*1 MOYER, Individually, and as Charles Representative
Personal Es Moyer Judy Moy
tates of Ronald
er, Deceased, Moyer, Donna Individu
ally, Representative and as Personal Moyer
of the Estates Ronald
Judy Moyer, Deceased and Leisure
craft, Inc., Appellants
TELEDYNE CONTINENTAL MO
TORS, INC., Teledyne, Superior Inc. Parts, Inc.,
Air Piedmont Hawthorne
Aviation, Inc., Pied and/or a/k/a f/k/a Services, Inc.,
mont Aviation Pied Aviation, Inc.,
mont/Hawthorne Aviation, Piedmont Hawthorne
and/or DivCo, Inc., Appellees.
LLC
Superior Pennsylvania. Court
Argued Feb. July
Filed *3 Daniels,
Robert C. Philadelphia, ap- for pellants. Robinson,
James E. Philadelphia, for DivCo. Winter,
Douglas DC, E. Washington, Teledyne. Amster,
Douglas Newark, NJ, H. Piedmont Hawthorne. ELLIOTT, P.J., (“GARA”), FORD tion Revitalization Act of 1994
BEFORE: (codi- 103-298, MELVIN, Pub.L. STEVENS, LALLY- No. 108 Stat. 1552 ORIE GREEN, KLEIN, BOWES, PANELLA, fied as amended at 49 U.S.C.S. Note).3 SHOGAN, JJ. DONOHUE ¶ 2 Opinion pursuant In its to Pa. STEVENS, BY J.:
OPINION 1925(a), R.A.P. the trial court set forth the matter is an action based 1 The instant following background: factual negligence, breach of warran- on claims 26, 2003, January Judy On Ronald and liability stemming from ty and strict Moyer were killed when their Beech aircraft crash.1 single engine Appellants, *4 single engine V35B crashed on a Ronald the adult children decedents small island the Delaware River. See Moyer Judy Moyer, appeal and from the [Appellants’] to Response TCM’s Motion summary granting trial court’s Orders Summary Judgment. Moyers Appellee Teledyne in favor of judgment departed Wings from Field Philadel- Motors, (hereinafter Inc. Continental phia, Pennsylvania and were en route to “TCM”), Appellee and Piedmont Haw- Columbia, South Carolina. Id. Ronald (hereinafter Aviation, Inc., thorne “Pied- Moyer, a pilot, flying licensed was the mont”) sustaining and from the Order the plane. in flight, Moyer reported While DivCo, preliminary objections Appellee Id. Al- partial engine a loss of power. DivCo).2 (hereinafter Upon Inc. a review though air traffic control Moyer directed record, inapplica- we affirm of the and find airport, Moyer to a local radioed back he (18) year the exceptions eighteen ble the enough power did not have it make Id. repose by gov- statute of established the airport. Moyer landed on a statute, Delaware, erning federal the General Avia- small island in the but unfor- “willful, making 1. also raise claim of this Court to consider it a determina- deliberate, outrageous case, and wanton miscon- tion herein. In that the Court deter- against Appellee only. duct” See Count eighteen year repose mined GARA’s statute of 1/20/05, Complaint IV of at 21. against barred the Plaintiff's claims the defen- Engine dant and found the Maintenance Man- Specifically, Appellants appeal following component, ual did not constitute a "new 11, 2005, August Orders: The Order entered system, subassembly, part or other of an air- granting Preliminary Objections Appel- plane deny as a matter of law.” We TCM's Appellants’ Complaint; lee DivCo to the Or- Relief, Application Opinion as the cited 29, 2007, granting der entered March pre-dates argument by the oral almost two Summary Judgment Appellee Motion for Nevertheless, months. we note that even if Piedmont; 7,May and the Order entered on case, we were to consider the TCM has 2007, ac- 29, 2007, May granting as amended on knowledged Opin- that Illinois Circuit Court Summary Judgment the Motion for of TCM therefore, (the published; ions are not originally granted we are ob- trial court had TCM’s 5, 2007, it, viously by by Motion on March not bound are we but later rescinded nor bound upon Appellants’ that Order Re- Motion for decisions of the federal district court Penn- consideration). sylvania, questions even when federal are at Inc., 252, issue. See Kubik v. Route Applications 3. Also before us are two for Re 1119, (Pa.Super.2000). 1124 In their second 20, February lief of TCM. In the first filed on 1, 2009, Application April for Relief filed on subsequent in which it avers that to the Opinion TCM asks this Court to consider the argument February heard banc en handed down in Twin Burton v. Commander copy unpublished it obtained a of the LLC, (2009). Aircraft, Wash.App. Opinion handed down in South Side Trust and discussion, light infra, request of our is Savings Heavy Bank Peoria Mitsubishi denied as moot. Industries, Ltd., al., (Ill. et Case No. 05 L 4052 Court, 22, 2008), Circuit December and asks party, Mr. Robert Ca- way pairs by a third trees on the tunately impacted explosion baniss, “top performed resulted an Jr. down which Cabaniss Moyer. Id. killed Mr. and Mrs. cylin fire that engine, replacing overhaul” of accident, Moy- connecting time