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

court looked to the Third Circuit’s 1999 decision in Abdullah4and 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.
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“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.”
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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. 
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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)
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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.