J-S02017-17

                             2017 PA Super 102



CHINWEIFENU OKEKE-HENRY                       IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

SOUTHWEST AIRLINES, CO.

                        Appellee                  No. 1410 EDA 2016


                Appeal from the Order Entered April 1, 2016
           In the Court of Common Pleas of Philadelphia County
           Civil Division at No: December Term, 2015 No. 1420


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

OPINION BY STABILE, J.:                            FILED APRIL 13, 2017

     Appellant, Chinweifenu Okeke-Henry, appeals from the April 1, 2016

order entered in the Court of Common Pleas of Philadelphia County, granting

judgment on the pleadings in favor of Appellee, Southwest Airlines Co.

(“Southwest”). Following review, we vacate and remand.

     Appellant filed a complaint on December 16, 2015, alleging she was

injured when she was struck in the head by a suitcase carried by another

passenger while boarding a Southwest flight in Denver, Colorado on

December 16, 2013. In her Complaint, Appellant alleged that:

     8. [Appellant’s] injuries resulted from the actions and inactions
     of [Southwest], which were careless, negligent, or reckless in
     that [Southwest]:

        a) failed to properly monitor and oversee the boarding
           process on its aircraft;
J-S02017-17


          b) failed to properly train its employees to protect its
             passengers’ safety during the boarding process;

          c) failed to properly supervise its employees during the
             boarding process; and

          d) failed to otherwise ensure that its passengers would not
             be injured in the boarding process.

Appellant’s Complaint at ¶ 8.

         Southwest filed a responsive pleading denying Appellant’s injuries

were caused by Southwest and asserting various affirmative defenses,

including preemption under the Federal Aviation Act (“FAA”), 49 U.S.C.A.

§ 40101 et seq. Southwest’s Answer and New Matter, 1/25/16, at ¶¶ 8-9,

32-33.

       On February 17, 2016, Southwest filed a motion for judgment on the

pleadings, asserting the pleadings were closed in light of Appellant’s failure

to file a reply to Southwest’s new matter and contending Southwest was

entitled to judgment on the pleadings because Appellant’s claims were

preempted by the FAA.          Motion for Judgment on the Pleadings, 2/17/16.

Later that day, Appellant filed her reply to Southwest’s new matter,

“specifically den[ying] that [Appellant’s] claims are barred or limited in any

way.” Appellant’s Reply to New Matter, 2/17/16, at ¶¶ 32-33.1

____________________________________________


1
  Appellant suggests that her de minimis delay in filing the reply to new
matter should not play any role in the disposition of the motion for judgment
on the pleadings. It is clear from the record that neither the trial court nor
Southwest contends otherwise. As Southwest notes, even if Appellant had
(Footnote Continued Next Page)


                                           -2-
J-S02017-17


      On March 7, 2016, Appellant filed a response in opposition to

Southwest’s motion for judgment on the pleadings, denying that her claims

were preempted by the FAA, claiming the FAA’s preemption did not prohibit

state law remedies but merely required assertion of a standard of care under

the FAA, and contending that she intended to file a motion to amend her

complaint to reference the standard of care applicable under the FAA.

Appellant’s Response in Opposition, 3/7/16, at ¶¶ 1, 7, 13.

      On April 1, 2016, the trial court granted Southwest’s motion for

judgment on the pleadings. As of that time, Appellant had not sought leave

to amend her complaint.

      On April 12, 2016, Appellant filed a motion for reconsideration, again

contending that “the FAA’s preemption does not prohibit other remedies

under state common law; it only requires that claimants allege the violation

of federal standards of care as established under the FAA.”      Appellant’s

Motion for Reconsideration, 4/12/16, at ¶ 12. Appellant also reiterated that

she was in a position to file an amended complaint; that the filing of an

amended complaint would remedy any defect in her complaint; and that she

had indicated her desire to amend her complaint. Id. at 14-16. She argued

that dismissal of her complaint was “an unduly severe and [] inappropriate

course of action when merely alleging the appropriate standard of care in an
                       _______________________
(Footnote Continued)

timely filed her reply, Southwest would have proceeded with its motion as
soon as the pleadings were closed.



                                            -3-
J-S02017-17


amended complaint would remediate any defect alleged by [Southwest].”

Id. at 19. She asked that the trial court vacate its order and allow her “the

right to amend her complaint as requested” in her response in opposition to

Southwest’s motion for judgment on the pleadings.           Id., Prayer for Relief.

However, at no time did Appellant seek leave to amend her complaint, nor

did she identify the standard of care she would allege under the FAA.

       By order entered April 18, 2016, the trial court denied Appellant’s

motion for reconsideration. This timely appeal followed. The trial court did

not direct Appellant to file a statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

       The trial court issued an opinion on August 2, 2016, explaining that

“[t]he decision as to whether a state cause of action is preempted by federal

law is a question of law to be decided by the court.” Trial Court Opinion,

8/2/16, at 3 (citation omitted).        The trial court indicated that “[w]hile the

courts have found that traditional state and territorial law remedies continue

to exist for violation of those standards, the plaintiff must allege the

violation of federal standard of care as established under the FAA.”           Id.

