author: WIEAND, Judge:

text:
    504 A.2d 896
    David G. MARAVICH and Donna M. Maravich, his wife, Appellants, v. AETNA LIFE AND CASUALTY COMPANY, a corporation, and the Standard Fire Insurance Company, a corporation, Appellees. David G. MARAVICH and Donna M. Maravich, his wife, Appellees, v. AETNA LIFE AND CASUALTY COMPANY, a corporation, and the Standard Fire Insurance Company, Appellants.
    Superior Court of Pennsylvania.
    Argued May 15, 1985.
    Filed Jan. 24, 1986.

      Gerard J.A. Cipriani, Pittsburgh, for Maravich, appellants in No. 1332 and appellees in No. 1345.
    Paul K. Geer, Pittsburgh, for Aetna Life, appellants in No. 1345 and appellees in No. 1332.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

David G. Maravich and Donna M. Maravich, husband and wife, owned a residence in Baldwin Borough, Allegheny County, as tenants by the entireties. On February 19, 1982, the dwelling and its contents were damaged by fire. In a civil action to recover on a fire insurance policy issued by Aetna Life and Casualty Co. (Aetna), the jury found that the fire had been set intentionally by David Maravich. A verdict was returned in favor of Aetna. In response to post-trial motions, the trial court upheld the jury’s finding but, having determined that there was no evidence to show Donna Maravich’s complicity in the setting of the fire, entered judgment n.o.v. in favor of Donna Maravich for one-half of the loss, i.e., $31,550.00. All parties have appealed.

I. The Evidence

On the evening of February 18, 1982, according to the evidence, David Maravich took his wife and two children to the home of his wife’s mother as a precaution in response to threats allegedly made by union steelworkers who had been angered by Maravich’s enforcement of safety regulations in his capacity as safety foreman. Maravich returned later to his own home where, according to his testimony, he locked the doors, retired to his second floor bedroom and fell asleep. He was awakened, he said, by two men who had broken into the home. While one of the men tied him to the bed with belts, the other poured gasoline around the bed and throughout the second floor of the home. He also testified that he heard noises on the first floor which suggested the presence of a third person.

When the men left, Maravich’s story continues, he observed flames in the hallway. He was then able to free his hands from the headboard where they had been tied, and he also untied the leg restraints. While attempting to slip into his shoes he said that he had slipped and fallen on the gasoline soaked rug. This was contradicted by evidence that a test made of his clothing disclosed not even a trace of gasoline. In any event, Maravich testified that he had then opened the bedroom window and escaped by jumping out the window and onto an awning several feet below.

Police and fire personnel arrived, the fire was extinguished, and an investigation was begun. The investigation turned up a partially used pack of matches on the awning beneath the bedroom window and a detached match in the bedroom. This match, the testimony showed, was consistent with and could have come from the matchbook found on the awning. Police investigation also disclosed no evidence of any forced entry into the Maravich home. Edward Joyce, an assistant fire marshall who had headed the fire department’s investigation, testified as an expert witness. He said that the fire had been of incendiary origin, that gasoline had been used as an accelerant, and that the fire had started in a corner of the bedroom only a few feet from the bed to which Maravich, according to his testimony, had been tied. He testified, as did another expert, that because of the large amount of gasoline which had been used, the spread of the fire would have been swift, almost in the nature of a “flash fire.” He also testified that investigation disclosed that the “petcock” valve, which controlled the flow of gas into the furnace and hot water heater, had been turned off. The closing of this valve, located so as not to be readily observable by one who was unfamiliar with the home, most likely prevented an explosion after the fire had started. The full significance of this fact, he said, was to be measured in light of his conclusion that in the middle of February it would have been unusual to have neither heat nor hot water in the Maravich home. There was also evidence of statements made by Maravich that he had sustained large gambling losses and was in debt because of them.

“In reviewing a denial of a motion for judgment n.o.v., the evidence and all reasonable inferences therefrom must be considered in the light most favorable to the verdict winner. A judgment n.o.v. should be entered only in clear cases, and all doubt should be resolved in favor of the verdict winner. A motion for judgment n.o.v. can properly be granted only ‘when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case.’ ” Kearns v. Clark, 343 Pa.Super. 30, 34-35, 493 A.2d 1358, 1360 (1985), quoting Aiello v. Ed Saxe Real Estate Inc., 327 Pa.Super. 429, 433, 476 A.2d 27, 29 (1984) (citations omitted).

Aetna had the burden of proving by a fair preponderance of the evidence that its insured had been responsible for the fire damage to the property. Greenberg v. Aetna Insurance Co., 427 Pa. 494, 496, 235 A.2d 582, 583 (1967); Giambra v. Aetna Casualty & Surety Co., 315 Pa.Super. 231, 233, 461 A.2d 1256, 1257 (1983). However, it was not necessary to prove arson by direct evidence. Giambra v. Aetna Casualty & Surety Co., supra, 315 Pa.Superior Ct. at 233, 461 A.2d at 1257; Ruttenberg v. Fire Insurance Co., 122 Pa.Super. 363, 365, 186 A. 194, 195 (1936). It was necessary only that there be evidence from which the fact finder could infer legitimately that the insured had burned or caused to be burned his own property. Although proof of motive was not essential, the existence of a motive was relevant and was a part of the circumstantial evidence to be considered by the jury. Giambra v. Aetna Casualty & Surety Co., supra, 315 Pa.Super. at 234, 461 A.2d at 1257.

In the instant case, the evidence, even though largely circumstantial, was sufficient to support the jury’s finding that Maravich had set fire to his own dwelling. He poured gasoline throughout the house, ignited the fire by the use of matches while near the window in the master bedroom, escaped through the same window, lost the pack of matches, and intended to use the insurance proceeds to pay gambling debts. At least a jury could have found these facts from the evidence.

II. The Motion for New Trial

Aetna called two witnesses who testified that Maravich had told them that he had gambled for high stakes and had lost. Maravich contends that this testimony was irrelevant and prejudicial. We disagree.

Evidence is relevant if it tends to make a fact in issue more or less probable. Morris v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983). “Thus, where it is disputed whether a person has done a certain act, evidence is admissible ... to show the existence of a motive on his part to do it.” 31A C.J.S. Evidence § 178 (1964). In the instant case, the testimony of co-employees that Maravich had gambled and lost large sums of money was relevant to show a motive for setting fire to his insured dwelling. The trial court did not err in allowing it.

Detective Richard Connell, who had investigated the fire, was asked on direct examination if anything regarding Maravich’s version of the fire appeared “suspicious” in view of the facts which he had found at the scene of the fire. Maravich objected on grounds that the information would be irrelevant and because the witness had not been qualified as an expert. Although the use of the word “suspicious” was improvident, there was no specific objection to its use, and the testimony elicited by the question was proper. In response, the witness testified to facts observed at the scene of the fire, some of which were either contrary to or did not support the Maravich version of the manner in which the fire had started. Thus, the witness testified that after the fire, Maravich’s belts were found hanging in a closet and, in any event, were of insufficient length to permit Maravich to be tied in the manner which he had described. He also expressed an inability to understand how a third person could have soaked the bedroom with gasoline, as Maravich testified, and then put a match to it while standing in the interior of the room. When Connell expressed an opinion that Maravich could not have been tied to the bed in the manner which he had described, however, the court sustained an objection and instructed the jury to disregard the witness’ belief. The trial court carefully monitored the examination of this witness, and the record does not disclose any abuse of discretion. If the initial question was inartfully drawn to elicit “suspicious” circumstances, the record suggests that Maravich was not unfairly prejudiced by the answers given.

Maravich also contends that it was error to allow Connell to testify that the deputy fire marshall had told him that the fire started in the master bedroom. He is correct that this was hearsay. It was in-court testimony of an extrajudicial statement offered to prove the origin of the fire. See: Kemp v. Qualls, 326 Pa.Super. 319, 327, 473 A.2d 1369, 1373 (1984). The error, however, was harmless. The deputy fire marshall later testified to the same point of origin and was subjected to cross-examination regarding his testimony. The earlier receipt of his opinion in the form of a hearsay statement, therefore, did not require a new trial.

Edward Joyce, the deputy fire marshall, testified concerning his observations at the scene of the fire. He was also asked as an expert witness to state his opinion regarding the origin of the fire. He said that the fire had been deliberately set, that gasoline had been spread around the bedroom, the hall, the stairway and other portions of the home as an accelerant, and that gasoline had been used in such quantities that if a person had been tied to the bed at the time the fire was started, he could not have escaped without being burned. He also testified that the valve controlling the flow of gas to the furnace and hot water heater was in a closed or off position, and expressed the opinion that the valve had been closed by the person who set the fire in order to prevent an explosion. He said that in order to confirm this opinion, he inquired of all fire personnel who had been engaged in fighting the fire and learned that none of them had touched the petcock valve. Maravich argues that this was hearsay evidence which should not have been allowed.

In Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), the Supreme Court adopted an exception to the hearsay rule which “permitted medical witnesses to express opinion testimony on medical matters based, in part, upon reports of others which are not in evidence, but which the expert customarily relies upon in the practice of his profession.” Id., 444 Pa. at 445, 282 A.2d at 698. In Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978), the Court rejected a “contention that the rule in Thomas is necessarily limited to observations of other persons within the medical profession.” Id., 480 Pa. at 349-350 n. 7, 390 A.2d at 176-177 n. 7. In rejecting this contention, the Supreme Court relied in part upon Fed.R.Evid. 703, which provides that “[t]he facts or data ... upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Also relying upon this rule of evidence, the Superior Court held in Steinhauer v. Wilson, 336 Pa.Super. 155, 485 A.2d 477 (1984), that a construction expert could base a cost estimate upon figures provided by various contractors with whom he had consulted. Id., 336 Pa.Superior Ct. at 158, 485 A.2d at 479.

