No. 32 January Term, 1978, Appeal from the Final Order Entered by the Philadelphia Court of Common Pleas, Orphans' Court Division, at No. 3096 of 1974
Morris Paul Baran, Philadelphia, for appellant.
Louis Lipschitz, Joseph R. Danella, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Manderino, J., did not participate in the consideration or decision of this case. Roberts, J., concurs in the result, believing that on this record appellant is entitled to testify as to the events occurring before his father's death. Nix, J., concurs in the result.
Martin Kofsky died on March 8, 1974 and, by a will dated May 27, 1969, left his entire estate to his brother. The decedent's son, appellant Stephen Kofsky, filed a claim against his father's estate alleging that in the fall of 1969,
he entered into an oral contract with decedent wherein the decedent agreed to bequeath $150,000 to appellant if appellant would attend and graduate from dental school. Appellant graduated from the University of Pennsylvania School of Dental Medicine in June of 1973.
A hearing was held on the matter and appellant's claim was denied. Appellant filed exceptions to the adjudication. These exceptions were dismissed by the court en banc, and appellant brought this direct appeal. Appellant contends that the chancellor erred in ruling that the manner in which he was cross-examined by the estate did not waive the "Dead Man's Act". We agree.
The "Dead Man's Act", Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, 42 Pa.C.S.A. § 5930, provides an exception to the general rule of competency and disqualifies surviving parties to a transaction or event who have an interest adverse to the decedent from testifying as to matters which occurred prior to the decedent's death. Matthew's Estate, 431 Pa. 616, 246 A.2d 412 (1968). The purpose of the Act is "to prevent the injustice which might flow from permitting the surviving party to a transaction with a decedent to give testimony thereon favorable to himself and adverse to the decedent, which the latter's representative would be in no position to refute". Weaver v. Welsh, 325 Pa. 571, 576-77, 191 A. 3, 7 (1937). The Act accomplishes this purpose and aids the estate by making the witness incompetent to testify to such matters; not by making the testimony itself incompetent. Balla v. Sladek, 381 Pa. 85, 112 A.2d 156 (1955).
However, there is an exception; when a claimant against the estate of a decedent testifies in his own behalf as to facts occurring since the death of the decedent and is cross-examined as to matters occurring during the decedent's lifetime, the disability imposed by the Act is lifted, and the claimant becomes competent to testify to all relevant and material matters. ...