J-A03021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES DIETZ, ADMINISTRATOR OF THE : IN THE SUPERIOR COURT OF ESTATES OF JOHN KENNETH LALLO, : PENNSYLVANIA SR., DECEASED AND DIANA CHRISTINE : CEO LALLO, DECEASED, JOHN K. LALLO, : JR., MELISSA LALLO-JOHNSON, ERICA : HOAR AND SAMANTHA LALLO : : : v. : No. 645 EDA 2021 : : AVCO CORPORATION, LYCOMING : ENGINES, AVCO LYCOMING-TEXTRON : WILLIAMSPORT, CONTINENTAL : MOTORS, INC., TELEDYNE : CONTINENTAL MOTORS, INC., BENDIX : CORPORATION, UNISON INDUSTRIES, : LLC, UNISON INDUSTRIES, INC., : ALLIED-SIGNAL, INC., HONEYWELL : INTERNATIONAL, INC., INTERFACE : PERFORMANCE MATERIALS, INC., : INTERFACE SOLUTIONS, INC., NEW ISI, : INC. AND QUALITY AIRCRAFT : ACCESSORIES, INC. : : : APPEAL OF: CONTINENTAL MOTORS, : INC. (INCORRECTLY ALSO NAMED AS : TELEDYNE CONTINENTAL MOTOR, INC., : IN THIS ACTION) : : :
Appeal from the Judgment Entered January 14, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 150702501
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 26, 2022
Appellant, Continental Motors, Inc. (“Continental”), appeals from the
January 14, 2021 entry of judgment in this products liability action brought J-A03021-22
by the representative of the estates of John Kenneth Lallo, Sr. (“Mr. Lallo”)
and Diana Christine Ceo Lallo (“Mrs. Lallo”) (collectively “the Lallos”), and
their surviving children, Melissa Lallo-Johnson, Erica Hoar, and Samantha
Lallo (collectively “Appellees”). After careful review, we affirm the jury’s
verdict and damages award. Having concluded, however, that the trial court
erroneously awarded delay damages for Appellees’ survival claims, we
vacate the judgment in favor of Appellees’, and remand for the trial court to
reduce the judgment by the amount of delay damages it awarded for
Appellees’ survival claims.
On August 18, 2013, Mr. Lallo, a licensed pilot, and Mrs. Lallo arrived
at an airport in Kansas City, Missouri, for a return flight to their home in
Ohio. Mr. Lallo fueled his aircraft and conducted routine pre-flight
inspections. After receiving clearance from air traffic control, the Lallos’
aircraft proceeded down the runway and began its ascent before its engine
suddenly lost power. The aircraft momentarily stopped climbing and started
to descend, prompting Mr. Lallo to declare an emergency situation.
Mr. Lallo was then able to restore power to the engine, and the aircraft
began a second ascent. About 12 seconds later, Mr. Lallo reported that he
was “okay.” Shortly thereafter, Mr. Lallo again reported an emergency and
an air traffic controller cleared him to land. Mr. Lallo was, however, unable
to land the aircraft safely; it crashed in a field not far from the airport, killing
the Lallos upon impact.
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Appellees commenced this design defects products liability action
against numerous defendants, including Continental as successor in interest
to the manufacturer of the engine on the Lallos’ aircraft.1 Relevantly,
Appellees asserted claims for strict liability, negligence, breach of warranty,
and negligent infliction of emotional distress. Primarily at issue was the
cause of the loss of power to the aircraft’s engine.2
Prior to trial, Continental filed a Motion in Limine requesting that the
trial court apply the substantive products liability law of Ohio to this action,
and, in particular, Ohio’s ten-year statute of repose, which, if applied, would
bar Appellees’ products liability claims. The trial court denied the motion,
concluding instead that Alabama products liability law applied.3
____________________________________________
1 In December 1986, Appellant purchased the assets of the general aviation
ignition system product line from the Bendix division of Allied Signal. The engine on the Lallos’ aircraft was manufactured in New York in 1979 by Bendix.
2 Appellees alleged that the single drive dual magneto design in the engine
was defective in that it is prone to single point failures, such as rotor drag, and that a failure of the magneto attachment point caused the engine to change timing, which resulted in the Lallos’ engine losing power. See Trial Ct. Op., 5/24/21, at 3. Continental asserted that the Lallos’ engine lost power because water contaminated its fuel through penetration into the plane’s wing fuel fill caps. See id.
3 Appellant’s principal place of business is Mobile, Alabama.
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The jury trial commenced on July 8, 2019,4 and concluded more than
one month later on August 16, 2019. At the close of evidence, the court
submitted to the jury eighteen special interrogatories on the verdict sheet.
Following their deliberation, the jury found in favor of Appellees. The jury
concluded that: (1) the engine’s single drive dual magneto, a component of
the engine’s ignition system,5 was defectively designed and that this defect
was the factual cause of the crash that killed the Lallos; (2) Continental’s
negligence was a factual cause leading to the Lallos’ deaths; (3) the
magneto was changed or modified by non-party Quality Aircraft Accessories
(“QAA”) after it left Continental’s place of manufacture but before the Lallos’
crash, and that this change or modification contributed to the accident; and
(4) Mr. Lallo’s negligence was a contributing factor to the crash. The jury
did not find that Continental’s conduct under a failure to warn theory was a
factual cause of the crash. The jury determined that Continental was 70%
at fault and that Top Gun Aviation, QAA, and Mr. Lallo were each 10%
responsible, and awarded $2,000,000 to each estate for wrongful death and
$2,500,000 to each estate for survival damages.6 ____________________________________________
4 This was the second trial in this matter. The first trial ended in a mistrial when the number of jurors fell below 12.
5See N.T., 7/18/19 PM, at 433-35 (testimony by Appellees’ expert, Mark Seader, explaining magneto function in an airplane engine).
6 Neither Top Gun Aviation nor QAA, entities who had performed work on the
Lallos’ aircraft, were parties to the litigation. However, based on the facts of (Footnote Continued Next Page)
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Appellant filed a timely Post-Trial Motion, which the trial court denied
in part and granted in part to mold the verdict to reflect the jury’s finding
that Mr. Lallo negligence contributed to the accident.7 Appellees then filed a
Motion for Delay Damages.
While Appellees’ Motion for Delay Damages was pending, Continental
appealed from the jury’s verdict. On July 27, 2020, the trial court denied
Appellees’ motion for delay damages without prejudice in light of the
pendency of Continental’s appeal.
Appellees then filed an application to quash Continental’s appeal as
interlocutory, which this Court granted on October 28, 2020. See Dietz v.
AVCO, No. 1411 EDA 2020 (Pa. Super. filed Oct. 28, 2020).
Following remand, on October 30, 2020, Appellees re-filed their Motion
for Delay Damages. The court held argument on the motion, and, on
January 14, 2021, the trial court awarded Appellees damages for delay in
the amount of $1,390,077.44 and entered judgment in the total amount of
$9,940,077.44.
This appeal followed. Both Appellant and the trial court have complied
with Pa.R.A.P. 1925.
(Footnote Continued) _______________________
this case and Appellant’s defenses of superseding/intervening causes, they appeared on the verdict sheet.
7 The trial court left the jury’s $4,500,000 award to the Estate of Diana C. Lallo to stand in full and reduced the award to the Estate of John K. Lallo, Sr. by 10% to $4,050,000 to reflect the jury’s finding of his comparative fault.
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Appellant raises the following six issues on appeal:
I. Did the trial court err in determining that Alabama law applied to questions of liability and that [Appellees’] claims are not barred by the Ohio statute of repose applicable to products liability actions?
II. Did the trial court err in determining that Ohio law did not bar [Appellees’] claims and/or their right to recover damages?
III. Did the trial court err in determining that Alabama law did not bar [Appellees’] claims?
IV. Did the trial court err in determining that the General Aviation Revitalization Act of 1994 (“GARA”) did not bar [Appellees’] claims?
V. Did the trial court err in determining that Continental was not entitled to a new trial?
VI. Did the trial court err in determining that [Appellees’] were entitled to recover delay damages?
Continental’s Brief at 4-5.
Standard of Review
Continental’s issues challenge the trial court’s denial of Continental’s
post-trial motion for judgment notwithstanding the jury’s verdict (“JNOV”).
We review the denial of a request for JNOV for an error of law that controlled
the outcome of the case or an abuse of discretion. Hutchinson v. Penske
Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. 2005). In this context,
an “[a]buse of discretion occurs if the trial court renders a judgment that is
manifestly unreasonable, arbitrary or capricious; that fails to apply the law;
or that is motivated by partiality, prejudice, bias or [ill will].” Id.
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When reviewing the denial of a request for JNOV, the appellate court
examines the evidence in the light most favorable to the verdict winner.
Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 569 (Pa. Super. 2006)
(citation omitted). Thus, “the grant of [JNOV] should only be entered in a
clear case[.]” Id. (citation omitted).
There are two bases upon which a movant is entitled to JNOV: “one,
the movant is entitled to judgment as a matter of law, and/or two, the
evidence was such that no two reasonable minds could disagree that the
outcome should have been rendered in favor of the movant.” Rohm and
Haas Co. v. Continental Cas. Co., 781 A.2d 1172, 1176 (Pa. 2001)
(citation omitted). When an appellant challenges a jury’s verdict on this
latter basis, we will grant relief only “when the jury’s verdict is so contrary to
the evidence as to shock one’s sense of justice.” Sears, Roebuck & Co. v.
69th St. Retail Mall, L.P., 126 A.3d 959, 967 (Pa. Super. 2015).
Issue I: Choice of Law
In its first issue, Continental alleges that the trial court erred in
applying Alabama and not Ohio product liability law to Appellees’ claims.
Continental’s Brief at 24-31.
To determine whether Ohio or Alabama law applies to the current
dispute, we apply Pennsylvania choice of law principles, which use a
combination of the “government interest” analysis and the “significant
relationship” approach of Section 145 of the Restatement (Second) of
Conflicts. Griffith v. United Air Lines, Inc., 203 A.2d 796, 805-06 (Pa.
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1964). By using this hybrid test, courts can analyze “the policies and
interests underlying the particular issue before the court.” Id. at 805.
Section 145(2) of the Restatement (Second) of Conflicts sets forth the
factors the court should consider in conducting the analysis required under
Griffith. The factors include: (1) the place where the injury occurred; (2)
the place where the conduct causing the injury occurred; (3) the domicile,
residence, nationality, place of incorporation, and place of business of the
parties; and (4) the place where the relationship, if any, between the parties
is centered. Restatement (Second) of Conflict of Laws § 145 (1983).
Under Pennsylvania choice of law rules, we first look to see if a true
conflict exists between the states’ laws. Stange v. Janssen Pharm., Inc.
179 A.3d 45, 65 (Pa. Super. 2018). “A true conflict occurs where an
analysis of the policies underlying each of the conflicting laws reveals that, in
each case, application of the respective state’s law would further its
corresponding policy. If a true conflict exists, we then proceed to determine
which jurisdiction has the greater interests, considering the qualitative
contacts of the states, the parties and the controversy.” Id. (citing Marks
v. Redner’s Warehouse Markets, 136 A.3d 984, 988 (Pa. Super. 2016)
(internal citations omitted)).
Choice of law analysis is limited to conflicts of substantive law.
Wilson v. Transport Ins. Co., 889 A.2d 563, 571 (Pa. Super. 2005).