(citing Abdullah v. American Airlines, Inc., 181 F.3d 363, 371 (3d Cir.

1999)).2 The trial court acknowledged Appellant’s assertion that she could

cure the failure to include the applicable federal standards by filing an
____________________________________________


2
  In Abdullah, the Third Circuit found that the FAA and its implementing
regulations preempted “the entire field of aviation safety[.]” Id. at 365.



                                           -4-
J-S02017-17


amended complaint, “but [she] has failed to do so.”       Id.     In light of its

determination that Appellant’s negligence claims were federally preempted,

the trial court concluded that judgment on the pleadings was properly

entered in favor of Southwest. Id.

      Appellant presents the following question for our review:

      1. Did the trial court commit an error of law when it granted
         [Southwest’s] motion for judgment on the pleadings
         dismissing Appellant’s claims in their entirety and denying
         Appellant an opportunity to file a motion to amend her
         complaint to cure a trivial defect which did not prejudice
         [Southwest] or otherwise affect the substantial rights of the
         parties?

Appellant’s Brief at 4.

      As this Court has recognized:

      Entry of judgment on the pleadings is appropriate when there
      are no disputed issues of fact and the moving party is entitled to
      judgment as a matter of law. Our scope of review is plenary and
      we will reverse only if the trial court committed a clear error of
      law or if the pleadings disclose facts that should be submitted to
      a trier of fact. We accept as true all well-pleaded allegations in
      the complaint.

Kennedy v. Consol Energy, Inc., 116 A.3d 626, 631 (Pa. Super. 2015)

(citations and quotations omitted).

      As a preliminary matter, we observe that the question of whether the

FAA preempts claims of negligence relating to boarding an aircraft is an

issue of first impression in this Court.    Our review of the case law has

revealed no case in either this Court or the Pennsylvania Supreme Court

addressing FAA preemption of state negligence claims under circumstances


                                      -5-
J-S02017-17


even remotely similar to the case before us.3 As reflected above, the trial

court looked to the Third Circuit’s 1999 decision in Abdullah4 and concluded

that Appellant’s claims were federally preempted.

        In Abdullah, the Third Circuit concluded that the FAA’s standards of

care preempted the negligence claims of passengers injured due to in-flight

turbulence, but that the FAA did not preempt state law remedies. Id., 181

F.3d at 375. More recently, the Third Circuit concluded that the FAA’s claim

preemption was not without limits. Elassaad v. Independence Air, Inc.,

613 F.3d 119 (3d Cir. 2010).             In Elassaad, a disabled passenger was

injured while disembarking an airplane.          The court rejected the airline’s

contention that the claim was preempted by the FAA and the Air Carrier

Access Act (“ACAA”),5 which was passed in 1986 as an amendment to the

FAA. The court explained:

        Although we stated in Abdullah v. American Airlines, Inc.,
        181 F.3d 363, 365 (3d Cir.1999), that the Aviation Act preempts
____________________________________________


3
  In Shay v. Flight C Helicopter Service, Inc., 822 A.2d 1 (Pa. Super.
2003), which involved a helicopter crash that resulted in fatalities, this Court
mentioned Abdullah in reference to the appellants’ preemption issue but did
not analyze preemption and found it waived in light of the appellants’ failure
to develop any argument on the issue. Id. at 16.
4
  We recognize that decisions of the lower federal courts and courts of others
states may have persuasive, but not binding, authority on this Court. See
Gongloff Contracting, L.L.C. v. L. Robert Kimball & Assoc., Architects
and Engineers, Inc., 119 A.3d 1070, 1078 n. 6 (Pa. Super. 2015).
5
    49 U.S.C.A. § 41705 et seq.




                                           -6-
J-S02017-17


       “the entire field of aviation safety” from state regulation, we hold
       that the “field of aviation safety” does not include a flight crew’s
       oversight of the disembarkation of passengers once a plane has
       come to a complete stop at its destination. Abdullah therefore
       does not control the instant case. We also hold that the Aviation
       Act and the regulations promulgated thereunder do not preempt
       state tort law with respect to such negligence claims.

Id. at 121. After analyzing the standard of care under the FAA, the court

determined:

       [W]e conclude that the aircraft was not being operated for the
       purpose of air navigation at the time of Elassaad’s accident, and
       thus that the standard of care provided by § 91.13(a)[6] did not
       apply to this situation. By the time of the accident, the aircraft
       had landed, taxied to the gate, and come to a complete stop;
       the crew had already opened the door and lowered the plane’s
       stairs; and all of the passengers other than Elassaad had
       deplaned. [T]he statutory and regulatory definitions of “operate”
       state that a plane is only being operated, within the meaning of
       § 91.13(a), when it is being “use[d]” for “navigation,” and the
       Aviation Act’s definitions of “navigate aircraft” and “air
       navigation facility” demonstrate that the term “navigation”
       principally applies to the takeoff and landing of an aircraft, and
       the “piloting” that occurs during the flight. These definitions
       contemplate a flight crew’s interaction with an aircraft and with
       passengers who are on the aircraft. By contrast, we conclude
       that a flight crew’s oversight of the disembarkation of
       passengers—after a plane has finished taxiing to the gate, and
       its crew has opened the aircraft’s door and lowered its stairs—
       does not constitute “operations for the purpose of air
       navigation.”

