I write for the parties, who are familiar with the facts and procedural history of 1

this case, and therefore include only the background information that is relevant to the

disposition of this motion.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

I.H., by and through his : CIVIL ACTION

Guardian ad litem, :

STEVEN A. LITZ, ESQUIRE, :

Plaintiff :

:

v. : NO. 04-CV-3890

:

THE COUNTY OF LEHIGH, et al., :

Defendants :

M E M O R A N D U M

STENGEL, J. June 14, 2007

When he was four years old, I.H. was severely and permanently injured while a

passenger in a car driven by Peter Norton, his foster father. Through his guardian ad 1

litem, he brought this action against, inter alia, the Lutheran Home at Topton. In a

Memorandum and Order dated February 28, 2007, I granted summary judgment in favor

of the Lutheran Home, finding that the relationship between the Lutheran Home and the

foster parents was not a master-servant relationship, and thus the Lutheran Home could

not be vicariously liable for the actions of Peter Norton. I further found that the Lutheran

Home’s actions were not the proximate cause of the plaintiff’s injuries, and that the

plaintiff did not meet his burden of proof regarding his claims of general negligence

against the Lutheran Home. 

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The plaintiff filed a motion to certify for immediate appeal this entry of summary

judgment, arguing it involves controlling questions of law as to which there is substantial

ground for difference of opinion, and an immediate appeal may materially advance the

ultimate termination of the litigation. Defendant Peter Norton has no objection to this

motion. The Lutheran Home, however, vehemently opposes it. After careful

consideration of the motion to certify and the responses thereto, I find that the underlying

Order is not appropriate for certification of appeal under section 1292(b) because there is

not a substantial ground for difference of opinion and because certifying this issue for

appeal would not materially advance the ultimate termination of the litigation. 

I. DISCUSSION

A. Motion to Certify for Appeal Under 28 U.S.C. § 1292(b)

A district court judge may certify an Order for interlocutory appeal if it concludes

that the Order: (1) involves a controlling question of law, (2) as to which there is a

substantial ground for difference of opinion, and (3) an immediate appeal from the Order

may materially advance the ultimate termination of the litigation. See 28 U.S.C. 1292(b);

Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974). While the district court

has sole discretion in deciding whether to certify an Order, the decision to do so is

appropriate only in exceptional circumstances because of the strong policy preference

against piecemeal litigation. See 28 U.S.C. § 1292(b); Bradburn Parent Teacher Store,

Inc. v. 3M, 2005 U.S. Dist. LEXIS 15815 at *7 (E.D. Pa. Aug. 2, 2005). 

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Moreover, § 1292 is to be applied sparingly, and “used only in exceptional cases

where an intermediate appeal may avoid protracted and expensive litigation and is not

intended to open the floodgates to a vast number of appeals from interlocutory orders in

ordinary litigation.” Milbert v. Bison Lab., Inc., 260 F.2d 431, 433 (3d Cir. 1958).

1. Controlling Question of Law

“A controlling question of law must encompass at the very least every Order

which, if erroneous, would be reversible on final appeal.” Katz, 496 F.2d at 755. 

Certainly, the erroneous granting of summary judgment would be reversible on final

appeal. Thus, my Order dated February 27, 2007, granting summary judgment in favor of

the Lutheran Home presents a controlling question of law. Nevertheless, the plaintiff has

failed to meet the other requirements for certification under § 1292(b).

2. Substantial Ground for Difference of Opinion

A party may establish that substantial grounds for difference of opinion exist by

demonstrating that different courts have issued conflicting and contradictory opinions

when interpreting a particular question of law. See Bradburn Parent Teacher Store, Inc.,

2005 U.S. Dist LEXIS 15815 at *12; Kolbeck v. Gen. Motors Corp., 702 F. Supp. 532,

542 (E.D. Pa. 1989). There is “substantial ground for difference of opinion” where there

is a divergence of opinion within a district, or where there is a Circuit split. See Dorward

v. Cons. Rail Corp., 505 F. Supp. 58 (E.D. Pa. 1980); Mazzella v. Stineman, 472 F. Supp.

432 (E.D. Pa. 1979). 

