The opinion of the court was delivered by: (Judge Munley)
Before the Court for disposition are two motions for summary judgment. The first was filed by Defendant Acuity and the second by Defendant Hickory Farms, Inc. ("Hickory Farms") and Defendant Superior Nut & Candy Co. ("Superior Nut"). These matters have been fully briefed and are ripe for disposition. For the following reasons, we will grant both motions.
Shaw is a prisoner in the State Correctional Institute at Dallas, Pennsylvania ("SCI-Dallas"). While incarcerated, he purchased a bag of chocolate covered peanuts from Hickory Farms. The peanuts were manufactured and packaged by Superior Nut. Upon opening the bag, Shaw bit down on what he presumed was a chocolate covered peanut, but actually was a chocolate covered twig. When he bit down on the twig he experienced a sharp pain and subsequently experienced a continuous, throbbing pain in the area of the tooth. (Def.'s Ex. B, Shaw Dep. 26:9-25-27:1-9, December 19, 2005.) Shaw contacted a Correctional Officer and was sent to the hospital immediately after the incident. (Id. at 17:5- 16). He was examined by a nurse or a physician's assistant and then was given a Motrin and required to sign up for dental sick call. (Id. at 1-5). Dental sick call allows a prisoner with dental problems to set up an appointment to see the prison dentist when he visits the prison. Shaw visited the prison dentist one or two days following the incident and was given another appointment. (Id. at 21:1-11). At his follow up appointment on December 18, 2003, four days following the incident, the tooth that he injured was extracted. (Id. at 22: 4-5). Thereafter, he was required to have extensive dental work. (Id. at 24: 4-7). It is undisputed that Shaw had a pre-existing dental condition and had received prior dental treatment.*fn1 (See id. at 46:1-6; Def.'s Ex. D, Dental Records, p. 4-7; Def.'s Ex. F, Schnoll Report, July 29, 2004.) Shaw seeks damages from Hickory Farms, Superior Nut, and Superior Nut's insurer, Defendant Acuity.
Plaintiff alleges that this Court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. The plaintiff is a Pennsylvania citizen. He alleges that Hickory Farms is an Ohio corporation with a principle place of business in Ohio, Superior Nut is an Illinois corporation with a principle place of business in Illinois, and defendant Acuity is a Wisconsin corporation with a principle place of business in Wisconsin. He alleges that the amount in controversy exceeds $75,000. 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 shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
Acuity argues that Plaintiff cannot state a direct claim against the insurer of an alleged tortfeasor. "It is well-settled that under Pennsylvania law, an injured party has no right to directly sue the insurer of an alleged tortfeasor unless a provision of the policy or statute create[s] such a right." Apalucci v. Agora Syndicate, Inc., 145 F.3d 630, 632 (3d Cir. 1998); Bell v. Slezak, 812 A. 2d 566, 573 (Pa. 2002). These exceptions do not apply in this case. The insurance policy issued by Acuity to Superior Nut contains a condition that prohibits any party or organization from bringing suit against the insurer except "to recover on an agreed settlement or on a final judgment against an insured obtained after an actual trial." (Def.'s Ex. C, Superior Nut's Acuity insurance policy, Section IV, p.3, March 24, 2005). Pennsylvania has a direct action statute allowing recovery directly against the insurer if the insured is insolvent or bankrupt. 40 P.A.C.S.A. § 117. Shaw has provided no evidence that the insured, Superior Nut, is insolvent or bankrupt. Furthermore, the Pennsylvania statute applies only to policies "issued or delivered" in Pennsylvania. Federico v. Charterers Mut. Assur. Ass'n Ltd., 158 F. Supp. 2d 565, 573 (E.D. Pa. 2001). Acuity, a Wisconsin company with its principle place of business in Wisconsin, issued this policy to Superior Nut, an Illinois company with its principle place of business in Illinois. Thus, neither the policy nor any statute allows Shaw to file suit directly against Acuity, and we will grant the motion for summary judgment.
B. Hickory Farms and Superior Nut
Hickory Farms and Superior Nut claim that they are entitled to summary judgment because Shaw has failed to introduce any expert testimony to establish that the allegedly defective condition of the chocolate covered peanuts caused his injuries. Shaw had substantial pre-existing treatment to, and problems or conditions associated with, the tooth that he alleges was injured by the chocolate covered twig. They aver that due to this pre-existing dental history, he is required to produce expert ...