text:
    657 A.2d 518
    COMMONWEALTH of Pennsylvania v. Robert Eugene AHLBORN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 10, 1995.
    Decided March 6, 1995.
    Reargument Denied May 16, 1995.

      Jack W. Connor, Uniontown, for appellant.
    Richard E. Bower, Asst. Dist. Atty., Uniontown, for Com.
    Before CAVANAUGH, CIRILLO and SAYLOR, JJ.
   CAVANAUGH, Judge:

Appellant was convicted by jury trial of burglary, theft by unlawful taking, and theft by receiving stolen property. He was subsequently sentenced to a term of incarceration of 3/6 to 7 years, and fined $500. Post trial motions were filed and denied. This appeal from the judgment of sentence follows and requires us to determine whether the court’s charge to the jury regarding the Commonwealth’s burden of proof in establishing the corpus delicti for the crimes charged constituted reversible error. For the reasons set forth below, we conclude the charge was error, and accordingly, vacate the judgment of sentence and remand for a new trial.

On the morning of January 21, 1993, when Michael Sherwood, the victim of the burglary and theft for which appellant was convicted, departed for work at 6:30 A.M., the doors and windows to his home were locked and secured. Later that day, when he returned home from work at 4:15 P.M., he noticed that several screws securing the front window had been removed and that the window was wide open. Mr. Sherwood immediately inspected the residence and discovered that two hunting rifles he kept under his bed were missing. He called the police.

That same morning, at approximately 9:00 A.M., the appellant sold the two rifles in question to Brian Fisch for $250. Mr. Fisch, who had never met appellant prior to the transaction, testified that appellant stated that he owned the rifles and was selling them at an admittedly discount price because he needed to raise some money quickly in order to pay a fine and thereby avoid being incarcerated for its non-payment. When Mr. Fisch directly asked appellant whether the rifles were stolen, appellant answered, “No.”

The rifles were recovered by law enforcement officers and returned to Mr. Sherwood. As part of the investigation of the crime, Pennsylvania State Trooper, Omer Shankle, interviewed appellant. Prior to receiving Miranda warnings, appellant provided trooper Shankle with a statement wherein he confessed to entering the victim’s home through the window, stealing the rifles and selling them. Appellant’s confession, as well as his statements to Mr. Fisch, were admitted into evidence at trial.

It was determined at trial that the victim’s wife and appellant’s wife are sisters. Further, it was established that on the day prior to the crime, the victim’s wife, Mrs. Sherwood, moved out of the family home and took belongings from the home with her. Mr. Sherwood denied that Mrs. Sherwood moved in with appellant and his wife. Mr. Sherwood admitted however, that he did not know whether his wife took the rifles with her when she left. He further testified that it was possible she could have taken the rifles. He also testified that he did not know whether appellant had assisted Mrs. Sherwood in moving out, but later denied harboring any animosity towards appellant for having done so.

After the conclusion of closing arguments, appellant’s trial counsel requested that the court charge the jury that it could not consider appellant’s admissions or confession in its deliberations unless it was satisfied that the Commonwealth had proven the corpus delicti of the crimes charged beyond a reasonable doubt. The court denied appellant’s request for charge over his objection of record.

In the present appeal, appellant alleges:

The trial court erred in failing to instruct the jury, pursuant to request of trial counsel, that they could not consider appellant’s extra-judicial statements or admissions until the corpus delicti of the crimes charged were proven beyond a reasonable doubt.

We initially note that in reviewing a jury charge for reversible error, the charge must be read and considered as a whole. Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978). If we conclude that the charge was erroneous, we will grant a new trial unless we determine the error to be harmless. Commonwealth v. Story, 476 Pa. 391, 405, 383 A.2d 155, 162 (1978). Whenever there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless. Id. at 405-06, 383 A.2d at 162. Finally, the trial court’s jury instruction will be upheld if it adequately and accurately reflects the law and is sufficient to guide the jury through its deliberations. Commonwealth v. Early, 377 Pa.Super. 219, 227, 546 A.2d 1236, 1240 (1988), appeal denied 521 Pa. 629, 558 A.2d 531 (1989).

Instantly, the court’s charge to the jury regarding the Commonwealth’s burden of proof for the corpus delicti of the crimes charged was as follows:

The Commonwealth, in this case, has introduced a statement which it claims was made by the defendant. Before you may consider this statement as evidence against the defendant, you must find that a crime was, in fact, committed, that the defendant, in fact, made the statement and that the statement was voluntary. Otherwise, you must disregard the statement. Each juror should ultimately decide these questions for himself or herself, and, thereby, individually accept or reject the defendant’s statement as evidence. You must not allow the fact that I admitted the statement into evidence to influence you in any way during your deliberations.

Our review of the record, including the charge as a whole, as well as the party’s briefs and pertinent decisional law persuades us that the aforementioned charge did not adequately and accurately reflect the law of this Commonwealth regarding the application of the corpus delicti rule and was insufficient to guide the jury through its deliberations. Moreover, we conclude that the erroneous charge was not harmless as there existed a reasonable possibility that its presentation to the jury contributed to appellant’s conviction.

The corpus delicti rule begins with the proposition that a criminal conviction may not be based upon the extrajudicial confession of the accused unless it is corroborated by independent evidence establishing the corpus delicti. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). The corpus delicti, literally “the body of the crime,” is defined as a wrong committed by criminal means, and consists of the occurrence of a loss or injury, and some person’s criminal conduct as the source of that loss or injury. Id. at 365, 329 A.2d at 274. The criminal responsibility of a particular, identifiable person, e.g. the accused, is not a requirement of the rule. Commonwealth v. Elder, 305 Pa.Super. 49, 51, 451 A.2d 236, 237 (1982). The purpose of the rule is to prevent the use of hasty and unguarded confessions to convict an individual when no crime has been committed. Commonwealth v. Fried, 382 Pa.Super. 156, 160, 555 A.2d 119, 120 (1989), appeal denied 522 Pa. 623, 564 A.2d 915 (1989).

Under Pennsylvania law, the application of the corpus delicti rule occurs in two distinct phases. The first phase involves the court’s application of a rule of evidence governing the threshold question of the admissibility of the confession. In this first phase of the rule’s application, the court must determine whether the Commonwealth has proven the corpus delicti of the crimes charged by a mere preponderance of the evidence. If the court is satisfied that, on the evidence presented, it is more likely than not that a wrong has occurred through criminal agency, then the confession and/or admissions of the defendant are admissible. Commonwealth v. Tallon, 478 Pa. 468, 387 A.2d 77 (1978); Commonwealth v. Drexel, 349 Pa.Super. 335, 503 A.2d 27 (1986), appeal denied 514 Pa. 616, 521 A.2d 931 (1987).

The second phase of the rule’s application occurs after a confession has already been admitted into evidence. After the court has made its initial determination that the Commonwealth has proved the corpus delicti by a preponderance of the evidence and has ruled the confession to be admissible, the corpus delicti rule additionally requires that the Commonwealth prove to the jury’s satisfaction beyond a reasonable doubt, the corpus delicti of the crimes charged. Commonwealth v. Lettrich, 346 Pa. 497, 502, 31 A.2d 155, 157 (1943); Commonwealth v. May, 451 Pa. 31, 301 A.2d 368 (1973); Commonwealth v. Tallon, 478 Pa. at 475-76, 387 A.2d at 81; Commonwealth v. Fried, 382 Pa.Super. at 161, 555 A.2d at 121. We note that the dual level of proof the corpus delicti rule requires is not without its critics. We additionally note that other jurisdictions do not require a two-tiered, dual level of proof application of the rule.

Nevertheless, the law of Pennsylvania continues to require that the Commonwealth prove the existence of the corpus delicti beyond a reasonable doubt before the jury may consider the defendant’s confession. A jury instruction to that effect is, therefore, crucial, since the confession may be admitted into evidence upon a presentation of the corpus delicti by a mere preponderance.

In the instant case, the court’s charge to the jury regarding the Commonwealth’s burden of proof relative to corpus delicti did not go far enough. By merely charging that the jury had to be satisfied that a crime had, in fact, occurred, prior to considering the appellant’s confession, the court effectively diluted the Commonwealth’s burden of proof. The “in fact” terminology is indefinite and fails to articulate the mandated “beyond a reasonable doubt” standard, which is, of course, explained to the jury in every criminal charge. Accordingly, we find unpersuasive the court’s contention that the “in fact” language it included in its charge presented a more stringent burden than the “beyond a reasonable doubt” standard the law requires.

Having concluded that the court’s charge was reversible error, we need not address appellant’s remaining issue, but will briefly do so as it may effect re-trial. We find appellant’s assertion that the court improperly admitted the appellant’s confession and admissions to be without merit. As heretofore explained, the initial determination by the court regarding whether the Commonwealth has proved the corpus delicti, is judged by a preponderance of the evidence standard. Instantly, evidence was presented showing that the victim’s home was secured when he left for work, that upon his arrival home some ten hours later, the front window was wide open and his rifles were missing. Concurrently, the appellant was in possession of the rifles and sold them. This evidence makes it more likely than not that a wrong had been perpetrated through criminal agency, and accordingly, the court’s admission into evidence of appellant’s confession and admissions was proper. However, due to the erroneous jury charge, we must vacate appellant’s judgment of sentence and remand for a new trial.

Judgment of sentence vacated. New trial ordered. Jurisdiction relinquished.

      . The voluntariness of appellant’s confession is not at issue in this appeal.

      . The Subcommittee which adopted the Pennsylvania Suggested Stan- ■ dard Jury Instructions, in its note regarding the standard instruction for corpus delicti, criticizes the two-tiered approach. The Subcommittee suggests that the two levels of proof the rule requires potentially confuses a jury. The Subcommittee further suggests that the purpose of the corpus delicti rule — to guard against convictions for non-existent crimes — would be adequately served by the lesser standard which, it suggests, should be administered solely by the court.
      Pennsylvania Suggested Standard Jury Instructions (Criminal), Subcommittee Note, 3.02A (rev. 1985).