Id. at 130 (emphasis added). Further:

       The statutory and regulatory framework of the Aviation Act thus
       provides no evidence of any intent—much less a “clear and
____________________________________________


6
  14 C.F.R. § 91.13(a) provides: “(a) Aircraft operations for the purpose of
air navigation. No person may operate an aircraft in a careless or reckless
manner so as to endanger the life or property of another.”



                                           -7-
J-S02017-17


     manifest” intent—to regulate safety during disembarkation. In
     Abdullah, we concluded that, given the overwhelming number
     of relevant Aviation Act safety regulations, the Aviation Act
     preempted the field of aviation safety.       Here, there is no
     indication that either Congress or the FAA intended that federal
     law would impose a legal duty in an area that is neither
     specifically regulated by federal law nor clearly governed by a
     general federal standard of care: the assistance provided to
     passengers during their disembarkation. Accordingly, we
     conclude that the Aviation Act and its safety regulations do not
     preempt state law standards of care in this negligence action.

Id. at 131.

     We find that Appellant’s claim is more akin to that in Elassaad than in

Abdullah. The Southwest plane had not moved from the gate and was in

the boarding process when Appellant was struck in the head by a suitcase

carried by an unidentified passenger. Appellant does not suggest that she or

the passenger had enlisted the assistance of a flight attendant, that the

unidentified passenger was having any difficulty managing his carry-on bag,

or even that the passenger was attempting to stow the bag in an overhead

bin. There is no basis for concluding that the incident occurred in the course

of the operation of the aircraft so as to come under the FAA’s preemption

umbrella.     Consequently, we find the trial court erred in determining that

Appellant’s claims were federally preempted.

     Having determined that the trial court erred in finding preemption, we

next consider whether the court committed a clear error of law in granting

judgment on the pleadings.      Again, “[w]e accept as true all well-pleaded

allegations in the complaint.” Kennedy, 116 A.3d at 631.


                                     -8-
J-S02017-17


       As reflected in Paragraph 8 of Appellant’s Complaint quoted above,

Appellant alleged that she was injured because Southwest was negligent in

failing to oversee the boarding process, in failing to train and supervise its

employees with regard to the boarding process, and in failing to ensure the

safety of passengers during boarding. Appellant’s Complaint at ¶ 8. Absent

the protection of preemption and accepting Appellant’s allegations as true, it

cannot be said at this juncture that Southwest’s “right to succeed is certain

and the case is so free from doubt that [a] trial would clearly be a fruitless

exercise.”       Rourke      v.   Pennsylvania   National   Mutual    Casualty

Insurance Co., 116 A.3d 87, 91 (Pa. Super. 2015).           (citation omitted)).

Therefore, we are constrained to reverse the grant of judgment on the

pleadings and remand to the trial court for further proceedings.

       Order vacated. Case remanded for further proceedings consistent with

this Opinion. Jurisdiction relinquished.7


____________________________________________


7
  It merits mention that Appellant suggested for the first time in her Reply
Brief that the FAA’s general standard of care codified in 14 C.F.R. § 91.13(a)
(see n. 6, supra), is implicated in her case as is 14 C.F.R. § 121.589
relating to the size and stowing of carry-on baggage. Reply Brief at 1-2.
She also, for the first time, suggested that her claims were not preempted
by the FAA after previously conceding that they were and acknowledging
that an amendment to her complaint was necessary to salvage her claims.
Id. at 2-3. In doing so, she reversed the position taken not only in her
response in opposition to Southwest’s motion for judgment on the pleadings
and her brief in support, but also in her motion for reconsideration and her
brief in support, as well as in her merits brief filed with this Court.

(Footnote Continued Next Page)


                                           -9-
J-S02017-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




                       _______________________
(Footnote Continued)

In Southwest’s Sur-Reply Brief, which was filed pursuant to our January 4,
2017 Order granting Southwest’s application for leave to file a sur-reply brief
to address waiver, Southwest asks us to find that Appellant’s “belated
identification of a purported violation of a federal standard of care and her
attempt to reverse her position concerning federal preemption of state-law
standards of care are waived.” Southwest’s Sur-Reply Brief at 1. Finding
that Southwest’s assertions have merit, we conclude that Appellant did not
properly preserve the arguments she raised for the first time in her Reply
Brief and, therefore, those arguments are waived. Nevertheless, we shall
not ignore persuasive authority, such as Elassaad, supra, or fail to consider
its possible application to this case.

Further, we recognize that Appellant conceded in her Reply Brief that the
passenger with the offending suitcase was never identified. While that fact
may ultimately result in Appellant’s inability to prove her case against
Southwest, our standard of review requires that her claims survive a motion
for judgment on the pleadings.




                                           - 10 -