“Substantive law is the portion of the law which creates the rights and duties
of the parties to a judicial proceeding, whereas procedural law is the set of
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rules which prescribe the steps by which the parties may have their
respective rights and duties judicially enforced.” Ferraro v. McCarthy-
Pascuzzo, 777 A.2d 1128, 1137 (Pa. Super. 2001).
Continental asserts that both the “governmental interest” and the
“significant relationship” analyses required the court to apply Ohio law to
Appellees’ liability and damages issues. Continental’s Brief at 26. It argues
that Alabama has no interest in applying its product liability laws to a lawsuit
about a product that is not manufactured or designed in Alabama and used
by parties who reside in Ohio. The lawsuit further involves conduct of the
parties that occurred in Ohio. Id. It also argues that Alabama has no
contacts with this case other than as Continental’s principal place of
business. Id. at 30. It further argues that Ohio has a strong interest in
applying its 10-year statute of repose to product liability claims involving
injuries to its residents based on a product that was stored, maintained, and
used in Ohio prior to the accident, and that Alabama has no interest in
applying its “plaintiff-friendly” rule to claims arising from the deaths of Ohio
residents outside of Alabama. Id. at 26, 29-30-31.
Instantly, the trial court considered the laws of Ohio and Alabama8 to
determine whether there was a true conflict between them. The court
8 The court also considered whether the law of Pennsylvania or Missouri, the
site of the accident, applied and determined that they did not. Since Appellant has not asserted that the court erred in declining to apply (Footnote Continued Next Page)
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concluded that it was “readily apparent” that a true conflict exists between
Ohio’s law, which has a statute of repose for product liability cases, and the
law of Alabama, which does not have a statute of repose. Trial Ct. Op.,
5/23/18, at 3. Thus, the court proceeded to consider which state has the
most significant relationship to the parties and the accident to determine
which state’s substantive law applies. The trial court concluded that
Continental failed to show that Ohio has a more significant relationship to
the accident than Alabama. In particular, the court concluded that
Continental’s argument that Ohio’s statute of repose, which is intended to
benefit Ohio-based businesses by limiting their liability, was “disingenuous,
as Ohio clearly lacks any interest in the application of its statutory product
liability laws to limit an out-of-state corporation’s liability.” Id. at 5.
The court explained that it found, instead, that Alabama had the “most
significant and qualitative relationship to this litigation” based on
the nature of [Continental’s] business, which places products into the stream of commerce from its home state to places all over the United States and around the world. On its website, [Continental] claims it “is a global leader in General Aviation” and “stands for excellence in products and customer service, with more than a century of reliability and innovation as our foundation.” As a manufacturer of such products, it is liable for defects causing injury regardless of where they occur. Since [Continental] is based in Alabama, employs people within the state, pays taxes within the state, seeks business to be done within that state by soliciting customers throughout the world (Footnote Continued) _______________________
Pennsylvania or Missouri law, we will not discuss the court’s reasons for excluding the laws of those states.
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and is manufacturing, assembling[,] and then shipping products from that state. Clearly [Continental] has significant and highly qualitative contact with Alabama.
Id. at 6. With respect to the statute of repose, the court opined that
“Alabama[,] in not imposing a statute of repose in regard to strict liability
claims[,] has an interest in regulating businesses conducting activities within
its borders for the time their products are in use.” Id. The court, therefore
concluded that Alabama was the jurisdiction with the “most significant
interest in defining the legal consequences in the event [that Continental] is
held liable to [Appellees].”9 Id.
We agree with the trial court’s analyses and conclusions. The trial
court thoroughly and comprehensively considered and balanced each states’
interest in the application of its laws and determined that Alabama had the
most significant interest. Thus, the court properly applied Alabama product
liability and negligence laws to Appellees’ claims.
Issue II: Appellees’ Wrongful Death and Survival Claims
In its second issue, Continental asserts that the trial court erred in not
entering JNOV because: (1) the two-year statute of limitations in Ohio’s
9 The trial court also considered which state’s economic damages laws should apply and concluded that, given the Lallos residence and significant qualitative contacts with Ohio, it would apply Ohio’s damages law. Trial Ct. Op., 5/23/18, at 7. Continental has baldly asserted that it was “illogical” for the court to apply Alabama law to Appellees’ liability claims but Ohio law to the damages issues. Continental’s Brief at 31. Without more specificity, we decline to address this argument.
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Wrongful Death Act, Ohio Rev. Code § 2125.01, et seq., bars Appellees’
recovery; (2) Appellees’ could not, as a matter of law, prevail on their
survival claims; and (3) any damages awarded for survival claims based on
“pre-impact terror” should be reduced by the amount of fault attributed to
Mr. Lallo and the non-parties. Continental’s Brief at 32-36. We address
these claims seriatim.
The Repose Period in Ohio’s Wrongful Death Act Does Not Apply
First, Continental asserts that, because the trial court determined that
Ohio law controls Appellees’ damages, the 10-year statute of repose
applicable to wrongful death actions involving product liability claims in
Ohio’s Wrongful Death Act bars Appellees’ recovery because it required
Appellees to bring their claims within two years of installation of the
magneto in the aircraft engine on October 23, 1979. Id. at 32-34 (citing
Ohio Rev. Code § 2125.02(D)(2)(a)). Continental claims that “the time
limitations contained in Ohio’s wrongful death statute cannot be stripped
away from the damages recoverable under the statute.” Id. at 34.
Ohio’s wrongful death statute includes a borrowing provision that
provides, in relevant part, as follows:
When death is caused by a wrongful act, neglect, or default in another state or foreign country, for which a right to maintain an action and recover damages is given by a statute of such other state or foreign country, such right of action may be enforced in this state. Every such action shall be commenced within the time period prescribed for the commencement of such actions by the statute of such other state or foreign country.