of the rod bear At the assemblies and der engine contained er’s [sic] by manufactured De ings designed and (serial by [Appellee] TCM assembled “(Superior”). Air Superior fendant Parts 573483). TCM assembled number 73, 74, Deposition, pg. See Cabaniss Beech Aircraft in engine to shipped the November, repair, During Declaration of 1980. See September, applied cylin sealant was to the a silicon then Beech Aircraft John S. Barton. Cabaniss, the crankcase as ders of engine on the aircraft installed Id. at 109-110. The by Moyer. sisted original the aircraft was delivered approved sealant was not on TCM’s list 8,1982. At the time April Id. owner on engine.FN2 Id. of sealants for accident, the crankcase4 of the replacement, for- subject engine was obviously (serial FN2 The cause of this crash merly in another TCM *5 disputed by parties. [Piedmont] the asserts 519154). never in- number Id. TCM proximate improper sealant was the this either spected, repaired or modified purposes of the crash but for of the cause assembly. after the initial Id. crankcase summary judgment argue[s], motion even ac- at the The crankcase in the aircraft cepting [Appellants’] im- contention that [] proper welding pursuant improper to TCM’s previ- repaired
time of the crash was crash, welding they instructions caused the 15, 1998, May ous occasions. On liability.5 have no original crack was discovered [Appellants’] response crankcase. See 8/17/07, filed at 2-3. Opinion, Trial Court Summary Judg- to Motion for TCM’s 2005, DivCo, In an Okla- August of engine [Appel- to ment. The was sent corporation place homa with its sole (“Piedmont”) repair. Id. Pied- lee] Tulsa, business in was dismissed from the mont removed the crankcase and sent it Preliminary action after it had filed instant (“Div[C]o”), FAA Appellee ap- Objections Appellants’ Complaint as- Rather proved facility repair. Id. personal the lack of serting trial court’s crankcase, repair than re- Div[C]o Thereafter, it. jurisdiction over re- placed the crankcase and sent the summary successfully Piedmont moved for in- placement to Piedmont. Piedmont judgment, pleading former several crankcase in the stalled Div[C]o provisions, claiming GARA and the latter subject replacement aircraft. This is theory party liability no had advanced a why engine, at the time reason followed, against appeal it. This accident, a crankcase contained the trial entered response to court’s Order with a different serial engine from an 4, 2007, number. on June state- November, 2002, complained appeal ment of matters of on subject air 1925(b) 13, Pa.R.A.P. on June pursuant re craft underwent additional Parts, defendant, Superior major engine compo- Auto 5. Another 4. A crankcase houses nents, alloy, made of aluminum and is is cast cylinder assemblies which manufactured the matching comprised parts which are of two bearings had and rod to which the adhesive (See joined along plane. the vertical center party appeal. applied, not a to this been is Manual, Appel- Permold Series Maintenance 8, 20-3). at lants’ Exhibit 2007, they following wherein raised the 4. The in granting [c]ourt erred sum- mary judgment in favor of [Piedmont] issues: argument, because their sole that ‘no granting 1. The erred in sum [c]ourt party theory has advanced a of liability pursu in favor of mary judgment [TCM] against expert and there are no re- [it] 18-year repose ant statute [it],’ criticizing ports clearly was errone- within the General Aviation contained [Appellants’] expert ous as maintenance Revitalization Act of Pub.L. No. opined Appellee] violated [this Fed- (codified 103-298, 108 Stat. 1552 § eral Aviation Regulation 43.13 us- Note) at amended 49 U.S.C. ing repair a crankcase that had a inweld (“GARA”) Service Bulle because TCM a highly stressed area and that such on August tin M90-17 was issued proximate conduct was a cause of the (12]/¿ accident), years before the fatal crash. ‘replacement part’ considered a under 5. The erred in sustaining [c]ourt GARA, interpreting the cases and was a preliminary objections of [DivCo] proximate cause of crash that killed dismissing [Appellants’] pursuant claims [Appellants’] decedents. 1028(a)(2) to Pa.R.Civ.P. for lack per- in granting erred sum- [c]ourt jurisdiction, sonal because [Appel- mary judgment pursu- in favor of [TCM] hereto, at all lee] times material main- 18-year repose ant to GARA’s statute of a highly tained ‘interactive’ webpage, [Appellants] presented because have admittedly directed its sales activities Appellee] substantial evidence that [this toward the Commonwealth Pennsyl- *6 ‘knowingly misrepresented to the Feder- vania, and products sold its and services Administration, al Aviation or concealed to residents of the Commonwealth of or withheld from the Federal Aviation Pennsylvania thus making the exercise Administration’ required information jurisdiction of personal appropriate un- causally related to the harm 5301, der 42 seq., Pa.C.S. et and the suffered, [Appellants’] which and all Due Process Clause of the Fourteenth genuine doubts as to the existence of a Amendment.
