begin our morning with the case from berlin mutual fire insurance company first press what happened was this an order was issued on september first two thousand and eleven i believe contemplating that a memorandum order would follow the memorandum order followed on september twenty second within thirty days and so humber first when you look at that order were you confused about the outcome i was confused about whether that warder was the last act by the district court judge or whether the district court judge intended to do more on the case how could you like what you what what what what more do you expect it said you know lost right  this is an order upon which you have to have well your honor if that was all that existed and in a vacuum perhaps it would be non confusing and perhaps it would be something obligat but it does not exist in a vacuum ok you are saying that something happened within the thirty day period that affected your view as to the september one order that's correct how so what discipline but funny second memorandum order was issued and specifically it said at the end of it an appropriate order is to follow and our conclusion based on that was that the corps intended to ensure unified judgement september the first that could have it anyway led you to believe that you had one or that there was and again your honor i would agree with you if that was all that had happened but look the did at well know it on september twenty third i didn't another but she but judge tucker could not have added anything to that order without having violated the rules of court you can now put your reasoning if you it or you can't put the opinion you or you can only have a sep will follow well the memorandum is something else issued by the trial court within the thirty day period after september first when there is no question that trial court still had jurisdiction to modify  or reissue its order and the september twenty second memorandum indicated that the court intended to do just that well in that mine and were they issue a priority from our view that your heel time ran out is that so well again it's up if if we acknowledged or if we take the view that the september first order ran the thirty days and nothing stopped that thirty days running our view is that by grafting the september twenty second order the way judge tucker did it indicated that a further and i guess before i get there mark my last point on jurisdiction is let's not forget that these are unified appeals there are two different appeals in each of the cases the second one of which being from the denial of our request sixty relief based on this it essential error in the memorandum order that it just reported mitzi this so i would posit that in any event the court has jurisdiction at the very least to consider the appeal from that order turning to the merits in the case and i want to use merits loosely here because our whole position is that we are not the party that should have been made claim ever formally assigned to the plaintiffs no there is no assignment in the sun and you why are you not the real party and interest well we're not the real party and interest in this is i guess the third stop along the way in terms of what reasons that this case should not have proceeded and that is that under our the settlement agreements with the underlying plaintiffs while there is no assignment of rights what there is is a covenant not to execute they've essentially agreed not to collect the judgment in the underlying case it's going to look solely to insurance prices right so how does that mean  well here you filed an appeal why should we suddenly say oh oh of course you know you you're not the ones that should be prosecuted and in this just arise after the settlement which was after the district court order the settlement was actually before the district court order the settlement came about i want to say a couple months before because the district court order did address and deny our requests for dismiss right to march were right right and essentially there are two things at play in one of these coverage actions there is the obligation of the insurer to provide a defense in an ongoing underline case the obligation of the insurer to provide indemnity for a judgment with respect to the indemnity piece the covenant not to execute means that from our perspective it really doesn't matter how the coverage case comes out either there is coverage where the the underlying plaintiffs who've taken on the responsibility of fighting for coverage and are doing so out in illinois your they when in which case insurers have to pay them or they lose in which case the insurers don't have to pay them but either way it doesn't affect us you have an obligation to repay cost of defense to maryland we do not there is no contract contractual provision within the policy that would obligate us to do that i know that that's something that they posited hypothetically might create a case or controversy in the briefing here but the fact is that's not released that they've ever sought in this case it's not something they've asked for from judge tucker and indeed it's not something that judge tucker's or her provides for so that so i think that's a nonstarter and on the flipside we're not seeking reimbursement of any defense costs because as your honor indicated maryland elected to provide such a defense under the reservation rights and obviously there's no issue about ongoing defense costs because the underlying case is over so ultimately we at the time that the order in the district court was entered we had no further interest in the outcome and under article three principles that meant that there were no case or controversy among the parties in the core and the case should not have proceeded at that point if i'd like to also backupify made because there were two points prior to that where i think that the case should have been dismissed the first was right off the bat because under this court's jurisprudence most recently in the in the murray decision in two thousand and eleven the courts confirmed that underlying tort plaintiffs have a real and separate independent interest in current insurance coverage disputes and they were not here they should have been here under rule nineteen certainly under the logic of murray and i think that that is underscored by a sort of what else is going on here because obviously they've got their own coverage actions that i would imagine to take the position that this case doesn't affect them doesn't bind them in in fact the united states supreme court in a case called semtex versus lockheed martin a it of the same judgment issued by the court a court of the state where the federal court sits which is in this case pennsylvania let me back up a minute on your your statement that the plaintiffs have a real interest their were the case then it would also have foreclosed the result and marie marie of course was a two thousand and eleven standing case in which this court was asked to harmonize its decisions in trees this is in its prior decision and i don't think it is i mean i think if if anything what murray says is that trees this is limited to rule twenty four intervention and the rule nineteen analysis of course is different than the rule twenty four