IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
May 10, 2012
PRINCIPAL LIFE INSURANCE COMPANY, PLAINTIFF
MARK DEROSE AND MATTHEW DEROSE, AS TRUSTEES OF THE JOANN DEROSE FAMILY TRUST, AND FIRST PRIORITY BANK, DEFENDANTS
The opinion of the court was delivered by: (Judge Conner)
AND NOW, this 10th day of May, 2012, upon consideration of plaintiff's motion (Doc. 218) to certify for interlocutory appeal the order of court dated October 5, 2011 (Doc. 208), which adopted in part and rejected in part the Report and Recommendation (Doc. 178) by Magistrate Judge Carlson on the defendants' motions for summary judgment (Docs. 104, 114); and it appearing that plaintiff seeks to certify the question of whether the Pennsylvania statute defining insurable interests, 40 PA. STAT. § 512, makes parties' intent relevant in determining whether, at the time of the inception of a life-insurance policy, an insurable interest existed (see Doc. 219, at 11--12); and the court concluding that, under the federal statute governing interlocutory appeals, 28 U.S.C. § 1292(b),*fn1 plaintiff has not set forth any "exceptional circumstances" that would "justify a departure from the basic policy postponing appellate review under after the entry of a final judgment," Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (quoting Fisons, Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir. 1972)), particularly that (1) the question of law that plaintiff seeks to have certified is not controlling, in that a contrary conclusion from the Pennsylvania Supreme Court would lead to remand rather than reversal,*fn2 (2) there is no substantial ground for difference of opinion on the issue involved, as all parties agree that the language of 40 PA. STAT. § 512 is unambiguous and its plain meaning controls,*fn3 and (3) immediate appeal is more likely to cause further and undue delay in this litigation rather than advance its ultimate determination, as discovery has already closed and no possible outcome of the requested interlocutory appeal would eliminate the need for trial;*fn4 and the court noting that, even were the plaintiff able to make a strong showing under all three elements required under § 1292(b), a district court may nonetheless deny interlocutory appeal,*fn5 it is hereby ORDERED that plaintiff's motion (Doc. 218) to certify for interlocutory appeal the order of court dated October 5, 2011 (Doc. 208) is DENIED.
See 28 U.S.C. § 1292(b).
CHRISTOPHER C. CONNER United States District Judge