      . In Virginia, the corpus delicti is an evidentiary question to be determined solely by the court based on a preponderance of the evidence presented. There exists no further review of the evidence's sufficiency by the jury. Watkins v. Commonwealth, 238 Va. 341, 385 S.E.2d 50 (1989).
      Similarly, in Maine, “it is the exclusive function of the presiding Justice to determine the adequacy of an independent showing of corpus delicti as the pre-condition of the evidentiary admissibility of extrajudicial inculpatory statements of a defendant.” State v. Kelley, 308 A.2d 877, 885 (Me.1973) (emphasis in original).

      . The court's charge was a practically verbatim rendering of Pennsylvania Suggested Standard Jury Instruction (Criminal), 3.01, Defendant’s Confession or Admission: General Introduction. This charge is intended to be given as an introduction to the actual corpus delicti charge. The court, however, did not include the last sentence of this introductory charge: '1 shall now instruct you in more detail about the rules you must follow in dealing with the statement.” Pa. SSJI (Crim.) 3.01. Nor did the court then further instruct the jury regarding the Commonwealth’s burden of proof relative to corpus delicti.

      . We note that the Pennsylvania standard jury charge on corpus delicti contains the "reasonable doubt” requirement as follows:
      1) As I told you, you may not consider the statement as evidence against the defendant unless you find that a crime was committed. In making this preliminary determination you may consider any direct or circumstantial evidence, apart from the statement itself, tending to prove or disprove a crime. This means you must disregard the statement unless you are satisfied beyond a reasonable doubt by the other evidence that an injury or loss occurred and that such injury or loss probably resulted from the commission of the crime of _by someone. The other evidence need not tend to show that the crime was committed by the defendant, only that the crime was committed by someone. The other evidence need not rule out all possibility of accident, justification or excuse or other non-criminal means. It is enough if you are satisfied beyond a reasonable doubt that the circumstances are more consistent with the injury or loss having resulted from the crime of_ than from other means.
      2) The object of these rules is to guard against convicting a person of a crime that never really happened even though he confessed to it.
      Pennsylvania Suggested Standard Jury Instructions (Criminal), 3.02A, Defendant's Confession or Admission: Corpus Delicti, General (rev. 1985).


source: Caselaw Access Project

author:
WIEAND, Judge:
      DEL SOLE, Judge, CAVANAUGH, Judge,

license: Public Domain

text:
    657 A.2d 938
    Robert M. McMAHON, Appellant, v. John G. SHEA, Esquire, Phyllis McCormick Shea, Esquire, Michael S. Dinney, Esquire and Shea & Shea, A Partnership, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1994.
    Filed Feb. 23, 1995.
    Reargument Denied April 25, 1995.

      Joseph W. Fullem, Jr., Philadelphia, for appellant.
    Patrick T. Ryan, Philadelphia, for appellees.
    Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, CIRILLO, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and SAYLOR, JJ.
   WIEAND, Judge:

If, before a client signs a written agreement, his or her lawyer negligently fails to advise the client correctly about pertinent principles of law or the impact of the agreement upon the client’s future rights and obligations, is the lawyer immunized from liability to the client because the agreement was executed in settlement of a pending marital dispute? The trial court held that the lawyer was immune from liability under such circumstances and sustained preliminary objections in the nature of a demurrer to the client’s complaint seeking damages for legal malpractice. The client appealed. After careful review, we reverse and remand for further proceedings.

When Robert McMahon was separated from his wife, the law firm of Shea and Shea represented and advised him. Upon his lawyer’s advice, McMahon entered an agreement to pay his wife the sum of $791.00 per week, half of which was deemed child support and the other half of which was deemed alimony. The only provision for termination of these weekly payments was a clause referring to the time when “the youngest child reached age twenty-one, is emancipated or finishes college, whichever occurs last.” Subsequently, Mrs. McMahon filed a complaint in divorce. Allegedly upon the advice of Shea and Shea, McMahon agreed that the agreement for alimony should be incorporated but not merged into the decree in divorce.

Approximately two months after the divorce decree had been entered, Mrs. McMahon was remarried. McMahon was advised by his lawyers that his obligation to pay further alimony was terminated by the provisions of the Divorce Code, and a petition was filed to terminate the order requiring the payment of such alimony. The trial court, however, refused to grant relief, and the Superior Court affirmed. These courts held that the parties’ agreement had survived the decree of divorce ending the marriage and required McMahon to pay alimony until the youngest child became twenty-one, was emancipated or finished college. See: McMahon v. McMahon, 417 Pa.Super. 592, 612 A.2d 1360 (1992).

McMahon then filed an action against his lawyers, alleging that Shea and Shea had been guilty of negligence for failing to advise him regarding the duration of his duty to pay alimony under the Divorce Code and for failing to review the agreement and explain to him the duration of his duty to pay alimony under the agreement. He also contended that the lawyers had been negligent for allowing the property settlement agreement to be incorporated but not merged in the final decree of divorce. When Shea and Shea filed preliminary objections in the nature of a demurrer to McMahon’s complaint, the trial court dismissed the action. It held that, because McMahon had voluntarily signed the agreement in settlement of a pending action, he could have no cause of action against the lawyers.

In reviewing the trial court’s ruling, we accept as true all facts which have been well pleaded and all inferences reasonably deducible therefrom. We then determine whether, on the facts alleged, the law says with certainty that no recovery is possible. If a doubt exists, that doubt must be resolved in favor of the plaintiff. Collas v. Garnick, 425 Pa.Super. 8, 12, 624 A.2d 117, 119 (1993), allocatur denied, 535 Pa. 672, 636 A.2d 631 (1993); Kemper Nat’l P & C Cos. v. Smith, 419 Pa.Super. 295, 299, 615 A.2d 372, 374 (1992); Taras v. Wausau Ins. Cos., 412 Pa.Super. 37, 42, 602 A.2d 882, 884, allocatur denied, 532 Pa. 657, 615 A.2d 1313 (1992).

In Collas v. Garnick, supra, 425 Pa.Super. 8, 624 A.2d 117, the Superior Court said:

The elements which must be alleged in order to state a cause of action for legal malpractice are: “the employment of the attorney or other basis for duty; the failure of the attorney to exercise ordinary skill and knowledge; and that such negligence was the proximate cause of damage to the plaintiff.” Liberty Bank v. Ruder, 402 Pa.Super 561, 567, 587 A.2d 761, 764-765, allocatur denied, 528 Pa. 637, 598 A.2d 994 (1991). See also: McHugh v. Litvin, Blumberg, Matusow & Young, 525 Pa. 1, 5, 574 A.2d 1040, 1042 (1990); Rizzo v. Haines, 520 Pa. 484, 499, 555 A.2d 58, 65 (1989). A lawyer will be found to be negligent if he or she fails to possess and exercise that degree of knowledge, skill and care which would normally be exercised by members of the profession under the same or similar circumstances. McPeake v. Cannon, Esquire, P.C., 381 Pa.Super. 227, 232, 553 A.2d 439, 441 (1989). The lawyer has a duty to inform himself or herself of the manner in which a proposed settlement affects the client and to inform the client regarding consequences thereof. 7A C.J.S. Attorney and Client, § 261 (1980), citing Wade v. Clemmons, 84 Misc.2d 822, 377 N.Y.S.2d 415 (1975). See also: In re Snitoff, 53 Ill.2d 50, 289 N.E.2d 428 (1972), cert. denied, Snitoff v. Board of Managers of Chicago Bar Assn., 412 U.S. 906, 93 S.Ct. 2292, 36 L.Ed.2d 971 (1973). As one trial court has observed,
a lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations.
Lang v. Anton, 40 D. & C.3d 47, 48 (Wash. [Pa.Com.Pl.] 1983). See also: Ziegelheim v. Apollo, 128 N.J. 250, 262, 607 A.2d 1298, 1304 (1992) (attorneys should advise clients with respect to settlements with the same skill, knowledge, and diligence with which they pursue all other legal tasks.). Although a lawyer is not expected to be infallible, he or she is expected to conduct that measure of research sufficient to allow the client to make an informed decision. 7A C.J.S. at § 257. In order for a lawyer to advise a client adequately, he or she is obligated to scrutinize any contract which the client is to execute, and thereafter must disclose to the client the full import of the instrument and any possible consequences which might arise therefrom. Id. at n. 96, citing Ramp v. St. Paul Fire & Marine Insurance Co., 263 La. 774, 269 So.2d 239 (1972); Gill v. DiFatta, 364 So.2d 1352 (La.App.1978). See also: Soderquist v. Kramer, 595 So.2d 825 (La.App.1992); Bush v. O’Connor, 58 Wash.App. 138, 791 P.2d 915 (1990). The lawyer, moreover, must be familiar with well settled principles of law and the rules of practice which are of frequent application in the ordinary business of the profession. George v. Caton, 93 N.M. 370, 377, 600 P.2d 822, 829 (1979).

Id., 425 Pa.Super. at 12-14, 624 A.2d at 119-120.

The provisions of the Divorce Code which establish that the payment of alimony shall terminate upon the payee-spouse’s remarriage are well known to lawyers who practice marital law. See: 23 Pa.C.S. § 3706. These provisions state a rule of substantive law of which the defendant-lawyers in this case should have been aware. Moreover, even if the lawyers were unfamiliar with the provisions of the Divorce Code, they had an obligation to familiarize themselves with the law before advising their client to sign a legal agreement containing language which created rights contrary to and in excess of those established by statute. If the lawyers negligently advised their client incorrectly about the duration of the client’s duty to pay alimony or allowed him to execute an agreement more onerous than the substantive law required, it would seem that the client would have a cause of action for legal malpractice.

The trial court held, however, that a cause of action was barred by the decision of a panel of the Superior Court in Miller v. Berschler, 423 Pa.Super. 405, 621 A.2d 595 (1993), which had extended the holding of the Supreme Court in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346 (1991), cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991) to circumstances similar to those in the instant case. The Superior Court directed reargument of the instant case before a court en banc so that the Miller decision might be reviewed.

