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filed: January 24, 1986.


Appeal from Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 82-19322.


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.

Spaeth, President Judge, and Rowley and Wieand, JJ. Spaeth, President Judge, concurs in the result. (This vote was entered before the expiration of President Judge Spaeth's term on the court).

Author: Wieand

[ 350 Pa. Super. Page 394]

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

[ 350 Pa. Super. Page 395]

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

[ 350 Pa. Super. Page 396]

    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,

[ 350 Pa. Super. Page 397461]

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 ยง 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.

[ 350 Pa. Super. Page 398]

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 extra-judicial 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

[ 350 Pa. Super. Page 399]

    testimony. The earlier receipt of his opinion in the form of a hearsay statement, therefore, did not require a new trial.*fn1

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

[ 350 Pa. Super. Page 400]

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 ...

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