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. September 24, 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. 

Case 2:04-cv-03890-TR Document 130 Filed 09/25/07 Page 1 of 4
2

On June 14, 2007, I denied the plaintiff’s motion to certify for immediate appeal

this entry of summary judgment, finding certification under section 1292(b) was not

appropriate because there was 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. 

Although there is no pending motion to reconsider before me, a district court may

reconsider its own interlocutory opinions sua sponte. United States v. Jerry, 487 F.2d

600, 605 (3d Cir. 1973) (so long as the district court has jurisdiction over the case, it

possesses inherent power over interlocutory orders, and can reconsider them when it is

consonant with justice to do so). Furthermore, as my Memorandum did not dispose of

every claim in this action, it is “subject to revision at any time before the entry of

judgment adjudicating all the claims and the rights and liabilities of the parties.” 

FED.R.CIV.P. 54(b). 

After a telephone conference with counsel, and careful consideration of the

practical issues in this case, I find that proceeding with a trial at this stage would be a

futile and expensive waste of time and judicial resources. The only remaining defendant

is Peter Norton, I.H.’s foster father who was driving the vehicle at the time of the

accident. A jury verdict against him is likely. However, Mr. Norton’s insurance

company has already tendered the limits of his insurance policy. It also appears that Mr.

Norton has no other assets which could be used to satisfy a judgment, and is therefore

Case 2:04-cv-03890-TR Document 130 Filed 09/25/07 Page 2 of 4
3

judgment-proof. 

Insisting that the case proceed to trial at this stage would serve no practical

purpose. An immediate appeal of my February 28, 2007 Order granting summary

judgment in favor of the Lutheran Home could obviate the need of a costly intermediate

trial with a single judgment-proof defendant. See Orson, Inc. v. Miramax Film Corp.,

867 F. Supp. 319, 322 (E.D. Pa. 1994) (in determining whether certification will

materially advance the ultimate termination of the litigation, one factor a district court

should examine is whether an immediate appeal would eliminate the need for a trial). 

Upon reconsideration, I conclude that permitting an interlocutory appeal of this otherwise

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

See 28 U.S.C. 1292(b). Therefore, I will certify for immediate appeal this entry of

summary judgment in favor of the Lutheran Home. 

An appropriate Order follows.

Case 2:04-cv-03890-TR Document 130 Filed 09/25/07 Page 3 of 4
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 24th day of September, 2007, upon reconsideration of my

June 14, 2007 Order denying the plaintiff’s motion to certify (Document #125), IT IS

HEREBY ORDERED that that Order is VACATED, and the plaintiff’s motion to certify

(Document #118) is GRANTED.

IT IS FURTHER ORDERED that the plaintiff shall file an appeal of my February

28, 2007 Order granting summary judgment in favor of the Lutheran Home at Topton

within 20 days of the date of this Order. 

The Clerk of Court is directed to place this case in SUSPENSE pending this

appeal.

BY THE COURT:

 /s/ Lawrence F. Stengel 

LAWRENCE F. STENGEL, J.

Case 2:04-cv-03890-TR Document 130 Filed 09/25/07 Page 4 of 4