In Muhammad, the defendant-lawyers had represented parents who were asserting a claim for medical malpractice which, allegedly, had caused the death of their son. The parents, following negotiations, agreed to settle their claim for the sum of $26,500.00. They subsequently became dissatisfied with the amount of their settlement and sought to avoid their agreement. However, the trial court held that they were bound by their agreement and refused to allow them to withdraw. Thereafter, the parents filed an action against their lawyers for legal malpractice. They contended that the lawyers had been negligent in recommending the settlement amount. The trial court sustained preliminary objections in the nature of a demurrer to the parents’ complaint and dismissed the action. When the case subsequently reached the Supreme Court, that Court held that the trial court had correctly dismissed the complaint for failure to state a cause of action for which relief could be granted. The Court reviewed the principles which favored settlements of lawsuits and then reasoned further as follows:

Mindful of these principles, we foreclose the ability of dissatisfied litigants to agree to a settlement and then file suit against their attorneys in the hope that they will recover additional monies. To permit otherwise results in unfairness to the attorneys who relied on their client’s assent and unfairness to the litigants whose cases have not yet been tried. Additionally, it places an unnecessarily arduous burden on an overly taxed court system.

Id., 526 Pa. at 552, 587 A.2d at 1351. Therefore, the Court held:

[W]e will not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action. An action should not lie against an attorney for malpractice based on negligence and/or contract principles when that client has agreed to a settlement. Rather, only cases of fraud should be actionable.

Id. at 546, 587 A.2d at 1348.

In Miller v. Bersckler, supra, 423 Pa.Super. 405, 621 A.2d 595, a panel of the Superior Court expanded the holding of Muhammad to dismiss a legal malpractice action against a lawyer who had negligently failed to explain to a client his rights under the Divorce Code and who had failed to advise the client that the written agreement of settlement imposed more onerous obligations upon him than those imposed by statute. In Miller, the client had not complained about the amount of alimony to be paid or about the lawyer’s judgment in recommending the payment of such amount. His complaint, rather, was in the lawyer’s failure to explain that (1) under the law, the client’s obligation to pay alimony terminated if his wife cohabited with another man, and (2) the terms of the agreement imposed an obligation of greater duration than that required by statute. As a result, the client had executed an agreement which required him to continue paying alimony even after his former wife had begun cohabiting with another man. A majority of the Miller panel held that the language used by the Supreme Court in deciding Muhammad was broad enough to immunize a lawyer who had negligently failed to advise a client about applicable legal principles and the effect of a written agreement so long as the agreement had been executed in settlement of pending litigation.

It is axiomatic, however, that a judicial decision is precedential authority only “for an identical or similar case after-wards arising or a similar question of law.” Black’s Law Dictionary (5th ed. 1979). “General expressions in an opinion must be considered in the light of and cannot be dissevered from the facts of that case; what is actually decided and controlling is the law applicable to the particular facts of that particular case and while all other statements and conclusions therein are entitled to great consideration they are not controlling.” In re Trust Estate of Pew, 411 Pa. 96, 105, 191 A.2d 399, 405 (1963), overruled on other grounds, Estate of Tyler, 474 Pa. 148, 377 A.2d 157 (1977).

The salutary policy which formed the basis for the Supreme Court’s decision in Muhammad is not equally applicable where the lawyer’s alleged negligence does not lie in the exercise of judgment regarding an amount to be accepted or paid in settlement of a claim, but, rather, in the failure to advise the client properly about well established principles of law and the impact of an agreement upon the substantive rights and obligations of the client. A person about to enter a contract, all would agree, should be entitled to rely on the advice of his or her lawyer regarding the impact of the terms of the agreement. Should the result be different because the agreement is intended to settle property rights which are the subject of pending litigation? We think not. With respect to counsel’s duty to advise a client, he or she is required to exercise the same degree of care as if advising a client about an agreement which is not part of a settlement of pending litigation. See: Collas v. Garnick, supra, 425 Pa.Super. 8, 624 A.2d 117. See also: White v. Kreithen, 435 Pa.Super. 115, 121-22, 644 A.2d 1262, 1265 (1994) (client may maintain malpractice action where attorney’s negligent conduct before settlement caused damage).

The rule announced by the Supreme Court in Muhammad is limited to cases involving facts similar to those which caused the Court’s ruling. Thus, Muhammad has been held to be controlling where the lawyer’s alleged negligence consisted of “advising and representing [a client] and in negotiating for him the terms of [a] settlement and sale.” Goodman v. Kotzen, 436 Pa.Super. 71, 77-79, 647 A.2d 247, 250 (1994). Muhammad was also held to be determinative where the client merely expressed dissatisfaction with the amount of her marital award and averred that the lawyer’s conduct had caused her to receive “a deficient amount” of marital property, alimony and other available relief. Spirer v. Freeland & Kronz, 434 Pa.Super. 341, 344-46, 643 A.2d 673, 675 (1994). Finally, in Martos v. Concilio, 427 Pa.Super. 612, 629 A.2d 1037 (1993), Muhammad was held to be controlling where the lawyer’s alleged negligence had consisted of an “alleged failure to adequately represent [the client] in negotiations of the settlement agreement.” Id. at 613, 629 A.2d at 1038. These are situations in which the client perceived a deficiency in the lawyer’s exercise of his or her professional judgment.

The facts in the instant case are not similar. The alleged negligence of the defendant-lawyers in this case involved the failure to advise the client about well established principles of law and the impact of the agreement upon the client’s future obligations.

Unless the Supreme Court directs otherwise, we will not interpret Muhammad, to blindly protect lawyers who carelessly advise clients incorrectly about their substantive rights and the effect of a written agreement which is intended to resolve an existing dispute. Because the decision in Miller v. Berschler, supra, 423 Pa.Super. 405, 621 A.2d 595, reaches a contrary result, it is expressly overruled. To do otherwise would do a disservice to clients who must rely upon the advice of their lawyers before entering agreements involving future obligations and also to careful and conscientious practitioners who undertake to advise their clients fully before the client is asked to execute an agreement, whether simple or complex, and who protect their clients, or at least advise them, against contractual provisions which impose more onerous burdens than the substantive law requires.

Whether the lawyers in this case were negligent in fact is not now for us to decide. We hold only that the complaint was adequate to withstand the summary granting of judgment in response to preliminary objections in the nature of a demurrer.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

DEL SOLE, J., files a Concurring Statement.

CAVANAUGH, J., files a Dissenting Opinion in which CIRILLO, POPOVICH and HUDOCK, JJ. join.

DEL SOLE, Judge,

concurring.

I join the Majority in its interpretation of the Supreme Court’s holding in Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346 (1991), and agree that this case should be remanded to the trial court.

This matter is before us on appeal of a Order sustaining preliminary Objections to the Plaintiffs Complaint. Having reviewed that Complaint, I conclude that the Plaintiff has not plead a cause of action upon which relief could be granted.

The Plaintiffs claim is based on the fact he is paying alimony to his former wife as a result of a property settlement agreement, even though she has remarried. The basis of the claim, as contained in his Complaint, is as follows:

33. At all times relevant hereto, Mr. McMahon was aware of the fact that his wife might re-marry. However, it was not until after his wife remarried that defendants advised Mr. McMahon that his obligation to support his wife could be terminated.
34. Defendants failed to provide for court intervention concerning Mr. McMahon’s alimony agreement by failing to specifically provide for the same in the March 31, 1987 agreement as amended by the December 4, 1987 agreement and by not merging the agreement as worded with the final decree.
....
38. Defendants’ conduct in failing to merge Mr. McMahon’s alimony agreement with a final divorce decree was a breach of defendants’ duty to exercise reasonable care, skill and diligence on Mr. McMahon’s behalf.
39. As a result of defendants’ negligent failure to merge Mr. McMahon’s alimony agreement with the final divorce decree, Mr. McMahon sustained injury and Loss....

Nowhere in the complaint does the Appellant allege that he received incorrect or insufficient legal advise upon which he relied before signing the agreement. He does not claim that he was misled about the agreement’s terms, or about the effects of remarriage on alimony. Rather, the language of the agreement provided that alimony would be paid for a defined period.

Normally, when an appellate court concludes a trial court decision is correct, but for a reason different than that advanced by the trial judge, the appellate court would affirm. However, in this case, while I conclude that the plaintiff has not stated a cause of action, because the trial court decided no cause of action could be averred, he was not given an opportunity to amend his complaint. I believe on remand the court should address paragraphs 3 and 4 of the Defendant’s Preliminary Objections, and determine if the complaint is sufficient or if Plaintiff should be permitted to amend.

CAVANAUGH, Judge,

dissenting.

I most respectfully dissent. I see the threshold issue before us as a question different from the one posed by the majority at the outset of its opinion.

Should the superior court undertake to substantially modify the policy adopted in a supreme court decision where there is no principled rationale for distinguishing the case from the supreme court decision and where the effect is to overrule or abrogate a series of decided cases which have been promulgated and published in the four-year interim between the supreme court decision and today’s decision?

Although no principle should be less in need of enunciation and repetition, our court has engaged in frequent self-reminders of our duty of obeisance to supreme court opinions. See Aivazoglou v. Drever Furnaces, 418 Pa.Super. 111, 613 A.2d 595 (1992) (deferring to our supreme court as policy making court of this Commonwealth); see also Foflygen v. R. Zemel, M.D., 420 Pa.Super. 18, 615 A.2d 1345 (1992); Preiser v. Rosenzweig, 418 Pa.Super. 341, 614 A.2d 303 (1992), allocatur granted, 535 Pa. 637, 631 A.2d 1009 (1993); DeFrancesco v. Western Pa. Water Co., 329 Pa.Super. 508, 478 A.2d 1295 (1984); Commonwealth v. Edrington, 317 Pa.Super. 545, 464 A.2d 456 (1983). Of course, the supreme court has not hesitated to remind our court of its confines when it felt that our court had stepped beyond its proper boundaries. See two cases decided the same day: Municipal Publications, Inc. v. Court of Common Pleas; Appeal of Edgehill, 507 Pa. 194, 489 A.2d 1286 (1985) and Reilly by Reilly v. SEPTA 507 Pa. 204, 489 A.2d 1291 (1985).

In Miller v. Berschler, 423 Pa.Super. 405, 621 A.2d 595 (1993) we examined the applicability of Muhammad v. Strassburger, et al, 526 Pa. 541, 587 A.2d 1346 (1991) to a case involving circumstances similar to the instant matter and opined:

We find the appellant’s argument unpersuasive. Muhammad, speaking in straightforward terms, bars litigants who have entered a settlement agreement from subsequently maintaining a suit against their attorney for legal malpractice unless fraud is alleged in the inducement of the agreement. While it may be argued that this is a fundamentally problematic holding, we are obliged to follow the pronouncements of our highest court. See e.g., Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985) (“The formal purpose of the Superior court is to maintain and effectuate the decisional law of [the Supreme] Court as faithfully as possible.”)
... the Supreme Court sua sponte promulgated a rule affording attorneys broad protection in malpractice cases.
Simply stated, we will not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which the plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action. An action should not lie against an attorney for malpractice based on negligence and/or contract principles when the client has agreed to a settlement. Rather, only cases of fraud should be actionable.
Id., 526 Pa. at 546, 587 A.2d 1346. The court gave the following rationales for this rule: the court declared that the essence of settlement is contractual in nature, and similar to a contract, the time for questioning whether a settlement agreement is advantageous is before settlement, id. at 547-548, 587 A.2d at 1349; the contract principle of caveat emptor applies similarly to settlements, so that a person entering into a settlement agreement is locked into whatever compromise he agreed to once the settlement becomes effective, id. at 548, 587 A.2d at 1349; the Court found that overriding principles of public policy supported its result, as lawyers might be reluctant to settle a case if they feared a client might later find a way to sue them for something that “ ‘cold have been done, but was not,’ ” id. at 548, 587 A.2d at 1349; the court was concerned with the lack of finality and delay in already overcrowded courts and believed: “we [the court] should view ‘litigation concerning litigation’ cases with a jaundiced eye,” id. at 549-550, 587 A.2d at 1350; litigation over settlements is of particular concern, because settlement is an essential part of the efficient operation of our judicial system, id. at 550, 587 A.2d at 1349; and finally, there are distinct societal advantages to a judicial system which is not adversarial in nature but attempts to resolve disputes by compromise or concession, id. at 551-552, 587 A.2d at 1351.
It appears that, given the broad policy rationales employed by the Supreme Court and the unqualified articulation of its “simply stated” holding, Muhammad proclaims a clear, bright line rule which, absent fraud, shields attorneys from legal malpractice claims sounding in negligence or contract where they involve cases concluded by completed settlement.

Miller v. Berschler, 423 Pa.Super. 405, 406-07, 408-09, 621 A.2d 595, 596, 597.

The dissent in Miller argued that Muhammad should be limited cases where the dispute was as to the amount of money involved in the settlement.

The present majority conspicuously fails to refer to any language in the supreme court opinion which would suggest that the Muhammad decision should be interpreted as it is today. Although the majority twice suggests revisitation to the “amount” of dollars as a basis for distinction, the court later would draw the line between Muhammad and cases where there was a failure to advise a client about well-established principles of law and the “impact on future obligations” or, as declaratively stated by the majority, where there is a “deficiency in the lawyers exercise of his or her professional judgment”. If these statements (which could well be used as a definition of all legal malpractice) are to be taken as the basis for differentiation from Muhammad, it is clear that the majority not only improperly limits Muhammad, but that our court has now in fact nullified the policy enunciated by our supreme court.

Thus, the majority opinion not only emasculates Muhammad but, also it overrules or effectively overrides, four published decisions of this court which followed the reasoning and policy of Muhammad. These decisions which involve nine judges of this court, are but a part of the hegemony which may reasonably be attributed to the pivotal decision by our highest court. For example, we do not know the number of unpublished memoranda by our court which have applied the immunity policy or the number of cases in the trial courts which have applied Muhammad in its literal terms or followed the authorities discussed above which have now been virtually discountenanced. Nor can we measure the effect that Muhammad, as previously applied by our cases and its own broad language, has had upon counsel and their advice to prospective litigants previous to today.

In sum, I would apply the doctrine of stare decisis as eloquently described by Judge Rowley:

Furthermore, it is not necessary to us to explore the extent and impact of a particular analysis. Such determinations are the prerogative of the Supreme Court of Pennsylvania. Rather, we are compelled to follow the Supreme Court’s decision in Carrender [v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983) ] in factual situations of the same class, which we find the present case to be. Where the Supreme Court has spoken on a particular subject, it is our obligation, as an intermediate appellate court, to follow and apply that decision so as to establish some measure of predictability and stability in our case law. In the absence of a legally relevant distinction between the facts of a previous case and the case before us, we are obliged to follow the dictates of the Supreme Court’s decision in the prior case. Resolving cases by attempting to create irrelevant, factual distinctions impedes application of the doctrine of stare decisis, the principal function of which is to imbue the judicial system with some measure of predictability and stability, and places the development of the law in a constant, uncertain state of flux such that neither practitioners nor trial judges can, with any degree of predictability, determine the proper application of the law to each new case involving similar facts that comes before them. It also is not our prerogative to apply different methods of analysis where our Supreme Court has made clear which particular analysis it believes should be applied to a particular situation.

Malinder v. Jenkins Elevator & Mach. Co., 371 Pa.Super. 414, 421-22, 538 A.2d 509, 513 (1988).

Or, on an earlier day by Mr. Justice Paxson:

It was admitted by the learned counsel for the plaintiff, that the current of authority was against his view of the case, and we were urged to review the previous decisions of this court and recast them in harmony with the state of public opinion at the present day. We see no reason why the law should change to suit the barometer of public opinion. On the contrary, we see many reasons why it should not. And especially are we not disposed, for such reason, to overturn a long line of cases, solemnly decided, which have, to some extent, become rules of property, and upon the faith of which investments have been made and rights have grown up. It is our duty to apply the maxim stare decisis.

Struthers v. Dunkirk, Warren & Pittsburgh Rwy. Co., 87 Pa. 282, 286 (1878) (cited in Black’s Law Dictionary 4th Edition 1976-Stare Decisis).

Respectfully, I would conclude that the present case is controlled by the holding in Muhammad v. Strassburger, et al.; and also that the new rule adopted by the majority is artificial, unworkable, and not based on any principled distinction attributable to the supreme court decision and, accordingly, I, therefore, Dissent and would Affirm the order of the trial court.

CIRILLO, POPOVICH and HUDOCK, JJ., join.

      . Although the majority undertakes to avoid overruling in haec verba Goodman v. Kotzen, 436 Pa.Super. 71, 77-79, 647 A.2d 247, 250 (1994); Spirer v. Freeland & Kronz, 434 Pa.Super. 341, 344-46, 643 A.2d 673, 675 (1994) and Martos v. Concilio, 427 Pa.Super. 612, 629 A.2d 1037 (1993), they are in fact indistinguishable and a reading of the majority opinion discloses that there is no reasoned basis upon which these opinions may be distinguished from Muhammad or Miller. These cases all followed the supreme court’s decision in Muhammad and do not provide any support for the reasoning of the present majority.

      . See for example, Phelps v. Williams (No. 83-5499-14-2 C.C.P. Bucks Co., Oct. 30, 1991); Estate of Andrews v. Newman (no. 88-06167 C.C.P. Montgomery Co., Oct. 8, 1991); Dries v. Holko (No. 86-C-1942 C.C.P. Lehigh Co., Sept. 27, 1991) (bench opinion).

      . Of course, the application of the Stare decisis doctrine does not preclude judicial statements which, while recognizing the governance of a supreme court majority, undertake to question- the practical wisdom of the holding. The present rule is an example. See dissent in Muhammad ("It’s Christmastime for Pennsylvania Lawyers”) and concurrence in Gordon ([the immunity granted in Muhammad is] "well nigh absolute” [and may be an unmerited shield]).


author: POPOVICH, Judge:

text:
    657 A.2d 946
    COMMONWEALTH of Pennsylvania, Appellee, v. Thomas Eugene MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1995.
    Filed March 9, 1995.

      John F. Siford, Asst. Public Defender, Hollidaysburg, for appellant.
    John M. Daley, Asst. Dist. Atty., Pittsburgh, for Com.
    Before ROWLEY, P.J., and McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Blair County following appellant’s conviction for corruption of minors. Herein, appellant contends that:

I. The trial court erred in denying appellant’s motion for demurrer.
II. The trial court erred in denying appellant’s motion for entry of judgment of acquittal not withstanding the verdict based upon an inconsistent verdict not supported by sufficient evidence.

After careful review, we affirm.

Examination of the record reveals the following: In September 1993, Blair County authorities filed a criminal complaint charging appellant with one count of indecent assault and one count of corruption of minors. The complaint arose from appellant’s alleged improper rubbing of the eight year old daughter of his girlfriend.

At appellant’s jury trial, the victim testified that appellant would rub her about her chest and genital areas. Appellant engaged in these activities on a regular basis for approximately one year. The victim positively identified appellant as the person who fondled her.

The Commonwealth did not present any direct evidence of appellant’s age. However, evidence was presented that appellant had two daughters from a previous marriage and that he was dating the victim’s mother when these incidents occurred. The jury was also able to observe appellant throughout the trial. At the close of the Commonwealth’s evidence, appellant demurred to the charges of indecent assault and corruption of minors based upon the fact that the Commonwealth had not produced sufficient evidence that appellant was over eighteen years of age. The court denied this request, stating that appellant’s age could be established by circumstantial evidence.