With respect to this exception to the hearsay rule, McCormick has said:

An expert witness may ... base an opinion on facts or data that are not “admissible in evidence” if of a type reasonably relied upon by experts in the field. An expert must, of course, be allowed to disclose to the trier of fact the basis facts for his opinion, as otherwise the opinion is left unsupported in midair with little if any means for evaluating its correctness. This raises the apparent anomaly that the expert may testify to evidence even though it is inadmissible. The anomaly disappears, however, when the language of the rule is given its proper meaning that the expert himself may give the necessary foundation testimony for the introduction of basis testimony that traditionally would have been inadmissible without producing numerous other witnesses. It does not mean that the expert becomes the sole judge of the admissibility of the basis facts: they must still be of a type reasonably relied upon by experts in the field, and they are subject to such general evidentiary principles as exclusion for prejudice or irrelevancy. Subject to the foregoing comments, the basis facts may be testified to by the expert, and accordingly they are in evidence. The effect of [the rule] has been to create a hearsay exception, or perhaps dispense with the requirement of firsthand knowledge, as the case may be.

McCormick on Evidence § 324.2 (3d ed. 1984).

In American Universal Insurance Co. v. Falzone, 644 F.2d 65 (1st Cir.1981), the exception was applied under circumstances which were similar factually to those in the instant case. There, the insured had made a claim for a fire loss from his insurance company. The insurer, in turn, brought an action for a declaratory judgment, contending that it was not liable because the fire had been intentionally set by its insured. At trial, the insurance company produced the state fire marshall to testify that the fire had been of human origin. The insured moved to strike the opinion testimony of the fire marshall on the ground that part of his opinion had been based on information obtained from other fire marshalls on the inspection team. The Court held, per curiam, that the trial court’s refusal to strike the fire marshall’s opinion testimony was fully justified under federal rules of evidence. Id. at 66. The Court stated:

[S]ince it is reasonable for one state fire marshall to rely on the contemporaneous and on-the-scene opinions of other investigators on his team as to the portion of the investigation that they carried out within their competence, Ricker’s [the fire marshall’s] testimony was properly admitted.

Id. Accord: Garrett v. Standard Fire Insurance Co., 541 S.W.2d 635, 637 (Tex.Civ.App.1976) (allowing opinion testimony of fire investigator who had talked with firefighters who were present when the building was burning).

In the instant case, it was reasonable for Deputy Fire Marshall Joyce to rely upon information supplied by firemen under his supervision to the effect that none of the firemen had shut off the petcock valve. Because such reports are the type of information which a fire investigator would ordinarily rely upon in determining the cause of a fire, Joyce’s opinion testimony, though founded in part upon the hearsay declarations of the firemen, was clearly admissible. The trial court did not err by allowing testimony of the facts upon which he relied even though those facts traditionally would not have been admissible without producing numerous other witnesses.

Finally, Maravich complains that Carl J. Natale, a fire investigator, was permitted to express an opinion regarding the point of origin of the fire even though his written report had pertained only to the incendiary origin of the fire and the nature of the accelerant used. The allowable scope of the witness’ testimony, in view of his prior report, was clearly vested in the discretion of the trial court. Our review discloses no abuse of that discretion.

III. The defamation claim

The complaint contained a claim that David and Donna Maravich had been libeled by Aetna’s letter denying their claim. At trial, they apparently abandoned this claim, for they offered no evidence concerning the same. Instead, they attempted to show that they had been defamed by questions asked and statements made to their neighbors by claims representatives investigating the fire. The trial court refused to allow this testimony, denied a requested amendment of the complaint, and refused to submit the defamation claim to the jury. We find no error in the trial court’s handling of this aspect of the action. Moreover and in any event, the issue is now moot. The jury’s finding that Maravich intentionally set the fire would be a complete defense to the claim that he was defamed by accusations thereof made by representatives of his insurance company. See: Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 313, 485 A.2d 374, 379 (1984); Corabi v. Curtis Publishing Co., 441 Pa. 432, 449, 273 A.2d 899, 908 (1971); Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 485-486, 448 A.2d 6, 11 (1982).

IV. The judgment n.o.v. in favor of Donna Maravich

Upon completion of the evidence and before the case went to the jury, a motion for directed verdict was made on behalf of Donna Maravich. In support thereof, it was argued that the insurer had failed to offer evidence of her complicity in the setting of the fire. The trial court denied the motion and instructed the jury that there could be no recovery by either party if David Maravich had intentionally set the fire. In response to a post-trial motion, however, the trial court determined that there had been no evidence of Donna Maravich’s complicity and entered judgment n.o.v. in favor of Donna Maravich for one-half of the fire loss. Aetna appealed from the entry of this judgment n.o.v.

This is a difficult issue. It is particularly difficult because Donna and David Maravich continue to reside together as husband and wife. Aetna argues that David will have access to any recovery awarded to his wife and, therefore, will benefit from his wrongful act in violation of public policy.

As a general rule, whether an innocent co-insured will be allowed to recover on a fire insurance policy after another co-insured has intentionally burned the insured property depends on whether the interests of the co-insureds are joint or severable. See: Annot., Right of Innocent Insured to Recover Under Fire Policy Covering Property Intentionally Burned by Another Insured, 11 A.L.R.4th 1229 (1982) . A majority of the courts, but not all, have made this determination, i.e., whether the interests of co-insureds are joint or severable, by examining the terms of the contract of insurance to determine the nature of the coverage provided. See: Spezialetti v. Pacific Employers Insurance Co., 759 F.2d 1139 (3d Cir.1985); Bryant v. Allstate Insurance Co., 592 F.Supp. 39 (D.Ky.1984); Commercial Union Insurance Co. v. State Farm Fire and Casualty Insurance Co., 546 F.Supp. 543 (D.Colo.1982); Opat v. State Farm Fire and Casualty Insurance Co., 542 F.Supp. 1321 (W.D.Pa.1982); Hosey v. Seibels Bruce Group, 363 So.2d 751 (Ala.1978); Steigler v. Insurance Co. of North America, 384 A.2d 398 (Del.1978); Auto-Owners Insurance Co. v. Eddinger, 366 So.2d 123 (Fla.Dist.Ct.App.1979); Richards v. Hanover Insurance Co., 250 Ga. 613, 299 S.E.2d 561 (1983) ; Economy Fire and Casualty Co. v. Warren, 71 Ill.App.3d 625, 28 Ill.Dec. 194, 390 N.E.2d 361 (1979); Fuston v. National Mutual Insurance Co., 440 N.E.2d 751 (Ind.App., 1982); Hildebrand v. Holyoke Mutual Fire Insurance Co., 386 A.2d 329 (Me.1978); St. Paul Fire and Marine Insurance Co. v. Molloy, 291 Md. 139, 433 A.2d 1135 (1981); Morgan v. Cincinnati Insurance Co., 411 Mich. 267, 307 N.W.2d 53 (1981), reversing, 91 Mich.App. 48, 282 N.W.2d 829 (1979); Krupp v. Aetna Life & Casualty Co., 103 A.D.2d 252, 479 N.Y.S.2d 992 (1984); Winter v. Aetna Casualty & Surety Co., 96 Misc.2d 497, 409 N.Y.S.2d 85 (Supreme Court, Nassau Co. 1978); Lovell v. Rowan Mutual Fire Insurance Co., 302 N.C. 150, 274 S.E.2d 170 (1981); McCracken v. Government Employees Insurance Co., 284 S.C. 66, 325 S.E.2d 62 (1985); Ryan v. MFA Mutual Insurance Co., 610 S.W.2d 428 (Tenn.Ct.App.1980); Hedtcke v. Sentry Insurance Co., 109 Wis.2d 461, 326 N.W.2d 727 (1982).

Other courts have held that where a dwelling is owned jointly by husband and wife, their insurance interest, i.e., the right to receive insurance proceeds upon destruction of the property, is necessarily joint and indivisible. See: Fuselier v. United States Fidelity and Guaranty Co., 301 So.2d 681 (La.App.1974); Kosior v. Continental Insurance Co., 299 Mass. 601, 13 N.E.2d 423 (1938); Short v. Oklahoma Farmers Union Insurance Co., 619 P.2d 588, 11 A.L.R.4th 1217 (Okla.1980); Cooperative Fire Insurance Association of Vermont v. Domina, 137 Vt. 3, 399 A.2d 502 (1979); Rockingham v. Hummel, 219 Va. 803, 250 S.E.2d 774 (1979); Klemens v. Badger Mutual Insurance Co. of Milwaukee, 8 Wis.2d 565, 99 N.W.2d 865 (1959), overruled by, Hedtcke v. Sentry Insurance Co., supra. Where spouses have owned property by the entireties, these courts have disallowed recovery of insurance proceeds by the innocent spouse because it would be impossible to separate the interest of the innocent spouse in view of the fact that each owned the whole and not merely part of the whole, see Cooperative Fire Insurance Association of Vermont v. Domina, supra 137 Vt. at 5, 399 A.2d at 503, and because compensating the innocent spouse would destroy the “fictional oneness” of a tenancy by the entireties, see Rockingham v. Hummel, supra 219 Va. at 806-07, 250 S.E.2d at 776.