analysis to my knowledge the the insured party or the i guess the injured party in trees they'll discussion is it's facts specific that case really the only pronouncement it's your honor just noted was that the interest is not one that would rise to the level of mess of being necessary party but again that language is directly contradictory to rauscher and murray in asking to when this court was asked which of these two precedents that we follow basically the way the way it reads at least confine tree that there is this or any other problem because there is a controversy that still remains i don't know you familiar with the maryland case i admit your honor that i am not but from your description it seems to me that there may not have been the critical element of the underlying resolution in the state court class or tort case with the covenant not to execute and that's really what removes the case or controversy and moreover i don't understand that i don't understand that mr otton time because the any other party we just your are insured we brought an action to determine what our coverage was period which was the same thing in maryland and at that point there was  disposition by judge starker and now you're saying well there was no case at all so far as we're concerned with that their air boys were out of the picture you go fight with somebody who's not in the five years this court's the terminations and state auto versus some e on the second piece of this that i haven't addressed yet which is the extension doctrine and this court basically is squarely held that itself that the pennsylvania law governed and why should it or why should the illinois be a better judge of the pennsylvania law that somebody who sits in pennsylvania and and has determined that pennsylvania will govern now and it is discretionary it is not mandatory that we would have to find an abuse how is it abusive for the same reason that this court found an abuse of discretion in the summary case itself there's really nothing to distinguish this case from something other than perhaps the choice of law i asked back by i think yelling or haven't you haven't objected to that objected to which joyce we have actually we  fought choice of law we think that's not on appeal for us i think it's mentioned in the briefing that it's not a subtle question at least as far as it bears on the summary analysis there is no issue of choice of love for us on  to the extent there is illinois in this particular case where the underlying took plaintiffs and the underlying purpose was in illinois and at least one of the ensures that is an illinois insurer means that that court has just as much interest in cordons with this statute with this statute therefore deprive the court of appeals of jurisdiction and i would appreciate it so much for your return if you would give me the statutory reference that permit you to appeal under those circumstances in that case  madness issues we've submitted a division of time as eight minutes for me and twelve minutes for mr america of with the court's permission i'd like to revise that to ten minutes for each of the five thank you that are right yes over we go thank you starting as we must with jurisdiction as a fresh old matter this court must determine whether it has jurisdiction over the appeal if not you can go no further to decide the issues that express parts is attempting to raise that the court lacks jurisdiction over all issues raised in this appeal because of express products failure to file a notice of appeal within the statutory time constraint on this court's jurisdiction which has been established by congress with respect to judge starts question about the statute that was discussed in both that statute this twenty eight u s c section twenty one of seven which defines the jurisdiction of this court and it states that a notice of appeal must be filed in the district court within thirty days  alone you know even though it says you know another memorandum as anticipated probably would have no problem with the finale but when the court then on the twenty second files  memorandum and order that says presently before this court our cross motions and in its conclusion says the court grants and grants and grants and appropriate order follows not acknowledging that a quote you presumably final order was ever entered when the party be within reason to doubt the intention of the court as to the finale of the of the prior order but i think that if analogy of you order is accused i grade with respect to your question about doubt if there was doubt when the court's september twenty second memorandum was issued there are many things that express products could have done to protect itself and preserve its ability to appeal first but did it have to do that could it not look at the two orders in tandem and say aha i thought that the the september one order might have been the last act anticipated but clearly this is the last act and maybe it's not even the last act because an appropriate order follows right but it seems to me it certainly says well september one wasn't intended by the court to be the last thing to be done and then the the appeal was filed within thirty days as number twenty second so we don't have the problem of the appropriate order second part of a fifty eight really says you know the fact that it's not a separate document doesn't affect the appeal of billet so here the order the appeal was when i refer to as a memorandum says memorandum and order read so it looks like it's if not the last order and additional order in addition to the september one order i mean that's really confusing but under on what basis do we f on under what authority do we foreclose and hell and in this situation when the supreme court precedent says that the inquiry is whether the lower court intended its ruling to have a final rather than tentative well the medicine the fact that it could have i'm looking for why we say they are totally precluded and prohibited from having their appeal having filed within thirty days of september twenty second confused if there is a misstatement of any sort by the district court depots came about with a direct statement from the district court said you have until the for a five that if there is excusable neglect or other good cause the court can extend the time for filing those of appeal as long as that motion is brought within thirty days of the expiration of the g o p that's thirty days the on the expiration of the field period would have run on november second so if there is confusion on september twenty second based on the memorandum that was issued the they filed the motion under rule fifty eight and rule sixty not a motion under rule for a five and even that motion would have been on timely under the statute twenty one of seven because it was not brought within the thirty days after the  and so that factor weighs in favor of the district court maintaining jurisdiction and not abstaining in favor of actions in new jersey and illinois with respect to the the illinois i'm sorry the new jersey action at the time the court decided the motion based on extension that the action in new jersey had been dismissed by the new jersey court in deference to the action pending in the eastern district of pennsylvania so when you