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September 9, 2005.

CITY OF HARRISBURG, et al., Defendants and Third-Party Plaintiff v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, et al., Third-Party Defendants.

The opinion of the court was delivered by: YVETTE KANE, District Judge


Pending before the Court is a motion for summary judgment filed by Coregis Insurance Company ("Coregis"). (Doc. No. 145.) By the motion, Coregis seeks entry of an order declaring that the insurance company is not obligated to defend or indemnify Dauphin County under a claims-made public officials liability insurance policy in effect from June 15, 2002 to June 15, 2003 with respect to the underlying civil rights action of Steven D. Crawford v. Commonwealth of Pennsylvania, et al., Civil Action No. 1:CV-03-693 ("Crawford").*fn1 The issues have been fully briefed, and the motion is ripe for disposition. For the reasons that follow, the motion will be denied.


  A. The Insurance Policy

  On April 15, 2002, John D. Payne, Chairman of the Dauphin County Commissioners, signed an application to obtain public officials insurance coverage from Coregis. (Doc. No. 145, Ex. B., Proposal for Public Officials and Employment Insurance.) In this application, Payne indicated that no claims had been made, or were pending, against Dauphin County or any of its officials or employees. (Id.) Payne further represented that no Dauphin County official or employee had any knowledge of any fact, circumstance, or situation that might reasonably be expected to give rise to a claim against them or Dauphin. (Id.)

  Subsequently, Coregis issued Dauphin a Public Officials Liability Policy (No. POD-002329) effective from June 15, 2002 to June 15, 2003 ("POL Policy") (Doc. No. 145 Ex. B.) Dauphin paid a premium in the amount of $118,203 for the POL Policy. (Id.) The POL Policy provides the following coverage, subject to certain applicable exclusions and exceptions:
The Company will pay on behalf of the Insureds Loss as a result of civil Claims made against the Insureds by reason of a Wrongful Act, provided that Claim is first made during the Policy Period and written report of said Claim is received by the Company during the Policy Period or within sixty (60) days thereafter.
(Id.) The POL Policy defines a "Wrongful Act" as "any act, error or omission of an Insured constituting a breach of a duty imposed by law or a breach of an Employment Contract." (Id.)
  The POL Policy provides, inter alia, the following exclusions:
This Policy does not apply to the following, regardless of the cause of action or theory alleged:
. . .
B. any Claim or Loss Arising Out of any criminal, dishonest, malicious, fraudulent or knowingly wrongful act or omission.
. . .
D. any Claim or Loss Arising Out of death, bodily injury, sickness, disease, disability, shock, humiliation, embarrassment, mental injury, mental anguish, emotional distress, or injury to personal or business reputation or character.
. . .
F. any Claim or Loss Arising Out of assault, battery, false arrest, detention, imprisonment, malicious prosecution or abuse of process.
In addition to the foregoing exclusions, the POL Policy Prior Claims and Potential Claims Endorsement provides:
This Policy does not apply to any Claims or Loss arising out of any matter that was listed, or should have been listed, in the application(s) attached to this Policy.

  B. The Underlying Litigation and Dauphin County's Claim for Insurance

  On March 28, 2003, Crawford commenced the underlying action by filing a complaint against Dauphin County, the City of Harrisburg, and a number of individual defendants for alleged violations of 42 U.S.C. §§ 1983, 1985 and 1986, fraud, false imprisonment, conspiracy, and intentional infliction of emotional distress relating to his arrest, conviction and imprisonment for murder.*fn2 The factual allegations set forth in the Crawford complaint are discussed in some detail below.

  On February 14, 1974, Crawford was arrested and charged with the 1970 murder of John Eddie Mitchell. (Crawford Complaint ¶ 9.) Crawford was tried and found guilty on September 18, 1974. (Id. ¶ 19.) On October 8, 1976, the Supreme Court of Pennsylvania ordered a new trial. (Id. ¶ 20.) On February 24, 1977, Crawford was again tried and found guilty a second time. (Id. 21.) The trial judge subsequently declared a mistrial and overturned Crawford's conviction. (Id. ¶ 22.) Following a third trial for Mitchell's murder, Crawford was again found guilty on February 17, 1978. (Id. ¶ 24.) On May 14, 1982, Crawford was sentenced to a term of life imprisonment. (Id. ¶ 25.)

  Following his sentencing, Crawford engaged in a series of unsuccessful attempts in state and federal court to obtain post-conviction relief, including appeals of his conviction, petitions under the Post Conviction Relief Act, and requests for habeas relief. (Id. ¶¶ 26-34, 49, 71-75.) Subsequently, on September 29, 2000, Crawford filed another habeas petition, which was amended on November 29, 2000. (Id. ¶ 34.) By order dated March 13, 2001, the Office of the Federal Public Defender was appointed to represent Crawford in connection with this petition. (Id. ¶ 49.) Following this appointment, Crawford's counsel and the Dauphin County District Attorney engaged in a process of voluntary discovery. (Id. ¶ 50.) Following the fortuitous discovery of exculpatory evidence, the District Attorney filed an application for permission to enter a nolle prosequi on or about July 16, 2002, and Crawford was released from prison. (Id. ¶¶ 77, 79.) Thereafter, on March 28, 2003, Crawford commenced the underlying action.

  Crawford's complaint concerns the alleged actions of three law enforcement officers involved in Crawford's prosecution and conviction for Mitchell's murder. Crawford alleges that he was convicted as a result of falsified laboratory notes and the issuance of a report based upon such notes, false testimony offered at trial based upon the altered notes and report, and the suppression of the original lab notes. (Id. ¶¶ 36-48, 55-66, 76, 78, 84-86, 88, 94-95, 97, 102-103, 111-112, 117.)

  Crawford alleges that in 1972, Janice Roadcap, a chemist with the Pennsylvania State Police, conducted an experiment on a palm print lifted from Crawford's father's automobile to determine whether certain foreign material found in the palm print was human blood. (Id. ¶ 40.) Roadcap viewed the results of this experiment with Sergeant Walton B. Simpson and Corporal John Balshy.*fn3 (Id.) Roadcap and Balshy each signed the lab notes, and all three law enforcement officials observed the testing. (Id. ¶¶ 40, 42-43.)

  Roadcap's notes taken during this time indicate that the experiment disclosed the presence of blood along the ridges of the recovered fingerprint, as well as in the valleys of the palmprint. (Id. ¶ 41.) This evidence would have allegedly supported an argument advanced by Crawford during his criminal trials that his print was already on his father's car at the time it came into contact with Mitchell's blood. (Id. ¶ 56.) Notwithstanding the result of the experiment, Crawford alleges that the law enforcement officials altered the original lab notes by deleting any reference to blood being found in the valleys of the palm print. (Id. ¶ 44.) This deletion was allegedly intentionally executed "to materially alter the record and conceal information which was exculpatory to Mr. Crawford." (Id. ¶ 45.) On November 30, 1972, Roadcap prepared a report containing the following statement: "[The test results] indicates the presence of blood deposited by the donor of the palmprint." (Id. ¶ 46.) By this statement, Roadcap indicated that the blood was located on Crawford's hand before he touched his father's automobile, apparently contradicting the results reported in Roadcap's lab notes. (Id.) Accordingly, Crawford alleges that the testimony Roadcap, Simpson and Balshy gave in connection with his criminal trials was "patently false and known by them to be false." (Id. ¶ 47.) Crawford alleges ...

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