The jury found appellant guilty of corruption of minors but not guilty of indecent assault. After the jury rendered this verdict, appellant moved for judgment of acquittal based upon the fact that the Commonwealth had not proved that appellant was over eighteen years of age at the time of the incidents. Appellant also moved for a judgment of acquittal because the jury had rendered inconsistent verdicts. The court took the inconsistent verdict motion under advisement and directed counsel for both sides to submit briefs on this issue. After considering the briefs, the court denied appellant’s motion for judgment of acquittal. Appellant was sentenced to a period of incarceration of five to twenty-three months. This timely appeal followed.

Appellant’s first allegation of error is that the trial court erred in denying appellant’s motion for a demurrer. We disagree.

In determining whether a ruling on a demurrer was proper, we must accept as true all the Commonwealth’s evidence along with all the reasonable inferences therefrom and determine if the evidence and inferences were sufficient to support a finding by the jury that the defendant’s guilt was established beyond a reasonable doubt. Commonwealth v. Austin, 428 Pa.Super. 466, 631 A.2d 625 (1993), citing Commonwealth v. Turner, 491 Pa. 620, 421 A.2d 1057 (1980).

A finding of guilt for corruption of minors requires the defendant to be at least eighteen years of age. 18 Pa.C.S.A. § 6301(a). A defendant’s age need not be proved solely by direct testimony. Commonwealth v. Jones, 314 Pa.Super. 497, 461 A.2d 267 (1983). Accord Commonwealth v. Nelson, 320 Pa.Super. 488, 467 A.2d 638 (1983). The jury’s opportunity to observe a defendant can provide evidence of his age. Jones, 461 A.2d at 268-69. The defendant’s personal appearance does not have to be offered into evidence as an exhibit in order for the jury to consider such evidence. Nelson, supra, 467 A.2d at 640-41.

Here, the victim positively identified appellant at trial. The jury had the opportunity to observe appellant throughout the trial. Evidence was presented that appellant had a prior marriage and had two daughters from this marriage. The Commonwealth also presented evidence that appellant was dating the victim’s mother at the time of the incidents. Our decisions in Jones and Nelson clearly establish, and appellant agrees in his brief, that age can be established by circumstantial evidence.

Appellant contends that our decision in Commonwealth v. Walker, 33 Pa.Super. 167 (1907), should control our disposition of this issue. In Walker, we reversed a conviction for statutory rape where defendant’s age was only mentioned when the court instructed the jury that they could judge defendant’s age by his appearance. Id., 33 Pa.Super. at 168-69. The defendant did not testify, was never identified by any witnesses and no evidence was offered to establish his age. Id., 33 Pa.Super. at 169. In reversing the conviction, we stated that there was no way of determining if the jury had observed the defendant. Id., 33 Pa.Super. at 173. The same problem does not exist in this case as the victim clearly identified appellant at trial. Even though appellant did not testify, there was adequate circumstantial evidence from which the jury could infer that appellant was over eighteen years of age at the time of the events.

Appellant’s final allegation of error is that the trial court erred by denying appellant’s motion for entry of judgment of acquittal, notwithstanding the verdict, based upon an inconsistent verdict that is not supported by sufficient evidence. This claim is without merit.

The law on inconsistent verdicts was aptly summarized in our decision in Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994):

Consistency in verdicts in criminal cases is not necessary. Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975). This Court has stated, “When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, the court looks upon [the] acquittal as no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” Commomwealth v. Lloyd, 376 Pa.Super. 188, 191, 545 A.2d 890, 892 (1988), appeal denied, 522 Pa. 602, 562 A.2d 825 (1989) (quoting Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980) (citations omitted)) ... Thus, this Court will not disturb guilty verdicts on the basis of apparent inconsistencies as long as there is evidence to support the verdict. Commonwealth v. Boyles, 407 Pa.Super. 343, 595 A.2d 1180 (1991), appeal denied, 531 Pa. 651, 613 A.2d 556 (1992).

The rationale for allowing inconsistent verdicts is that it is the jury’s sole prerogative to decide on which counts to convict in order to provide a defendant with sufficient punishment. Commonwealth v. Glendening, 262 Pa.Super. 357, 396 A.2d 793 (1979). “ ‘[A]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence.’ ” Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971).

Thus, inconsistent verdicts will stand so long as there is sufficient evidence. The test for sufficiency of the evidence is “ ‘whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.’ ” Commonwealth v. Jones, 431 Pa.Super. 475, 477-78, 636 A.2d 1184, 1185-86 (1994), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984).

A person is guilty of corruption of minors if they are eighteen years of age or older and “by any act corrupts or tends to corrupt the morals of any minor less than eighteen years of age ...” 18 Pa.C.S.A. § 6301(a).

We held in Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988), that a defendant’s acquittal of indecent assault does not require that a conviction for corruption of minors be set aside on the basis that the verdicts were inconsistent. Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988). Our subsequent decision in Commonwealth v. Bricker, 397 Pa.Super. 457, 580 A.2d 388 (1990), reaffirmed our holding in Anderson. The main principle of these cases is that inconsistent verdicts by a jury will not be disturbed, provided that the Commonwealth produces sufficient evidence of the crime for which the defendant is convicted.

Here, the Commonwealth presented evidence that appellant improperly fondled the victim on a regular basis for approximately one year. Circumstantial evidence of appellant’s age was produced as well. Thus, the Commonwealth presented sufficient evidence to sustain appellant’s conviction for corruption of minor. The jury had the prerogative to convict appellant on the charge of corruption of minors while at the same time acquitting him on the charge of indecent assault.

Appellant contends that Anderson is distinguishable from the present case because the criminal complaint and information in this case was different from the information filed against the defendant in Anderson. A similar argument was rejected by this court in Bricker, supra, 397 Pa.Super. 457, 580 A.2d 388, where we upheld a conviction for corruption of minors even though the defendant had been acquitted of indecent assault. Id., 397 Pa.Super. 462, 580 A.2d at 390. The defendant in Bricker contended that his conviction for corruption of minors should be set aside because the information and complaint in his case differed from the information in Anderson. Id., 397 Pa.Super. 460, 580 A.2d at 389. We rejected this argument and stated that the crime of indecent assault requires the Commonwealth to prove lack of consent whereas consent is never required for a conviction for corruption of minors. Id. at 390. Moreover, we stated that it was not our province to determine why a jury returned a verdict of guilty on one count but not another. Id.

Here, we are presented with the same situation. It is not our province to determine the reasons for the jury’s actions. Simply because the jury rendered an acquittal on the charge of indecent assault and found appellant guilty of corruption of minors is not a basis for us to set aside appellant’s conviction. The jury’s acquittal on one charge cannot be seen as a specific finding in relation to any of the evidence produced. Carter, supra, 444 Pa. 405, 282 A.2d 375. Moreover, appellant’s contention that the offenses involved proof of the same elements is without merit because, as we stated in both Anderson and Bricker, indecent assault has an element of consent. Corruption of minors does not have such a requirement. Accordingly, appellant’s conviction for corruption of minors must stand. See also, Anderson, supra, 397 Pa.Super. 457, 580 A.2d 388 (holding that “an acquittal on indecent assault cannot be interpreted to mean as a matter of law that there was insufficient evidence to establish that the underlying acts in fact occurred”).

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 6301(a).


author: McEWEN, Judge:

text:
    657 A.2d 949
    Faron R. SMITH and Doreen Smith, His Wife, Appellees, v. WEISSENFELS, INC., Appellants, v. EDWARDS TRANSFER AND STORAGE COMPANY and G. Miller, an Individual, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1995.
    Filed March 17, 1995.
    Reargument Denied May 22, 1995.

      Patrick A. Hewitt, Pittsburgh, for appellants.
    Robert G. Simasek, Pittsburgh, for Edwards Transfer, appellee.
    Before ROWLEY, P.J., and McEWEN and POPOVICH, JJ.
   McEWEN, Judge:

This appeal, taken by defendant Weissenfels, Inc. (hereinafter “Weissenfels”) from the $700,000.00 judgment entered against it on the verdict in favor of Faron R. and Doreen Smith (hereinafter “plaintiffs”), in this action to recover damages for personal injuries, calls for a study of the interplay of principles of strict liability, negligence, comparative negligence, contribution, and joint tortfeasor releases. That study compels us (1) to affirm the judgment as molded against Weissenfels and in favor of the plaintiffs in the amount of $700,000.00, and (2) to vacate that portion of the order of December 17, 1993, which denied the request of Weissenfels for contribution from appellee Edwards Transfer and Storage Company (hereinafter “Edwards Transfer”).

Faron Smith was injured during the course of his employment with Gooding Rubber Company on August 26, 1988, as he attempted to unload a conveyor belt roll from a truck owned and operated by appellee Edwards Transfer. The load had been secured on the truck with chains, manufactured by Weissenfels, and Mr. Smith inquired of the truck driver, Mr. G. Miller, if the chains could be used to unload the trailer. Mr. Miller indicated the chains were adequate for the task and could be used by Mr. Smith. A chain snapped while Mr. Smith was lifting a roller, causing the roller to strike and injure Mr. Smith.

Mr. Smith and his wife instituted an action grounded in negligence against Edwards Transfer and Mr. G. Miller at No. GD 89-03495 in the Court of Common Pleas of Allegheny County. Subsequently, the Smiths instituted a second action in that court, at No. GD 90-05677, based on § 402A strict products liability, against Weissenfels, Inc., the manufacturer of the chain. Weissenfels, in the products action, joined Edwards Transfer as an additional defendant, claiming a right to contribution or indemnity from Edwards Transfer. The two actions were consolidated for trial and the jury, via special interrogatories, assessed the total damages suffered by plaintiffs at $700,000 and the causal fault of the parties as follows:

Faron Smith 30%
Weissenfels 45%
Edwards Transfer 25%

Weissenfels timely filed a motion to mold the verdict based upon its claim against Edwards Transfer, suggesting three possible alternative judgments. The trial court, following oral argument, entered an order in the negligence action at No. GD 89-03495 in favor of Edwards Transfer and against the Smiths based upon its conclusion that the finding of the jury that the plaintiffs’ proportionate share of causal negligence was greater than that of Edwards Transfer barred any recovery by the plaintiffs against Edwards Transfer.

The trial court in the action at No. GD 90-05677 found that Weissenfels was not entitled to any contribution from Edwards Transfer based upon its interpretation of 42 Pa.C.S. § 7102(b). The trial court reasoned that Edwards Transfer had no liability to plaintiffs based upon the assessment of 30% causal negligence against the plaintiffs, a percentage greater than the 25% attributed to Edwards Transfer by the jury. The trial court believed that the fact that the plaintiffs were proportionately more negligent than Edwards Transfer preeluded any contribution claim by Weissenfels against Edwards Transfer since Edwards Transfer was not, under the court’s reasoning, a defendant “against whom recovery is allowed”. 42 Pa.C.S. § 7102(b). Although the trial judge provides in his able opinion an insightful analysis and careful rationale for these conclusions, we are obliged to differ.

Weissenfels, in this appeal from the judgment as molded by the trial court, argues that, even though it is strictly liable to the plaintiff under Section 402A of the Restatement (Second) of Torts, and cannot reduce its liability to plaintiffs by reason of their comparative negligence, it is entitled to contribution from Edwards Transfer based upon the jury’s finding that Edwards Transfer’s causal negligence was 25%. We agree.

The Pennsylvania Supreme Court in Elder v. Orluck, 511 Pa. 402, 515 A.2d 517 (1986), explained the proper application of Section 7102 of the Judicial Code to those situations such as the instant case where a jury finds multiple defendants liable to the plaintiff, and also finds a percentage of causal fault attributable to the plaintiff.

In a situation where a plaintiff is found to be 25% negligent and five defendants are held to be 75% negligent, general principles of comparative negligence and the intent of the Pennsylvania statute charge that the plaintiff should recover 75% of his damages. This should be true no matter how the 75% negligence was apportioned among the defendants. Under the approach urged by the appellant, the manner of apportionment among the five defendants would be critical to plaintiff’s recovery. For example, if five defendants were each held to be 15% negligent, the plaintiff would be barred from any recovery. This kind of inequitable result, which would leave a 25% negligent plaintiff uncompensated, was hardly intended by the Legislature. Additionally, the “individual comparison” approach would have the effect of discouraging settlements where there are multiple defendants. In cases where there is arguably some evidence of negligence on the part of the plaintiff, defendants would be encouraged to add additional defendants, go to trial and attempt to have assigned a lower percentage of negligence in comparison to that assigned to the plaintiff (and other defendants) thereby escaping all liability even though causally contributing to plaintiffs injuries.
Furthermore appellant’s interpretation would have an unintended impact on contribution between and among defendants. Section (b) of the Comparative Negligence statute provides: “The plaintiff may recover the face amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution”. 42 Pa.C.S. § 7102. If the phrase “against whom the plaintiff is not barred from recovery” is construed to exclude from recovery defendants who are less negligent than the plaintiff as appellant argues, a more negligent defendant who paid the entire verdict would be barred from seeking contribution from a defendant who was less negligent than the plaintiff This is contrary to the clear intention of the Act which provides for contribution among defendants based upon each’s proportionate share of the casual negligence contributing to the plaintiffs injuries.

Elder v. Orluck, supra, 511 Pa. at 417-18, 515 A.2d at 524-525 (emphasis supplied). See also: Werner v. Quality Service Oil Co., Inc., 337 Pa.Super. 264, 269-72, 486 A.2d 1009, 1012-1013 (1984). Thus, the decision in Elder v. Orluck, supra, 511 Pa. 402, 515 A.2d 517, lessons that plaintiffs are not barred from recovering against Edwards Transfer simply because the jury found Edwards Transfer responsible for 25% of the causal negligence. Therefore, we are unable to approve the basis upon which the trial court refused to mold the verdict to reflect the contribution claim of Weissenfels.

Although the jury found Weissenfels only 45% causally at fault, the fault of Weissenfels is based upon Section 402A strict products liability. Had Weissenfels instead been found liable to plaintiffs on a negligence theory, plaintiffs would only have been entitled to a recovery in the amount of $490,000.00, ie., $700,000.00 less the $210,000.00 reduction effected by the 30% causal negligence attributed to plaintiffs by the jury. Plaintiffs could, of course, seek to recover that $490,000.00 from either defendant. A claim for contribution would be available to Weissenfels if it paid more than its 45% share, namely, $315,000.00, or a claim for contribution would be available to Edwards Transfer if it paid more than its 25% share of the verdict, namely, $175,000.00. See: The Uniform Contribution Among Tort-feasors Act, 42 Pa.C.S. §§ 8321 et seq.

The computation is altered in this case, however, since Weissenfels was held strictly liable to the plaintiffs. Where a defendant is found liable to a plaintiff under principles of strict liability, the comparative negligence of the plaintiff is irrelevant and may not be used to reduce the responsibility of a strictly liable defendant for the entire damage award. The Supreme Court so decreed in Kimco Development Corp. v. Michael D’s Carpet Outlets, 536 Pa. 1, 9-10, 637 A.2d 603, 607 (1993), when it “expressly adopt[ed] the rule that comparative negligence may not be asserted as a defense in § 402A strict product liability actions”. Thus, Weissenfels may not reduce its liability to plaintiffs based upon the comparative fault of either the plaintiffs or the co-defendant, Edwards Transfer.

The preclusion against the use of comparative negligence concepts to reduce the liability to the plaintiff where one of multiple defendants has been found liable under principles of Section 402A strict product liability is, however, inapplicable to actions for contribution between multiple defendants where one but not all of the defendants has been found strictly liable.

As our eminent colleague, Judge Patrick R. Tamilia, opined in McMeekin v. Harry M. Stevens, Inc., 365 Pa.Super. 580, 530 A.2d 462 (1987), allo. denied, 518 Pa. 618, 541 A.2d 746 (1988):

[T]he Uniform Act may properly be applied so that joint tortfeasors may obtain contribution from each other despite the fact that the one joint tortfeasor has been found liable in negligence and the other in strict products liability.
In Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403 (1986), we addressed this identical issue and concluded that of necessity, where strictly liable and negligent defendants have acted as joint tortfeasors, contribution among them can be properly awarded. In discussing the policy behind the Uniform Act, we said:
The Uniform Contribution Among Tortfeasors Act in Pennsylvania provides that a joint tortfeasor who has discharged more than his pro rata share of a common liability may seek contribution from any other tortfeasor who contributed to the loss. See: 42 Pa.C.S. § 8324(b). The doctrine of contribution is based on equity. Therefore, the Act must be examined with equity in mind.
The focus of the Uniform Act is on the relationship existing between tortfeasors rather than the manner in which several tortfeasors have been held liable to an injured claimant.... In Puller v. Puller, 380 Pa. 219, 221, 110 A.2d 175, 177 (1955), the Supreme Court observed that ‘contribution is not a recovery for the tort [committed against the plaintiff,] but the enforcement of an equitable duty to share liability for the wrong done.’ ... Thus, a tortfeasor’s right to receive contribution from a joint tortfeasor derives not from his liability to the claimant but rather from the equitable principle that once the joint liability of several tortfeasors has been determined, it would be unfair to impose the financial burden of the plaintiffs loss on one tortfeasor to the exclusion of the other. It matters not on which theory a tortfeasor has been held responsible for the tort committed against the plaintiff. So long as the party seeking contribution has paid in excess of his or her share of liability, it would be inequitable under the Act to deny that party’s right to contribution from a second tortfeasor who also contributed to the plaintiff’s injury.

Id., 355 Pa.Super. at 238, 513 A.2d at 407.

McMeekin v. Harry M. Stevens, Inc., supra at 585-87, 530 A.2d at 465 (footnote omitted).

Thus, since the Uniform Contribution Among Tort-feasors Act, “ ‘may properly be applied to effectuate contribution among joint tortfeasors where one tortfeasor is adjudged liable of negligence and the other liable under the concepts of strict products liability’ ”, Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 107-09, 586 A.2d 416, 420 (1991), allo, denied, 529 Pa. 650, 602 A.2d 860 (1992), quoting McMeekin v. Harry M. Stevens Inc., supra, 365 Pa.Super. at 588, 530 A.2d at 466, the order dismissing the claim of Weissenfels against Edwards Transfer for contribution must be reversed and the record remanded for correction of the judgment.

Having concluded that Weissenfels is entitled to contribution from Edwards Transfer, we proceed to review the issue of the proper amount of that contribution. Weissenfels argued in the trial court that its claim for contribution was not $175,000.00, but rather $250,000.00, contending that:

[i]n order to determine the relative ratio of causal fault, it is necessary to determine the multipliers for Defendant, Weissenfels and Defendant, Edwards that would reflect the same ratio of causal fault for 100% of the damages as was reflected in the jury’s determination of their responsibility for 70% of the damages. Using the 45/25 ratio, Defendant, Weissenfels’ multiplier computes to .6428571 and Defendant, Edwards Transfer’s multiplier computes to .3571428. Applying those multipliers (which reflect the same ratio of causal fault as determined by the jury), the $700,000 judgment would yield an apportionment among the joint tortfeasors of $450,000 which is the responsibility of Defendant, Weissenfels, Inc. and $250,000 which would be the responsibility of Defendant, Edwards Transfer.

We are not persuaded that the computation of the amount of contribution for which Edwards Transfer is liable is not identical to the computation in an action tried solely on negligence principles: in that fashion, Edwards Transfer is liable to Weissenfels for 25% of the verdict or $175,000.00, so that the ultimate result is the payment by Weissenfels of 75% of the verdict, specifically, the 45% share of responsibility attributed to it by the jury, and the 30% share of responsibility attributed to plaintiffs by the jury, but for which a Section 402A tortfeasor must assume responsibility. Edwards Transfer cannot be liable for a greater proportion of the verdict than the specific percentage found by the jury simply because one of its co-defendants was found liable under principles of Section 402A strict products liability rather than as a result of simple negligence.

Appellee argues that, even if the trial court erred in refusing to allow contribution, the error was harmless in light of the release executed by plaintiffs and Weissenfels on January 28, 1992. Following the entry of the jury verdict, but prior to the ruling of the trial court on the post-verdict motions, Weissenfels and plaintiffs entered into a structured settlement in full satisfaction of the $700,000.00 verdict. The release provided, in pertinent part:

5. Without limiting its effect, it is understood and agreed that this Agreement and Release includes all claims for relief and causes of action alleged or to be alleged by plaintiffs by reason of exposure to any products of defendant, including the claims set forth in the following actions:
Faron R. Smith and Doreen Smith, his wife, Plaintiffs, vs. Edwards Transfer & Storage Company and G. Miller, an individual, Defendants, No. GD89-03495, Court of Common Pleas of Allegheny County, Pennsylvania; and Faron R. Smith and Doreen Smith, his wife, Plaintiffs, vs. Weissenfels, Inc., Defendant, vs. Edwards Transfer & Storage Company and G. Miller, Additional Defendants, No. GD90-05677, Court of Common Pleas of Allegheny County, Pennsylvania.
(Said actions are herein collectively called the “litigation”.) It is specifically understood that the settlement reached includes settlement of plaintiff, Doreen Smith’s, consortium claim, which she made in the litigation as a result of the injuries to her husband, plaintiff, Faron R. Smith.
7. It is understood and agreed that the payments made and promised by defendant hereunder and by First Colony under the annuity contract are to be considered a satisfaction of the entire verdict in the litigation and all damage claimed to have been suffered by the plaintiffs. Furthermore, plaintiffs specifically acknowledge that this Agreement and Release does not reduce or otherwise effect the amount of any contribution verdict which defendant may have or be awarded against defendants, Edwards Transfer & Storage Company or G. Miller. As per Walton v. Avco Corp., 383 Pa.Super. 518, 557 A.2d 372 (1989), the terms of this Agreement and Release specifically control the right of defendant to collect the full amount of the contribution award from defendants, Edwards Transfer & Storage Company and G. Miller.

Edwards Transfer, citing Walton v. Avco Corp., supra, 383 Pa.Super. 518, 557 A.2d 372, argues that since Weissenfels “entered into a release with the plaintiffs and did not extinguish any potential liability that Edwards Transfer may have had to plaintiffs”, Weissenfels is not entitled to assert any claim for contribution. We must disagree.

The $700,000.00 verdict had been returned prior to the execution of the structured settlement, which was simply a method employed by Weissenfels to reduce the immediate financial impact of the verdict. The agreement provided for satisfaction of the entire $700,000.00 verdict by the payment of $300,000.00 immediately, to be followed by certain enumerated payments over the course of time. The release specifically notes that it is in full “satisfaction of the entire verdict” in both actions. Thus, Weissenfels has satisfied the entire verdict just as if it had paid the entire sum in cash and, under the Uniform Contribution Among Tort-feasors Act, has a claim for contribution as to that portion of the verdict representing the pro rata share of liability attributed to Edwards Transfer. The release, by satisfying the entire verdict, precluded any recovery by plaintiffs against Edwards Transfer. Clearly, the settlement agreement has no effect on the right of Weissenfels to contribution from Edwards Transfer.

The judgment in favor of plaintiffs and against Weissenfels in the amount of $700,000.00 is affirmed. The judgment entered in favor of Edwards Transfer and against Weissenfels on the claim for contribution is vacated and the case is remanded for entry of judgment on the contribution claim in conformity with the foregoing.

Judgment affirmed in part and reversed in part. Case remanded. Jurisdiction relinquished.

      . The first alternative suggested by Weissenfels provided for judgment to be entered in favor of the plaintiffs and against Weissenfels in the amount of $315,000.00, “reflecting the true causal percentage of fault attributed to defendant, Weissenfels, Inc.”.
      The second suggested alternative provided for judgment to be entered in favor of plaintiffs and against Weissenfels in the amount of $700,-000.00, and judgment in the amount of $250,000.00 to be entered in favor of Weissenfels and against Edwards Transfer on the contribution claim, the $250,000.00 allegedly reflecting the “relative ratio of causal fault” of Edwards Transfer.
      The third suggested alternative — and, as this opinion will conclude, the correct alternative — provided for judgment to be entered in favor of plaintiffs and against Weissenfels in the amount of $700,000.00, and in favor of Weissenfels and against Edwards Transfer in the amount of $175,000.00.

      . Weissenfels concedes that, since it was not a party in that action, it is without standing to challenge the erroneous verdict entered by the trial court in favor of Edwards Transfer in the negligence action at No. GD 89-03495.

      . Section 7102 of the Judicial Code provides, in relevant part:
      § 7102. Comparative negligence
      (a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative ■where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
      (b) Recovery against joint defendant; contribution.. — Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.
      42 Pa.C.S. § 7102(a), (b) (emphasis supplied).

      . This method of comparing the causal fault of a single defendant with that of the plaintiff in a multi-defendant action is often referred to as the “individual comparison approach" and is not used in Pennsylvania. See: Elder v. Orluck, 511 Pa. 402, 415-17, 515 A.2d 517, 524 (1986).

      . The Uniform Contribution Among Tort-feasors Act provides in pertinent part:
      § 8322. Definition
      As used in this subchapter "joint tort-feasors” means two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.
      ******
      § 8324. Right of contribution
      (a) General rule. — The right of contribution exists among joint tortfeasors.
      (b) Payment required. — A joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.
      (c) Effect of settlement. — A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.
      42 Pa.C.S. §§ 8322, 8324.

      . The Supreme Court in Walton v. Avco, Corp., 530 Pa. 568, 610 A.2d 454 (1992), of course, held that principles of comparative fault cannot be applied to allocate a damage award between defendants who have each been found strictly liable for the plaintiff's harm. Thus, where no defendant is found liable under the theory of negligence, concepts of fault cannot be introduced into the damage apportionment process. Id. at 582-84, 610 A.2d at 462.


author: CIRILLO, Judge:

text:
    657 A.2d 956
    Charles J. MYERS, Appellant, v. Jamie M. DiDOMENICO.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1995.
    Filed April 10, 1995.

      Terressa E. George, Altoona, for appellant.
    Richard A. Behrens, Duncansville, for appellee.
    Ilissa Zimmerman, Duncansville, Guardian Ad Litem, participating party.
    Before CAVANAUGH, CIRILLO and SAYLOR, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Blair County wherein the court declined to transfer physical custody from the mother to the father and modify the custody order dated December 19, 1991. We reverse.

Plaintiff/Appellant Charles J. Myers (“Father”) and Defendant/Appellee Jamie M. DiDomenieo (“Mother”) were married on June 10, 1978. During the course of their marriage, two children were born; Amie Marie Myers was born on July 6, 1979, and Kurt Joseph Myers was born January 19, 1982. As a result of marital difficulties, Mother and Father separated in 1984, when the children were ages five and two, respectively. After separation, the children remained in the primary physical custody of Mother. Initially, Mother and the children lived with her parents. The parties divorced in 1985 and Mother married Gary DiDomenieo in 1988. The children have resided with their mother, stepfather and stepbrother since Mother’s remarriage in 1988.

Via a Consent Agreement dated May 1, 1985, Mother and Father agreed to share legal custody of the children, with primary physical custody to be vested in Mother. Subsequent thereto, visitation with Father had been modified by agreement of the parties, but primary physical custody remained with Mother.

On October 15, 1991, Father filed a complaint to have primary physical custody of the children transferred to him. Father’s complaint was precipitated primarily by the children’s desire to live with their father. Father alleged that the best interests of the children would be best served by having primary physical custody transferred to him.

Pursuant to the Master’s recommendation, an order was entered by the court on December 19, 1991, which continued shared legal custody of the children with primary physical custody to remain with Mother. Father was to have periods of partial custody every other weekend, every Tuesday and Thursday from 3:00 p.m. to 8:30 p.m., and alternate two-week periods in the summer, as well as extensive holiday visits.

Father then filed an appeal from the December 19th order and requested an evidentiary hearing. An evidentiary hearing was conducted before the Honorable Jolene Grubb Kopriva on September 27-28, 1993, which culminated in an order of the court, dated September 29, 1993, wherein the court continued primary physical custody in Mother. Father appeals from the September 29th order and raises one issue for our review:

Whether the trial court’s determination of custody in the mother was not supported by the evidence, contrary to the weight of the evidence and contrary to the legal principles applicable to such matters?

The standard for reviewing a child custody order is well-settled:

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992) (citations omitted).

In addition, we recognize that this court has held that “[o]nly where we find that the custody order is ‘manifestly unreasonable as shown by the evidence of record ... ’ will an appellate court interfere with the trial court’s determination.” Hockenberry v. Thompson, 428 Pa.Super. 403, 407, 631 A.2d 204, 205-06 (1993) (quoting Mumma v. Mumma, 380 Pa.Super. 18, 21, 550 A.2d 1341, 1343 (1988), appeal denied, 524 Pa. 629, 574 A.2d 70 (1989)). Despite this stringent standard, we find that the situation presently before this court is one of those cases where we must interfere with the trial court’s custody order as the trial court’s factual conclusions are manifestly unreasonable in view of the court’s factual findings and represent a gross abuse of discretion. Hockenberry, supra, 428 Pa.Super. 403, 631 A.2d 204; McMillen, supra, 529 Pa. 198, 602 A.2d 845.

The courts of this Commonwealth have consistently held that the ultimate consideration in custody matters is to determine that which is in the best interests of the child and that such determinations must be made on a case-by-case basis. Moore v. Moore, 535 Pa. 18, 634 A.2d 163 (1993); Hockenberry, supra, 428 Pa.Super. 403, 631 A.2d 204; McMillen, supra, 529 Pa. 198, 602 A.2d 845. Accordingly, the best interests of Amie and Kurt are the focus of this decision.

