*1 57 Cf. v. (1973). Commonwealth Starr, 2d 592 (1973). in Here—as Forbes and asser- Santos—appellant’s tion innocence ais fair just reason for permit- presentence ting withdrawal How- guilty plea. unlike Forbes and ever, Santos, the record in this case reveals that Commonwealth substan- was, fact, tially prejudiced reliance upon appellant’s guilty plea. As the majority ac- correctly states, “appellant’s if tions, allowed to might be means obtain- succeed, ing entirely new for a jury anytime defendant feels that the jury selected is not favorably disposed cause, even there though grounds a mistrial.”
For this reason alone, would hold, this the Commonwealth was reliance prejudiced by upon appellant’s am guilty plea. unable to conclude —as does the majority—that “possibility” preju dice is a ground sufficient withdrawal. denying That appellant “would obtain an unfair advantage being allowed, together a full counsel, preview of the Commonwealth’s evidence” is not prejudice. Moreover, this record, any conclusion Com monwealth was prejudiced by unavailability wit is conjecture.* nesses mere Nix this joins concurring opinion, * If, fact, unavailable, witnesses become tbe Commonwealth permitted subsequent proceeding. their at Velasquez, v. Commonwealth 449 Pa. Appellants,
Stanis et al., *2 Before 1973. March O’Brien, Eagen, Argued JJ. Nix and Manderino, Pomeroy, Roberts, & Cooper her Bignorella, Cooper, F. Ruth appellants. Bweer, appellees. J.
Bernard 1973: O’Brien, May Sophie In March of Gnro and against George Simpson Mary Ellen J. Simpson, appellees equity, alleging H. herein, years prior marriage some nine and before the Wal Sophie fraudulently ter Guro and had appellant put Mary induced Walter Guro to Ellen II. Simpson’s savings name certain certificates of loan association wherein Mr. Guro had an account. filing Prior to the actual after the trial, but of the com plaint, Walter Guro executor was substi party litigant.1 tailing tuted as a After the of testi mony, the chancellor entered a against appellants Exceptions herein. taken and appeal final denied, decree was entered. This followed.
Appellants contend that the chancellor erred granting the because confidential relationship was shown to exist between the decedent Simpson and Mrs. so that the had the burden proving gift of freely given. that the inter-vivos In Fuller v. Fuller, 93 A. 2d 462 (1953), discussing problem the of a confidential relationship, we stated: “In order to establish his claim, upon prove the burden was him to the existence of undue influence unless showed a confidential rela- tionship appellee between and the decedent. If he suc- cessfully established such relationship, confidential showing then burden the of the nonexistence of undue upon donee-appellee.” influence was the argue that once Walter Guro this case came province Orphans’ within the exclusive Court Division. However, prior even to the creation of a unified Court of Common Pennsylvania 5, §5, Pleas, Constitution, under Art. of the we note have that would remained the court where it had brought. properly been 342-343, 443 Pa. v. Kaye, In Young as relationship confidential we defined (1971), association specific any restricted to “It is not follows: fiduciary technical cases nor confined persons rela- deemed to exist whenever hut is relationship has the one such that parties position tive or exercise advantage to take and means power influence the other.” due over no confi- find that we review Upon existed between Walter relationship dential with relationship Mrs. Simpson’s one friendship. than nothing decedent was more that managed no offered she There was proof of im- Mm in matters of the decedent guided moneys in fact unfamiliar the decedent was While portance. the record reveals language, with the English his own affairs handled business prior decedent in these matters. fully competent death and was of Mrs. The which Simpson, upon appel- confi- fully supports lants conclusion rely, existed. She testified relationship specifically dential Q. Did you as follows cross-examination: bills behalf of Guros? paying Guro was Mi*. Guro hospital When Mrs. get go would would payment, him to the we would him to hospital, visit, go with desk at the while he the bill. hospital paid the cashier’s Q. take care of along. affairs for Adela Walter Guro? A. When they *4 or a letter tell them bill, would receive what the bill it for them and read let them was. would know what or what letter was.” bill stated the question “Q. later, And asked again: of this to pay or any bills obligations for Mr. and/or A. No.” Mrs. Simpson’s many Guro? acts kind- by enough to ness are to Walter not Guro, themselves, relationship. establish a confidential finally allege that the chancellor com refusing mitted error in to the execu allow Alex Stanis, testify tor of the estate to to Guro, as matters relating question to the occur transfer assets ring prior to death the decedent. In the instant prima the transfer to facie case, valid. represents In situations such as the donee this, personal representative interest of the decedent and or executor of the estate has an thus adverse interest, barring testifying him from as to matters that occurred May before the death Act of decedent. 23, 1887, §322. P. L. 28 P.S. See Katz 158, Lockman, by appellants. Decree affirmed. Costs be to borne Mr. Justice Nix dissents. part
Mr. Chief Justice Jones took no in the consid- eration decision of this case. Dissenting Mr. Justice Manderino: began
I dissent. Walter in his Guro, lifetime, law- against Mary Simpson. suit Ellen H. in the law- challenged alleged gift suit, After represented Guro’s his executor death, Guro’s interests majority alleged the lawsuit. The states that represents very donee the decedent’s interests began by against lawsuit the decedent the donee. To say alleged under such circumstances that the donee represents very now interests the decedent—the person against challenging who the donee gift—is prima facie In unreasonable. this case testi- mony the executor should not have been barred May der the Act P. L. 158, 28 P.S. 322. granted. The decree should be reversed and a new trial