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COMMONWEALTH PENNSYLVANIA v. WALTER BALL AND BARRY KABINOFF (10/06/89)

decided: October 6, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
WALTER BALL AND BARRY KABINOFF, APPELLEES



Appeal from the March 14, 1988 Superior Court Order at Nos. 2412, 2413, 2448, 2455, Philadelphia, 1984 Affirming the Suppression Orders of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 83-05-3641-3644 and 83-05-3645-3648, Entered August 9, and 14, 1984. Pa. Super Ct. , A.2d (19 ).

COUNSEL

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Ann Lebowitz, Philadelphia, for appellant.

Gregory T. Magarity, Philadelphia, for appellees.

Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen and Zappala, JJ., concur in the result. Nix, C.j., did not participate in the consideration or decision of this matter.

Author: Papadakos

[ 523 Pa. Page 217]

OPINION OF THE COURT

We are being asked by the Commonwealth to overturn a suppression order issued by the trial court on the grounds that Appellees were economically coerced into incriminating themselves in violation of the Fifth Amendment. Suppression was based on two interrelated findings. First, the suppression court determined that insurance company representatives investigating a destructive fire at Appellees' property were transformed into "agents" of the state by virtue of their extensive cooperation with the police. Second, the suppression court also found that the insurance company, now allegedly acting as an arm of law enforcement, coerced the Appellees by forcing them to answer questions and deliver documents under oath or forfeit payment under the policy and thereafter turned over the testimonial transcript and documents to the police who intended

[ 523 Pa. Page 218]

    to introduce the material at trial. It was this evidence given under oath which was suppressed.

The factual history of this case began with a fire which damaged the contents and a building leased by the Appellees and operated as their trucking company. On April 29, 1982, Appellees filed a claim with the Hartford Accident and Indemnity Company for $91,332.35. Several days after the fire, the Fire Marshall's office concluded that it was arson. On two occasions shortly after, the Fire Marshall sought to question both Appellees who took the position that, in addition to lacking any knowledge of the fire, they would not answer without having first consulted an attorney. Concurrently, of course, Hartford was conducting its own inquiry through its Claims Supervisor.

On June 8, 1982, the Fire Marshall's office hand delivered to Hartford's Supervisor a request for information pursuant to the Arson Reporting Immunity Act, 40 P.S. ยง 1610.1 et seq.*fn1 Hartford turned over "pertinent policy information

[ 523 Pa. Page 219]

    and statement of loss submitted . . . and other relevant information or evidence."*fn2 On June 15, 1982, the Claims Supervisor sent his file to Hartford's attorney, Michael Henry, for further action. Attorney Henry immediately contacted the Office of the District Attorney requesting their information. On the following day, as well as one week later, he met with police detectives who gave him access to Investigation Reports ...


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