This unity of interest in property owned by the entireties is firmly established in the law of Pennsylvania. Thus, in Werner v. Quality Service Oil Co., 337 Pa.Super. 264, 486 A.2d 1009 (1984), this Court, being asked to apply the Pennsylvania Comparative Negligence Law to separate acts of contributory negligence by spouses owning property by the entireties, said:

A tenancy by the entireties is an estate “per tout et non per my.” Maxwell v. Saylor, 359 Pa. 94, 96, 58 A.2d 355, 356 (1948). “The incidents of such an estate are unity of interest, title, time and possession____” Berhalter v. Berhalter, 315 Pa. 225, 227, 173 A. 172, 173 (1934). Each spouse has title to the whole of the property and not to any share or divisible part thereof. Zipperlein Estate, 367 Pa. 622, 624, 80 A.2d 817, 818 (1951); Gallagher Estate, 352 Pa. 476, 478, 43 A.2d 132, 133 (1945). Where, as here, husband and wife are seeking to recover damages for destruction of property owned by the entireties, the claimant is, in effect, the tenancy by the entireties. Therefore, the negligent acts of the spouses must be combined for purposes of applying the Comparative Negligence Law.

Id., 337 Pa.Superior Ct. at 270, 486 A.2d at 1012. Consistently with this analogy, the Court of Common Pleas of Washington County, in Matyuf v. Phoenix Insurance Co., 27 D. & C.2d 351 (1933), denied the recovery of insurance proceeds by an innocent spouse whose husband, a co-tenant by the entireties, had burned the jointly owned home. The court said:

When a policy insures joint owners, and contains a condition that the insurance shall not embrace damage resulting from a voluntary increase of hazard, or neglect to use reasonable means to preserve the property, committed by “the insured,” this condition manifestly is intended to apply to the joint tenants, as together constituting “the insured,” and to impose upon them, by construction, or by implication, whichever expression may be preferred, a joint duty and obligation to observe good faith toward the insurer.

Id. at 361.

However, in Bowers Co. v. London Assurance Corp., 90 Pa.Super. 121 (1926), a different analogy was used. There, a vehicle had been “sold” pursuant to a bailment lease. A policy of insurance had been issued in the names of the dealer and the purchaser “as their interests may appear.” In an action by the dealer against the insurer for fire damages, the insurer offered to show that the vehicle had been fraudulently burned by the purchaser. The trial court rejected the offer because the interests in the vehicle were separable and it had not been alleged that the dealer had been aware of the fraudulent burning. The Superior Court reversed. Regardless of the respective interests of dealer and purchaser in the vehicle, the Court held, the contract of insurance was joint. An action on the policy was joint, therefore, and the fraudulent burning of the vehicle by one of the assureds would prevent recovery by either. This suggests, as a majority of jurisdictions have held, that it is not the respective interests in the insured property but the interests in the policy of insurance which determine the rights of a co-insured.

Similar reasoning was followed in McDivitt v. Pymatuning Mutual Fire Insurance Co., 303 Pa.Super. 130, 449 A.2d 612 (1982). In that case, where a residence was owned by husband and wife as tenants by the entireties, the owners had separated and were living apart. Following separation, the wife purchased fire insurance on the home, paid the premiums and was named as insured in the policy. After the home had been destroyed by fire, the husband claimed a portion of the insurance proceeds. The insurance company interpleaded the two tenants by the entireties, and, following hearing, the trial court awarded the entire proceeds to the wife. This Court affirmed. Judge Popovich, writing for a unanimous panel, said: “Property ownership ... is of minimal importance in determining entitlement to the proceeds of insurance, since the nature and extent of the various rights and obligations of the parties are governed by the terms of the insurance contract.” Id., 303 Pa.Superior Ct. at 135, 449 A.2d at 615. He quoted with approval from Lovell v. Rowan Mutual Fire Insurance Co., supra, 302 N.C. at 154-55, 274 S.E.2d at 173 as follows:

The unity of person of husband and wife [expressed through the tenancy by the entirety] gives no clue to the relationship that ought properly to obtain between the owners of the proceeds of insurance____

McDivitt v. Pymatuning Mutual Fire Insurance Co., supra, 303 Pa.Super. at 136, 449 A.2d at 615. It is the contract of insurance and the nature of the interests which have been created by the terms thereof which is determinative of the right of a co-insured to recover indemnity. This indemnity is provided for an insured according to the terms of the policy; it is not necessarily payable to all owners of the property.

Another Court, in a factual scenario similar to that in the instant case, said:

[T]he legal fiction of the entireties’ estate in real estate is designed for the protection of the spouses and the marriage. It was initially designed to prevent the individual creditors of either spouse from taking the marital home. The courts generally, and divorce courts in particular, find no difficulty in dividing an entireties estate. [It is] a perversion of this legal fiction, designed to protect the spouses’ rights and marital property, to use it to destroy the property rights of an innocent spouse.

American Economy Insurance Co. v. Liggett, 426 N.E.2d. 136, 140 (Ind.App., 1981). And, in Krupp v. Aetna Life & Casualty Co., supra, a New York Court said:

The more modern “dominant” rule focuses on the contract of insurance rather than the property rights of the parties thereto. Pursuant to this modern rule, the courts have generally looked to the language of the insurance policy and used traditional rules of contract construction to determine whether the rights of the insured are joint or severable, for example, construing the policy in the manner it would be comprehended by the reasonable man and interpreting ambiguous language in the contract most strongly against its insurer-author. Thus, given the reasonableness of the expectation of an insured that his individual interest would be covered by a policy naming him as insured without qualification, a homeowners’ policy which nowhere specified whether the interests of a named insured husband and wife in property held by both as tenants by the entirety were joint or several, would be construed as covering the interests of each separately, and alleged arson by the husband would not defeat the wife’s right to recover on her interest, namely one-half of the total damages.

Id. 103 A.D.2d at 258, 479 N.Y.S.2d at 997 (citations omitted).

This view was followed by the United States District Court for the Western District of Pennsylvania in Opat v. State Farm Fire and Casualty Insurance Co., supra. The court, by looking to the terms of the policy, determined that the interests of the co-insureds in entireties property had been insured separately and that, therefore, the fraud of one co-insured did not bar recovery by the other who was innocent of such fraud. In Spezialetti v. Pacific Employers Insurance Co., supra, (rehearing denied May 22, 1985), the Court of Appeals followed a similar line of reasoning. In that case, however, the Court found exclusionary language in the policy which excluded coverage in the event of a dishonest act by “any insured.” The Court held, therefore, that an act of arson by one co-insured excluded coverage and prevented recovery by an innocent, co-insured tenant by the entireties.

It is a cardinal principle of insurance law that a policy or contract of insurance is to be construed liberally in favor of the insured and strictly against the insurer. 44 C.J.S. Insurance § 297(c)(1). “[A]ny ambiguity in the language of insurance contracts must be resolved in favor of the insured and against the insurer.” Knauber v. Continental Insurance Companies, 291 Pa.Super. 57, 59, 435 A.2d 217, 218 (1981). The named insured in the policy issued by Aetna was “David G. Maravich and Donna M. Maravich.” The policy did not further define their interests in the policy. A substantial majority of those courts which have looked to the terms of the policy to determine the rights of co-insureds have held, under similar policy terms, that the rights of an innocent spouse are separate from those of a spouse who intentionally burned jointly owned property. See, e.g., Commercial Union Insurance Co. v. State Farm Fire and Casualty Insurance Co., supra; Opat v. State Farm Fire and Casualty Co., supra; Hosey v. Seibels Bruce Group, supra; Steigler v. Insurance Co. of North America, supra; Auto-Owners Insurance Co. v. Eddinger, supra; Richards v. Hanover Insurance Co., supra; Economy Fire and Casualty Co. v. Warren, supra; Fuston v. National Mutual Insurance Co., supra; Hildebrand v. Holyoke Mutual Fire Insurance Co., supra; St. Paul Fire and Marine Insurance Co. v. Molloy, supra; Morgan v. Cincinnati Insurance Co., supra; Krupp v. Aetna Life & Casualty Co., supra; Winter v. Aetna Casualty & Surety Co., supra; Lovell v. Rowan Mutual Fire Insurance Co., supra; McCracken v. Government Employees Insurance Co., supra; Ryan v. MFA Mutual Insurance Co., supra; Hedtcke v. Sentry Insurance Co., supra.

Our research discloses that only two courts applying the contract construction analysis have denied recovery to an innocent spouse. See: Spezialetti v. Pacific Employees Insurance Co., supra; Bryant v. Allstate Insurance Co., supra. In Spezialetti, a policy exclusion voided the policy upon the commission of a wrongful act by “any insured,” and in Bryant, the policy excluded coverage to “an insured” who failed to take reasonable efforts to save and preserve the property. The language in these policies, the courts held, unequivocally excluded coverage for both spouses in the event of a wrongful act by either.

The relevant exclusion clause in the Aetna policy issued to the Maravichs provided as follows:

We do not cover loss resulting directly or indirectly from:
5. Neglect, meaning neglect of the insured to use all reasonable means to save and preserve property at and after the time of a loss, or when property is endangered by a Peril Insured Against.

In St. Paul Fire and Marine Insurance Co. v. Molloy, supra, the Maryland Supreme Court construed an identical exclusionary clause. The Court observed that “[n]owhere in the policy is the precise nature of either the named insured’s interest in the insurance contract or the insured’s obligations under that contract specifically defined to be either joint or several.” Id., 291 Md. at 152-54, 433 A.2d at 1142. To alleviate the ambiguity, the Court adopted a rule of construction, which had first been espoused by the New Jersey Superior Court, as follows:

[With respect to a fire insurance policy covering the interests of more than one insured] ‘there is much to commend the view that, unless the terms ... [thereof] are plainly to the contrary ... the obligation of the carrier should be considered several as to each person insured, and the fraud or misconduct of one insured should not bar recovery by the innocent coinsureds to the extent of their respective interests in the property involved.’

