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October 21, 2005.

BARTLEY PIRINO, Jr., Plaintiff

The opinion of the court was delivered by: JAMES MUNLEY, District Judge


Presently before the Court for disposition is Defendant Allstate Insurance Company's motion for summary judgment. The parties have fully briefed this matter and it is ripe for disposition. For the following reasons, we will grant the motion in part and deny it in part.

I. Background

  Plaintiff Bartley Pirino, Jr. purchased Allstate Landlords Package Policy Number 0019000947 ("the policy") to provide coverage for the building located at 1316-18 Vine Street, Scranton, Pennsylvania ("the property"). (Def. Ex. A in Supp. Summ. J.). The policy included the following provision:
Losses We Do Not Cover Under Coverages A and B:
We do not cover loss to the property . . . consisting of or caused by:
9. Intentional or criminal acts of or at the direction of any insured person, if the loss that occurs:
a) may reasonably expect to result from such acts; or
b) is the intended result of the acts.
(Id. at 13-14).

  The property was a two family home, split into two blocks, the 1316 side and the 1318 side. (Def. Ex. H. in Supp. Summ. J.). On February 13, 2003, at approximately 11:15 P.M., a fire occurred on the 1316 side of the property. (Def. Ex. G in Supp. Summ J. 2). At the time of the fire, the building was unoccupied. (Def. Ex. F. in Supp. Summ. J., Pirino Dep. 38).

  On February 27, 2004, Edward Carey of E.A. Carey Heating and Air Conditioning inspected the property along with Scranton City Fire Inspector Shaun Flynn and Michael Hartley of H.J.H. Investigations. (Id.; Def. Ex. H. in Supp. Summ J.). Their investigation revealed that in January 2003, Plaintiff disconnected and bypassed a temperature limit control on a boiler in the basement of the 1316 side of the property. (Def. Ex. H. in Supp. Summ. J. 4). Furthermore, on the date of the fire, Plaintiff entered the property between 9 and 10 A.M. and worked near the boiler. (Id. at 2). While working, he observed water on the floor and turned off the water supply to the 1316 side of the building. (Id. at 3; Pirino Dep. 44). This water source supplied the water for the boiler. (Def. Ex. H. in Supp. Summ J. 3).

  Upon examination of the boiler, Carey discovered that when the boiler's temperature limit switch was disconnected, "there was no other boiler control or component that could intercede and shut off the boiler to prevent overheating of the boiler." (Id. at 5). Discoloration on the boiler casting was consistent with exposure to excessively high temperatures while the boiler was operating without water. (Id.). Carey concluded that "[w]hen the boiler would operate in the absence of an adequate feed water source, and also with the disconnected limit switch, the operation of that boiler will create an inevitable result of severe overheating of the boiler and a `dry fire' condition." (Id. at 7). Carey found combustible materials, specifically numerous cardboard boxes of magazines, directly behind the boiler. (Id. at 8-9). In his expert opinion, Carey determined that excessive heat from the boiler ignited these materials, causing the fire. (Id. at 8-9). Hartley also concluded that the origin of the fire was the boiler in the basement of the 1316 side of the property. (Def. Ex. G in Supp. Summ. J. 4). He noted that the water source had been removed from the boiler, and the wall and debris behind the boiler had direct flame contact. (Id.). He also discovered a potential accelerant in the area behind the boiler. (Id. at 5). A laboratory analysis determined that the substance contained kerosene. (Id. at 5). Thus, Hartley concluded that the fire originated in the basement of the 1316 side of the property, between the boiler and the back wall. (Id. at 7). The ignition source was the intentionally altered gas-fired furnace that ignited kerosene accelerated cardboard and magazines. (Id.).

  On March 31, 2004, Dale J. Cagwin of Robson Forensic Inc. investigated the remains of the property to conduct his analysis of the fire. (Pl. Ex. A in Opp. Summ. J.). Cagwin disagreed with Hartley and Carey. (Id.). His inspection revealed that the area of heaviest fire damage was on the first floor directly above a basement wall to the south and east of the boiler. (Id. at 2). Based on the charring patterns in the basement and the first floor, Cagwin concluded that the fire originated on the first floor, and any damage to the basement resulted from the fire descending from its point of origin. (Id. at 3). Cagwin observed that numerous electrical wires ran through the area of highest damage, and noted that without an electrician's report, he could not rule out electric malfunction as the source of the fire. (Id. at 4). He also explained that kerosene may have been spilled accidently years before the fire because a resident previously used kerosene heaters to provide heat for the house, and he stored these heaters in the basement. (Id.). Finally, Cagwin observed that some materials situated closer to the boiler than the magazines had not ignited, and thus the heat from the boiler was insufficient to ignite nearby combustibles. (Id.). Therefore, in his expert opinion, the boiler overheated prior to February 13, 2003, the heat was insufficient to ignite nearby combustibles, and he could not rule out an electrical fire on the first floor as the source of the fire. (Id.).

  In February 2004, the Commonwealth of Pennsylvania initiated criminal arson and insurance fraud charges against Pirino. On April 5, 2004, a Magistrate Judge found that the Commonwealth of Pennsylvania had produced insufficient evidence at a preliminary hearing to hold Pirino for trial. (Pl. Ex. B. in Opp. Summ. J.).

  II. Jurisdiction

  This Court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. ยง 1332. Plaintiff is a Pennsylvania resident and the defendant is an Illinois corporation with its principle place of business in Illinois. Because we are sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).

  III. Standard

  Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n. 4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

  In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden ...

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