In this case, the record reflects that both Amie and Kurt have been in the primary physical custody of Mother since Mother and Father separated in 1984. It is also true, however, that although primary custody remained with Mother, Father was and is a significant caretaker for both children and has contributed greatly as a loving, nurturing parent in the formative years of their lives. Thus, Father has been a caring, supportive parent to the children despite the fact that he has never had primary custody of the children following the separation with Mother. As a result, Father sought in 1991, and presently seeks, the opportunity to have what Mother has enjoyed since their separation, that is, primary physical custody. Our review of the record reveals the following circumstances surrounding this serious family issue.

Both children have expressed their desire to have an opportunity to live with their Father. The children communicated these feelings when this issue was before the Master in the fall of 1991 when Amie was twelve years old and Kurt was only a few months away from his tenth birthday. More importantly, Amie and Kurt expressed these feelings again on September 27, 1993 before Judge Kopriva during an in-chambers interview, when Amie and Kurt were ages fourteen and eleven, respectively. Amie clearly conveyed the reasons for her feelings at the in-chambers interview before Judge Kopriva. Amie stated:

[W]ell I want to live with dad because, I don’t know, we’ve lived with mom, my mom for nine years and I’m going to be going off to college in four and I think that when you have two parents and you love them both and you want to live with them both so uh I think I should get a chance to live with him too ... and it’s gonna hurt my relationship with him if we don’t, like, cause most kids have a chance to live with both parents [ ], but we never really had that chance.

Kurt essentially expressed the same thoughts when questioned by the court as to where he wanted to live.

Although both children stated their feelings as best they could before Judge Kopriva, Amie was more clear as to why she wanted to now live with her father. Nonetheless, both children did express their desire to have an opportunity to live with their father after having lived with their mother since 1984.

It is important to note that while the express wishes of a child are not controlling in a custody decision, those wishes do constitute an important factor that must be carefully considered in determining the child’s best interests. McMillen, 529 Pa. at 203, 602 A.2d at 847. It is also true that the child’s preference must be based on good reasons and the child’s maturity and intelligence must be taken into account. Id. Further, the weight to be attributed to the child’s testimony can best be determined by the judge before whom the child appears. Id. It must also be noted, however, that the Pennsylvania Supreme Court in McMillen decided that where the households of both parents were equally suitable, the child’s preference in that case to live with his father “could not but tip the evidentiary scale in favor of his father.” Id. at 204, 602 A.2d at 848.

Therefore, even considering Judge Kopriva’s decision to not give significant weight to Amie’s and Kurt’s desires to live with their father, such a decision should not have affected the ultimate custody determination in light of McMillen since the record in this case shows that both households are equally suitable. In other words, since Mother’s and Father’s respective households constitute equally suitable environments within which the children can be properly raised, then the children’s preference to live with Father could not help but tip the evidentiary scale in favor of Father. McMillen, supra, 529 Pa. 198, 602 A.2d 845.

The trial court specifically found that there were many factors that were equal between Mother and Father. The trial court also made factual findings that both parents were equally involved in the child rearing process; both parents love their children; both parents have a good relationship with their children; and that both homes are equally suited for the rearing of the children. Moreover, Mother admitted at the hearing that Father has been concerned about their children throughout their upbringing, that Father and children share a good relationship, and that Father has a nice home where the children would be raised properly. In addition, the court appointed expert, Nancy Baker, Ph.D., as well as Father’s expert Deraid W. Stump, Ph.D., also determined that both Mother and Father were supportive, nurturing and responsible parents.

Despite this evidence established in the record that both parents are equally capable of caring for the children, and that both homes are equally suitable, the trial court chose to ignore the Supreme Court’s pronouncement in McMillen that, under equal circumstances, the child’s preference should tip the scale in favor of the “preferred” parent. We realize the sensitive nature of the issue at hand and are in no way stating that a child’s preference is always the correct choice when determining custody, nor are we saying that one parent’s years of caring, nurturing and overall parenting are to be disregarded. Rather, we are attempting to determine whether the best interests of Amie and Kurt will be best served by allowing them the opportunity to live with their Father during their formative years after having had the opportunity to live with their mother.

This court will not uphold a custody order which is manifestly unreasonable as shown by the evidence of record. Hockenberry, supra, 428 Pa.Super. 403, 631 A.2d 204. The trial court discusses in its opinion how both parents are to be blamed for poor communication. In its summary, however, the trial court apparently concludes that Father is the party which is more at fault and states that the only need of the children which is lacking is “their father’s in-ability to respect their mother’s thinking.... The problem in this case is not custody, it is parental communication and putting individual needs and desires aside toward a more common goal of looking at [the] family as a whole.... ”

Although we agree with the trial court that the record evidences a severe communication problem between Mother and Father, the evidence of record does not support the trial court’s factual conclusion that Father is more at fault for this problem. The lack of communication and adverse effect of this poor communication falls to both sides equally, as reflected in the record. For example, the trial court places much significance on the fact that Father communicated with Mother by sending messages through the children. This analysis, however, is unfairly skewed as the record shows that both parents utilized the children in sending messages to one another. In fact, the record shows that Mother’s position in this case has been unreasonable and inflexible at times such that she does not want the children to share with Father those special experiences that come with living together, which Mother and the children have enjoyed since the separation occurred in 1984. Mother testified during the hearing that she “[did]n’t want somebody that’s not their mother to be raising [Amie and Kurt].”

Most importantly, though, we do not agree with the trial court’s conclusion that “[t]he problem in this case is not custody.” While we recognize that communication between the parents is a valid concern, the key issue in this case most certainly is custody and, correspondingly, the best interests of these children. Determining what constitutes the best interests of Amie and Kurt requires a determination as to whether they should also have the opportunity to live with their Father.

The record also shows that all parties involved agree that the children are extremely mature, intelligent and have expressed themselves very well. These are all factors to be considered with care. McMillen, supra, 529 Pa. 198, 602 A.2d 845. Both Amie and Kurt expressed their desire to live with their Father throughout these proceedings. Nevertheless, the court-appointed expert, Dr. Baker, “interpreted” that the children did not really mean what they said. Dr. Baker concluded that the reason why the children should remain with their mother is that she believed Mother would be the best parent to foster a relationship with the non-custodial parent. The children, however, testified and conveyed that they “sensed and felt” underlying hostility and hatred, in their mother, toward their father. In fact, Mother admitted at trial that the children probably sense her hostility towards Father. Moreover, testimony was presented at the hearing which suggested that Mother has excluded Father at least once from events involving the children. For example, when Amie received her First Communion she was “represented” at the church ceremony by Mother and Amie’s stepfather, rather than Mother and Father. Father testified that he felt that he was missing opportunities to participate in the children’s activities at school because Mother did not always convey relevant information to hirm

Dr. Baker’s conclusion, therefore, that Mother would be the best parent to foster a relationship with the non-custodial parent is not supported by the record. Both Dr. Baker and Dr. Stump, however, did agree that Father is an excellent parent. Dr. Stump testified that it would be beneficial for Amie and Kurt to live with Father. Furthermore, neither doctor cited any basis or reason, other than that discussed above by Dr. Baker, for the contention that placing primary custody of the children with Father would not be in the best interests of these children.

Thus, Dr. Baker’s conclusion that custody should remain with Mother because she would better facilitate the relationship with the noncustodial parent is not supported by the record. Consequently, the trial court’s reliance upon Dr. Baker’s testimony is, to a certain extent, unsupported by the record. Furthermore, as discussed herein, the trial court’s other factual conclusions are unreasonable in view of its factual findings and, thus, represent a gross abuse of discretion. McMillen, supra, 529 Pa. 198, 602 A.2d 845. Accordingly, the custody order declining to transfer primary physical custody from Mother to Father is manifestly unreasonable as shown by the evidence of record. Hockenberry, supra, 428 Pa.Super. 403, 631 A.2d 204.

For these reasons, and in view of the children’s preference, we conclude that Amie and Kurt should be able to experience living with Father just as they were able to experience living with Mother. Such an outcome would be fair, and, most importantly, would be in the best interests of Amie and Kurt. It is without question that when two parents care for and love their children in the way that the parents do in this case, and when both households are equally suitable environments within which to raise children, it is in the best interests of the children to allow them the experience of having lived with both parents. Additional support for this conclusion can be found in McMillen, supra, 529 Pa. 198, 602 A.2d 845, as the facts in that case are quite similar to those presently before this court.

Order reversed and case remanded for modification of the custody order and a determination of Mother’s visitation rights, with such action to be consistent with this opinion.

      . The trial court did not attribute much weight to the children’s preferences and essentially discredited their reasons underlying such preferences. The trial court’s conclusion is inconsistent with the fact that, in repeated discussions over time as to where the children wanted to live, they steadfastly maintained that it was only fair for them to have a chance to live with Father as well as Mother.

      . We also acknowledge the position of the Guardian Ad Litem, Ilissa Zimmerman, that, in all aspects, these parents are equally capable of raising their children. Significantly, the Guardian Ad Litem also pointed out Mother’s inflexibility when it came to any changes in the visitation schedule and that Mother felt that Father receives "maximum visitation.” The Guardian concluded by stating her opinion that ”[b]oth [parents] should experience the joy and frustration of being the responsible and custodial parent.” (Brief of Guardian Ad Litem, p. 7).

      . Additional support can be found in the record establishing Mother’s lack of flexibility when it comes to allowing the children the opportunity to live with Father. Father testified that Mother has said to him, with regard to his access to the children and, consequently, their access to him, that "you're lucky you have what you have.” This testimony is supported by Mother's testimony at trial where she stated, inter alia,
        that "I don't know what the compromise could be since he [Father] has really maximum visitation right now.”
      We are quick to point out that by relating these facts this court is not attempting to focus on Mother’s imperfections, indeed, no parent is perfect. Our reference to the record is necessary, however, to point out that the trial court’s factual conclusion that Father is more responsible for his and Mother's communication problems is not supported by the record.