Submitted: July 9, 2018
Defendants' Application for Certification of
Interlocutory Appeal. DENIED.
S. Keller and Laura N. Najemy, Esquire, Deputy Attorneys
General, Department of Justice, Wilmington, Delaware,
Attorney for Plaintiff.
R. Granaudo Gesty, Esquire, Burns White LLC, Wilmington,
Delaware, Attorney for Defendants.
Richard R. Cooch, J.
17th day of July 2018, upon consideration of Defendants'
Application for Certification of Interlocutory Appeal, it
appears to the Court that:
September 18, 2017, the State of Delaware ("Plaintiff)
filed a complaint against Premier Healthcare Inc. (d/b/a
Newark Manor Nursing Home), Bruce Boyer, David Boyer, and
Susan Comegys. In the complaint, Plaintiff alleged that since
2011 Defendants had submitted or caused to be submitted
fraudulent claims for Medicaid reimbursement for
"non-existent, grossly deficient, and materially
substandard and/or worthless nursing home services"
provided to five residents of Newark Manor. On March 12,
2018, Defendants' filed a Motion to Dismiss pursuant to
Superior Court Civil Rule 12(b)(6). A hearing on the Motion
to Dismiss was held on May 30, 2018. On June 14, 2018, this
Court issued a Memorandum Opinion denying Defendants'
Motion to Dismiss. On June 19, 2018, Defendants' filed a
Motion for Reargument. On June 25, 2018, Defendants filed
their Application for Certification of Interlocutory Appeal.
On June 26, 2018, this Court denied the Motion for
Reargument. On July 9, 2018, the Plaintiff filed its response
in opposition to the Application for Certification of
Delaware Supreme Court Rule 42 sets out the criteria to be
applied when a Court is faced with certification and
acceptance of interlocutory appeals. A party seeking
certification and acceptance of an interlocutory appeal must
adhere to the strict requirements set forth in 42(b).
Specifically, the rule states:
(b) Criteria to be applied in determining certification and
acceptance of interlocutory appeals. -
(i) No interlocutory appeal will be certified by the trial
court or accepted by this Court unless the order of the trial
court decides a substantial issue of material importance that
merits appellate review before a final judgment.
(ii) Interlocutory appeals should be exceptional, not
routine, because they disrupt the normal procession of
litigation, cause delay, and can threaten to exhaust scarce
party and judicial resources. Therefore, parties should only
ask for the right to seek interlocutory review if they
believe in good faith that there are substantial benefits
that will outweigh the certain costs that accompany an
(iii) Any application for interlocutory review shall contain
a statement that the applicant and the applicant's
counsel have determined in good faith that the application
meets the criteria set forth in this paragraph. Consistent
with the principles set forth in subparagraph (ii) of this
paragraph, in deciding whether to certify an interlocutory
appeal, the trial court should consider whether:
(A) The interlocutory order involves a question of law
resolved for the first ...