abuse of discretion. Nevertheless, the scope of review is plenary; the appellate court shall apply the same standard for summary judgment as the trial court.
* * *
The record is to be viewed in the light most favorable to the nonmoving party, and all doubts as to the presence of a genuine issue of material fact must be resolved against the moving party.
Albright v. Abington Memorial Hosp., 696 A.2d 1159, 1165 (Pa. 1997) (citations omitted).
¶ 6 In their first issue, Appellants argue that the trial court erred in refusing to find that Service Bulletin M90-77, issued by TCM in August of 1990 and containing "crankcase inspection criteria," constituted a replacement part as that term is defined under GARA. Appellants posit the following premises: the Act establishes a statute of repose of 18 years from date of delivery of the aircraft to its first purchaser or lessee within which "civil actions for damages for death . . . arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or of any new component, system, subassembly, or other part of such aircraft in its capacity as a manufacturer." GARA § 2(a)2. Flight manuals, which are required by federal regulation, have been ruled a "part," qua GARA, of the aircraft, as they contain the instructions necessary for its operation and are therefore inseparable from it. See Caldwell v. Enstron Helicopter Corp., 230 F.3d 1155, 1157 (9th Cir. 2000). Appellants complete the syllogism with the conclusion that the service bulletin is necessary for operation of the airplane and is therefore tantamount to an instruction manual, that is, a replacement part per Caldwell, and is thus excepted from operation of the statute of repose.
It bears repeating here that this Court is not bound by decisions of the federal district court even on federal questions. See Kubik v. Route 252, Inc., 762 A.2d 1119, 1124 (Pa.Super. 2000).
¶ 7 Here the aircraft was delivered to the original purchaser in April of 1982. The accident occurred in January of 2003, well beyond the 18 year limitation. To avoid the claim of untimeliness, Appellants have constructed a theory which would compel the conclusion that the 18 year period of repose begins to run not from the first transfer, but from TCM's issuance of bulletin M90-77.
¶ 8 However, Appellants' logic is flawed. As the trial court points out, there is no authority for the proposition that a bulletin is the equivalent of a manual. Indeed, the trial court observes that given the continual issuance of service bulletins on a variety of topics, if the statute of repose were triggered every time a service bulletin was issued, the intent of GARA, that is, "`to ameliorate the impact of long-tail liability on a declining American aviation industry,' would be eviscerated." (Trial Ct. Op. at 6) (citing Prigden v. Parker Hannifin, Corp., 916 A.2d 619, 622 (Pa. 2007)). Even Caldwell, supra, on which Appellants principally rely, offers no relief as the manual itself in that case was defective in failing to supply critical information, and the omission effectuated the tolling of GARA's limitation period. That is not the situation here; as the trial court observes, "it was not the service bulletin that failed but the crankcase." (Trial Ct. Op. at 6).
The plaintiff had alleged the defect in the flight manual to be the omission of any warning that the last two gallons of gasoline in the fuel tanks would not burn. See Caldwell, supra at 1156.
¶ 9 Appellants do, however, attempt to attribute a defect to the bulletin of 1990 by contending that its approval of welding as a method of crankcase repair expressed in that publication superseded for purely mercenary reasons an earlier bulletin specifically disapproving weld repairs. In this regard Appellants insist that the trial court erred in entering summary judgment in favor of TCM because it "knowingly misrepresented, concealed, and/or withheld its knowledge of the problem with the crankcase welding from the FAA." (Appellants' Brief at 59). This assertion is based on the exception to the GARA timeliness provision which withholds the protection offered by the statute of repose from a defendant engaging in such obstruction.
¶ 10 Relying on Robinson v. Hartzell Propeller, Inc., 326 F.Supp.2d 631, 646-47 (E.D. Pa. 2004), appeal dismissed, 454 F.3d 163 (3d Cir. Pa. 2006), the trial court points out that "for the exception to apply, the plaintiff must prove (1) knowing misrepresentation, or concealment, or withholding; (2) of required information that is material and relevant; (3) that is causally related to the harm [he] suffered." (Trial Ct. Op. at 7). In leveling their accusation, Appellants specifically advance as evidence TCM's recommendation, in a repair bulletin of 1983, against "any welding of cracks in crankcase cylinder decks, main bearing journals and adjacent surfaces."