St. Paul Fire and Marine Insurance Co. v. Molloy, supra at 152-54, 433 A.2d at 1142, quoting Howell v. Ohio Casualty Insurance Co., 130 N.J.Super. 350, 356-57, 327 A.2d 240, 243 (1974). The Maryland Court held, therefore, that the exclusion clause voided only the coverage provided to the insured who had been responsible for causing the loss. Id. See also: Commercial Union Insurance Co. v. State Farm Fire and Casualty Co., supra (court reached same conclusion after considering identical exclusionary provision).

We adopt this reasoning. The insured in Aetna’s policy, was defined as husband and wife. The policy did not define whether the interests of husband and wife in the policy were joint and indivisible or separate. The exclusionary language did not unequivocally exclude coverage for an innocent spouse in the event the property was burned by one of them. We construe this ambiguity in favor of the insured. It was reasonable, under such a policy, that an innocent spouse would expect to be indemnified against a loss which, as to her was fortuitous, and which was not excluded and, therefore, covered by the terms of the policy.

In many of the decisions which have reached the same or a similar result, the spouses were either separated or divorced, or the guilty spouse had died in the fire. In the instant case, however, the spouses are alive and are living together as husband and wife. Aetna argues that to allow the wife to recover one-half of the loss would be contrary to that public policy which prevents a person from benefitting from his own criminal act. The husband will have access to the insurance proceeds because of the marital relationship, Aetna contends, and will thereby be allowed to benefit from his own wrongdoing. This argument is based upon a well settled public policy consideration which prohibits recovery to an insured who has fraudulently set fire to property covered by a policy of fire insurance. 18 Couch, Couch on Insurance 2d § 74:663 (1984). See: General Electric Credit Corp. v. Aetna Casualty & Surety Co., 437 Pa. 463, 473, 263 A.2d 448, 454 (1970). Indeed, this policy consideration has caused at least one court to suggest that different rules may be necessary in cases where the guilty spouse survives. See: American Economy Insurance Co. v. Liggett, supra 426 N.E.2d at 144.

However, the major concern of the cases denying recovery seems to be a substantial potential for collusion between the spouses. As one court has noted, “[particularly in the husband and wife cases, an equally guilty spouse might recover policy proceeds because of the difficulty of proving participation in or knowledge of the arson committed by the other spouse.” Spezialetti v. Pacific Employees Insurance Co., supra at 1141.

However, other courts which have considered this public policy dilemma have not allowed it to defeat recovery by an innocent spouse. See, e.g., Commercial Union Insurance Co. v. State Farm Fire & Casualty Co., supra; Fuston v. National Mutual Insurance Co., supra; Hildebrand v. Holyoke Mutual Fire Insurance Co., supra; Krupp v. Aetna Life & Casualty Co., supra. The Federal District Court in Colorado summarized the reasons for resolving this dilemma in favor of the innocent spouse as follows:

It is the Court’s view that in balancing the equities of the case at bar, the facts and circumstances favor the payment to the innocent spouse and children. They have lost indemnified property from an event that is fortuitous as to them. Prevention of this unforseeable [sic] event by any of them was not possible since there was apparently no precedent for this act of arson in Julian Oxford’s life. Nor is there any profit to the wrongdoer in the sense of advantage or gain. As the Court stated in Erlin-Lawler Enterprises, Inc. v. Fire Insurance Exchange, 267 Cal.App.2d 381, 73 Cal.Rptr. 182, 186 (1968):
Mere family relationship to the arsonist which does not bestow a property right or other direct financial benefit in the proceeds of insurance does not bar a recovery.
Here the only benefit to the arsonist is an indirect one whereby his spouse and children recover what the spouse and children had already owned and insured. The wrongdoer has no gain, advantage or recovery of what he owned prior to the fire.

Commercial Union Insurance Co. v. State Farm Fire & Casualty Co., supra at 547.

We conclude that this is the better view. “In the last analysis it is much to be preferred that we depend upon the efficacy of the judicial process to ferret out the meritorious from the fraudulent rather than using a broad broom to sweep away a class of claims, a number of which are admittedly meritorious.” Hack v. Hack, 495 Pa. 300, 315, 433 A.2d 859, 867 (1981), quoting Falco v. Padas, 444 Pa. 372, 381, 282 A.2d 351, 355-356 (1971).

Although the Supreme Court of Pennsylvania has not had occasion to consider this precise issue, there is reason to believe that it would follow the majority view. In Giacobetti v. Insurance Placement Facility of Pennsylvania, 500 Pa. 447, 457 A.2d 853 (1983), the Court was faced with a dilemma similar to but not the same as that which has arisen in the instant case. There, a grocery store owned and operated by a family trust had been burned intentionally by one of the trustees. The store was insured by a policy which named the insured as follows: “Manusov Family Trust, Harry Kracoff, Trustee, and Harry Kracoff, A.T.I.M. A.,” the initials being shorthand for “as their interests may appear.” Three additional trustees had been innocent of any part of the arson. The Supreme Court held that the wrongful act of Harry Kracoff did not excuse the insurance company from its contractual obligation to the beneficiaries of the family trust but did justify the insurer’s retention of the share of insurance proceeds to which Harry Kracoff and his issue would otherwise have been entitled as beneficiaries of the trust. The insurer’s right to retain proceeds payable to Kracoff, the Court concluded, gave “full effect to ‘the common law principle that a person will not be permitted to profit by his own wrong, particularly his own crime.’ ” Id., 500 Pa. at 454-455, 457 A.2d at 857, quoting Greifer Estate, 333 Pa. 278, 279, 5 A.2d 118, 119 (1939). “[A]bsent evidence that the other beneficiaries assisted in or approved of Harry Kracoff’s wrongful conduct,” the Court held, “there is no basis for prohibiting recovery by the other beneficiaries.” Id., 500 Pa. at 455, 457 A.2d at 857. The Court remanded for the entry of a judgment which would permit recovery by the innocent beneficiaries of the trust while, at the same time, denying any benefit to the wrongdoer.

The evidence in this case was that David Maravich had intentionally set the fire which damaged the home and contents owned by husband and wife as tenants by the entireties. There was no evidence that Donna Maravich had had prior knowledge of her husband’s intention to burn their home or that she had assisted in any way in causing the fire. As to her, the fire was fortuitous. By allowing Aetna to retain one-half of the loss, we give effect to the common law principle that David Maravich should not be permitted to profit from his own wrong. There is no public policy consideration, however, which prevents the innocent spouse from recovering the indemnity which Aetna had agreed to pay for the loss which she sustained. A mere family relationship with the arsonist is inadequate to defeat the recovery of such indemnity.

Judgment affirmed.

SPAETH, President Judge, concurs in the result. (This vote was entered before the expiration of President Judge SPAETH’s term on the court).

      . During cross-examination of Connell, counsel interrupted an answer and was admonished to allow the witness to complete his answer. This exchange, as Maravich concedes, was "innocuous.” Maravich Brief at p. 40. It was neither prejudicial nor supportive of the motion for new trial.

      . 42 Pa.C.S. § 7102.

      . Accord: 41 C.J.S. Husband and Wife § 34 (1944) ("tenancy by the entireties is a sui generis species of tenancy, and a convenient mode of protecting a surviving spouse from inconvenient administration of the decedent’s estate and from the other’s improvident debts”).

      . Although the Bryant court purported to base its holding on the unambiguous terms of the insurance contract, it is clear that the public policy against benefitting a wrongdoer weighed heavily in its decision. In Bryant, the wife, who was attempting to recover the insurance proceeds, had been indicted, along with her husband, for the arson of their jointly held home. The charges against the wife had only been dropped as part of her husband’s plea bargain.

      . Aetna argues in a supplemental brief that two additional provisions within the insurance policy should be read to exclude coverage to an innocent spouse in this situation. We reject this argument. After carefully reviewing the policy provisions cited by Aetna, we conclude that they are inapplicable to the claim made in this case.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    504 A.2d 908
    Edward E. MACKEY, Appellant, v. MAREMONT CORPORATION, a Pennsylvania Corporation, Commonwealth of Pennsylvania and Pennsylvania National Guard, an Agency of the Commonwealth of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed Jan. 24, 1986.

      Thomas L. Cooper, Pittsburgh, for appellant.
    Louis C. Long, Pittsburgh, for appellees.
    Before BROSKY, ROWLEY and FEENEY, JJ.

       Honorable John M. Feeney, of the Court of Common Pleas of Allegheny County, Pennsylvania is sitting by designation.

      . The problem of collaborative design is informatively discussed by the Third Circuit in Koutsoubos v. Boeing Vertol, 755 F.2d 352 (Circuit 1985), applying federal law.

   BROSKY, Judge:

This appeal is from summary judgment in favor of appellee, Maremont Corporation, defendant in a defective design products liability suit.

The issue before us is the applicability under Pennsylvania law of the government contract defense to a strict products liability action.

The government contract defense has long been recognized in Pennsylvania tort law, but our appellate courts have not previously considered whether the defense also applies in products liability cases. We hold that the government contract defense is available in a strict products liability action under certain narrowly-defined circumstances.

Stipulations of the parties show that the nature of appellee’s government contract justifies the protection of the government contract defense. Accordingly, summary judgment is affirmed.

Facts and Procedural History

Appellee manufactures M60 machine guns under contract to the United States government. The M60 machine gun was designed by the United States government, and the design is and has always been the property of the United States. The parties have stipulated that appellee must (and does) manufacture the M60 to design and performance requirements established by the U.S. Army, and appellee has no leeway in changing any aspect of the design. All M60 machine guns produced by appellee are produced only for the government; appellee has no control over further distribution of the weapon and none are sold by appellee in the general stream of commerce.

