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April 26, 1957


Appeals, Nos. 134, 135 and 136, March T., 1957, from decree of Court of Common Pleas of Lawrence County, March T., 1955, No. 3, in case of Union Trust Company of New Castle, executor in the estate of John C. McMillin, deceased, et al. v. Helen J. Cwynar, now known as Helen J. Tommelleo. Decree affirmed.


Robert M. White, II, and Gilbert E. Long, for appellants.

Sherman K. Levine, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Musmanno

[ 388 Pa. Page 646]


John C. McMillin, who is the pivotal figure in this litigation, was a professional druggist with a pharmacy of his own in a community called Mahoningtown, located in the city of New Castle, Lawrence County. In the year 1947, having reached the age of 75, he decided to retire and he accordingly sold his pharmacy business to two men, Glynn Thomas and Fred J. Shaffer, retaining however, the ownership of the building. On September 1, 1950, Thomas and Shaffer sold the business to Helen J. Cwynar, a young woman then 22 years of age who had been working in the drug store. On the same day that she purchased the stock and good will of the establishment, she entered into a lease with John C. McMillin for rental of the store building at $50 per month.

Mr. McMillin's wife had died in 1948, and since the climate of affection between himself and his relatives (3 sisters and a niece) was slightly arctic, he experienced many lonely hours, to combat which he often visited his former drug store to fill prescriptions for old customers of his. Here he found Miss Cwynar's presence to be a most pleasant and agreeable one, and they became friends. Although the years had not affected the clarity of the pharmacist's mind, they had saddled upon him some infirmities which handicapped him in attending to his business affairs, which were complicated by reason of his ownership not only of the drug store building but of two apartment houses and a private dwelling house in New Castle, plus 74 acres of land with two houses thereon in North Beaver Township. In a spirit of helpfulness, Miss Cwynar offered to perform errands for him and to drive him in her car when he needed transportation. In 1953, the aging apothecary's driver's license was revoked and she then became his regular driver. Depending increasingly on

[ 388 Pa. Page 647]

    her services he now commissioned her to collect rents for him from his properties in Mahoningtown, and for this helping hand he paid her $60 per month.

In March, 1953, Miss Cwynar learned that McMillin wished to dispose of some of his property and she offered to purchase the building which housed her drug store. Not averse to the idea, and pleased for an opportunity to show his further gratitude for her assistance and friendship, he set a price of only $5,000 on the building although it was admittedly worth $17,000. The difference in $12,000 represented benevolence founded on sentiment, for McMillin had now become quite attached to this young woman who, according to all accounts, was attractive in appearance and manner. Not only did McMillin voluntarily accept a loss in the transaction but he counseled and guided Miss Cwynar as to how she could borrow the money with which to purchase the building, since she was wholly lacking in financial resources.

Prior to buying the drug store, Miss Cwynar paid her rent directly to her landlord at his home. These visits to his living quarters increased in number when she became his agent for the collection of rents paid by others. Her frequent appearances consoled his widower's loneliness and supplied warmth of feeling to take the place of the coolness in his heart for his own relatives. In time his sentiment toward her ripened into love. At any rate, whatever may have been the emotion which led him to the event, the now 80-year old ex-pharmacist offered marriage to Miss Cwynar who, astonished at the proposal, let him down easily by promising to continue their friendly relationship. She did, however, at his insistence, take the diamond ring which had been worn by his deceased wife. Later on Miss Cwynar married a man by the name of Tommelleo, but even this important change in her life, status,

[ 388 Pa. Page 648]

    and routine, did not lessen McMillin's regard for her.

On his visits to her drug store it grieved him to see many shelves in his old place of business staring emptily into space because of lack of stock with which to fill them. A nostalgic pride, added to his never-failing wish to help the new proprietor, urged him into spending money to fill the shelves with medicines and pharmaceutical accessories consonant with the nature and the demands of the business. These donations, plus what he gave her as outright gifts, amounted in all to the total of $3636.

His infirmities, however, continued and augmented and as he entered into the shadows of his 83rd year, the Court of Common Pleas of Lawrence County, on February 25, 1955, declared him incompetent to manage his business affairs and appointed the Union Trust Company of New Castle as guardian of his estate.*fn* On May 25, 1955, the guardian filed a complaint in equity against Helen Cwynar, alleging that she stood in a confidential relationship to McMillin and that she exercised undue influence over him to his disadvantage. It was prayed that she be compelled to reconvey the drug store building, restore the diamond ring, and pay back all moneys received for which she had not rendered full and complete value. McMillin's sisters Martha McClurg and Matilda Miller, his niece Eleanor E. Cox, and his nephew Edward McMillin, were joined as intervenors, and the cause came on for a hearing before a chancellor who on December 17, 1955, found that Helen Cwynar enjoyed a confidential relationship with McMillin of which she took advantage, and he accordingly ordered her to reconvey the drug store

[ 388 Pa. Page 649]

    property, pay back the $3636, and restore the diamond ring. The defendant filed exceptions to the adjudication and this Court, because of the chance circumstance that the chancellor's term of office had expired, and the other judges of Lawrence County had disqualified themselves in the matter, assigned President Judge ROBERT E. McCREARY of Beaver County and Judge LEO H. McKAY of Mercer County to sit as a court en banc to hear arguments and act on the exceptions. On October 16, 1956, the court en banc reversed the chancellor's decree and entered judgment in favor of the defendant, holding that no confidential relationship existed between her and McMillin and no undue influence had been practised by her upon him. The plaintiffs appealed to this Court.

We have read the record which is a long one, consisting of 751 printed pages, and we are satisfied that the specially appointed court en banc was entirely justified in reaching the conclusions announced. While a court en banc and appellate tribunals are bound by the findings of a chancellor, if they are supported by competent and adequate evidence, the reviewing tribunals have the power to draw their own inferences and make their own deductions from facts and conclusions of law. (Barrett v. Heiner, 367 Pa. 510; Eways v. Reading Parking Authority, 385 Pa. 592.)

The question to be answered by the record is: Did Helen Cwynar stand in a confidential relationship to McMillin, and, if so, did she prove that the transactions with him which resulted to her benefit and advantage were in all respects fair and just and that the gifts made by McMillin to ...

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