Commonwealth v. Pestinikas

A University of Minnesota law school classic  – Commonwealth v. Pestinikas, a case about a breach of contract that resulted in a murder conviction.

The gist: A couple agreed to care for an elderly man. They took his money, stuck him on an enclosed porch, and let him starve to death.

On the afternoon of November 15, 1984, when police and an ambulance crew arrived in response to a call by appellants, Kly’s dead body appeared emaciated, with his ribs and sternum greatly pronounced.

Mrs. Pestinikas told police that she and her husband had taken care of Kly for three hundred ($300) dollars per month and that she had given him cookies and orange juice at 11:30 a.m. on the morning of his death.

A subsequent autopsy, however, revealed that Kly had been dead at that time and may have been dead for as many as thirty-nine (39) hours before his body was found.

The cause of death was determined to be starvation and dehydration.

Expert testimony opined that Kly would have experienced pain and suffering over a long period of time before he died.

Joseph Kly met Walter and Helen Pestinikas in the latter part of 1981 when Kly consulted them about pre-arranging his funeral. In March, 1982, Kly, who had been living with a stepson, was hospitalized and diagnosed as suffering from Zenker’s diverticulum, a weakness in the walls of the esophagus, which caused him to have trouble swallowing food.

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In the hospital, Kly was given food which he was able to swallow and, as a result, regained some of the weight which he had lost. When he was about to be discharged, he expressed a desire not to return to his stepson’s home and sent word to appellants that he wanted to speak with them. As a consequence, arrangements were made for appellants to care for Kly in their home on Main Street in Scranton, Lackawanna County.

Kly was discharged from the hospital on April 12, 1982. When appellants came for him on that day they were instructed by medical personnel regarding the care which was required for Kly and were given a prescription to have filled for him.

Arrangements were also made for a visiting nurse to come to appellants’ home to administer vitamin B-12 supplements to Kly. Appellants agreed orally to follow the medical instructions and to supply Kly with food, shelter, care and the medicine which he required.

According to the evidence, the prescription was never filled, and the visiting nurse was told by appellants that Kly did not want the vitamin supplement shots and that her services, therefore, were not required. Instead of giving Kly a room in their home, appellants removed him to a rural part of Lackawanna County, where they placed him in the enclosed porch of a building, which they owned, known as the Stage Coach Inn.

This porch was approximately nine feet by thirty feet, with no insulation, no refrigeration, no bathroom, no sink and no telephone. The walls contained cracks which exposed the room to outside weather conditions.

Kly’s predicament was compounded by appellants’ affirmative efforts to conceal his whereabouts. Thus, they gave misleading information in response to inquiries, telling members of Kly’s family that they did not know where he had gone and others that he was living in their home.

After Kly was discharged from the hospital, appellants took Kly to the bank and had their names added to his savings account. Later, Kly’s money was transferred into an account in the names of Kly or Helen Pestinikas, pursuant to which moneys could be withdrawn without Kly’s signature. Bank records reveal that from May, 1982, to July, 1983, appellants withdrew amounts roughly consistent with the three hundred ($300) dollars per month which Kly had agreed to pay for his care.

Beginning in August, 1983 and continuing until Kly’s death in November, 1984, however, appellants withdrew much larger sums so that when Kly died, a balance of only fifty-five ($55) dollars remained. In the interim, appellants had withdrawn in excess of thirty thousand ($30,000) dollars.

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The question as proposed by the dissent ignores the quintessential elements of this case which are the active and passive negligence and intentional denial of life sustaining care to a dependent elderly person appellants undertook to maintain at the victim’s expense.

It is not the contract alone which measures the liability but also the callous mistreatment that went beyond the mere failure to fulfill the contract.

This contractual failure was exacerbated and made more culpable by the appellants’ actions in active concealment of the victim’s condition from relatives and medical authorities, thereby preventing him from being saved from incredible suffering and death comparable only to that suffered by persons incarcerated in German, Russian and Japanese death camps during World War II.

If appellants are insulated from liability in the death of the victim in this case because he entered their care voluntarily or by agreement, many thousands of Jewish men, women and children who believed they entered camps in Europe to be cared for pending relocation, have suffered their unspeakable degradation, pain and death in vain.

Society can best be measured by the manner in which it treats its elderly and its children. In this case, treatment of 92-year old Joseph Kly was so far below any acceptable standard of reasonable care by persons owing a duty of care that to ignore their behavior is to repudiate the laws of society and to return to the law of nature.

We can be punished for throwing trash on a sidewalk yet may suffer no penalty for discarding a human life by denying him sustenance and deliberately causing his death.

Having found no valid reason for disturbing the jury’s verdicts, we conclude that the judgments of sentence must be, as they are,

AFFIRMED.

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Commonwealth v. Pestinikas, 421 Pa. Super. 371 (Pa. Super. Ct. 1992)