issue of material fact must be resolved ¶ Opinion 4 In an August filed on against the moving party. 20, 2008, panel a of this Court affirmed the The granting erred in sum- [e]ourt subject trial court’s Orders which are the mary judgment in favor of Thereafter, [“Piedmont”] of within appeal. on Octo 23, without permitting argument oral de- ber that Opinion was withdrawn [Appellants’] spite specific request pur- in this Court’s Per Curiam Order which banc,6 suant to granted Pa.R.Civ.P. also a rehearing en provided 6. The party recognized Order further that each to be considered are when includ previously shall either refile the it had Supreme brief ed either in a Court remand order brief, together supplemental granting reargument. a if or in this Court’s order desired, prepare panel or Parkway file a substituted cited to ABG Promotions Inc., parties All Publishing, brief. have chosen to do the latter. 834 A.2d 615 n. 2 such, panel we (Pa.Super.2003) As note a of this Court wherein this Court consid reargument, petition- only designated by concluded that has ered those issues it in the may any supplemental granting er raise issue in a or order en banc review and to Pa. 2546(b) brief that support substituted could have been raised R.A.P. of this statement. so, A.B.K., (Pa.Su original panel. doing before R.W.E. v. 961 A.2d Herein, panel prior appellate per.2008). desig stressed that court deci- did this Court not scope any specific granting sions indicate limitations on the nate issues issue en banc year, ¶ Pennsylvania companies per on Rear- Brief In their Substituted $30,000 in revenue Banc, raise the fol- over generates En gument (4) at per year, for our review: from such sales has lowing four issues Pennsylvania regular least 19-20 engine manufactur- 1. Are an aircraft customers, mailings to sends direct Continuing Air- er’s Instructions residents, Pennsylvania regularly “Parts” of an worthiness through a Penn- publication purchases supplies that their date of such business, sylvania advertises on “rolling” triggers amendment basis, an in- national and maintains repose under the 18-year statute of existing teractive website directed to Revitalization Act Aviation General Pennsylvania cus- prospective be issued they required are when tomers? Regulations Aviation by the Federal could not exist with- engine and the Appellant’s Reargu- Substituted Brief on out them? Banc, ment En at 5. We will consider of a 2. Does uncontroverted evidence turn, the first two these issues and as concealment of its manufacturer’s together. will them overlap, we discuss prohibition in-house of weld- secret of review for motions 6 Our standard ing critical areas of crankcas- summary judgment is well settled: es, affirmative which contradicts representations made to the Federal 1035.2(2), trial Pursuant Pa.R.C.P. Aviation Administration and outside if, judgment enter after the court shall welding facilities maintenance discovery, par- an adverse completion crank- safety welding about ty proof who will bear the burden of at areas, satisfy cases in those critical produce trial fails to ‘evidence of facts Knowing Misrepresenta- GARA’s cause of essential to the action de- tion, Witholding Concealment jury require which in a trial would fense Exception? jury.’ the issues to be submitted to conclu- [Appellants’] expert’s Co., 3. Does Rapagnani See v. Judas *7 engine shop overhaul 666, sion that an (summary (Pa.Super.1999) 668-69 duty supply- its of care in breached properly granted when ‘the judgment improperly weld- ing a defective and record contains insufficient evidence engine ed crankcase to a consumer prima facts to make out a facie cause of therefore, satisfy requisite quantum defense, and, there action or proof summary judgment under a jury’). no to be submitted to a is issue a genuine standard to establish [sic] summary judgment A motion for is [Ap- material fact as to that issue of evidentiary an record that enti- based on pellee’s] liability under theories of a moving party judgment tles the to a as liability? negligence and strict Harleysville v. matter of law. Swords 389-90, Cos., 382, Pa. 883 A.2d May Pennsylvania exercise Ins. 584 a Court (2005). 562, considering foreign a 566-67 personal jurisdiction over summary judg- a motion for repaired air- merits of corporation sells ment, a court views record craft crankcases which enters nonmoving light most favorable thirty into over transactions thus, review, preserved. Ap- properly we will each one been consider pellant originally appeal if it has raised on
343 involving general avia of an accident to the existence and all doubts as party, may brought against be fact must tion issue of material genuine of a the man of the aircraft or moving party. manufacturer against the be resolved any component, sys new Beaver ufacturer of v. Medical Hayward Center of 1040, tem, 324, subassembly, part other of the or Pa. 608 A.2d County, 530 aircraft, (1992). a manufactur capacity its 1042 ... if the occurred after the er accident (Pa.Su- 420, 427 Selig, v. 959 A.2d Phillips period eighteen limitation applicable [of denied, Phillips Selig, v. appeal per.2008), however, GARA, an contains years]’). (2009). 960 Further- Pa. 600 that, while express “rolling provision” to more, non-moving party of a “[f]ailure foreclosing approach preserving es- evidence on an issue sufficient adduce against of action manufacturers causes which it bears the its case and on sential to defective aircraft potentially related jury that a could proof such burden replacement components eighteen after favor establishes a verdict its return years, prescribes eighteen-year that the judg- moving party of the entitlement upon the period commences date in Zurich Ameri- a matter of law.” ment as GARA parts. stallation of such See O’Hanlon, A.2d can Ins. Co. 2(a)(2) that no civil action (providing omitted). (citation (Pa.Super.2009) respect any may brought be ‘[w]ith initially contend subassembly or component, system, new continuing manufacturer’s instructions another com part replaced other which of the air part constitute a airworthiness or ponent, system, subassembly, other rolling subject are to GARA’s craft and in, to, which part originally or was added reason Specifically, Appellants provision. aircraft, alleged to have and which is to find refusing court erred the trial death, injury, damage, or caused such M90-17, Bulletin issued that Service period limitation be applicable after the containing of 1990 and August completion the date of of the ginning on criteria,” inspection constituted “crankcase addition’). replacement or The statute term is defined part as that replacement exception denying man also includes GARA, the service bulletin under because repose misrep in the event of ufacturers air necessary operation resentation, concealment, withholding to an therefore tantamount plane and is regarding per of essential information manual. Section of GARA instruction formance, maintenance, operation of limitations on civil actions entitled “Time Further, express an aircraft.FN2 GARA manufacturers” reads as against aircraft *8 ly inconsistent state laws. preempts follows: 2(d). § GARA See General Aviation Revitali the Under death, 1994,FN1 for zation Act of claims involving property damage 103-298,
injury, and FN1. Pub.L. No. 108 Stat. 1552 40101, (codified § as amended at U.S.C. against types of aircraft asserted certain note) (hereinafter "GARA”). if generally are barred manufacturers exception Specifically, under FN2. eigh more than the accident occurred concealment, covering misrepresentation, air delivery after the years teen withholding, to the assertion of the bar purchaser. See GARA craft to the first apply does not if: claims 2(a) action § that ‘no civil (prescribing [tjhe pleads specificity the claimant with per to injury for death or damages for proves, necessary prove, to that facts arising out type damage property respect to a or to cer- sons the manufacturer with [for], certificate tificate or airworthiness or airplane but from TCM’s issuance of Bulle- obligation^] respect continuing air- 23, 1990, tin M90-17 on August wherein it of, component, an aircraft worthiness modified its prior stance on crankcase system, subassembly, part or other an air- of knowingly misrepresented craft to the Feder- new, welding approved and ushered Administration, al Aviation or concealed or welding procedure. maintenance For the withheld from the Federal Aviation Adminis- below, argument reasons discussed this tration, required information that is material performance has no merit. and relevant or the aircraft, operation maintenance or of such system, subassembly, 9 As the trial component, court states its Pa. or other part, causally related to the harm 1925(a) Opinion, R.A.P. there is no authori- allegedly which the claimant suffered. ty Pennsylvania from either state 2(b)(1). GARA courts or the proposi- Third Circuit for the Parker Pridgen Corp., v. 588 Pa. Hannifin tion that a equivalent service bulletin is the 405, 408-409, (2006) 424-425 a flight manual. Appellants argue Cald- reargument by adhered to on Pridgen v. well, supra, govern should this Court’s Corp., Parker 591 Pa. Hannifin analysis and “[j]ust reason that as Federal (2007). addition, A.2d 619 in the case Regulations Aviation conditioned the exis- upon Appellants which principally rely in tence of an aircraft on the issuance of a brief, their substituted the Ninth Circuit manual, flight regulations condition the manuals, flight has determined that which existence of an upon the required by are regulation, federal could issuance of Continuing Instructions be part” considered “new or a “defective Airworthiness. The flight manual is relied system” helicopter of a they contain the by pilot fly safely, the aircraft necessary instructions operation for its and the Continuing Instructions for Air- and are therefore deemed to be insepara- are upon by worthiness relied licensed air- ble from it. In support finding, powerplant frame and mechanics to [sic] regulations Court cited federal spe- which keep the aircraft operating safely.” Ap- cifically require flight manual to con- pellant’s Substituted Brief on Reargument, tain regarding information an aircraft’s Nevertheless, En Banc at 24-25. as the gas tank and usable fuel supply. See notes, given trial court the continual issu- Caldwell Enstrom Helicopter Corp., 230 (9th ance of 1155,1157 Cir.2000). service pertaining bulletins to a F.3d variety topics, “if repose the statute of ¶ Herein, question there is no that the triggered every [were] time a service bul- aircraft in Judy which Moyer Ronald issued, letin was the intent of GARA would flying were on the date of the accident had be eviscerated.” Trial Opinion, Court been original purchaser delivered to the 8/17/07, at 6. The trial court distinguishes 1982, and the January accident occurred in Caldwell, supra, from the circumstances beyond eighteen year limita- by herein noting in the former tion. the manual attempt to avoid the claim of itself was defective failing supply untimeliness theorizing eighteen information,7 year period critical repose began latter, while in the “it *9 to run not from that initial transfer of the was not the service bulletin that failed but Caldwell, 7. the Court noted plaintiff alleged that federal and the therein had the defect regulations require the sup- manufacturer to flight any manual to be the omission of ply flight integral manual which an warning gallons gasoline that the last two of "part” of the aircraft it contains the in- in the fuel tank were unusable. aircraft, necessary structions operate to the Reargu- Substituted Brief on Opinion Appellant’s Trial Court the crankcase.” ment, 8/17/07, Banc at 11-12. As the En reason at 6. “strong reversal of is former TCM’s ¶ issue, Appel their second 10 In against welding recommendation” crank- a defect to Ser attempt to attribute lants cases, cite to an article Appellants publish- the by contending M90-17 Bulletin vice August in of ed the online issue method of crank welding of as a approval Magazine, publication Pilot a trade AOPA superseded therein repair expressed case the Aircraft Owners and Pilots Associa- of mercenary reasons the earlier purely tion, following was stated: wherein specifically disapproved which bulletins bulletins, In contrast to the earlier al Appellants assert TCM’s repairs. weld paragraph says, “[Teledyne] in [M90-17] clandestine, of prohibition in-house leged welding has established that of crank- crankcases, critical areas of welding acceptable repair process. cases is an representa affirmative which contravened procedure The weld must conform to FAA it made to the and outside tions had repair FAA approved procedures and about welding facilities maintenance integrity of dimensional the crankcase welding crankcases those safety maintained.” must be areas, knowing satisfies the mis critical Why change? Simply because concealment and withhold representation, [Teledyne] develop wanted to its reman- thus exception to GARA. ing factory ufactured and overhauled engine granting erred in the trial court conclude Welding refurbishing business. in favor of TCM be summary judgment necessary cases was to be competitive. that it it “concealed from the FAA cause repairs in house weld prohibited Brief Appellant’s Reargu- Substituted Moy- type brought Banc, that down ment, same En at Citing represented “(Crank)case that it [and] ers[’] get Closed: Crankcases no were welding practices the FAA such by Stephen Ells. further respect” W. As Substituted Brief on Appellant’s safe.” venality, proof Appellants point TCM’s Banc, (emphasis En at 19 Reargument, Engineer- to an internal document called removed). R632712-01-001, Drawing D. ing Revision “secretly it asserts restricted crank- which ¶ setting summary forth a 11 After certain critical welding case areas shad- Bulletin M90-17 in history of Service provided ed” therein and was never Brief, Appellants opine their Substituted Barton, FAA, and the fact that John S. long- its abrupt reversal of TCM’s witness, was instructed not to an- TCM welding prohibition standing crankcase questions concerning swer further whether developing its from its interest stemmed privy the FAA was to information con- factory overhauled remanufactured during deposition. Ap- tained therein his Appellant’s Substituted engine business. pellant’s Reargument, Substituted Brief on Banc, at 11-13. Reargument, Brief on En En Banc at support of their accusation Specifically, Relying upon from the FAA Robinson Hartzell knowingly concealed Inc., F.Supp.2d 646-47 problem Propeller, with the knowledge its dismissed, (E.D.Pa.2004), appeal 454 F.3d welding, Appellant cites to lan- crankcase (3d Cir.(Pa.)2006), in Opinion, SB 163 its predecessors in the relevant guage read, sum, exception trial asserts that “for the salvage court M90-17 which (1) plaintiff prove must know- cylinder apply, in crankcase welding of cracks concealment, repair. ing misrepresentation, unsatisfactory means of decks is *10 (2) withholding; required welding information been issued that of crankcases was (3) relevant; that is material that is acceptable repair not an process such that the harm causally related to suffered.” [he] misrepresented attempted it or to conceal 7; Opinion, Trial at Court 8/17/09 such information from the FAA. More- however, notes, trial court Ap- as the also over, while Appellants also assert TCM pellants presented have not that evidence provide failed to engineering drawings to knowingly misrepresented, concealed prohibited welding the FAA which in criti- or withheld pertinent information from the cal “shaded areas” while the Service Bulle- FAA, they nor have met their burden of repair tin allowed for welding of crankcase scienter, obstruction, proving active location, any cracks in TCM does not dis- that proving even of the weld was done pute drawings contained errors pursuant specific service bulletin at and were in an Engineering corrected No- Instead, issue and caused the accident. years tice issued in two before the Appellants argue that 1983 and “[b]etween accident. See Brief Appel- Substituted only event that place took to lees, Rehearing [TCM] on En Banc at 31- justify the strong removal of this warning against welding single crankcases is a en- ¶ Though binding upon case is not gineering report concerning Court, Washington Ap Court of study. attempted crankcase jus- [TCM] peals recently considered Appellants’ first tify its dramatic course reversal with a appeal, two issues on and the logic the single test where merely studs were pulled court applied therein is instructive in the from cylinder deck of the crankcase. instant matter. Burton v. Twin Com [Appellants’] expert, Sommer, Donald LLC, mander Aircraft, 148 Wash.App. concluded that the test com- [TCM] was 9, 2009), (February WL 294815 *6 pletely inadequate justify reversing the Court determined that a maintenance long standing prohibition of crankcase manual, manual, flight unlike a is not a welding.” Appellants’ Substituted Brief “part” of an purposes Reargument, En Banc at 37. To the rolling provision GARA’s because: contrary, the Engineering Report reveals flight manual by [u]nlike that is used that TCM reviewed and evaluated twelve the pilot necessary and is to operate the other tests conducted by Appellee DivCo. aircraft, a maintenance manual is used Also, Barton, Mr. John S. the individual in by the mechanic proce- charge ‘outline[s] of the accident investigation de- dures for the TCM, troubleshooting repair partment at testified testing of the aircraft.’ Unlike the federal regu- would be documented in engineering re- require lations that ports flight and that he was manual to unaware of what aircraft, be testing may additional onboard the have been done in Burton cited no conjunction requirement with the determination that the maintenance man- welding TCM that acceptable was an re- ual must be onboard. And unlike a pair process. manual, Pretrial Examination of flight a maintenance manual as Barton, 9/15/06, John S. at 234-236. well as a service bulletin are used on apply to different aircraft models. Assuming, arguendo, that TCM Burton, (internal single inadequate supra, conducted a prior test citations and foot- omitted). approving welding Nevertheless, as an acceptable crank-
347
where state-
manual or
ception
applied
under GARA
Instructions
Continued
by
made in two emails issued
ments
prepared by
Airworthiness
its manufac-
Manager
ap-
of the
turer,
Vice
methods, techniques,
or other
President/General
Twin
evinced that Twin
pellee
Commander
practices acceptable to the Administra-
misrepresented or concealed
Commander
tools,
tor
... He shall use the
equip-
problems
the extent of the structural
of
ment, and test apparatus necessary to
system in an aircraft which had
the rudder
completion
assure
of work in accordance
critical information
crashed
withheld
accepted industry practices.