Plaintiff (appellant herein), a Captain Edward Mackey in the Pennsylvania National Guard, was injured while attempting to disassemble an M60 manufactured by appellee. Captain Mackey alleges that his injury was caused by a design defect in the M60 machine gun he used during a training session conducted by the National Guard. He alleges that the M60 was manufactured by appellee and that therefore the manufacturer should be held strictly liable under Section 402A, Restatement of Torts (Second), as a supplier of a product which was defectively designed. He does not allege that the particular M60 he used was defectively manufactured or that the M60 did not conform to Army specifications. Thus, for purposes of this appeal, we must assume that Captain Mackey’s injury was caused by a design defect in an M60 machine gun manufactured by appellee in conformance with U.S. Army specifications.

Appellant additionally alleges that appellee is liable for failure to warn M60 users of the danger that the guide rod could discharge during assembly, causing precisely such an injury as occurred to him. Failure to warn the ultimate users of a product’s hazards is a separate cause of action in Pennsylvania strict products liability law. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Incollingo v. Ewing, et al., 444 Pa. 263, 287, 282 A.2d 206, 219 (1971); Hammond v. International Harvester, 691 F.2d 646 (3d.Cir.1982) (applying Pennsylvania law). However, the parties in this case have stipulated that all operating procedures of the M60 machine gun, including assembly and disassembly, have been established by the United States government. Thus, the government contract defense may be equally applicable to the claim of failure to warn as it is the claim of defective design.

The Government Contract Defense in Pennsylvania Law

Pennsylvania recognizes an affirmative defense to actions for damages caused by a private contractor’s performance of a government contract “where a contractor performs his work in accordance with the plans and specifications and is guilty of neither a negligent or willful tort.” Ference v. Booth & Flinn Co., 370 Pa. 400, 403, 88 A.2d 413, 414 (1952). Our Supreme Court explained two policy justifications for the government contract defense in upholding the Ference rule four years later. Valley Forge Gardens, Inc. v. James D. Morrisey, Inc., 385 Pa. 477, 123 A.2d 888 (1956). First, the contractor should be shielded from liability when undertaking work for which the government itself would be privileged by sovereign immunity, so long as the contractor does not commit a negligent or willful tort in its performance. This shield primarily serves to protect the government, for, if the contractor were not immune when it carefully complied, costs of possible damages from the engineering or planning decisions of the government itself would be spread back to the government, defeating the government’s sovereign immunity. Second, the assurance of protection from suit for the damages consequential to the government’s intended plan encourages lower costs to the government on competitive bids.

Both Ference and Valley Gardens involved claims in nuisance or trespass for property damage resulting from road contract work performance by private contractors to government specification. Ference treated a public nuisance claim by a bus company which suffered a loss of revenue when highway construction closed a nearby road which was essential to the bus line. In Valley Forge Gardens, run-off erosion from the highway construction embankment silted up the plaintiff’s ponds. Neither case was premised on a theory of negligence in performing the government contract. The damages resulted from the engineering decisions made by the government, not from the manner of the execution of the contract. Thus, the government contract defense served to protect the contractor from traditional tort liability for damages caused by the government’s engineering decisions.

However, our Commonwealth’s Supreme Court has refused to apply the government contract defense when the plaintiff’s damages are caused by the abnormally dangerous activities of the defendant contractor, such as by blasting. Lobozzo v. Eidemiller, Inc., 437 Pa. 360, 263 A.2d 432 (1970). The Court refused to extend the protection from suit which would have been available to the government had it performed the blasting itself because of the inherent nature of the cause of action. “If blasting, even though carefully performed, causes damage, it by that fact becomes ‘tortious’ and actionable, and one whose property is injured may have recovery.” Lobozzo, 437 Pa. at 365, 263 A.2d at 435. Liability for damages to others must be expected occasionally by all who choose to engage in abnormally dangerous activities. It is an absolute liability tort, for which liability without fault is imposed. Id.

The reasons for the Court’s refusal to extend the defense to claims arising from abnormally dangerous activities mirror the reasons for the recognition of absolute liability for abnormally dangerous activities. Blasting occasionally results in unpredictable and uncontrollable damage regardless of the care exercised. Hence, one who chooses to employ unusual “abnormally ” dangerous activities is expected to bear the resulting costs, and the government planning such work expects that blasting victims will be compensated by the contractor.

In contrast, damages from trespass (Valley Forge Gardens ) and nuisance (Ference) are more controllable through careful, non-negligent performance. Such damages are an unfortunate result of the government’s discretionary decision to undertake the contracted work; and, when the contractor is blameless, the consequences must be borne, uncompensated, by the innocent victim.

That the state itself may have proceeded wrongfully in not foreseeing the consequential damage to plaintiff’s property and making provision for its compensation supports not at all the conclusion that either the highway commissioner or the defendant [contractor] has committed wrong in proceeding with the work in the only way it could be done. Having committed no wrong, defendant should not be subjected to liability. It is not saved by the state’s immunity from suit, but by its own innocence of wrongful acts resulting in liability for tort.

Valley Forge Gardens, 385 Pa. at 890-891, 123 A.2d at 891 (citation omitted).

The Government Contract Defense in Design Defect Cases

In federal law, the government contract defense derives from Yearsley v. Ross Construction Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940), where the Supreme Court found the defendant contractor not liable for erosion incident to a federal construction project on the Missouri River. The Court reasoned that the contractor should not be held liable for executing the government’s will so long as the contractor had valid authority to perform the contract. 309 U.S. at 20-21, 60 S.Ct. at 414.

More recent suits against the United States Government and its contractors and suppliers have concerned servicemen injured by military equipment, forcing a development in the contours of the defense in light of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). Feres bars suits against the federal government by injured servicemen or their survivors for damages from injuries suffered incident to military service, limiting them to veteran's benefits. Stencel extends this doctrine to bar indemnity actions by government contractors against the federal government for damages paid by such contractors to members of the military, or their dependents, for injuries suffered in the course of military service.

Stencel does not discuss the government contract defense, but presents a situation in which justice would appear to require the extension of the defense in the strict products liability context. Stencel Aero Engineering manufactured pilot emergency ejection equipment to Air Force specifications for installation in fighter aircraft manufactured by Rockwell North American. After the equipment had failed, resulting in pilot death, the company sought Air Force permission to install a design Stencel considered safer, but permission was refused. Instead, the Air Force instituted its own design changes, with which Stencel then complied. The pilot’s widow and another pilot injured later during an emergency ejection won recovery against Stencel for defective design, but Stencel was denied indemnity against the United States Government which had insisted upon the design.

The Court explained that “to permit petitioner to proceed ... here would be to judicially admit at the back door that which has been legislatively turned away at the front door. Stencel, 431 U.S. at 673, 97 S.Ct. at 2054, 52 L.Ed.2d at 665. Judicial inquiry into government specifications would “involve second-guessing military orders, and would often require members of the armed services to testify in court as to each other’s decisions and actions.” The paramount interests of the United States government mandated that the contractor be granted no relief.

Recent leading opinions nationally on the government contract defense to design defects suits include McKay v. Rockwell International Corp., 704 F.2d 444 (9th Cir.1983), cert. denied, 464 U.S. 1043, 104 S.Ct. 711, 79 L.Ed.2d 175 (1984) (admiralty); In re “Agent Orange" Product Liability Litigation, 534 F.Supp. 1046 (E.D.N.Y. 1982), cert. denied, 465 U.S. 1067, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984) (state tort law); and Brown v. Caterpillar Tractor Company, 696 F.2d 246 (3d Cir.1982) (“Brown I”), 741 F.2d 656 (3d Cir.1984) (“Brown II”) (Pennsylvania law). While the rules of law these cases establish are not binding upon us, an examination of their holdings is appropriate in arriving at our own conclusions.

The McKay Formulation

Navy pilots Lieutenant Commander McKay and Lieutenant Carson were each killed during emergency ejections from fighter aircraft manufactured by Rockwell International under contract to the United States. Autopsies indicated that the two pilots were probably killed by injuries sustained during ejection. The Ninth Circuit in McKay reversed substantial recoveries which had been won by the decedents’ estates on theories of products liability under Sections 388, 389 and 402A of the Restatement of Torts (Second). The Court extensively discussed the government contract defense in the context of a products liability suit against the supplier of military ordnance and remanded for determination of the application of the government contract defense to defendant Rockwell International.

The Ninth Circuit propounded several reasons to extend the government’s Feres-Stencel immunity to military suppliers in McKay. First, the government’s immunity would be undermined by cost-spreading through contract price increases if military suppliers were not extended protection from suits for government contract design defects.

Second, the judiciary would be thrust into reviewing the decision-making process of the military if contractors were held liable for design defects created or approved by the government. Courts might also have to determine whether the use to which the service personnel had put the equipment constituted an abuse of the product (for which there would be no liability), even though the user was correctly carrying out direct military orders. Adjudication of the propriety of military commands would thus be unavoidable if abuse of the product were at issue. “Although judges must decide cases from fields of endeavor of which they know little, their otherwise omnicompetence confronts its limits in military matters. At this point ... separation of powers becomes a proper concern.” McKay 704 F.2d at 449.

Third, contractors producing state-of-the-art equipment for military use often possess no negotiating leverage and are compelled by federal law to produce weapons of war under contracts of adhesion. “Exigencies of our defense effort ... push technology towards its limits and thereby incur risks beyond those that would be acceptable for consumer goods.” 704 F.2d at 449-50.

Finally, a narrowly-circumscribed government contract defense provides incentives for the suppliers of military equipment to consult and collaborate with the government in the development and testing of equipment. 704 F.2d at 450.

The McKay court accepted the government contract defense in design defect cases for suppliers of military equipment under these circumstances:

(1) the United States is immune from liability under Feres and Stencel;
(2) the supplier proves that the United States established, or approved, reasonably precise specifications for the allegedly defective military equipment;
(3) the equipment conformed to those specifications; and
• (4) the supplier warned the United States about patent errors in the government’s specifications or dangers involved in the use of the equipment that were known to the supplier but not to the United States.