look at some you look at it that was that the basis mr kozlov of the dismissal of the new jersey action because the record doesn't disclose to me why the new jersey action was dismissed it was it was based on comedy that this is the state court in new jersey said this action is pending in federal court in pennsylvania based on comedy we will defer to the action in philadelphia did it go through the  make please the court one is michael merrick and i represent awfully maryland the two arguments that i'm here to address as raised by express products are that jurisdiction was lacking in the truck or because first indispensable must search parties were not joint that being the underlying class plaintiffs and secondly that there was not an adequate case or controversy says to sustain jurisdiction both arguments lack merit rule nineteen does not require that the underlying lask class plaintiffs or their representative be joined as parties trees till the two thousand and five decision of this court provides for the clear rule of law trees bill explains the for purposes of rule not parties to the coverage and do not have an interest related to the subject of the action in the words of the statute but merely have a financial interest in trees deal distinguishes those two things the financial interest that an underlying as respects an insurer who is insured by a liability policy is not the type of legal the protected interest which gives them a right to appear or to be joint excuse me now there is a fundamental difference between now think about what was it issue in both marie and rush in both of those cases you had a situation where the insurer was not actively litigating the coverage issue in russia for example there was a default take a look too at a recent decision that came down from the district court judge bilson issued a decision called hartford versus cardenas this came out a couple couple months ago after the briefing was concluded it's a tooth two thousand and thirteen law one one five eight five nine zero and judge bills and does a terrific job going through the very arguments that the opponents are making here and shows why there's a fundamental distinction between trees dale and between moree and russia on the other hand i could go through some of that if you'd like but what he points out he does it much better than i could with respect to these this notion that there's no case or controversy here i guess the question is why we've been fighting so hard for all these years if there's no peace or controversy why did we have so much motion practice by way of judgment of living company not to execute is markedly different from a sign their argument might be different potentially might be difference of the word the same but it but it's not they don't possess those rights express still has rights in these policies and you asked the question just run down mr oppenheim whether maryland is in fact seeking the defense costs that we are the merits of that don't matter so much what does matter is that we have a dispute on that point as to the duty to indemnify that remains a very open important issue there's roughly eight million dollars of issue that is being sought by express through this lawsuit in the very active controversy on that point now the impact the ultimate impact of this forced ruling on the merits is something will dress riddiford day as respects in a likewise if but but certainly the carriers are entitled to the judgment that they received from the district court as respects expressed products in its demands for coverage run if there's nothing else in terms of questions from the court i will from the from the last or the court would be not just dropping the you said there's still whether we had jurisdiction or not there still was a proper appeal from one part of the board's order is that correct that's correct your honor there's a separate appeal from that order to address the issues on the bottle in order with respect to the jurisdiction in judge garth's question i think the difference between this case and bowl is this is not a situation where it's a question whether there should be some excuse for not appealing from what is clearly a final order in time it's a question of was there or was there not a clear final order outside of the thirty day period will allow others or what is it about a memorandum on september twenty second that struck you as the final or well i think judge randell in her questioning got to a lot of those points it says memorandum and order it doesn't refer back to the previous order answered in any way inconsistent with the september first order in terms of the merits i think it comes to the same ultimate  place but again i mean district judges issue superseding orders all the time well but it wasn't labeled superseding right it was labeled memorandum an order and and what i'm trying to discern is what is it about that memorandum of the twenty second that struck you as this is the document which speaks with finality in a way that is  from what you saw on september first i would i would say the concluding language and again one what clued in mind that this is the it's the order of the this record and that moreover that an appropriate order is even to follow me but if you if you were struck and confused by an appropriate order and will follow and why did you file within thirty days of the september twenty second document that you says shows finality because you you would have filed at some later period of time or maybe you would have filed under for a five as your adversary suggested because of it ability to discern what had happened that may have been a better course ultimately we took a look at what we got on september twenty second we waited to see if we would get our final order we never did as a prophylactic measure we went ahead and made sure that we filed within thirty days from the september twenty second order which again was itself answered within thirty from the that we have no jurisdiction what is left of the while there is a separate appeal we went and asked for will sixty relief from the district court which we can do and the district court denied it although admitting statute that congress passed which troops it terms of uncertainty or suspicion or wonderment or not lack of knowledge you haven't told me no i thought we were talking about the thirty day statute well that's definitely section twenty one zero seven i don't think there's any question that there is another statute and if there is no other statute that's what i want to know yeah yeah thank you thank you with quickly with regard to of sentient somebody very quickly ok somebody talks in terms of a state court we have unquestionably have a stak court looking at these actions they existed at the time of the district court judgments and moreover each of those state courts affirmatively denied insurers motion to dismiss asking for deference to the a actions of these cases and with regard to the indispensable party argument the point i was trying to make before is that semtex says the effect of this judgment is governed by pennsylvania state law in pennsylvania state law as stated by the supreme court unveil a judgment entered in a coverage case without the underlying pork plaintiffs presence is a void judgment so