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The plaintiff argues that “there exists a significant difference of opinion [in our

district] concerning the imposition of vicarious liability onto foster care agencies for the

misconduct of the foster parents requiring that this case be certified.” I disagree. 

The plaintiff challenges the distinction I drew between the holding in M.B. v. City

of Philadelphia, 2003 U.S. Dist. LEXIS 3732 (E.D. Pa. March 13, 2003), and my holding

in the Memorandum granting summary judgment. In the former case, a foster parent

knew of the criminal background of a new boarder in the house, and lied about it to the

foster care agency. The criminal boarder raped the foster child. Judge Schiller explained

that he did not need to reach a determination of whether a classic master-servant

relationship existed to find vicarious liability. Instead, he based his decision on a narrow

exception to the general rule that a principal may be liable for harm caused by the

negligent conduct of a non-servant agent when the principal was under a duty to have the

act performed with due care. Id. at *9. Judge Schiller found that the foster parent’s

knowledge of the criminal boarder was imputed to the foster care agency, and that the

foster care agency is liable for the foster parent’s negligent acts, if negligence is proven at

trial. Id. at *13. In contrast, the Lutheran Home was not under a duty to have the act of

Peter Norton driving his car performed with due care. These circumstances do not fit into

the narrow exception. Moreover, as I found in my earlier Memorandum, no court in

Pennsylvania has ever applied vicarious liability to a foster care agency for the conduct of

a foster parent for ordinary negligence such as in the operation of an automobile. Thus, I

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find no ground for difference of opinion.

3. Materially Advances Litigation

Even if I were to find that there were a difference of opinion, certifying this issue

for appeal would not materially advance this litigation. Section 1292(b) requires the

district court to conclude that permitting an interlocutory appeal of an otherwise

non-appealable Order “may materially advance the ultimate termination of the litigation.” 

28 U.S.C. 1292(b). The Third Circuit has explained that this requires the district court to

assess settlement possibilities, the potential length of a possibly avoidable trial, and

similar matters. Katz, 496 F.2d at 754. 

Here, the plaintiff argues that an immediate appeal would materially advance the

ultimate termination of the litigation. In its current posture, this matter will proceed to

trial against Mr. Norton. As the plaintiff contends, Mr. Norton is without assets to satisfy

any verdict in excess of the insurance limits which have already been distributed, and

conversely, the Lutheran Home is insured. The plaintiff insists that certification is

appropriate so that the Third Circuit Court of Appeals could determine the issue of the

Lutheran Home’s vicarious liability, which would thereby require only one trial with all

of the evidence and issues before the same jury. I disagree. 

In determining whether certification will materially advance the ultimate

termination of the litigation, a district court is to examine whether an immediate appeal

would: (1) eliminate the need for trial; (2) eliminate complex issues so as to simplify the

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6

trial; or (3) eliminate issues to make discovery easier and less costly. Orson, Inc. v.

Miramax Film Corp., 867 F. Supp. 319, 322 (E.D. Pa. 1994). An immediate appeal

would not avoid a trial in this matter. The trial which will occur on the remaining issues

in this case regardless of the outcome of an immediate appeal, should not be particularly

time-consuming or expensive. Further, an appellate Order adding the Lutheran Home

back into the case would only add and not eliminate issues for disposition at trial. Finally,

because discovery has long since terminated, an immediate appeal would also not make

discovery easier or less costly.

As a result, I find that certifying this issue for appeal would not advance the

ultimate termination of this litigation. I will therefore deny the Motion to Certify. 

An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

I.H., by and through his : CIVIL ACTION

Guardian ad litem, :

STEVEN A. LITZ, ESQUIRE, :

Plaintiff :

:

v. : NO. 04-CV-3890

:

THE COUNTY OF LEHIGH, et al., :

Defendants :

O R D E R

STENGEL, J.

AND NOW, this 14th day of June, 2007, upon consideration of the

plaintiff’s motion to have this matter certified under 28 U.S.C. § 1292 (Document #118),

Defendant Peter Norton’s response thereto (Document #120), and the response of the

Lutheran Home at Topton (Document #121), IT IS HEREBY ORDERED that the motion

is DENIED.

BY THE COURT:

 /s/ Lawrence F. Stengel 

LAWRENCE F. STENGEL, J.

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