704 F.2d at 451.

The “Agent Orange” Formulation

American service personnel exposed to herbicides including dioxin (“Agent Orange”) during defoliation of the jungles of Vietnam brought suit against the chemical manufacturers which had supplied the herbicides under contract to the United States, seeking recovery for personal injuries on theories including strict products liability for defective design and failure to warn of the hazards of exposure to the chemicals. In re “Agent Orange” Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980), rev’d, 635 F.2d 987 (2d Cir.1980), 534 F.Supp. 1046 (E.D.N.Y.1982), (“Agent Orange I ”), cert. denied, 465 U.S. 1067, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984).

The Agent Orange plaintiffs contended that the chemical companies possessed knowledge superior to the government’s about the toxic properties of dioxin, and that, therefore, the companies should be liable for failure to warn of the hazards and should not be protected by the government contract defense, despite careful manufacture to specifications. Judge Pratt formulated the government contract defense in light of this claim, as follows:

A supplier ... has a duty to warn the military of known risks attendant to a particular weapon that it supplies, so as to provide the military with at least an opportunity fairly to balance the weapon’s risks and benefits....

[T]he court ... concludes that a defendant in this case will be entitled to judgment dismissing all claims against it based on that defendant’s having supplied “Agent Orange” to the government pursuant to a contract, if the defendant proves:

(1) That the government established the specifications for “Agent Orange”;
(2) That the “Agent Orange” manufactured by the defendant met the government’s specifications in all material respects; and
(3) That the government knew as much or more than the defendant about the hazards to people that accompanied the use of “Agent Orange.”[]

Agent Orange, 534 F.Supp. at 1055.

The Brown Formula

United States Army reservist Robert Brown sustained injuries allegedly caused by the defective design and inadequate warnings of a bulldozer manufactured by defendant Caterpillar Tractor Company for the Army. Brown sued under Pennsylvania law on theories including strict products liability for defective design and failure to warn. Caterpillar countered that it was insulated from suit by the government contract defense because it had built the bulldozer to Army specifications. Brown I, 696 F.2d at 246.

In Brown I, the Third Circuit reversed the District Court’s grant of summary judgment in favor of Caterpillar, based on the government contract defense — finding that there were significant unresolved factual issues which precluded summary judgment. Brown I, 696 F.2d at 256. Brown II remanded the case for a new trial because the jury instructions on both defective design and adequacy of warnings erroneously stated the elements of the government contract defense. Brown II, 741 F.2d at 661.

The Third Circuit held that, under Pennsylvania law, the government contract defense “places no greater obligation on a contractor than to execute the government’s specifications ‘carefully.’ ” Brown I, supra at 254.

The court found the “Agent Orange ” approach to delineation of the elements of the government contract defense “attractive,” and suggested that it might be “persuaded that a contractor must prove some element of compulsion [in following the allegedly defective specifications] in order to successfully raise the government contractor défense,” were the court not “constrained by existing Pennsylvania law.” Brown I, supra at 254.

Two additional recent federal district court decisions on the government contract defense to a strict products liability action apply Pennsylvania law: Price v. Tempo, Inc., 603 F.Supp. 1359 (E.D.Pa.1985) (municipal firefighting gear); and In re Air Crash Disaster at Mannheim, Germany, 586 F.Supp. 711 (E.D.Pa.1984) revd. 769 F.2d 115 (3rd Cir.1985) (military equipment).

Price v. Tempo, Inc. illustrates the potential problems with the simple version of the government contract defense contained in the Brown decisions; that the contractor need only demonstrate careful compliance with the contract. Philadelphia city fire fighter David Price was seriously burned while wearing fire fighter’s gloves and a coat manufactured by the defendants. Expert testimony on his behalf indicated that his injuries would have been avoided if the linings of the gear had been made of other materials. Defendants claimed that their products met the city’s specifications, but plaintiffs countered that the city’s specifications were written in reliance on representations made by the companies.

A critical problem in the Price decision is whether the companies shared their knowledge with the city so that the city could make an informed decision on the quality of the gear it wished to purchase. Price, 603 F.Supp. at 1363. Another, allied, issue, is whether the defendant is able to establish "that the specifications for its product originated with the government.” Price, quoting from In re Air Crash Disaster at Mannheim, Germany, 586 F.Supp. 711, 717 (E.D.Pa.1984). The Third Circuit was “particularly troubled by the scenario in which the specifications are skeletal, the contract is negotiated, and the contractor, knowing of a high risk of serious harm, fails to install a relatively inexpensive safety device.” Brown I, 696 F.2d at 254. We, too, would be troubled by this scenario if we concluded, as the Third Circuit did, that the law in Pennsylvania compelled immunity for such a contractor. But we do not. Rather, that scenario is one in which the contractor should not be allowed the defense because the specifications which caused the plaintiffs injury were not the result of the government’s discretionary decisions in making the contract.

We join the Third Circuit in finding the “Agent Orange ” formulation of the government contract defense “attractive,” and also would consider some element of “compulsion” essential if there is a genuine issue concerning which party originated the design. However, we differ in that we do not consider this a departure from the present law in Pennsylvania. The government contract defense has always only protected contractors carrying out the discretionary decisions of the government from the damages caused by the government’s own planning or engineering decisions. If the engineering decisions were made by the contractor, or if the government made the decisions without the benefit of the contractor’s technical knowledge, then the contractor should not be protected.

The Duty to Warn of Post-Manufacture Defects

Brown II additionally discusses the effect of the government contract defense in a strict products liability action premised on the failure to warn. This type of warning is distinct from the pre-manufacture warning discussed above. In Pennsylvania, a duty to warn is non-delegable and runs to the ultimate user of the product, Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) (plurality opinion), even if the user is a thief Pegg v. General Motors Corp., 258 Pa.Super. 59, 391 A.2d 1074 (1978). Brown II, 741 F.2d at 659.

In the instant case, this fact raises the questions of whether appellee’s duty to provide warnings (if there is such a duty under the facts of the case), (1) runs to each user of an M60 or (2) the duty is merely to warn the purchaser, the United States Army, or, (3) the government contract defense obviates the duty entirely where the United States Army contractually provides all instruction and training in the use of the M60 machine gun.

The military aspects of this case are critical to the determination of this issue. In the context of a municipal contract, the duty to warn (if present under the facts), would clearly run to the ultimate user of the product. See, e.g. Hammond v. International Harvester, supra, and Brown II at 659. However, separation of powers concerns compel the conclusion that this is not so in the military context.

Captain Mackey’s complaint alleges that he received inadequate instructions or inadequate warnings about disassembling the M60. Assuming these allegations to be true, as we must in reviewing a motion for summary judgment, neither charge can be laid at the door of appellee under the facts stipulated. The United States Government originated the design of the M60 and provides all training in its use. Alleged inadequacies in the training Captain Mackey received from the Pennsylvania National Guard are not justiciable; The contract precludes Maremont providing instructions on the use of the M60. Thus, the government contract defense — in the military context — shields the contractor from liability for failure to providing instructions or warnings on the use of the product if the contract specifically provides that the military will provide instructions and training in the use of the product, and such training would have prevented the accident which caused the plaintiffs injury.

We hold, therefore, that the government contract defense in Pennsylvania entitles a strict products liability suit defendant to judgment dismissing all claims against it if it is established that:

(1) The government established the specifications for the portion of the product which proximally caused the plaintiffs injury.
(2) The product met the government’s specifications in all material aspects.
(3) The defendant warned the government about patent errors or patent design defects in the government’s specifications or about dangers involved in the design or use of the product that were known to or should have been known to the defendant.
(4) The defendant has provided any necessary instructions or warning unless the contract provides that the military will provide such instructions or warnings.

Turning now to the facts of the case before us, we find that the stipulations of the parties indicate that appellee has successfully shouldered the burden of proving the first element of the defense. The United States Government supplied the design of the M60 machine gun to appellee without appellee’s participation in the design process.

The parties also have stipulated that the particular M60 which allegedly caused Captain Mackey’s injuries met the government’s specifications in all material aspects — satisfying the second element.

The third element of the defense listed above is satisfied in this case because appellee had no duty to inform the military about the operation of a weapon previously in use. In the military context, a supplier of weapons of war must not be asked to second-guess the requirements of the government — so long as the supplier provides the government with the information specified in element (3).

The fourth element is also met because there is no factual dispute that the instant contract provided that all training materials were the government’s responsibility.

Accordingly, the grant of summary judgment in favor of defendant Maremont Corporation on the basis of the government contract defense is affirmed.

Judgment affirmed.

ROWLEY, J., concurs in the result.

      . It is only in the last of these requirements that we will depart from the "Agent Orange " holding. In our view, a comparison of relative degrees of knowledgeability of the government and the contractor is both abstract and difficult of proof. As such, we reject it as an unmanageable requirement. As will be seen, we are not rejecting the warning requirement, per se, only this comparative degree of knowledge which activates that duty.

      . Another related caveat appears in Patraka v. Armco Steel Co., 495 F.Supp. 1013 (M.D.Pa.1980), applying Pennsylvania law to a personal injury suit claiming that the plaintiffs injuries were suffered as a result of defective engineering design in road construction. Careful compliance with government road contract specifications would not entitle the contractor to the government contract defense if the contractor “should reasonably have known that such specifications were inadequate for the segment of the interstate route along which the accident occured.” Patraka, at 1020. Nor is the mere inspection and approval by the Highway Department during the course of work sufficient evidence that the government, in fact, set the specifications which resulted in the plaintiffs injury.