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Ohio Rev. Code § 2125.01.
The trial court considered Continental’s claim and, in light of its
determination that Alabama substantive law applied, explained as follows:
[T]he “wrongful acts, neglect, or default” alleged in this lawsuit occurred in Continental’s home state of Alabama. Alabama has a wrongful death act, [Ala] Code § 6-5-410, under which [Appellees] would have “a right to maintain an action and recover damages” by statute, with no applicable statute of repose. Thus, under the express terms of § 2125.01 of the Ohio Wrongful Death Act, [Appellees] would be entitled to bring a wrongful death action and recover damages for the plane crash that killed John and Diana Lallo, regardless of any provision of Ohio law to the contrary, including Ohio’s statute of repose.
Trial Ct. Op., 5/18/20, at 14.
The court continued by aptly noting that the Ohio Wrongful Death Act’s
borrowing provision “not only borrows the substantive law of the foreign
jurisdiction, i.e., Alabama, it also borrows that jurisdiction’s statutes of
limitation and repose, by specifically adopting ‘the time prescribed for the
commencement of such actions by the statute of such other state . . .’” Id.
at 15 (citing Ohio Rev. Code § 2125.01). Thus, the court concluded that
Ohio’s Wrongful Death Act had no bearing on Appellees right to recover for
wrongful death against Continental. We agree.
Survival Claims For Negligent Infliction of Emotional Distress
Continental next asserts that Appellees’ survival claims are barred
because Appellees did not establish that the Lallos suffered any personal
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injury or property damages10 and, because “pre-impact terror” is not one of
the enumerated bases for recovery of damages under Ohio’s survival
statute, Ohio law does not allow for recovery for “pre-impact terror.”
Continental’s Brief at 34-36.11
In Ohio, a survival claim may be brought by a decedent’s estate to
recover for injuries suffered by the decedent before his death. Shinaver v.
Szymanski, 471 N.E.2d 477, 482 (Ohio 1984). Ohio’s survival statute
provides: “[i]n addition to the causes of action which survive at common
law, causes of action for mesne profits, or injuries to the person or property,
or for deceit or fraud, also shall survive; and such actions may be brought
notwithstanding the death of the person entitled or liable thereto.” Ohio
Rev. Code § 2305.21. Thus, we must consider whether, in the instant
matter, Appellees asserted a claim that Ohio law recognizes as surviving the
Lallos’ deaths.
This Court’s review of Appellees’ Third Amended Complaint indicates
that at Count Fourteen of the Third Amended Complaint Appellees raised a ____________________________________________
10 It is undisputed that the Lallos did not own the aircraft that crashed resulting in their deaths.
11 It bears noting that Continental did not argue that the jury erred finding
that the Lallos suffered an emotional injury or in determining the amount of the Lallos’ non-economic damages, but rather that Ohio’s survival statute precluded Appellees’ from recovering for the Lallos’ emotional harm as a matter of law. Thus, we have not been asked, and need not consider, whether the evidence presented by Appellees to substantiate their emotional distress claim supports the jury’s verdict and award.
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claim seeking to recover for Negligent Infliction of Emotional Distress. In
that claim, Appellees asserted, inter alia, that the Lallos “experienced and
observed the accident sequence, engine power loss, and [were] within the
zone of danger of the accident” and, “[a]s a direct and proximate result of
[Continental’s] negligence and/or defective products, [the Lallos] suffered
emotional injuries during the accident sequence and post-crash fire, which
were a direct result of the accident and foreseeable to [Continental].” Third
Amended Complaint, 7/14/16, at ¶¶ 303-05.
In Ohio, claims for “psychic” injury or infliction of emotional distress
survive the death of the person upon whom the injury or distress was
inflicted. Bowman v. Parma Bd. of Educ., 542 N.E.2d 663, 671 (Ohio Ct.
App. 1988). Ohio law is, thus, clear, that its survivor statute does not
preclude Appellees from recovering, as a matter of law, for the emotional
distress suffered by the Lallos prior to their deaths. This claim does not,
therefore, garner Continental relief.
Application of Ohio’s Joint and Several Liability Law
In their final sub-issue, Continental claims that, pursuant to Ohio’s
statute on joint and several liability, the $5,000,000 total non-economic
damages awarded to Appellees for their survival claims should be reduced to
$3,500,000 to account for the 30% combined fault attributed to Mr. Lallo
and the non-parties. Continental’s Brief at 36. In support of this claim,
Continental asserts that “Ohio law requires that noneconomic damages be
reduced to account for the defendant’s proportional share.” Id. (citing Ohio
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Rev. Code § 2307.22(C) which provides, in relevant part, that where the
trier of fact determines that more than one person caused the same injury,
“each defendant . . . shall be liable to the plaintiff only for that defendant’s
proportionate share of the compensatory damages that represent
noneconomic loss.”).
Following our review of the record, including Continental’s Post-Trial
Motion, its Rule 1925(b) Statement, and the trial court’s orders and opinions
related thereto, we conclude that Appellant has raised this specific issue for
the first time on appeal. Accordingly, it is waived.12 See Pa.R.A.P. 302(a)
(“Issues not raised in the trial court are waived and cannot be raised for the
first time on appeal.”).
Issue III: Whether Alabama Law Barred Appellees’ Claims
In its third issue, Continental challenges the trial court’s denial of JNOV
asserting that Appellees did not prove their claims that Continental was
liable to them under both Alabama’s product liability and negligence laws.
Continental’s Brief at 37-46. Continental asserts two alternative arguments
in support of this issue, each with three sub-arguments.
Negligence
12 Moreover, even if Continental had not waived this issue, apportionment of
liability is a procedural issue over which the trial court properly applied Pennsylvania law. Thus, Continental’s claim that the court erred in not apportioning liability pursuant to Ohio’s joint and several liability principles lacks merit.
