The opinion of the court was delivered by: MARSH
The policies were issued by the defendants to the plaintiff-trustee at a time when it owned the building in fee simple, and insured it against all direct loss by fire.
On April 24, 1967, while the policies were in full force and effect, the Redevelopment Authority of the City of McKeesport filed a declaration of taking of the property in the state court pursuant to the Pennsylvania Eminent Domain Code of 1964, 26 Purdon's Pa. Stat. Ann. § 1-402,
thereby acquiring "a fee simple or absolute title"
in plaintiff's property, and secured just compensation therefor by filing its "open-end" bond
on the same day pursuant to 26 Purdon's Pa. Stat. Ann. § 1-403. On May 30, 1967 the insured building was totally destroyed by fire.
The defendants deny that plaintiff has suffered any loss as a result of the fire for the reason that its title and right of possession passed to the Redevelopment Authority on April 24th, and that as of the date of the fire, it had no insurable interest or right of recovery against the defendants.
After the parties had filed their Narrative Statement of Facts, each moved for summary judgment with supporting affidavits.
In their answers the defendants alleged that prior to the fire, the Authority offered to pay condemnee $80,000 in full payment of the value of the property, and denied that, after condemnation, the plaintiff "still had possession of the said property and had the right of possession of the property under Section 407 of the Eminent Domain Code and is subject to revocation proceedings under Section 408 of the Eminent Domain Code * * *."
The affidavit of plaintiff's trust officer alleged that no money "has ever been paid or tendered [offered] to the said plaintiff by the Redevelopment Authority", and that the Authority "has never taken possession of or made entry upon the plaintiff's property", "nor paid any money into court with respect to the said property", and that "plaintiff has never tendered possession of said property or right of entry thereon to the Redevelopment Authority".
The defendants did not deny these sworn allegations by counter-affidavits or other proof, and under Rule 56(e), Fed. R. Civ. P., they may not avoid summary judgment by resting upon the mere allegations and denials in their answers. United States v. Feinberg, 372 F.2d 352, 359 (3d Cir. 1967); Robin Construction Company v. United States, 345 F.2d 610, 614-615 (3rd Cir. 1965).
Thus, it appears without genuine dispute that plaintiff remained in possession of the property from the date of condemnation through the date of the fire, and is still in possession.
In my opinion, the defendants' motion should be denied, and the plaintiff's motion granted as to liability only. Rule 56(c), Fed. R. Civ. P.
In International Marine Ins. Co. v. Winsmore, 124 Pa. 61, 65-66, 16 A. 516, 517 (1889), it was said: