The opinion of the court was delivered by: Joyner, C. J.
Before this Court are Plaintiff's Motion Requesting Amendment of the Court's 12/13/2012 Order to Contain Language from 28 U.S.C. § 1292(b) Allowing Plaintiff to Petition the United States Court of Appeals for the Third Circuit for Immediate Interlocutory Appeal (Doc. No. 55), and Defendant's Response thereto (Doc. No. 56). For the reasons set forth in this Memorandum, the Court will deny the Plaintiff's motion.
The Plaintiff filed this action on April 28, 2011 in the Court of Common Pleas for Philadelphia County, alleging that the Defendant, State Farm Insurance, had acted in bad faith in denying her insurance claim, had breached a contract with her, and had defamed her. The Defendant removed the action to this Court on May 26, 2011 based on diversity jurisdiction.
In her Complaint, the Plaintiff asserted the following
claims: in Count I, an insurance bad faith claim; in Count II, a claim under Pennsylvania's Unfair Insurance Practices Act; in Count III, a claim for libel; and in Count IV, a claim for breach of contract. State Farm filed an Answer to the Complaint, and the parties conducted discovery. The Defendant filed a Motion for Summary Judgment on all counts of the Complaint on October 5, 2012. The Plaintiff filed a Cross-Motion for Summary Judgment on Counts I, III and IV on October 19, 2012. The Court issued a Memorandum and Order on December 13, 2012 granting the Defendants' request for summary judgment on Counts I, II and III of the Complaint, and denying their request on Count IV. The Court also denied the Plaintiffs' cross-motion for summary judgment. (Memorandum and Order of Dec. 13, 2012, Doc. No. 53)
A full account of the facts of this case is contained in the Court's December 13, 2012 Memorandum and Order. Briefly, the Plaintiff had an insurance plan with State Farm that covered theft, and reported a claim for the theft of her vehicle on January 27, 2011. While the initial investigation into the theft claim raised no red flags, the Special Investigation Unit at State Farm was advised on February 2, 2011 that the police had surveillance footage of the insured vehicle entering a tow yard prior to the date the theft was reported. The photographs showed the Plaintiff's vehicle being towed into Tow Decision, and the date and time stamp reflected that the photos were taken on January 25, 2011, two days prior to the Plaintiff's report of the theft and before the time she said that she had last driven her car. State Farm commenced an investigation that lasted from February 2, 2011 until March 3, 2011. In the course of this investigation, State Farm attempted to discover how the car had ended up at Tow Decision and whether it had arrived there on January 25 th as the photos reflected. After the investigation was discontinued, the State Farm investigator spoke with the Plaintiff and informed her that he was going to recommend a denial of her claims because the results of the investigation showed her vehicle arriving at a tow facility two days prior to the date she said she last drove it. The Plaintiff denied that this was possible, but State Farm prepared a claim denial memo and sent it to her, terminating the claim.
In the Court's December 13, 2012 Memorandum and Order, we observed that there was clearly a genuine issue of fact as to whether the Plaintiff's car was towed into Tow Decision on January 25 th, or on a later date, as the Plaintiff claimed. (Memorandum and Order of Dec. 13, 2012, at 5-6, Doc. No. 53). However, the Court concluded that this genuine issue of fact was not material to the insurance bad faith and defamation claims and granted summary judgment on these two claims. *fn1 The Court found that this issue of fact was material to the breach of contract claim, and denied summary judgment on that Count.
In deciding that there were no genuine issues of material fact precluding judgment as a matter of law on the insurance bad faith claim, the Court concluded that State Farm had a reasonable basis for denying the Plaintiff's claim, and therefore the Plaintiff could not prevail. (Memorandum and Order of Dec. 13, 2012, at 8-11, Doc. No. 53). For a plaintiff to recover for an insurance bad faith claim, she must show by clear and convincing evidence that the insurer did not have a reasonable basis for denying benefits under the policy, and the insurer knew or recklessly disregarded its lack of a reasonable basis. Terletsky v. Prudential Prop. and Cas. Ins. Co., 649 A.2d 680, 688 (Pa. Super. Ct. 1997). The Court concluded that by performing an investigation lasting more than a month, tracking down and interviewing individuals who might have information relevant to the insured vehicle's whereabouts, and obtaining photographs that contradicted the Plaintiff's report of theft, State Farm had a reasonable basis for denying the claim. The photograph was clearly stamped with the date of January 25 th, and State Farm uncovered nothing over the course of the investigation that contradicted the date stamp aside from the Plaintiff's own statement. With such information and evidence, State Farm had a reasonable basis in denying the claim. In opposing summary judgment, the plaintiff did not "make a showing sufficient to establish the existence of [every] element essential to [her] case on which [she] will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In granting summary judgment on the Plaintiff's defamation and/or libel claim, the Court concluded that under either of two theories, the Plaintiff did not have a claim. (Memorandum and Order of Dec. 13, 2012, at 12-15, Doc. No. 53). Under the theory presented in the Plaintiff's Complaint - that the Defendant had publicized the denial of her claim on a loss information system -the Plaintiff failed to make a showing to establish the existence of all elements of defamation/libel. Specifically, the Plaintiff did not put forth any evidence of publication. Under the theory that the Defendant published the denial of her claim to the Philadelphia District Attorney's Office, the Court concluded that the statements were privileged. We explained that under Pennsylvania law, "statements made by judges, attorneys, witnesses and parties in the course of or pertinent to any stage of judicial proceedings are absolutely privileged and, therefore, cannot form the basis for liability for defamation." Pawlowski v. Smorto, 588 A.2d 36, 41 (Pa. Super. Ct. 1991). Furthermore, the Pennsylvania Superior Court had found that this absolute privilege encompassed statements amounting to an accusation of a crime made to law enforcement officials for the purpose of bringing criminal charges. Id. at 42. This Court concluded that the absolute privilege applied to the Defendant's communication to the District Attorney's Office, and therefore, the Plaintiff could not prevail on her defamation/libel claim as a matter of law.
Now, the Plaintiff requests the Court's leave to seek interlocutory appeal on the dismissal of these two claims from the Court of Appeals from the Third Circuit.
A partial denial of a motion for summary judgment is not a final judgment; therefore, it is only appealable as an interlocutory appeal under 28 U.S.C. § 1292(b). See 28 U.S.C. § 1292(b); In re City of Philadelphia Litig., 49 F.3d 945, 956 (3d Cir. 1995) ("Generally, this court does not have jurisdiction to review the denial of summary judgment because such decisions are not final as required by 28 U.S.C. § 1291."). Section 1292(b) provides that when a district judge is of the opinion that an order, not otherwise appealable, involves a controlling question of law to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he or she may certify that order for immediate appeal. 28 U.S.C. § 1292(b).
In determining whether to certify an order for immediate appeal, the Court must determine that: (1) the order involves a controlling question of law; (2) there are substantial grounds for difference of opinion as to the correctness of the issue under consideration; and (3) an immediate appeal will materially advance the ultimate termination of the litigation. Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974). If all of these factors are present, the court may certify an issue for immediate appeal. Id. If the district court judge ...