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First, Continental claims that the trial court erred in not entering JNOV
in its favor on Appellees’ negligence claims. In particular, Continental
asserts that Appellees failed to present expert testimony to prove that
Continental was negligent or failed to exercise due care in the design or
manufacture of the magneto. Continental’s Brief at 43-44.
Under Alabama law, to establish negligence in the product liability
context a plaintiff must prove “not only that the product at issue is defective,
but also that the manufacturer failed to exercise due care in the product’s
manufacture, design, or sale.” McMahon v. Yamaha Motor Corp. U.S.A.,
95 So.3d 769, 772 (Ala. 2012). “The jury must be persuaded that the
product at issue is defective before the plaintiff can prevail. Id. (emphasis
omitted).
Standard of Care
Continental first claims that the court erred in not entering JNOV
because Appellees failed to present expert testimony regarding the standard
of care applicable to a magneto manufacturer in 1979 or whether
Continental breached the standard of care. Continental’s Brief at 43-44.
“The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
pertinent authority.” Commonwealth v. Martz, 232 A.3d 801, 811 (Pa.
Super. 2020) (citation and bracketed language omitted). See Pa.R.A.P.
2119 (listing argument requirements for appellate briefs). This Court “will
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not act as counsel and will not develop arguments on behalf of an appellant.
Moreover, when defects in a brief impede our ability to conduct meaningful
appellate review, we may dismiss the appeal entirely or find certain issues to
be waived.” In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (citation
In its Brief, Continental fails to provide an adequate legal framework
within which this Court can conduct meaningful appellate review. Although
Continental has provided citation to legal authority, our review indicates that
the cases to which Continental cites refer generally to the elements of a
common-law product liability negligence claim, including the requirement
that a plaintiff establish that the product’s manufacturer failed to exercise
due care. Continental’s Brief at 43. Continental has not, however, provided
citation to any legal authority explaining the applicable standard of care.
Similarly, although Continental has cited to the places in the notes of
testimony where Appellees’ experts provided opinions supporting Appellees’
theory that the magneto was “simply defective because of the existence of
single point failures and the use of impulse coupling,” see id. at 44, because
Continental has not set forth the applicable standard of care, this Court is
unable to evaluate whether the trial court erred in concluding that the cited
testimony, and Appellees’ other evidence, fell short of that required to
establish the standard of care and a breach thereof. These defects preclude
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us from conducting meaningful appellate review. Accordingly, we conclude
that this issue is waived.
Substantial Modification of the Magneto by QAA
Next, Continental claims that the trial court erred in declining to enter
JNOV because the jury’s finding that QAA substantially modified the magneto
constituted a superseding and intervening cause of Appellees’ harm that
precluded them from recovering from Continental under a negligence theory.
Id. at 45.
Appellees’ negligence claims were based on their theory that
Continental designed a defective product—the magneto—in 1979 and that
the defective design caused the crash that killed the Lallos. The jury agreed
that Appellee had negligently designed a defective product. Verdict Sheet at
Nos. 1-4. The jury also found that Continental “manufactured, supplied or
distributed parts that were replaced, such as the impulse coupling,13 that are
causally related to the harm” suffered by Appellees. Id. at No. 7. In light of
Continental’s negligence, the jury attributed 70% of the liability for the crash
to Continental. Id. at No. 15.
With respect to QAA’s role in bringing about the harm suffered by
Appellees, the jury verdict sheet indicates that the jury made the following
relevant findings: (1) QAA substantially changed or modified the magneto ____________________________________________
13QAA installed the replacement impulse coupling spring in July 2013 as part of QAA’s engine overhaul.
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through the overhaul; (2) the substantial change or modification contributed
to the accident; (3) QAA did not negligently overhaul the magneto. Id. Nos.
9, 10, 14. In accordance with its findings, the jury concluded that QAA was
10% liable to Appellees for its non-negligent change or modification to the
magneto. Id. at No. 15.
In addressing this issue, the trial court observed that there was “no
evidence that the overhaul [performed by QAA], done pursuant to the
instructions of Continental, broke any chain of causation.” Trial Ct. Op.,
5/24/21, at 15 (emphasis added). We agree. Simply, QAA’s non-negligent
change or modification to the magneto during an overhaul performed
pursuant to instructions provided by Continental is not a superseding or
intervening cause in fact of Appellees’ injuries given that the jury found that
more than 40 years ago Continental designed and subsequently distributed a
defective product.
Mr. Lallo’s Negligence
Continental next asserts that the trial court erred in not granting JNOV
on Appellees’ negligence claim as to Mr. Lallo because under Alabama law,
Mr. Lallo’s contributory negligence is a complete bar to his claims.
Continental’s Brief at 45-46.
Continental’s analysis of this issue consists of a three-sentence
argument and citation to three Alabama cases supporting the legal principle
asserted. Continental has failed, however, to provide us with any legal
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analysis to support its claim that the trial court erred in applying
Pennsylvania law on this issue. Also, even assuming that Alabama law
applies, Appellant has failed to identify how Alabama defines and
distinguishes between a wrongful death and survival claim and has failed to
provide a legal analysis regarding the application of contributory negligence
to each of those claims. Simply, Continental’s bald assertion in its Brief that
the jury’s finding that Mr. Lallo was contributorily negligent bars Appellees’
negligence claim does not constitute a developed appellate argument with
respect to these complex issues. We cannot and will not develop such an
argument on Continental’s behalf. Thus, Continental has waived this issue.
In sum, we conclude that the trial court properly denied Continental’s
motion for JNOV on the jury’s verdict that Continental was negligent in its
design of the magneto.14
Issue IV: The General Aviation Revitalization Act (“GARA”)
14 Having affirmed the verdict in favor of Appellees on their negligent design
claim, we need not address Continental’s claims challenging the jury’s verdict in favor of Appellees on their product liability claim arising under the Alabama Extended Manufacturer’s Liability Doctrine because Appellees faced a lesser burden under the AEMLD. See McMahon, 95 So.2d at 772. Moreover, even if we found that the trial court erred in not granting JNOV on the product liability claim, Appellees only needed to establish one theory of liability to support the verdict, and they successfully established their negligent design theory.
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In its fourth issue, Continental asserts that the trial court erred in not
finding that the 18-year statute of repose provided in GARA, 49 U.S.C. §
40101, precluded Appellees from recovering.
The general statute of repose is set forth in GARA § 2(a) as follows:
Except as provided in subsection (b), 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 of any new component, system, subassembly, or other part of the aircraft, in its capacity as a manufacturer if the accident occurred … after the applicable limitation period [of eighteen years].
GARA § 2(a)
GARA’s rolling provision provides that
with respect to any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft, and which is alleged to have caused such death, injury, or damages, after the applicable [18-year] limitation period beginning on the date of completion of the replacement or addition.
GARA § 2(a)(2). Stated another way, the 18-year period of repose resets
when a new replacement part is installed and the part is alleged to have
caused the accident.
Continental maintained at trial, as it does on appeal, that, because the
allegedly defective aspect of the design of the magneto had been in the
marketplace for over 18 years, Appellees could not prove the applicability of
GARA’s rolling provision. Continental’s Brief at 47-49. In support of this
claim, Continental asserts that Appellees did not present any evidence that
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the impulse coupling spring installed in July 2013 as part of QAA’s overhaul
caused the magneto to loosen or rotate, resulting in loss of power to the
engine and the airplane to crash. Id. at 49. Continental also asserts that
Appellees also failed to prove that the impulse spring coupling actually
failed. Id. at 52-54. In other words, Continental claims that Appellees
failed to prove that the new part—the impulse coupling spring—was
defective and caused Appellees’ injuries.
The trial court addressed the evidence presented by Appellees in
support of their position that the installation of a new impulse coupling
spring triggered GARA’s rolling provision as follows:
During the trial [Appellees] produced evidence that the impulse coupling spring inside of the magneto was replaced with a [Continental-produced] spring several weeks before the accident and provided expert testimony that this spring’s failure caused this accident. Therefore, the jury was charged on GARA with the instruction proposed by Continental and concluded that GARA’s rolling provision effectively tolled the GARA’s statute of repose, as the Continental spring was clearly a component part of the magneto. As it being a component part, the GARA rolling provision clearly applied in this instance and Continental cannot be cleared of liability under GARA.
[Appellees’] theory against Continental was that the single drive dual magneto design was defective, in that it was prone to single point failures, such as rotor drag, and failure of the magneto attachment point which would cause the engine to change timing resulting in a loss of engine power. [Appellees’] claims against Continental [a]rose out of Continental’s role as the designer, aviation part manufacturer, and the party responsible for the continuing airworthiness of the of its products.
[Appellees’] expert witnesses testified that when the rotating magnet contacted the field, the impulse coupling allowed the magneto to retard the spark to the plane’s engine. This in turn resulted in the impulse coupling spring seizing causing the loss
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of power because the combination of the magneto and the impulse coupling allows the magneto to get out-of-sync- with the engine for the ignition timing. This then caused an intermittent loss of power and a rough running engine. The impulse coupling operated through the spring, can move the magneto independently from the engine. As the engine turns, if there is excessive friction, the spring will bind up and retard the ignition.
Trial Ct. Op., 5/24/21, at 11-12.
Our review of the record confirms the trial court’s summary of the
evidence presented by Appellees to support their claim that the magneto
design, which included the impulse coupling spring functioning as described
above, was defective and this defect caused Appellees’ injuries. The jury
credited this testimony and evidence, and we cannot and will not reweigh it,
and substitute our judgment for that of the jury. In light of the jury’s finding
that the new impulse coupling installed inside the magneto just weeks
before the accident was defective and caused the accident, the trial court did
not err when it found that GARA’s rolling provision tolled the statute of
repose. Accordingly, Continental is not entitled to relief on this claim.15
Issue V: Continental is Not Entitled to a New Trial
15 Continental also asserts that the court erred in addressing Appellees’ “binding theory” with respect to the trigger of GARA’s rolling provision because this theory represented a new cause of action raised by Appellees after the statute of limitations had expired. Continental’s Brief at 50-51. We decline to address this claim as Continental did not include it in its Statement of Questions Involved and it is not fairly suggested thereby; thus, it is waived. See Pa.R.A.P. 2116 (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”).
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In its fifth issue, Continental contends that the trial court should have
granted it a new trial because the court erred in admitting certain evidence.
Continental’s Brief at 54-57.
The grant of a new trial is within the discretion of the trial court.
Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998). It is appropriate to grant
a new trial “in those instances where the original trial, because of taint,
unfairness or error, produces something other than a just and fair result,
which, after all, is the primary goal of all legal proceedings.” Harman ex
rel. Harman v. Borah, 756 A.2d 1116, 1121 (Pa. 2000) (citation omitted).
Absent a clear abuse of discretion, a trial court’s decision to grant or deny a
new trial will not be disturbed. Id. at 1121-22.
In its evaluation of whether to grant a new trial, a trial court must first
decide whether a mistake was made at trial. Id. at 1122. If it concludes
that a mistake occurred, then the court must determine whether the mistake
is a sufficient basis for granting a new trial. Id. “A new trial is not
warranted merely because some irregularity occurred during the trial or
another trial judge would have ruled differently; the moving party must
demonstrate to the trial court that he or she has suffered prejudice from the
mistake.” Id.
“In order to warrant a new trial, the error complained of must be such
as to prejudice a party’s case in the eyes of the jury and thus prevent a just
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and fair decision being made by the jury.” Pollock Indus., Inc. v. General
Steel Castings Corp., 201 A.2d 606, 612 (Pa. Super. 1964).
NTSB Probable Cause Determination
Continental first claims that Appellees improperly elicited from
Continental’s pilot expert, Gregory Feith, testimony that the National
Transportation Safety Board (“NTSB”) did not say that Mr. Lallo violated 14
C.F.R. § 91.7, the federal regulation that prohibits the operation of
unairworthy aircraft.16 Continental’s Brief at 54-55. Continental asserts this
testimony implicated the NTSB’s “probable cause determination,” use of
which the parties agree federal law prohibits in civil tort litigation. Id. at 54.
Continental argues that, once Mr. Feith testified as described above, the trial
court erred when it refused to permit Continental to present further
testimony or evidence regarding the probable cause determination since
Appellees had “opened the door” to that evidence. Id. It asserts that this
evidentiary error prejudiced it by “leav[ing] the jury with the inference that
the NTSB determined that Mr. Lallo was not operating an unairworthy
aircraft and [leaving Continental] with no way to rebut that inference.” Id.
at 55. ____________________________________________
16 14 C.F.R. § 91.7, “Civil Aircraft Airworthiness,” provides, in relevant part,
that “[n]o person may operate a civil aircraft unless it is in an airworthy condition.” 14 C.F.R. § 91.7(a). It further provides that, “The pilot . . . is responsible for determining whether [the] aircraft is in condition for safe flight. The pilot . . . shall discontinue the flight when unairworthy mechanical, electrical, or structural conditions occur.” Id. at § 91.7(b).
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Appellees counter that the “cross-examination had ‘nothing to do’ with
what the NTSB determined was the ‘probable cause’ of the accident.”
Appellees’ Brief at 59-60. They further argue that “there was no harmful
error, as the jury heard all of the testimony [and] was appropriately
charged[.]” Id. at 60.
The relevant portions of the Notes of Testimony indicate that the
following transpired. On direct examination, Continental’s expert, Mr. Feith
testified that in preparing his expert opinion, he reviewed, inter alia, the
NTSB accident investigation report. N.T., 8/13/19 PM, at 5. He further
testified that, in his expert opinion, Mr. Lallo violated Section 91.7 by not
landing the aircraft following its first loss of engine power and that Mr. Lallo’s
decision not to land the plane at that time contributed to the crash. N.T.,
8/13/19 AM, at 104-05; N.T., 8/13/19 PM, at 13.
On cross-examination, Mr. Feith confirmed that he had reviewed the
NTSB’s accident investigation report. N.T., 8/13/19 PM, at 23. He then
confirmed his own expert opinion that when Mr. Lallo’s aircraft started to
lose power, it was no longer airworthy and, therefore, “it was illegal for
[him] to continue to fly.” Id. at 26. When asked if the NTSB said whether
Mr. Lallo violated Section 91.7, Mr. Feith conceded that it did not. Id. at 27.
Continental did not lodge an objection to this testimony. Appellees’ counsel
then began to ask Mr. Fieth about whether the NTSB report contained any
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judgment about Mr. Lallo’s conduct,17 whereupon Continental’s counsel
objected and a sidebar discussion ensued. Id.
At the sidebar, Continental’s counsel argued that Appellees’ counsel
“has just asked the witness a question which opens the door to the NTSB’s
probable cause finding.” Id. at 28. Appellees’ counsel denied that his
question implicated the NTSB’s probable cause finding and argued instead
that, “[a]ll I asked was . . . did the NTSB say he violated 91.7 and it didn’t.”
Id. at 29. The trial court agreed with Appellees’ counsel, finding that
counsel “got very close to asking about [the probable cause finding], but I
don’t think he has gotten to the point where you can get in the probable
cause findings of the NTSB report.” Id. at 31. The court also refused
Continental’s counsel’s request for a curative instruction. Id. at 32-33.
In sum, the trial court found that Mr. Feith’s testimony that the NTSB
had not said that Mr. Lallo violated Section 91.7 was not testimony
implicating the NTSB’s probable cause determination.
Analysis of this issue turns on the soundness of the premise upon
which Continental bases this claim, i.e., that testimony that the NTSB did
not state that Mr. Lallo violated a federal regulation is the same as testimony
regarding the substance of the NTSB’s probable cause determination. The
trial court concluded that they were not one in the same. We have no
17 Appellees’ counsel’s question reads: “Is there anything . . . in the NTSB report indicating that Mr. Lallo—.” N.T., 8/13/19 PM, at 27.
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reason to disagree as Continental has not cited to any legal authority
explaining the relationship between a pilot’s violation of Section 91.7 and the
NTSB’s probable cause determination. Given the conspicuous absence of
any authority supporting Continental’s attempt to synonymize this evidence
or a framework in which we can evaluate this premise, we agree with the
trial court that Mr. Feith did not improperly testify about the NTSB’s probable
cause determination.18 Accordingly, Continental is not entitled to a new trial
on this claim.
Use of Videotaped Depositions
Continental next contends that the trial court erred in entering its
October 25, 2018 Amended Pretrial Order, which precluded Continental, and
any other party, from using videotaped depositions in violation of Pa.R.C.P.
4020. Continental’s Brief at 55-56.
This claim is disingenuous as the trial court later revisited this Order
and permitted Continental to present the videotaped depositions to the jury.