(Continental Aircraft Engine Service Bulletin M83-10 Rev. 1 at 2). From this Appellant concludes that TCM issued Bulletin M90-17, which permits welding of crankcases, despite its knowledge of the dangers posed by this method of repair, solely to "increase profits to its engine rebuilding business." (Appellants' Brief at 61). As further proof of TCM's venality, Appellants point to an Engineering Notice, promulgated in 1995 for internal distribution and use only, which "prohibited welding on the internal surface of the crankcase near the cylinders." ( Id. at 63). They also assert as definitive the conclusion of their expert that the engine failure in this matter "resulted from a fatigue crack that developed from the internal weld repair located at the No. 2 cylinder position." ( Id.).
¶ 11 However, as the trial court points out, Appellants have failed to meet their burden of proving scienter, or active obstruction, or even of proving that the weld in this instance was done pursuant to the specific service bulletin at issue. Thus their claim fails.
¶ 12 It should be noted that some of the issues in Appellants' Statement of Questions Involved contained in their brief do not appear in the 1925(b) Statement of Matters Complained of on Appeal, specifically those relating to TCM. They claim that even if Bulletin M90-17 is not a replacement part, their strict liability and negligence claims are not barred by GARA because they were not brought against TCM "in its capacity as a manufacturer" of the aircraft engine, but as an engine rebuilder/overhauler. They also assert that contrary to the trial court's finding, evisceration of GARA would ensue if Bulletin M90-17 were not found to be a replacement part, or if TCM were not found liable, qua its status as the manufacturer of the aircraft, for its tortious conduct. They further insist that Bulletin M90-17 was a proximate cause of the accident. Because these claims have no direct counterparts in Appellant's 1925(b) Statement, they are not before us. Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).
¶ 13 Appellants challenge the trial court's grant of summary judgment to Appellee Piedmont on the basis of their expert's opinion that Piedmont did not perform its repair function in a manner which would satisfy FAA airworthiness standards. Specifically, Appellants allege that the use of a crankcase with a repair weld in a highly stressed area was a proximate cause of the crash. Two provisions of Federal Aviation Regulation § 43.13 are relevant in this regard. Those provisions read as follows:
(a). Each person performing maintenance, alteration, or preventative maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator . . . He shall use the tools, equipment, and test apparatus necessary to assure completion of work in accordance with accepted industry practices. If special equipment or test apparatus is recommended by the manufacturer involved, he must use that equipment or apparatus or its equivalent acceptable to the Administrator.
(b) Each person maintaining or altering, or performing preventive maintenance, shall do that work in such a manner and use materials of such quality, that the condition of the aircraft, airframe, aircraft engine, propeller, or appliance worked on will be at least equal to its original or properly altered condition (with regard to aerodynamic function, structural strength, resistance to vibration and deterioration, and other qualities affecting airworthiness).
14 C.F.R. § 43.13 (emphasis added) .
¶ 14 Although the trial court accurately recounts Appellants' expert testimony concerning Piedmont's compliance with section (a) of the regulation, Appellants refer us to section (b), which they construe as voicing "the requirement to leave the aircraft engine in as safe of [sic] an operating condition as when it was new," a directive they insist "was clearly violated by Piedmont's installation of the welded crankcase." (Appellants' Brief at 65). This result could have been avoided, they contend, had Piedmont merely refused to install the welded part, since Bulletin M90-17 " did not require any crankcase welding ." ( Id.) (emphasis original).
¶ 15 However, as described by Appellants' expert, major overhauls of the engine performed by Piedmont in 1992 and 1998,
Apparently there were three welds in the crankcase, only one of which is blamed for the crash. However, despite the expert's seemingly definitive statement, it is not clear when and by whom the particular weld was performed, since, as noted, the accident crankcase was not an original part, but one which when installed, already showed "a number of repairs." (Appellants' Brief at 13).
were in accordance with TCM instructions and revealed crankcase cracks. In both instances the crankcases were sent to DivCo for repairs. The cracks were repaired by DivCo utilizing a weld process approved by TCM. The engine crankcase was returned to Piedmont after the weld repairs. Piedmont reassembled the engine with the repaired case in accordance with the TCM instructions and returned the engine to service as airworthy in both instances.
(Report of A.J. Fiedler, 11/17/06, at 7). Indeed, the expert noted in his report that the aircraft had been overhauled, inspected, and certified as airworthy eleven months prior to the crash. ( Id. at 4).
¶ 16 Finally, and crucially, although Appellants rely on the report of their expert to expound on Piedmont's putative liability, the expert's report actually undercuts their argument: in the findings which culminate his report, Piedmont is never charged with negligence, only with relying, as it was required to do by regulation § 43.13(a), on TCM publications/instructions, and having "returned the engine to service in accordance with those instructions." ( Id. at 13). Accordingly, we find that the trial court properly granted Piedmont's motion for summary judgment.
