The Pennsylvania Superior Court has ordered a trial judge to make a more thorough analysis of whether a products liability case involving a plane crash in Portugal should stay in Philadelphia trial court or be sent to a Portuguese court.
In Bochetto v. Piper Aircraft, the court said the Philadelphia trial judge who originally kicked the case to Portugal failed to consider the case’s possible connection to the United States in general.
Judge David N. Wecht, writing for the court, said Philadelphia Court of Common Pleas Judge Marlene Lachman instead limited her analysis only to whether the case had significant ties to Pennsylvania.
But Wecht said the Superior Court’s first-impression ruling in the 1997 case Aerospace Financing Leasing v. New Hampshire Insurance dictates that, in an international forum non conveniens case, Pennsylvania courts should consider the case’s connection to the United States in general, along with factors related specifically to Pennsylvania.
Wecht said that, when viewed through the lens of the Aerospace decision, the factors in Bochetto are “more balanced” than Lachman’s decision seemed to indicate.
“Specifically, it appears that most of the evidence related to appellants’ claims is located in the United States, while most of the evidence supporting appellees’ claims is located in Portugal,” Wecht said. “However, we have no way of knowing whether and to what extent the trial court considered those factors that favored appellants’ choice of forum. Any such analysis is wholly absent from the trial court’s discussion.”
Wecht was joined by Judge Kate Ford Elliott and Senior Judge John L. Musmanno.
The Bochetto case, according to the opinion, stems from a 2009 plane crash near Castro Verde, Portugal.
The plane was manufactured by defendant Piper Aircraft in Florida and originally sold in Michigan and Ohio before being sold to a flight academy in Belgium, which in turn leased it to a flight school in Portugal called the Aeronautical Academy of Evora, according to Wecht.
From June 2009 until the crash in September 2009, the plane was maintained by AAE and CAE Global Academy, according to Wecht.
While AAE is an independent company, it is part of the worldwide chain of flight schools CAE operates, which includes stateside facilities in California, Arizona, New Jersey, North Carolina, Texas and Florida, Wecht said.
Neither company, however, has facilities in or any connection to Philadelphia, according to Wecht.
In September 2009, the plane broke up in flight during a nighttime training exercise and crashed in a field in Portugal, killing an instructor who was a Spanish citizen and two students, one of whom was a Dutch citizen and the other of whom had both Dutch and Australian citizenship, according to Wecht.
The Philadelphia Orphans’ Court appointed Pennsylvania attorney Robert C. Daniels to be the administrator of the three victims’ estates and their parents, who brought a wrongful death and survival action in the Philadelphia trial court in 2011, Wecht said.
After Daniels died, Philadelphia attorney George Bochetto replaced him as the estates’ administrator, according to Wecht.
According to Wecht, the estates and parents of the victims filed suit against 14 American corporations—including defendants Piper; Honeywell International, which made the plane’s auto-pilot system; Dimeling, Schreiber & Park and American Capital, which allegedly oversaw and directed Piper; and Continental Motors, which made the plane’s engine assembly—under theories of strict products liability, negligence, breach of express and implied warranties, fraud, and civil conspiracy.
Piper removed the case to the U.S. District Court for the Eastern District of Pennsylvania in October 2011, but the federal court remanded the case back to the Philadelphia trial court, finding that the removal had been improper, according to Wecht.
In February 2012, Wecht said, Piper, American Capital and Dimeling filed a joint motion to dismiss the case for forum non conveniens, arguing that the case belonged in Portugal.
In September 2012, according to Wecht, Lachman issued an order granting the motion on the condition that all the defendants stipulate that Portugal was the proper forum.
In December 2012, once all the defendants filed their stipulations, Lachman issued an order approving them and an order dismissing the plaintiffs’ claims, Wecht said.
On appeal, Wecht first dealt with the plaintiffs’ argument that the court should rely on federal law to decide forum non conveniens issues.
Wecht disagreed with this assertion, saying the plaintiffs “have misapprehended the relative strength of Pennsylvania law regarding forum non conveniens in the international context.”
Wecht said that, despite changes in the standard of review since it first came down, the Aerospace decision remains Pennsylvania’s “leading precedent in the law of international forum non conveniens cases.”
Turning to the lower court’s analysis of whether Philadelphia was the proper forum for the case, Wecht said Lachman engaged in a “one-sided analysis” that “focused purely upon Pennsylvania factors that weigh against appellants’ choice of forum.”
“The only reference to factors that do (or do not) connect this case to the United States, as such, is the trial court’s passing observation that appellants are not United States citizens,” Wecht said, adding that Lachman failed to weigh any of the public and private factors laid out in the U.S. Supreme Court’s 1947 case Gulf Oil v. Gilbert in favor of the plaintiffs’ choice of forum.
Among the private factors Lachman neglected to consider, Wecht said, were the facts that evidence related to the design, manufacturing and testing of the plan is located in the United States; Dimeline and American Capital are both Pennsylvania corporations; and several other defendants have either principal places of business in Pennsylvania or registered agents in the state.
The private Gilbert factors Lachman should have considered, Wecht said, include the fact that none of the decedents, plaintiffs, defendants or parties-in-interest are Portuguese and, as the U.S. Supreme Court found in the 1981 case Piper Aircraft v. Reyno, the United States has an interest “‘in ensuring that American manufacturers are deterred from producing defective products.’”
Counsel for the plaintiffs, Arthur A. Wolk of the Wolk Law Firm in Philadelphia, said in an email that the court “reiterated its longstanding holding that in considering a forum non conveniens motion against a case with international implications, consideration must be made not only of those factors which relate the case to Pennsylvania forum but also factors that justify consideration of its connections to the United States to be distinguished from the mere place of the accident, in this instance Portugal.”
Counsel for Piper, J. Bruce McKissock of Marshall Dennehey Warner Coleman & Goggin in Philadelphia, and for Honeywell, John E. Salmon of Salmon, Ricchezza, Singer & Turchi in Philadelphia, could not be reached for comment at press time.
Counsel for Continental Motors, Leigh Woodruff Marquardt of DeForest Koscelnik Yokitis Skinner & Berardinelli in Woodland Hills, Calif., declined to comment on the ruling, saying her client did not file a brief on the forum issue.
(Copies of the 25-page opinion in Bochetto v. Piper Aircraft, PICS No. 14-0924, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •