concurring.
In In re Cunningham, 517 Pa. 417, 538 A.2d 473 (1988), I wrote separately to express my concern with this Court’s emphasis on the motivation of the donor in determining whether the receipt of gifts constituted a violation of the Code of Judicial Conduct. The majority held that gifts are not absolutely prohibited by the Code, and that the “legitimacy” of the gift could be demonstrated,
... but only if the donee is able to establish (1) that the gift was given only in connection with that relationship and (2) that the donee is satisfied that the circumstances *429surrounding the acceptance of the gift would not create a reasonable basis for the donor to believe that the gift places the donor in a position to exert improper influence over the donee in the discharge of his legal duties.
517 Pa. at 441, 538 A.2d at 486 (Emphasis added).
I stated at that time, and reiterate now, that the impropriety of a judge’s conduct does not depend upon the giver’s intent. In placing the burden of proof on the donee to establish the legitimacy of the gift in the context of an existing social relationship, the Cunningham majority would discipline jurists not for their improper conduct, but for the improper motives of others. I believe wholeheartedly that the analysis underlying that conclusion is flawed.
This case so succintly illustrates the untenable approach taken in Cunningham. Focusing the inquiry on discerning the motivation of Stephen Traitz, Jr., the majority concludes that $350 cash gift “... was a gift from Traitz, the friend, and not from Traitz, the roofer____” Majority opinion at 419. But its recitation of the facts demonstrates that the cash gift was an anomalous gift even in the context of the longstanding social relationship existing between the Braig and Traitz families.
While I agree with the result reached by the majority, it signifies a movement, however imperceptible, from.requiring the donee to establish that the gift was given only in connection with that relationship. I do not think it coincidence that the $350 cash gift to Judge Braig was given by Stephen Traitz, Jr. at precisely the time that numerous members of the Philadelphia judiciary were given cash gifts by him as well. It is fortunate, indeed for Judge Braig that he was able to introduce sufficient independent evidence to persuade this Court that he was not in fact influenced by Traitz’s conduct, for that conduct alone was no different than Traitz’s conduct in Cunningham. This re-emphasizes the point which I addressed in my concurring opinion in Cunningham — because the motivations of the donor may be suspect in any situation, the impropriety of judicial conduct cannot rest on the donor’s intent. In essence, the *430judicial official is required to assert a negative in order to sustain his burden of proof.