¶ 17 In their remaining issue, Appellants also contend that Appellee DivCo's preliminary objections on the basis that the court lacked personal jurisdiction were inappropriately sustained as the company maintained a "highly interactive website and modest, but consistent sales to Pennsylvania." (Appellants' Brief at 5).
¶ 18 Our Supreme Court has opined that
[p]reliminary objections should be sustained only in cases that are clear and free from doubt. In ruling on whether preliminary objections were properly sustained, an appellate court must determine whether it is clear from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief. There must exist a degree of certainty that the law will not provide relief based on the facts averred.
Uniontown Newspapers, Inc. v. Roberts, 839 A.2d 185, 196 (Pa. 2003), aff'd., 909 A.2d 804 (Pa. 2006) (citations and quotations marks omitted). For Pennsylvania courts to acquire general personal jurisdiction over foreign corporations, one of the following must apply: the business must have been incorporated here; must consent to the exercise of jurisdiction; or must carry on "a continuous and systematic part of its general business in the Commonwealth." 42 Pa.C.S.A. § 5301(a)(2). These same requirements extend to the acquisition of specific jurisdiction, "which has a more defined scope and is focused upon the particular acts of the defendant that gave rise to the underlying cause of action." Taylor v. Fedra Int'l., Ltd., 828 A.2d 378, 381 (Pa.Super. 2003). In either event,
[i]n order to meet constitutional muster, a defendant's contacts with the forum state must be such that the defendant could reasonably anticipate being called to defend itself in the forum. Random, fortuitous and attenuated contacts cannot reasonably notify a party that it may be called to defend itself in a foreign forum and, thus, cannot support the exercise of jurisdiction. That is, the defendant must have purposefully directed its activities to the forum and conducted itself in a manner indicating that it has availed itself to [sic] the forum's privileges and benefits such that it should also be subjected to the forum state's laws and regulations.
Id.
¶ 19 Where the assertion of jurisdiction rests on the existence of a website, a "sliding scale" of jurisdiction has been established "based largely on the degree and type of interactivity" on the site. Mar-Eco, Inc. v. T R and Sons Towing, 837 A.2d 512, 516 (Pa.Super. 2003). The Mar-Eco Court noted the explanation of this interaction enunciated in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997):
This sliding scale is consistent with well developed personal jurisdiction principles. At one end of the spectrum are situations where a defendant does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet web site which is accessible to users in foreign jurisdictions. A passive web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs.
Mar-Eco, supra (quoting Zippo, supra 1124 (citations omitted)). In sum, for personal jurisdiction to exist, the defendant must clearly be doing business through its web site in the forum state, and the claim must relate to or arise out of use of the web site. See Toys "R" Us, Inc. v. Step Two, S.A, 318 F.3d 446, 452 (3d. Cir. N.J. 2003).
¶ 20 In Mar-Eco, the appellant's customers "could use [its] website to apply for employment, search the new and used vehicle inventory, apply for financing to purchase a vehicle, calculate payment schedules, order parts and schedule service appointments. . . . [Thus] the activity on the website was of a commercial nature that permitted extensive interaction with the host computer and would only serve to enhance [the appellant's] commercial business." Id. at 517. We accordingly found that there the website provided a basis for general personal jurisdiction. Id. at 518. By contrast, this Court in Efford v. The Jockey Club, 796 A.2d 370 (Pa.Super. 2002), concluded that a website which allowed the Pennsylvania owner of a thoroughbred horse to register the animal online but which was otherwise unconnected to or established within the Commonwealth did not have sufficient contacts to establish general jurisdiction.
¶ 21 Here, as the trial court observed, the interactive portion of DivCo's website exists so that customers in need of a new crankcase can obtain general information, not specifics, of the company's inventory, and customers who have sent a crankcase for repair can check its status, although only its location in the repair system, not the technical details. The site cannot accommodate sales or orders, which must be placed over the telephone. Indeed, even e-mail transactions would only be performed for existing customers, and the billing would not be done electronically. Thus the interactive aspect of the website is no more intense than the registration of horses in Efford.
¶ 22 Moreover, for the years 2002, 2003, 2004, the percentages of DivCo's total sales to addresses in Pennsylvania were 1.37, 1.47 and 1.17. The number of customers in 2003 was twenty and in 2004, eighteen. Such sales figures are not merely "modest." Among other negatives, DivCo has no suppliers in Pennsylvania, has never performed any maintenance, repairs or overhauls here, has never had an office, mailing address, telephone number, fax number, or bank account here, is not registered with the Pennsylvania Secretary of State, and has never paid taxes here or advertised in any Pennsylvania publication. Accordingly, the order finding no personal jurisdiction should not be disturbed.
