Appeal from the Judgment entered in the Common Pleas Court, Civil Division, Allegheny County, No. G.D. 82-9505.
Charles F. Scarlata, Pittsburgh, for appellant.
Richard W. Dibella, Pittsburgh, for appellee.
Brosky, Rowley and Hester, JJ.
[ 386 Pa. Super. Page 16]
Appellant, Jacqueline Marinelli (Marinelli), filed an action in assumpsit to recover the proceeds of a fire insurance policy.*fn1 The trial court directed a verdict in favor of Reliance Insurance Company (Reliance) on both Marinelli's claim, and on Reliance's counterclaim,*fn2 based upon a criminal conviction rendered against Marinelli on two counts of mail fraud, two counts of obstruction of justice, and one count of subornation of perjury, in the United States District Court for the Western District of Pennsylvania. The charges arose out of the same insurance claim involved in the instant appeal. Included in the two counts alleging mail fraud was an allegation that Marinelli caused the fire to be set. Marinelli was never charged with arson by Pennsylvania
[ 386 Pa. Super. Page 17]
authorities and arson was not an element of any of the federal charges. We are asked for the first time to decide whether conviction on an indictment for mail fraud which includes an allegation of arson bars any recovery on a related fire insurance policy.
The relevant facts are as follows: Marinelli was the owner of property identified as the Hancock Building, located at 1205 Liberty Avenue, Franklin, PA, on May 16, 1981. Two months prior thereto, Reliance issued a binder on the aforesaid property, insuring it against loss by fire. On May 16, 1981, at or about 11:30 p.m., the premises were totally destroyed by fire. An investigation was begun and Marinelli was subsequently indicted at Criminal Number 82-143, United States District Court for the Western District of Pennsylvania. Counts One and Two of the indictment alleged that Marinelli and others devised a scheme and artifice to defraud and obtain money from Reliance by means of false and fraudulent pretenses, representations and promises; and as part of that scheme the Indictment included the following allegations:
4. . . . that on or about March 1, 1981, the defendant, Jacqueline Marinelli, would and did request an increase in the property insurance coverage on the Hancock Building from approximately $200,000 to approximately $1,000,000.
5. . . . that on or about March 17, 1981, the defendant, Jacqueline Marinelli, caused the Reliance Insurance Company to issue a temporary insurance coverage binder in the approximate amount of $1,000,000.00, said insurance to expire on May 17, 1981.
6. . . . upon being notified on or about March 16, 1981 by the Reliance Insurance Company that permanent insurance coverage would be provided only if the Hancock Building passed a risk inspection test, the defendant, Jacqueline Marinelli, failed to provide access to representatives of the insurance company for said test.
7. . . . shortly after obtaining the aforementioned temporary insurance coverage, the defendant, Jacqueline Marinelli,
[ 386 Pa. Super. Page 18]
demanded that all residential tenants vacate the Hancock Building within two weeks.
8. . . . in early 1981, the defendant, Jacqueline Marinelli, advised commercial tenants in the Hancock Building to increase their fire insurance coverage on business contents and inventory.
9. . . . after obtaining the aforementioned temporary insurance coverage, the defendant, Jacqueline Marinelli, failed to make additional utility and tax payments on the Hancock Building.
10. . . . after obtaining the aforementioned temporary insurance coverage, the defendant, Jacqueline Marinelli, failed to take affirmative steps to satisfactorily remedy the health and safety code violations brought to her attention by Franklin public officials.
11. . . . after being advised by Reliance Insurance Company on or about May 1, 1981 that the aforementioned temporary insurance coverage binder on the Hancock Building, would not be renewed, the defendant, Jacqueline Marinelli, failed to apply for additional insurance coverage elsewhere.
12. . . . the defendant, Jacqueline Marinelli, caused a fire of an incendiary nature to be set at the Hancock Building on May 16, 1981, approximately thirty minutes before the aforementioned temporary insurance coverage binder was due to expire, said fire resulting in the total destruction of the building.
13. . . . the defendant, Jacqueline Marinelli, in attempting to obtain insurance proceeds from Reliance Insurance Company, falsely stated that the loss had not originated ...