      . This formulation is meant to apply only to suppliers of our Armed Forces. A non-military, context would present a different situation. See infra.

      . A non-material variation from design in the item’s production would be one not causally related to the mishap giving rise to the lawsuit. The variation from specifications need not be the result of the manufacturer’s negligence in order to establish his liability. As in other products liability contexts, he need only manufacture a product which is unreasonably dangerous.

      . As we already stated, the defense does not apply if the defendant is guilty of a negligent or willful tort with respect to the manufacture or distribution of the product.


author: MONTEMURO, Judge:

text:
    504 A.2d 917
    Robert D. MURPHEY, Appellant, v. Catherine HATALA, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Feb. 6, 1986.

      Elaine Smith, Philadelphia, for appellant.
    Andrew M. Knowlton, Philadelphia, for appellee.
    Before McEWEN, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

This is an appeal by appellant/father from an order granting sole physical custody of the parties’ six-year-old son, Brendan, to appellee/mother.

The parties were married in November 1977 and separated in March 1983. Following their separation, the parties mutually agreed to a joint physical and legal custody arrangement for their son. In July of 1984, appellant filed a complaint in divorce. The parties abided by their mutual agreement for twenty-seven (27) months. Under this agreement, Brendan spent alternating days of the week with each parent. This system afforded Brendan the opportunity to spend three (3) days of the week with appellant and four (4) days with appellee. The parties live in close proximity to each other in Center City Philadelphia. Both parents live far enough away from Brendan’s school that driving is necessary.

Appellant filed a petition for confirmation of the mutually agreed upon joint custody arrangement. Following an extensive hearing, which included testimony from a clinical sociologist and a licensed psychologist, the court entered the following order:

AND NOW, this 29th day of May, 1985, after testimony and argument before the Honorable Frank M. Jackson, Appellant’s Petition to Confirm Joint Legal and Joint Physical Custody, it is hereby ordered that Confirmation of Custody of the Child, BRENDAN DYLAN MURPHEY is awarded to mother, CATHERINE HATALA with Shared Custody in Father, ROBERT MURPHEY, who shall have BRENDAN on alternate weekends from the close of school on Friday to the commencement of school on Monday morning commencing May 24, 1985. Father to have BRENDAN every Wednesday from close of school to commencement of school on Thursday morning. In the event that Father commences teaching on Wednesday evening, he may choose to substitute either Tuesday or Thursday. Both parties shall alternate the following holidays: Fourth of July; Labor Day; Memorial Day; Thanksgiving; Christmas; New Years and Easter and alternating each year commencing with Father on Fourth of July, 1985. During summer vacation, Father shall have three weeks of his choice. During the Christmas and New Years vacation, both parties shall split the period equally.
A supersedeas was requested by counsel for Father, ROBERT MURPHEY, and is denied. Counseling is directed by both parties and child.

Appellant has presented three issues for our review:

I. Did the lower court abuse its discretion in granting sole custody of minor child to Appellee/Mother absent any evidence on the record to support a finding that a sole custody arrangement is in the best interest of the child?
II. Did the lower court abuse its discretion by awarding sole custody to Appellee/Mother when the record can support no finding that the Appellee/Mother is the more nurturing parent and in contravention of the Commonwealth’s Custody and Grandparents Visitation Act?
III. Did the lower court exceed the scope of its judicial authority by granting sole custody sua sponte when the issue before the court was a Petition to Confirm Joint Legal and Joint Physical Custody?

Appellant’s brief at 2.

We shall first address appellant’s third issue. Having examined the record, the briefs of counsel and the opinion of the court below, we agree with the court below that there is no merit whatsoever in this claim. We adopt the court’s opinion as to this issue and see no need to write further on this matter.

Our analysis of appellant’s first two issues necessarily requires us to first set forth certain well-settled rules which govern appellate review of these difficult and heart-rending custody cases.

The lodestar, of course, is that in custody cases the paramount concern of the court is the best interest of the child, including the child’s physical, intellectual, emotional and spiritual well-being. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

The appellate court’s scope of review in custody cases is of the broadest type. This broad power is limited to the extent that an appellate court may not nullify the fact finding function of the hearing judge. We are empowered to form our own independent deductions and inferences from the facts found by the hearing judge, but may only interfere with the decisions of the hearing court where there has been a gross abuse of discretion. We must determine whether the trial court’s factual findings support the trial court’s factual conclusions, but we may not disturb these conclusions unless they are unreasonable in light of the court’s factual findings. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

Our appellate function is to make an independent judgment, based on the testimony and evidence before us, that is in the best interest of the child. Commonwealth ex rel. Holschuh v. Holland-Moritz, 488 Pa. 437, 292 A.2d 380 (1972). We must make an independent examination of the record and make an order on the merits of the case which is right, just and will serve the best interest of the child. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977). Davidyan v. Davidyan, 230 Pa.Super. 599, 327 A.2d 145 (1974). “After we take full account of the hearing judge’s reasoning, still, we must be easy in our own conscience that the judge’s award will serve the best interest of the child, or children, in question.” Trefsgar v. Trefsgar, 261 Pa.Super. 1, 9, 395 A.2d 273, 277 (1978) (Spaeth, J., concurring).

Although we are given a broad power of review, we are constrained by an abuse of discretion standard when evaluating the court’s order. An abuse of discretion is not merely an error of judgment, but if the court’s judgment is manifestly unreasonable as shown by the evidence of record, discretion is abused. Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). An abuse of discretion is also made out where “[i]t appears from a review of the record that there is no evidence to support the court’s findings or that there is a capricious disbelief of evidence.” In re Masciantonio’s Estate, 392 Pa. 362, 367, 141 A.2d 362, 365 (1958). Miller v. Mifflin County Industrial Development Authority, 319 Pa.Super. 188, 465 A.2d 1293 (1983).

We have carefully reviewed the entire record and after applying the above guidelines to the evidence, we are constrained to hold that the hearing judge has abused his discretion by ignoring or disbelieving uncontradicted testimony from the parties’ three expert witnesses and by making findings that are not predicated on competent evidence in the record. Further, we are not convinced that the court’s order serves the best interest of the child in question.

On review we must first ascertain what the hearing judge’s findings of fact are and whether those findings are supported by competent evidence. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). We must then determine whether the factual findings that are supported by the evidence in the record support the hearing court’s ultimate conclusions. Commonwealth ex rel. Robinson v. Robinson, supra.

The hearing court here has grounded its decision to grant sole custody to appellee upon the following findings: first, that the parties have insurmountable problems in their relationship which would render a shared custody scheme unworkable; second, that appellant is at a disadvantage due to his evening teaching schedule; and finally, that the marital home is Brendan’s psychological base, hence sole custody should be awarded to appellee because she resides in the marital home.

We find these “facts” unsupported by the record. Because of this, we are not bound by these factual findings. The hearing judge has abused his discretion by making determinations unsupported by the record. See Commonwealth ex rel. Spriggs v. Carson, supra.

The hearing judge’s primary reason for denying appellant’s petition for confirmation of shared physical custody is based on his findings in respect to the relationship the parents had with each other. The hearing court articulated its reasoning by stating:

“[i]t would be counterproductive to require, these two people to share equal responsibility for the child’s upbringing.... [S]o long as ‘enormous’ disagreements exist on day to day matters, the child must be afforded the stability of a sole custody arrangement. This is not to say that the father is any less loving or concerned as a parent than the mother. Our decision is not based on any findings of deficiency on his part vis-a-vis the child but rather on the obvious failure of both parents to overcome their personal differences in a shared custody setting.

Hearing court opinion at 7.

The hearing judge places great emphasis on the parties’ disagreements on day to day matters and practical problems in regard to Brendan’s two home living arrangements. He finds these problems to be of such magnitude as to preclude any form of custody other than sole custody.

We acknowledge the testimony in the record as to the discord between the parties and as to their day to day problems and inconveniences. There is also extensive testimony, however, from all three expert witnesses, and the parties themselves, stating that the majority of these problems stem from the friction caused by the frequency of Brendan’s exchange between the parties. N.T. May 29, 1985 at 10, 15, 53, 54, 70, 102, 1Ó5, 157. All the experts testified that these problems could be overcome with a custody plan affording Brendan larger blocks of time with each parent, thereby lessening the contact time between the parents and consequently reducing their conflicts. Id. at 15, 22, 54, 55, 61,163. The experts offered their opinions as to what type of custody arrangement would work best in this particular case. Dr. Margaret Cotroneo, a family therapist testifying on behalf of appellant, opined, “I did recommend a joint custody arrangement every two weeks with one parent, and then two weeks with the other parent, with some guidelines____” Id. at 12. “[I] recommended two weeks on and two weeks off to try to minimize as much as possible the conflicting that seems to arise every time a change was made.” Id. at 15. Dr. Cotroneo went on to say that in this case shared custody would work even if both parties did not support it. Id. at 16. Dr. Stanley Clawar, Ph.D., a sociologist called as an expert witness for appellant, stated that he felt “Brendan ... can handle and benefit from larger blocks of time. This would reduce the conflict time between the parents. He is already shared equally in the life of both parents____ I would recommend the biweekly mode.” Id. at 54-55. Dr. Clawar continued, “There have been conflicts and some differences but if you eliminate the basis for those, which would be expanding the time and detailing holidays, vacations, birthdays and so on, it would seem that Brendan would prosper from the continued contact with both of his parents on an expanded time block basis.” Id. at 61. Dr. Clawar also voiced his opinion that shared custody can work in cases where the parents would prefer another arrangement. Id. at 57. Appellant’s witness, Dr. Martin McGurrin, Ph.D., a psychologist, testified that until the parties resolved the problems between them “any custody arrangements will be problematic.” Id. at 152. This expert could not give a decisive opinion as to what type of custody plan would be best in this case. At one point he stated, “In this situation it seems that the biweekly arrangement increases the risk that exchanges of messages and encounters which have had a history of being argumentative will be increased.” Id. at 160. Dr. McGurrin gave no indication as to why he felt this was so. He then went on to say, “Any arrangement ... in which they have to go through exchange processes, it seems to me, increases the chance of them becoming involved in arguments compared to the arrangement in which there is a reduction in the exchange process.” Id. at 163. In our view, this statement by appellant’s own witness lends support to the argument that a bi-weekly plan would be preferable to the plan ordered by the hearing court. Later Dr. McGurrin admitted that an order calling for Brendan to spend blocks of time with each parent and ordering the parties to attend counseling sessions would be a workable arrangement. Id. at 165. Dr. McGurrin also admitted that he had no factual basis for recommending sole custody of Brendan to one of the parties over shared custody. Id. at 168.