with
If
Id. at *10.
system.
about
that rudder
special equipment
apparatus
or test
¶
by
Thus,
recommended
the manufacturer
in-
Appellant’s
15
first
two
volved, he
equipment
must use that
or
claims fail.8
apparatus
equivalent
or its
acceptable to
¶ Appellants
challenge
next
the Administrator.
grant
summary judgment
trial court’s
(b) Each person maintaining or alter-
on the
opinion
Piedmont
basis
Fiedler,
ing,
performing preventive
Allen
or
Appellants’ expert, Mr.
mainte-
nance,
perform
repair
Piedmont did not
its
func
shall do that work in such a
satisfy
tion in a manner which
FAA
would
manner and use materials of such quali-
Specifically,
airworthiness standards.
Ap
ty,
aircraft,
the condition of the
pellants allege that the use
airframe,
crankcase
aircraft engine, propeller, or
repair
highly
with a
weld in a
stressed
appliance worked on will be at
least
area
a proximate
was
cause of the crash.
equal to
original
properly
its
or
altered
Appellants’ Substituted Brief on Reargu
(with
condition
regard
aerodynamic
Banc,
ment,
En
provisions
at 44. Two
function, structural strength, resistance
§
Regulation
Federal Aviation
43.13 are
deterioration,
to vibration and
and other
regard
relevant
and read as follows:
airworthiness).
qualities affecting
(a).
person performing
Each
mainte-
43.13(a)
(b).
14 C.F.R.
&
nance, alteration,
preventive
mainte-
aircraft,
Although
the trial
accurately
court
engine, propeller,
nance on an
methods,
testimony
recounts Mr. Fiedler’s
concern-
appliance
shall use the
tech-
(a)
niques,
practices
ing
compliance
Piedmont’s
prescribed
section
current manufacturer’s maintenance
the regulation, Appellants
assert Pied-
argu-
Appel
It should be noted that some of the
found liable for its tortious conduct.
Reargument
ments
advance in their Substituted
lants' Substituted Brief on
En
Reargument
regard
Brief on
En Banc with
Banc at 30. Because these claims have no
1925(b)
appear in
counterparts
Appellants’
TCM do not
their Statement of
direct
Statement,
Complained
Appeal
pursu-
they
Matters
of on
According
are not before us.
1925(b). First, Appellants
bright-line
ant to Pa.R.A.P.
rule set forth in Common
Lord,
claim that even if Bulletin M90-17 is not a
v.
wealth
553 Pa.
mont’s
43.13(b). Appel-
argument:
§
actually undercuts their
by 14 C.F.R.
governed
liability for
“Piedmont’s
Mr.
report,
that
culminate his
findings
lants claim
which
failure
is
on its
Moyer
neg-
accident
based
charges
never
Piedmont with
Fiedler
condition of the
dangerous
identify
to
only
relying, as it
ligence, but rather
it over-
crankcase when
engine
accident
by regulation
required
been
to do
had
returning such a
and for
engine
hauled the
43.13(a),
publications/instruc-
upon TCM
Worse,
to
this
engine
service.
defective
tions,
engine
to
having
“returned
twice and
obviously welded
crankcase was
those instruc-
in accordance with
service
that
anyone
from
allowed
no instruction
Fiedler,
of A.J.
dated
Report
tions.”
re-
crankcase could be
twice welded
11/17/06,
find that
Accordingly,
at 13.
we
Substitut-
Appellant’s
turned to service.”
granted Pied-
properly
the trial court
Banc,
En
at 44.
