Pennsylvania Superior Court Reverses Forum Non Conveniens Dismissal of International Air Crash Case, But Don’t Equate Pennsylvania with Cook County, Illinois (Just Yet)
United States courts facing forum non conveniens (FNC) motions, at least with respect to lawsuits arising out of air crashes that occur outside of the United States, seem to fall into two distinct camps: Cook County, Illinois, where FNC motions very often are said to go to die, and the rest of the country, where these motions much more frequently are granted. While this characterization might be a slight oversimplification, in practice, it has been seen to be not far from reality.
After the Superior Court of Pennsylvania’s decision to reverse the trial court’s dismissal on FNC grounds in Bochetto v. Piper Aircraft Co., 2014 Pa. Super 120, 2014 Pa. Super. LEXIS 1180 (June 9, 2014), some have questioned whether Pennsylvania is coming closer to following Cook County’s lead.
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Pennsylvania Superior Court Reverses
Forum Non Conveniens Dismissal of
International Air Crash Case, But Don’t Equate
Pennsylvania with Cook County, Illinois (Just Yet)
By J . Denny Shupe and Ba r r y S . A l e xande r
Pennsylvania courts are moving closer to the experience in
Cook County for deciding FNC motions related to interna-
tional air crashes.
The lawsuit in Bochetto arises out of the September 15,
2009 crash of a Model PA 34-2023 Seneca V aircraft that
was being operated by Aeronautical Academy of Evora
(AAE), a flight school near Castro Verde, Portugal. The
aircraft was manufactured by Piper Aircraft Co. (Piper)
in Florida, and was owned by two different U.S. entities
between 1998 and 2001 before being sold to a Belgian
company that leased it to AAE. AAE is an independent
company but is part of a worldwide chain of flight schools
operated by CAE Global Academy (CAE), which also op-
erates a number of flight schools in the U.S.
The three occupants of the aircraft, two students (one was
a Dutch citizen and the other had dual Dutch/Australian
citizenship) and one instructor (a Spanish citizen), died.
The action was brought by an administrator appointed to
act on behalf of the estates and the victims’ parents, who
were citizens of Spain, Netherlands and the Dutch Antilles.
The action originally was brought in Pennsylvania state
court against 14 American defendants allegedly associ-
ated with the manufacture of the aircraft and its component
parts. Piper removed the action to federal court, but it was
remanded based on the forum defendant rule.
The FNC Motion
On February 24, 2012, three of the defendants, includ-
ing Piper, filed a joint motion to dismiss the action on the
ground of FNC, arguing that:
United States courts facing forum non conveniens (FNC)
motions, at least with respect to lawsuits arising out of air
crashes that occur outside of the United States, seem to fall
into two distinct camps: Cook County, Illinois, where FNC
motions very often are said to go to die,1 and the rest of
the country, where these motions much more frequently
are granted.2 While this characterization might be a slight
oversimplification, in practice, it has been seen to be not
far from reality.
After the Superior Court of Pennsylvania’s decision to
reverse the trial court’s dismissal on FNC grounds in Bo-
chetto v. Piper Aircraft Co., 2014 Pa. Super 120, 2014 Pa.
Super. LEXIS 1180 (June 9, 2014), some have questioned
whether Pennsylvania is coming closer to following Cook
County’s lead. A careful reading of the Court’s decision,
however, reveals faithful application of preexisting Penn-
sylvania law in its remand to the trial court for evaluation
of what the Court found to be all potentially relevant fac-
tors. At the moment, it would be premature for there to
be great cause for concern among aviation defendants that
1. See, e.g., Vivas v. Boeing, et al., 911 N.E.2d 1057 (Ill. App. 1st
Dist. 2009); Thornton v. Hamilton Sundstrand Corp., No. 1-08-
2734 (Ill. App. 1st Dist. Aug. 31, 2009); Ellis v. AAR Parts
Trading, Inc., 828 N.E.2d 726 (Ill. App. 1st Dist. 2005); Arik
v. The Boeing Co., et al., No. 08 L 12539 (Ill. Cir. Ct., Cook
County Feb. 18, 2010).
2. See, e.g., Tazoe v. Airbus S.A.S., 631 F.3d 1321 (11th Cir. 2011);
Pierre-Louis v. Newvac Corp., 584 F.3d 1052 (11th Cir. 2009);
In re Air Crash at Madrid, Spain, 2:10-ML-02135-GAF, 2011
U.S. Dist. LEXIS 62974 (C.D. Cal. May 16, 2011); In re Air
Crash Over the Mid-Atlantic on June 1, 2009, 792 F. Supp. 2d
1090 (N.D. Cal. 2011); Pettitt v. The Boeing Co., 2010 U.S.
Dist. LEXIS 102235 (N.D. Ill. Sept. 28, 2010).
A v i A t i o n
A L E R T
(continued on page 3)
(continued from page 1) Reyno, 454 U.S. 235, 257-58 (1981) (considering FNC
factors relating to the United States at large, not just those
that connected the case to the specific state in which the
case was venued)).