18 We acknowledge that Continental has cited to authority for the uncontested proposition that federal law prohibits the use of such “probable cause” determinations in civil tort litigation except when one party “opens the door” to its introduction. See Continental’s Brief at 54 (citing Hickson Corp. v. Norfolk S. Ry. Co., 227 F.Supp.2d 903 (E.D. Tenn. 2002), aff’d, 124 F.App’x 336 (6th Cir. 2005). It did not, however, cite to any authority to support is claim that Mr. Feith’s testimony was itself improper as it implicated the NTSB’s probable cause determination or which would provide this Court with a framework for analyzing this issue.
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Having, thus, suffered no harm from this Order, Continental is not entitled to
a new trial or any other relief based on this claim.
Issue VI: Delay Damages
In its final issue, Continental urges this Court to reverse the trial
court’s order awarding delay damages to Appellees. Continental presents
three alternative bases for this request, which we address seriatim.
Appellees’ Motion for Delay Damages Was Procedurally Proper
First, Continental asserts that Appellees’ August 19, 2019 Motion for
Delay Damages was improper because it lacked the notice required by
Pa.R.C.P. 238(c).19 Continental’s Brief at 57-58. Continental asserts that
Appellees neglected to include this notice with their Motion for Delay
Damages, and did not correct the omission until September 18, 2019, more
than 10 days after the jury entered its verdict. Id. at 58. Continental
argues, therefore, that Appellees’ Motion for Delay Damages was not timely
filed, is a legal nullity, and the court should not have awarded Appellees
delay damages.20 Id.
19 Pa.R.C.P. 238(c) requires a party to include a notice of filing with its motion for delay damages informing the adverse party of the deadline for filing a written answer and the consequences of failing to do so.
20Continental does not assert that it lacked actual notice of the Motion for Delay Damages or that it was prejudiced by Appellees’ initial oversight.
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Our review of the trial court docket reveals the following relevant
procedural history. On August 16, 2019, the jury returned a verdict in favor
of Appellees and awarded them compensatory damages. On August 19,
2019, Appellees filed a Motion for Delay Damages. Prior to disposition of
this Motion, Continental moved for post-trial relief, which the trial court
denied on May 18, 2020, except for the reduction of Mr. Lallo’s damages by
10% for his contributory fault.
Even though judgment had not yet been entered and Appellees’ Motion
for Delay Damages was pending, Continental filed a Notice of Appeal on June
3, 2020. On June 11, 2020, because Continental had filed a notice of
appeal, the trial court, having lost “jurisdiction over any unresolved requests
for relief” pursuant to Pa.R.A.P. 1701(a),21 entered an order dismissing
Appellees’ Motion for Delay Damages without prejudice to refile.
On October 28, 2020, the Superior Court dismissed Continental’s
premature appeal. Following remand to the trial court, on October 30, 2020,
Appellees filed a Renewed Motion for Entry of Delay Damages, which
included the notice required by Rule 238(c).
In light of the trial court’s dismissal of Appellees’ first Motion for Delay
Damages without prejudice and Appellees’ subsequent filing their Renewed
Motion for Delay Damages, which included the required notice, we conclude
21 Order, 6/11/20.
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that Continental’s claim that the court should not have awarded Appellees
delay damages lacks merit.
Ohio Law Does Not Apply to the Award of Delay Damages
In its next issue, Continental asserts that the trial court misapplied
Ohio law when it awarded Appellees delay damages because Appellees failed
to submit a written settlement offer to Continental. Continental’s Brief at
58-59.
Delay damages are procedural in nature and Pennsylvania courts are
required to apply Pennsylvania procedural rules. Laudenberger v. Port
Auth. of Allegheny Cty, 436 A.2d 147, 155 (Pa. 1981); Ferraro, 777 A.2d
at 1137. Thus, the trial court properly considered Appellees’ request for
delay damages pursuant to Pa.R.C.P. 238 and not pursuant to Ohio’s delay
damages rules.
The Court Erred in Awarding Appellees Delay Damages on the Verdict Arising From Their Survival Action
In its final issue, Continental argues that the trial court erred in
awarding delay damages to Appellees on their survival action verdict
because Pennsylvania’s delay damages rule precludes the award of delay
damages on the portion of a verdict arising from emotional injury.
Continental’s Brief at 59. We agree.
The interpretation of the rules of civil procedure raises a question of
law; thus, we apply a de novo standard of review. Jones v. Riviera, 866
A.2d 1148, 1150 (Pa. Super. 2005)
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Rule 238(a)(1) provides, in relevant part, as follows:
At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death, or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury[.]
Pa.R.C.P. 238(a)(1).
Thus, in Pennsylvania, the trial court may award delay damages to a
plaintiff who has prevailed on a claim for bodily injury, death, or property
damage. Id. This Court has held that claims for emotional injury, loss or
reputation, humiliation, and mental anguish do not constitute claims for
which a trial court may award delay damages. Butler v. Flo-Ron Vending
Co., 557 A.2d 730, 739-40 (Pa. Super. 1989). See also Anchorstar v.
Mack Trucks, Inc., 620 A.2d 1120, 1121-22 (Pa. 1993) (holding that
compensation for loss of consortium is not encompassed within the delay
damages rule); Oweida v. Tribune-Review Pub. Co., 599 A.2d 230, 247
(Pa. Super. 1991) (holding that delay damages are not recoverable in a libel
action because a libel action seeks relief for reputational damage and not for
bodily injury).
Instantly, Appellees’ survival claims, which sought relief for the
emotional injuries suffered by the Lallos in the moments prior to their death,
do not fall within the ambit of bodily injury, death, or property damage
required for the award of delay damages under Rule 238. Accordingly, we
conclude that the trial court erred in awarding Appellees delay damages on
the portion of the verdict attributable to Appellees’ survival claims. We,
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thus, vacate the judgment in favor of Appellees’ and remand for the trial
court to reduce the judgment by the amount of delay damages it awarded
for Appellees’ survival claims.
Judgment affirmed in part and vacated in part. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/26/2022
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