The opinion of the court was delivered by: KELLY
On April 12, 1993, Levin went to Diperstein's locksmith shop to dispute a bill. The billing dispute escalated and Levin and Diperstein began fighting. Lane became involved while trying to assist Diperstein, her husband.
Diperstein and Levin each filed criminal charges of simple assault
against the other. On November 3, 1993, the trial court found Diperstein not guilty on both counts. Levin was found not guilty of simple assault but guilty of harassment.
Diperstein and Lane then filed a civil action in the Philadelphia Court of Common Pleas against Levin and Marlen Corporation.
The complaint lists counts of assault and battery, negligence, intentional and negligent infliction of emotional distress, and loss of consortium. Both Levin and Marlen sought coverage from Agora under a commercial general liability insurance policy. Agora initially provided both with counsel, while reserving the right to deny coverage and withdraw at a later time.
By letter, dated December 18, 1996, Agora denied coverage to Levin individually but continued to defend Marlen under a strict reservation of rights. The letter states that the insurance policy issued to Levin does not provide coverage for intentional torts. Because harassment is an intentional crime and the complaint filed against Levin alleges only intentional torts, Agora determined that it did not have a duty to defend Levin in the underlying action.
Agora told Levin that his appointed defense counsel would withdraw immediately, and advised him to retain another attorney. In response, Levin contested the withdrawal of his appointed counsel pointing out that negligence is not an intentional tort. On March 19, 1997, the Petition for Leave to Withdraw filed by appointed counsel was denied by the Honorable Arnold New of the Philadelphia Court of Common Pleas.
Agora has filed this action for declaratory judgment pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure. Agora seeks a judgment declaring that it has no duty to defend or indemnify Levin individually in the underlying state court tort action under the terms of its insurance policy.
Summary Judgment is proper "if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Then, the non-moving party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(c). If the court, in viewing all reasonable inferences in favor of the non-moving party, ...