Grady, P. v. Aero-Tech Services

J-A22029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICIA B. GRADY, AS EXECUTRIX : IN THE SUPERIOR COURT OF
AND PERSONAL REPRESENTATIVE OF : PENNSYLVANIA
THE ESTATE OF STEPHEN P. GRADY :
:
Appellant :
:
:
v. :
: No. 53 MDA 2021
:
AERO-TECH SERVICES, INC. D/B/A :
AERO-TECH SERVICES AND ZACH :
HURST & DAVID PEACHEY, :
INDIVIDUALLY :
Appeal from the Order Entered December 22, 2020
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-20-03159
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: MARCH 8, 2022
Appellant, Patricia B. Grady, as executrix and personal representative of
the Estate of Stephen P. Grady, appeals from the order entered on December
22, 2020. The December 22, 2020 order sustained the preliminary objections
in the nature of a demurrer that were filed by Aero-Tech Services, Inc. d/b/a
Aero-Tech Services (“Aero-Tech”), Zach Hurst, and David Peachey
(hereinafter, collectively, “the Defendants”) and dismissed Appellant’s
complaint. We affirm.
On April 4, 2020, Appellant filed a complaint against the Defendants.
The trial court thoroughly summarized the factual allegations and averments
in Appellant’s complaint:
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[Appellant,] Patricia Grady[,] is the widow of Stephen
Grady[; Stephen Grady] died in an airplane crash on April 19,
2018. The aircraft involved in the accident which is the
subject of this litigation was a 2001 Cirrus SR22 G1,
registration number N451TD, serial number 0064 ("Cirrus
aircraft") owned and piloted by James J. Durkin, the pilot in
charge of the aircraft ("PIC Durkin"). Stephen Grady was the
only passenger on board the Cirrus aircraft on April 19, 2018.
Stephen Grady was not trained as a pilot, nor did he have
experience operating aircraft. The Cirrus aircraft was
operated solely by PIC Durkin on April 19, 2018 under the
provisions of 14 C.F.R. Part 91 as a personal flight. The Cirrus
aircraft departed the Lancaster Airport at 7:34 a.m. with a
destination of South Bend, [Indiana]. The Cirrus aircraft
crashed in rural central Pennsylvania at approximately 8:44
a.m. Prior to the commencement of the flight, PIC Durkin
filed an Instrument Flight Rules ("IFR") flight plan and he had
the appropriate certificates and recent instrument flight
experience to operate the Cirrus aircraft under IFR on the
date of the accident. The Cirrus aircraft was not certified for
flight in known icing conditions.
[In 2011, PIC Durkin began taking flight instruction with
Defendant Aero-Tech. Defendant Aero-Tech “is in the
business of providing initial and recurrent flight training
programs[,] as well as classroom training for a variety of
general aviation and business aircraft.” It employed both
Defendant Hurst and Defendant Peachey as Certificated
Flight Instructors (“CFI”).]
On September 5, 2012, PIC Durkin passed his "private pilot
check ride," which is the aerial practicum required prior to
obtaining a private pilot license. [PIC Durkin began taking
instruction for Instrument Rating certification with Defendant
Aero-Tech on September 14, 2012. This certification would
“enable him to operate an airplane during instrument
meteorological conditions.” “Most, if not all of the flight
instruction for the Instrument Rating certification was
conducted by Defendant Peachey.”]
PIC Durkin first flew the aircraft involved in the accident on
January 31, 2014 and on that same day, PIC Durkin's logbook
notes that he received instruction titled "Cirrus demo/intro."
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On April 1, 2014, Durkin passed his Instrument Rating check
ride permitting him to operate under IFR. Between January
31, 2014 and April 19, 2018, PIC Durkin's logbook contains
approximately [90] logged training flights. PIC Durkin flew
the Cirrus aircraft exclusively from April 9, 2014 until April
19, 2018. In the six months prior to the accident, PIC Durkin
received flight instruction on at least six occasions from
Defendant Peachey, Defendant Hurst, or other unknown
instructors employed by Defendant Aero-Tech.
The Cirrus aircraft was equipped with an S TEC 55 autopilot
and with a Cirrus Ballistic Parachute System known as
["CAPS"]. [CAPS] is designed to prevent uncontrolled flight
into terrain in the event of serious and unrecoverable control
issues during flight. [CAPS] consists of a ballistic rocket-fired
parachute that extracts a large, rotund parachute attached
to the airframe of the aircraft. When utilized properly,
[CAPS] has been shown to drastically reduce pilot and
passenger fatalities. The Pilot's Operating Handbook ("POH")
for the Cirrus aircraft at "Normal Procedures, Pre-flight walk-
around" states at item 1 to remove the safety pin on the CAPS
activation handle. The removal of the safety pin from the
CAPS activation handle is the first step that must be taken by
a pilot when entering the cabin and beginning the preflight
check of the aircraft. The POH for the Cirrus aircraft also
states at the "Before Starting Engine" checklist to verify the
removal of the safety pin from the CAPS handle. After the
pilot completes preflight actions and when the aircraft is
ready for departure, the POH for the Cirrus aircraft lists as
the first item on the "before takeoff checklist" to verify that
the pin has been removed from the CAPS handle. The
wreckage of the Cirrus aircraft showed that the safety pin
remained in the CAPS parachute handle, exhibiting that PIC
Durkin did not remove the pin when executing his preflight
checklist. Accordingly, [CAPS] was not able to be activated
by PIC Durkin prior to impact.
