The opinion of the court was delivered by: Judge Munley
Before the court for disposition is Magistrate Judge Malachy E. Mannion's report and recommendation that suggests granting Defendant Seneca Specialty Insurance Company's (hereinafter "Seneca" or "defendant") motion for summary judgment. Plaintiff Joseph R. Reisinger objects to the report and recommendation. The matter has been fully briefed and is ripe for disposition.
The general background facts are largely not at issue in the instant case. This issue at hand is one of law, that is, whether the plaintiff possessed standing to bring this suit when it was filed on January 24, 2007.
In January 2005, plaintiff suffered a fire loss at an office/apartment building located at 448-450 South Franklin Street, Wilkes-Barre, Pennsylvania. Plaintiff owned the property and had it covered with a property insurance policy issued by Seneca.
Plaintiff filed a notice of loss with the defendant. The defendant inspected the property and adjusted the loss. On February 14, 2005, defendant advanced $25,000 to plaintiff pending the final adjustment. On April 15, 2005, an adjuster working for the defendant sent plaintiff a Statement of Loss, Valuation and Co-Insurance Schedule indicating that the net amount of the claim as adjusted was $155,148.46. Defendant issued plaintiff a check for $130,148.46 on April 5, 2005. The check indicated that it was "the final payment of claim." Plaintiff cashed this check but sent a letter to the adjuster indicating that he did not accept the check as final payment.
Plaintiff on April 20, 2005 filed a Chapter 7 Bankruptcy petition.
By orders dated December 29, 2005 and March 15, 2006, the bankruptcy judge ordered the trustee to abandon all of plaintiff's real estate pursuant to 11 U.S.C. § 554 including pre-petition rental properties.
Plaintiff instituted the instant action on January 24, 2007 by filing a writ of summons in the Court of Common Pleas of Luzerne County, Pennsylvania. The defendant removed the case to this court on July 6, 2007.
Plaintiff's complaint asserts that the defendant did not properly adjust the fire loss claim. It seeks the full value of the fire loss claim and damages for breach of contract and insurance bad faith. At the time that the complaint was filed, plaintiff's bankruptcy was still pending. Defendant has moved for summary judgment. Magistrate Judge Mannion suggests that plaintiff did not have standing at the time he filed suit and he recommends that the court grant the defendant's summary judgment motion. The plaintiff filed objections to the report and recommendation bringing the case to its present posture.
This Court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. The plaintiff is citizen of Pennsylvania and the defendant is an Arizona corporation with a principal place of business in Phoenix, Arizona. (Doc. 1 - 4, Compl. ¶ 1 - 2). 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)).
In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
The report and recommendation addresses the defendant's motion for summary judgment. 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 ...