The hearing judge chose to reject the recommendations of Dr. Cotroneo and Dr. Clawar and stated that its order was supported by the testimony of Dr. McGurrin. Hearing court opinion at 6-7. After a thorough reading of all the expert testimony, we are at a loss to find sufficient evidence from which the judge could form his findings. It is clear from the record that Dr. McGurrin does not affirmatively say that shared custody would not work in this situation. What he does say is that an arrangement where there is less contact between the parties would be the best solution to this particular problem. Given this, the hearing court’s order is at odds with not only Dr. Clawar’s and Dr. Cotroneo’s testimony, but is also at odds with the expert’s testimony that the court chose to credit, i.e., Dr. McGurrin’s.

We are aware of the law that the trier of fact is not bound by the testimony of any expert witness and is under no obligation to accept the conclusions of an expert witness. U.S. Steel Corp. v. Hoge, 304 Pa.Super. 182, 450 A.2d 162 (1982); Stacey v. Thrower Trucking, Inc., 253 Pa.Super. 150, 384 A.2d 1274 (1978). However, this court held in Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980), that it was an abuse of discretion for the hearing judge to accept as unpersuasive, and to totally discount, uncontradicted expert testimony. Upon appellate review of the record, our court in Straub was convinced as to the competence of the expert testimony and reversed the hearing court’s order. We have a similar situation in the case before us. We find the trial judge’s disregard for uncontradicted expert testimony to be an abuse of discretion. See also In re Masciantonio’s Estate, supra; Miller v. Mifflin County Industrial Development Authority, supra. The hearing judge’s conclusion that sole physical custody is in the best interest of this child is not based on competent evidence, and we need not accept this finding. Commonwealth ex rel. Robinson v. Robinson, supra.

We are convinced that the evidence sub judice supports an award of shared custody between the parties. We recognize that the twenty-seven (27) month voluntary shared custody plan instituted prior to the hearing court’s award of sole physical custody to appellee failed to be a workable solution to a very difficult problem. However, it is clear from the record that prior to the parties’ separation, both parents were very involved in Brendan’s life and participated actively in all aspects of child rearing. The record also establishes that there has never been a period in Brendan’s life that he has not spent equal time with both of his parents.

Dr. Clawar testified at the hearing that “Brendan’s whole life has been involvement with his mother and father in a very strong and constructive way in both their lives....” N.T. May 29, 1985 at 55. Dr. Clawar also stated that Brendan “indicated that he would like to have no less time with either parent and felt that it was very important that he see his parents about the same [amount of] time....” Id. at 53. Dr. Clawar continued “This child has had two [parents] his whole life. To modify that now would really make a big change for him, a change for him that I think would be very problematic.” Id. at 63.

To this child, a shared custody scheme is the norm. When asked how a sole custody arrangement would affect Brendan, Dr. Clawar testified, “I think to exclude him from the life of one of his parents at this point would cause very serious consequences to him. In terms of what normally happens to children under those conditions is possible educational disfunction, peer group problems.... I think he would experience a grieving process and a significant loss.” Id. at 55, 56.

The hearing court relies on In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982), to support its proposition that shared custody is not favored in situations where there is parental conflict. In In re Wesley J.K., our court suggested guidelines for determining when shared custody is appropriate. Four criteria are set forth in Wesley for the hearing court’s consideration. First, both parents must be fit and capable of making mature child-rearing decisions, and both parents must be willing to provide care and love for their child. There is no question that both appellee and appellant fulfill these requirements. Second, both parents must express a desire for continued active involvement in the child’s life. Clearly this criterian is met by the parties. Third, the child must recognize both parents as sources of love and security. It is undisputed that Brendan is strongly bonded to both parents and is happy in both homes. Last, “a minimal degree of cooperation between the natural parents” is necessary. “This feature does not translate into a requirement that the parents have an amicable relationship.” Id., 299 Pa.Superior Ct. at 516, 445 A.2d at 1249, quoting Beck v. Beck, 86 N.J. 480, 498, 432 A.2d 63, 71 (1981). Our review of the record provides us with considerable evidence of the parties’ cooperation in protecting Brendan’s best interests. We acknowledge the problems encountered by the parties during their twenty-seven (27) month self fashioned custody plan but find the level of cooperation exhibited to be sufficient to meet the requirements of the fourth Wesley criterion.

It is clear that the hearing judge had before him a situation where the relative merits of the parents are equal. There is extensive testimony that a shared physical custody plan based on a biweekly alternation of the child would be in the best interest of the child. We agree with the hearing judge’s conclusion that the voluntary shared physical custody plan fashioned by the parties did not work, but we disagree with his conclusion that sole physical custody in appellee is the better solution.

The courts of this Commonwealth are afforded the option of awarding shared physical custody in situations where the award is in harmony with the child’s best interest. “An order for shared custody may be awarded by the court when it is in the best interest of the child or children and: (1) upon application of one or both parents.” 23 P.S. § 1005, Custody and Grandparents Visitation Act.

We feel the circumstances of this case warranted the exercise of the hearing judge’s authority to grant appellant’s application for confirmation of shared custody. See Ellingsen v. Magsamen, 337 Pa.Super. 14, 486 A.2d 456 (1984); In re Wesley J.K., supra.

In appellant’s second issue we are asked to consider whether the lower court abused its discretion in awarding sole physical custody absent support in the record that appellee is the more nurturing parent.

Our court in In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977), held that in custody cases where the dispute is between the parents, the “controlling statute provides the standard to be applied: the Court is to ‘remand such child [either to the father or to the mother] ..., regard first being had to the best interest and permanent welfare of said child.’ Act of June 26, 1895, P.L. 316, § 2, 48 P.S. § 92.” Id., 249 Pa.Superior Ct. at 280, 376 A.2d at 651.

The burden of proving superior fitness as a parent rests equally with both parties; thus, the hearing judge must award custody to the party who is proven by a preponderance of the evidence to be superior. In re Custody of Hernandez, supra.

The hearing court articulated its reasoning in awarding sole custody of Brendan to appellee as opposed to appellant. The judge stated that appellant was at a disadvantage because his teaching schedule required him to be away during the early evening hours two nights a week. Hearing court opinion at 8. The testimony the judge is referring to stated that in 1984 the appellant taught school two nights a week, and he finished in time to pick up Brendan at 7 o’clock. There is nothing in the record establishing that this is appellant’s permanent work schedule or that appellant maintained the schedule at the time of the hearing. In fact, appellant spoke of this teaching position in the past tense leading us to believe that appellant is no longer employed as a teacher of this night class. Id. at 82-84. Apart from the foregoing, this court has held that when a working parent provides good care for the child in question in the parent’s absence, the parent’s employment cannot be a factor weighed against him by the court. Brown v. Brown, 206 Pa.Super. 439, 213 A.2d 395 (1965). See also In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). We find that there is sufficient testimony establishing that Brendan was well taken care of during appellant’s short absences, and hold that appellant’s employment was improperly considered by the hearing judge.

The other factor on which the hearing judge based his determination that sole custody is best awarded to appellee was announced by the judge at the conclusion of the hearing in a ruling from the bench, and then reiterated in the judge’s written opinion some four (4) months later. The hearing judge felt that Brendan identifies appellee’s residence as his primary home. The judge refers to Dr. McGurrin’s testimony (N.T. May 29, 1985, at 169) as the basis for this conclusion.

In choosing to credit this small section of Dr. McGurrin’s testimony, the hearing judge once again ignored uncontradicted testimony from both Dr. McGurrin and appellant’s witness, Dr. Cotroneo. Dr. McGurrin also testified that a two home living situation in no way undermines Brendan’s stability or well-being. He stated “[i]t is not detrimental for him [Brendan] to live in two different houses....” Id. at 156. This sentiment was echoed by Dr. Cotroneo, who also stated that children are less upset about a two home living arrangement than adults may be. Id. at 19. Dr. Cotroneo went on to state that Brendan is not confused by his two home living arrangement and does not have any problem with the situation. Id. at 24.

We find the hearing judge’s conclusion, that it is in Brendan’s best interest that custody be awarded to appellee, is not based on competent evidence, and that appellee has not proven by a preponderance of the evidence that she is the superior parent. We repeat that we are not bound by the hearing court’s conclusions and hold that the court’s reliance on unsupported facts in forming its order represents an abuse of discretion.

For the reasons stated above we reverse and remand for an order not inconsistent with this opinion. Jurisdiction is not retained.

      . The lower court bases its disposition in this issue on the Custody and Grandparents Visitaton Act, Act of November 5, 1981, P.L. 322, No. 115, 23 P.S. § 1004, which states:
      In making an order for custody to either parent, individually, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact including physical access between the noncustodial parent and the child or children. The court shall issue sole custody when it is in the best interest of the child or children.