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.
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
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.
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
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.).
This Court has jurisdiction pursuant to the diversity
jurisdiction statute, 28 U.S.C. § 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)).
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 ...