The Superior Court also deemed deficient the trial court’s
failure to discuss the Gilbert public and private interest fac-
tors that arguably weighed in favor of plaintiffs’ choice of
forum, instead discussing only those that weighed against.
Bochetto, 2014 Pa. Super. LEXIS at *28 (citing Wright v.
Aventis Pasteur, Inc., 905 A.2d 544, 550, 552 (Pa. Super.
2006)). The Superior Court identified the following factors
to be considered as weighing in support of the plaintiffs’
choice of forum:
Private Interest Factors
• Evidence relating to the design, manufacture and
testing of the aircraft is in the U.S.;
• All of the witnesses regarding Appellants’ design de-
fect and product liability claims are in the U.S.;
• Evidence relating to the aircraft’s two previous
American owners and documentation of mainte-
nance and upkeep of the aircraft over that period are
in the U.S.;
• Two of the remaining defendant-corporations are
registered Pennsylvania corporations, two others
maintain principal places of business in Pennsylva-
nia, and another three maintain registered agents in
• The U.S. has a general “interest in ensuring that
American manufacturers are deterred from produc-
ing defective products.”
Public Interest Factors
• None of the decedents/pilots, plaintiffs, defendants
or parties-in-interest are Portuguese; and
• The United States’ general interest “in ensuring that
American manufacturers are deterred from produc-
ing defective products.” (repeated from the private
interest factors section).
The Superior Court held that, because it had failed to dis-
cuss the factors weighing in favor of the choice of forum
or consider the action’s contacts to the United States as a
whole, the trial court had abused its discretion. Accord-
ingly, the Court vacated the trial court’s order dismissing
This is a textbook case for dismissal based upon
the doctrine of forum non conveniens. [The air-
craft] was maintained in Portugal, the pilot was
trained in Portugal, the Portuguese government
conducted the accident investigation, and all of
the nonparty witnesses and relevant documents
are in Portugal. All of the decedents are from Eu-
rope, and the real parties in interest in this case are
from Europe. As several courts have concluded
under similar circumstances, this case should be
dismissed based upon forum non conveniens.
The trial court accepted the defendants’ arguments and dis-
missed the action, subject to a traditional stipulation by all
defendants that they would: (1) accept service in a subse-
quent action in Portugal, (2) admit jurisdiction in Portugal,
and (3) waive any statute of limitations defense in any sub-
sequent action filed in Portugal.
Plaintiffs appealed the trial court’s dismissal, contending
that the trial court erroneously: (1) failed to give sufficient
deference to their choice of forum and (2) misapplied the
law of Pennsylvania by analyzing the FNC factors with re-
spect to litigating in Pennsylvania, rather than in the United
States as a whole, versus litigating in Portugal.
The Superior Court addressed only the second contention,
that the trial court erred in analyzing the private and pub-
lic interest factors with respect to Pennsylvania, finding
it dispositive of the appeal without regard to the level of
deference given to appellants’ choice of forum. In evalu-
ating this issue, the Superior Court explained at length
that it had to apply Pennsylvania, not federal, FNC law.
In practice, however, substantive Pennsylvania law ap-
plicable to FNC dismissals largely mirrors federal law in
that it requires: (1) deference to be given to the plaintiff’s
initial choice of forum, (2) an alternate adequate forum be
available to the plaintiff, and (3) a review of the private
and public interest factors set forth by the U.S. Supreme
Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
The Superior Court held that the trial court’s failure to
consider the action’s connections to the United States as
a whole was in error. Bochetto, 2014 Pa. Super. LEXIS
at *23-24 (citing Aerospace Financing Leasing, Inc. v.
New Hampshire Ins. Co., 696 A.2d 810, 815-16 (Pa. Su-
per. 1997) (looking to lawsuit’s connections with United
States, not just Pennsylvania) and Piper Aircraft Co. v.
(continued from page 2)
(continued on page 4)
it. Readers should obtain professional legal advice before
taking any legal action.
For more information about Schnader’s Aviation Group or
to speak with a member of the firm, please contact:
J. Denny Shupe
Barry S. Alexander
Eric T. Smith, Co-Chair
Jonathan M. Stern, Co-Chair
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©2014 Schnader Harrison Segal & Lewis LLP
the action and remanded the case “for the trial court to
conduct a complete and thorough analysis of all relevant
forum non conveniens factors….” Id. at *33 (emphasis
While it can be disheartening for those on the defense side
of the aisle to see an FNC dismissal vacated on appeal,
the Superior Court’s decision in this case is not in itself
cause for alarm because of its focus on factors that were
not considered by the trial court. There no doubt will be
many eyes focused intently on the trial court’s weigh-
ing of the private and public interest factors on remand
compared to how those factors historically have been
weighed in other state and in federal courts. How the trial
court weighs these factors could play a significant role
in determining whether Pennsylvania state courts will
become more popular with the aviation plaintiffs’ bar in
litigation arising out of international air accidents. u
This summary of legal issues is published for informa-
tional purposes only. It does not dispense legal advice or
create an attorney-client relationship with those who read
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