¶ 23 Order affirmed.
¶ 24 Panella, J. files a Dissenting Opinion.
¶ 1 I must respectfully dissent from the majority's opinion which affirms the entry of summary judgment in favor of Appellees, Teledyne Continental Motors (TCM), et al. and Piedmont Hawthorne Aviation, Inc. (PIEDMONT), et al. As our standard of review dictates, after viewing the record in the light most favorable to the Appellants, as the non-moving parties, I would find that the trial court committed an error of law in granting summary judgment.
¶ 2 I do not find the statute of repose applicable to the case sub judice to preclude claims against TCM and Piedmont as a result of the aviation accident which claimed the lives of Ronald and Judy Moyer in January 2003. Pursuant to the federal 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, no civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or the manufacturer or any new component, system, subassembly or other part of the aircraft, if the accident occurred after the 18-year limitation period beginning on the date of delivery of the aircraft to its first purchaser or lessee. Id. It is well settled that GARA is a classic statute of repose. Furthermore, I agree with the majority that the 18-year limitations period has elapsed in this case as the aircraft in question was delivered to the original purchaser in April of 1982 and the accident occurred in January of 2003.
¶ 3 However, while I acknowledge that the key impetus behind the statute of repose was to "ameliorate the impact of long-tail liability on a declining American aviation industry in furtherance of national interest", Pridgen v. Parker Hannifin Corporation, 591 Pa. 305, 310, 916 A.2d 619, 620 (2007), I highlight the actuality that GARA provides for an exception allowing recovery against an aviation manufacturer for a death, injury or damage caused by any new component, system, subassembly or other part which replaced another component, system, subassembly or other part. In this instance, the limitations period begins on the date of completion of replacement or addition which is often referred to as the "rolling" feature of GARA. GARA § 2(a)(2).
¶ 4 At this stage of the litigation, I find that the exception outlined in GARA applies to the claims raised herein. Therefore, I would not permit TCM to escape liability for the defective crankcase which was overhauled and replaced and which caused the tragedy suffered herein. Moreover, I agree with the Appellants that Caldwell v. Enstron Helicopter Corp, 230 F.3d 1155 (9th Cir. 2000), while not controlling, is extremely persuasive in its decision and rationale. In Caldwell, the Ninth Circuit was called to address whether a revised flight manual was considered a new "system . . . or other part" of a helicopter within the meaning of GARA. Id. at 1155. Ruling that the exception to the 18 year limitations period of GARA applied, the Ninth Circuit in Caldwell, determined that "a flight manual is an integral part of the general aviation aircraft product that a manufacturer sells. It is not a separate, general instructional guide but instead is detailed and particular to the aircraft to which it pertains." Id. at 1157. "The manual is the `part' of the aircraft that contains the instructions that are necessary to operate the aircraft and not separate from it." Id. The Court further opined that "if defendants substantively altered, or deleted, a warning about the fuel system from the manual within the last 18 years, and it is alleged that the revision or omission is the proximate cause of the accident, then GARA does not bar the action." Id. at 1158.
¶ 5 I would apply the holding of Caldwall to the case sub judice. Here, Service Bulletin M90-17, issued by TCM in August of 1990, replaced a sequential series of service bulletins, each replacing the former, back to M77-14, Rev.1, which was in effect at the time the aircraft engine was first sold. M77-14, Rev.1 contained instructions that were essential for the continued airworthiness of the engine, and was therefore an inseparable part of the aircraft engine at the time of initial purchase. Appellants, in their action based on claims of strict liability, negligence and breach of warranty, assign primary responsibility to the failure of a repair weld in the crankcase, which was itself a replacement part for a cracked original. Service Bulletin M90-17, for the first time, removed the restriction against crankcase welding, which allegedly created a potential for danger that did not previously exist. As such, I would find that the Service Bulletin M90-17 fits comfortably within the terminology and scope of GARA's rolling provision as an "other part of such aircraft."
¶ 6 Lastly, I must conclude that Piedmont was not entitled to the entry of summary judgment. It is evident that a genuine issue of material fact exists as to whether Piedmont performed its repair function in a manner which would satisfy FAA airworthiness standards. That decision should be left to the province of the fact-finder upon receipt of evidence, both factual and by way of expert witnesses.
¶ 7 Accordingly, I would reverse the orders of the trial court.