Reargument,
ed Brief on
summary judgment.10
motion for
mont’s
¶
However,
ex
Mr. Fielder
issue, Appellants
19 In their final
engine per
plained
overhauls
has sufficient contacts with
contend DivCo
1998,9
Piedmont
by
formed
Pennsylvania
general jurisdic
to establish
with TCM instruc
were in accordance
and, therefore, the trial court errone
tion
In
revealed crankcase cracks.
tions and
objec
ously
preliminary
sustained DivCo’s
the crankcases were sent
both instances
asserting
personal
the court lacked
tions
repairs. The cracks were
DivCo
jurisdiction over it.
utilizing
pro
a weld
repaired by DivCo
engine
by
approved
cess
TCM.
Supreme
opined
Our
Court has
af
was returned to Piedmont
crankcase
that:
repairs. Piedmont reas
ter the weld
objections
should be
[pjreliminary
engine
repaired
with the
sembled the
only in
that are clear
in
sustained
cases
case in accordance with
In
ruling
and free from doubt.
on
structions and returned
airworthy
preliminary objections
service as
both instances.
were
whether
sustained,
appellate
an
court
properly
Fiedler,
11/17/06, at
Report of A.J.
dated
it is clear
must determine whether
[]
Indeed,
7.
Fiedler also noted
his
Mr.
pleaded
plead-
all the facts
that the
from
over
report
the aircraft had been
prove
legally
er will be unable to
facts
hauled,
as airwor
inspected, and certified
right
to relief.
sufficient to establish
prior to the crash. Re
thy eleven months
degree
certainty
11/17/06,
There must exist
Fiedler,
at 4.
port of A.J.
dated
relief based
provide
that the law will not
Finally,
crucially, although Appellants
on the facts averred.
rely
report
expound
on Mr. Fiedler’s
liability
Appellants
also refer to a strict
Apparently
there were several welds in the
claiming
pro-
against
that "a
crankcase,
claim
Piedmont
only
which
one of
subject to strict
vider of maintenance can be
However, despite Mr.
blame for the crash.
liability
product and
when it sells a defective
statement,
seemingly
it
definitive
is
Fiedler’s
under Section 402A of the Restate-
is a seller
particular
not clear when and
whom
(Second)
Appellants'
See
ment
of torts.”
since,
noted, the acci-
performed,
weld
as
was
Reargument En Banc at
Brief on
Substituted
original part,
was not an
but
dent crankcase
again,
Appellants failed to set
44. Once
installed,
"obviously
had
one which when
1925(b)
in their Pa.R.A.P.
forth this issue
(Appellants' Brief at
welded twice."
[been]
statement, they
waived this issue. See
have
44).
Lord, supra.
Roberts,
maintenance,
Newspapers,
repairs,
Inc.
craft
Uniontown
overhauls
231, 249-250,
Pennsylvania.
within
has
576 Pa.
DivCo
never
Pennsylvania,
had
office
nor
it
(2003),
aff'd., 589 Pa.
This
scale
engine power such, Id., Fielding 12. As Mr.
engine.” at repair “the crankcase weld
believed that un-airworthy in an
location resulted condi- proximate this condition was the
tion and accident, the and the
cause of the deaths subject aircraft.” Id. at
destruction of Fielding’s Mr. upon proffered Based
report, I am inclined to find that the deci- whether overhaul
sion of Piedmont’s
subject engine, specifically the crank-
case, unairworthy left it in an condition standards, thus,
pursuant to FAA accident,
proximate or direct cause of the province
should be left to the of the fact- upon receipt
finder of additional factual expert testimony at trial.
evidence upon foregoing,
Based I find that a and,
genuine issue of material fact exists such, I not summary judg- do believe
ment was warranted in favor of Piedmont.
¶ Accordingly, I respectfully dissent. OCASIO, Appellant
Gabriel G. SERVICES, HEALTH
PRISON
Appellee.
Superior Pennsylvania. Court 4,May
Submitted July
Filed notes the Court method, repair case though, found the appellant this circum- Burton had created stance would not create a reasonable infer- material issues of fact regarding whether ence TCM knew when SB M90-17 had the misrepresentation or concealment ex-