Opinion
C.A. No. 99C-07-260-WTQ.
Date Submitted: February 28, 2000.
Date Decided: March 15, 2000.
Letter Opinion and Order on Defendant General Motors Corporation's.
Application for Certification of Interlocutory Appeal Pursuant to Supreme Court Rule 42.
Neal J. Levitsky, Esquire, Gerard W. Ittig, Esquire, William H. Moore, Esquire.
Frederick L. Cottrell, III, Esquire, Jeffrey L. Moyer, Esquire, David J. Zott, Esquire, Andrew B. Bloomer, Esquire, Michael E. Berg, Esquire.
TRIAL COURT REFUSES TO CERTIFY
Dear Counsel:
I acknowledge receipt of Defendant General Motors' Application for Certification of Interlocutory Appeal from the Letter Opinions and Orders of this Court dated January 28, 2000 and February 24, 2000, Pursuant to Supreme Court Rule 42. IT IS SO ORDERED that the certification request pertaining to the Court's Orders of January 28, 2000 and February 24, 2000 is hereby REFUSED in accordance with Rule 42 of the Supreme Court. The Court notes, however, that interlocutory appeal is not precluded simply because the Trial Court refuses to certify the issue. See Supreme Court Rule 42(d)(iv)(D).
It seems clear to this Judge that General Motors' attempt to preclude the Plaintiffs by a dismissal Motion at the Complaint stage should fail. In effect, General Motors is attempting to bar the Plaintiffs from supporting with evidence their theory of an independent bundling agreement. It may be that there is insufficient factual evidence to support that theory; it may be that, when the factual record is fully developed, there are good legal defenses, including some not pursued on this Motion to Dismiss, to any such claim; it may be that there are matters in defense that can be raised prior to trial on a fuller record. At this stage of the proceedings, this Court has not established any legal right on the merits of the litigation. Even the jurisdictional issues based on the forum selection clauses are still open. Barring a completely facially frivolous Complaint, it would generally be a mistake, in my judgment, to permit interlocutory appeals when the sole issue determined has been that a claim has been stated, even if that issue be deemed substantial. By trying to get the case determined without evidence, it seems to this Court that General Motors may be protesting a bit too much. The Supreme Court, of course, is free to take another view.
Sincerely,
William T. Quillen