The Cirrus Flight Operations Manual for instructors provides
that if the pilot has loss of aircraft control, the pilot must
immediately[:] 1) attempt manual recovery if able, or 2)
engage autopilot if within limits, or 3) activate CAPS. On April
19, 2018, PIC Durkin was unable to manually recover control
after losing control of the Cirrus aircraft in a left turn. PIC
Durkin did not engage the autopilot, nor did he activate the
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CAPS after losing control of the Cirrus aircraft in the left turn.
...
[Appellant alleged] that Defendants Peachey and Hurst failed
to teach [CAPS] to PIC Durkin and that[,] had Defendants
Peachey and Hurst correctly taught [CAPS] to PIC Durkin, PIC
Durkin would have had the option of immediately deploying
the lifesaving CAPS [] when he lost control of the Cirrus
aircraft in the left turn on April 19, 2018. [Appellant] also
[alleged] that had either Defendant Peachey or Defendant
Hurst taught PIC Durkin to engage the autopilot in loss of
control situations, the fatal accident on April 19, 2018 would
not have occurred.
Trial Court Opinion, 5/1/21, at 3-5.
Appellant claimed that the Defendants were negligent in that they failed
to properly instruct PIC Durkin in the use and operation of both CAPS and the
autopilot on the Cirrus aircraft and that Defendant Aero-Tech was negligent in
failing to ensure that its flight instructors were qualified to train PIC Durkin in
the use of CAPS.
The Defendants filed preliminary objections to Appellant’s complaint. As
is relevant to the current appeal, the Defendants claimed that Appellant’s
complaint failed to set forth a valid cause of action and must be dismissed, as
the complaint solely alleged that the Defendants committed educational
malpractice – which is a tort that is not recognized in Pennsylvania. See
Defendants’ Preliminary Objections, 4/29/20, at 5-6.
On December 22, 2020, the trial court sustained the Defendants’
preliminary objection in the nature of a demurrer and dismissed Appellant’s
complaint. Trial Court Order, 12/22/20, at 1-2. As the trial court held:
“[Appellant’s] complaint fails as a matter of law as it is solely based upon a
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theory of educational malpractice against the Defendants. Pennsylvania
courts have not permitted cases of negligence resulting from alleged
educational malpractice to persist.” Id. at 1 n.1.
Appellant filed a timely notice of appeal; Appellant raises one claim to
this Court:
Whether the [trial court] erred in granting Defendant[s’]
preliminary objections in the nature of a demurrer when all
of the well-pled facts support a legally sufficient cause of
action sounding in negligence, where the educational
malpractice doctrine should not be applied to specialized
training for ultra-hazardous activities and when public policy
supports holding such training facilities accountable for failing
to adequately train pilots resulting in fatalities that would
otherwise be avoided[?]
Appellant’s Brief at 6 (some capitalization omitted).
We have stated:
A preliminary objection in the nature of a demurrer is
properly sustained where the contested pleading is legally
insufficient. Preliminary objections in the nature of a
demurrer require the court to resolve the issues solely on the
basis of the pleadings; no testimony or other evidence
outside of the complaint may be considered to dispose of the
legal issues presented by the demurrer. All material facts set
forth in the pleading and all inferences reasonably deducible
therefrom must be admitted as true.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents
and exhibits attached thereto, in order to evaluate the
sufficiency of the facts averred. The impetus of our inquiry
is to determine the legal sufficiency of the complaint and
whether the pleading would permit recovery if ultimately
proven. This Court will reverse the trial court's decision
regarding preliminary objections only where there has been
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an error of law or abuse of discretion. When sustaining the
preliminary objections will result in the denial of claim or a
dismissal of suit, the preliminary objections may be sustained
only where the case is free and clear of doubt.
Hill v. Ofalt, 85 A.3d 540, 547-548 (Pa. Super. 2014) (quotation marks,
citations, and corrections omitted).
On appeal, Appellant acknowledges: that her negligence claims sound
in educational malpractice; that Pennsylvania courts have not recognized
negligence claims sounding in educational malpractice; and, that Pennsylvania
law does not permit educational malpractice claims to succeed against
traditional educational institutions. See Appellant’s Brief at 17, 26, and 48.
Nevertheless, Appellant contends that she has stated a valid cause of action
because students, such as PIC Durkin, pay flight schools to teach them a
precise activity, which Appellant contends is ultrahazardous, and because
Appellant specifically alleged that: the accident was caused by PIC Durkin’s
failure to engage CAPS; the Defendants were negligent in failing to teach CAPS
to PIC Durkin; and, Defendant Aero-Tech was negligent in failing to ensure
that its flight instructors were qualified to train PIC Durkin in the use of CAPS.
See Appellant’s Brief at 17, 20, 47, and 49.
Appellant’s claims fail for the reasons stated in the well-written and
scholarly opinion of the able trial court judge, the Honorable Leonard G.
Brown. Therefore, we affirm on the basis of Judge Brown’s thorough, March
1, 2021, opinion and adopt it as our own. In any future filing with this or any
other court addressing this ruling, the filing party shall attach a copy of Judge
Brown’s March 1, 2021 opinion.
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Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/8/2022
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