The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER
Plaintiff, Allstate Insurance Company hereby moves for the entry of summary judgment in its favor in the instant declaratory judgment action in the form of a court determination that it has no obligation to defend or indemnify the defendant Daniel Brown. In accordance with the rationale set forth in the following paragraphs, that motion is denied.
The underlying controversy from which this declaratory judgment action originates occurred on December 31, 1989 at the Conestoga Mill Tavern in Bryn Mawr, Pennsylvania. At that time and place, the defendant, Michael G. Oreski, was acting within the course and scope of his employment as a Radnor Township police officer in responding to a report of a large fight in progress at the Conestoga Mill. While Mr. Oreski was in the process of breaking up one part of the fight, he was struck in the left side of the face by the defendant Daniel Brown and thereby sustained serious injuries to his face, mouth and teeth, as well as shortness of breath and an irregular heartbeat. Mr. Oreski subsequently brought suit to recover damages for these injuries against Daniel Brown, Michael Lynch, the Conestoga Mill Tavern and its owners in the Court of Common Pleas of Delaware County, Pennsylvania under theories of negligence, gross negligence, conspiracy and assault and battery.
By way of the now-pending motion, the plaintiff insurer essentially submits that the language of the policy's exclusions on its face dictates that summary judgment is properly entered in its favor at the present time.
The principles to be applied by the district courts in ruling upon summary judgment motions are firmly established. Under Fed.R.Civ.P. 56(c), "the judgment sought shall be rendered forth-with if the pleadings, depositions, answers to interrogatories, and admissions on file, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." It is therefore incumbent upon a court in considering a motion for summary judgment to determine whether the evidence can reasonably support a verdict for the non-moving party. In making this determination, all of the facts must be viewed in the light most favorable to and all reasonable inferences must be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); U.S. v. Kensington Hospital, 760 F. Supp. 1120, 1126-1127 (E.D.Pa. 1991). In this regard, it has been held that an issue is "genuine" if the fact-finder could reasonably hold in the non-movant's favor with respect to that issue and that a fact is "material" if it influences the outcome under the governing law. Anderson, 477 U.S. at 247-248, 106 S. Ct. at 2509-2510.
This does not mean, however, that a non-movant may rest upon the allegations contained in his or her pleadings in defense of a summary judgment motion. To the contrary, Fed.R.Civ.P. 56(e) states:
"When a motion for summary judgment is made and supported as provided for in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."
Thus, while the moving party bears the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); J.F.Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir. 1990).
Inasmuch as this case was commenced pursuant to 28 U.S.C. § 2201 (empowering the federal courts to enter declaratory judgments) and jurisdiction is premised upon the parties' diversity of citizenship pursuant to 28 U.S.C. § 1332, this court is obliged to apply the substantive law of Pennsylvania in this action. Griggs v. Bic Corp., 981 F.2d 1429, 1431 (3rd Cir. 1992); Nationwide Insurance Co. v. Resseguie, 980 F.2d 226, 229 ...