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Commonwealth v. Pestinikas | 617 A.2d 1339 (1992)

Generally, a breach of contract isn’t a crime. But what if someone dies as a result? In the groundbreaking elder abuse case Commonwealth versus Pestinikas, the court considered whether failing to live up to the terms of a contract could result in criminal culpability for murder.

Ninety-year-old Joseph Kly was in very poor health. He’d met with Walter and Helen Pestinikas to arrange his funeral. He must’ve liked what he saw because when he was hospitalized for an esophageal problem, he asked the Pestinikases if he could move in with them instead of continuing to live with his stepson. They agreed and collected him from the hospital.

Kly had trouble swallowing and needed a special soft diet, along with various drugs and supplements. He used a walker to move around. The hospital gave the Pestinikases instructions on caring for Kly and arranged for a nurse to visit regularly.

Kly thought he was moving into the Pestinikases’ home. Instead, they installed him in a small, enclosed porch on a building they owned in rural Lackawanna County. The place had no insulation, no bathroom, no refrigeration, no sink, and no telephone. The Pestinikases canceled the visiting nurse and never filled any of Kly’s prescriptions. When Kly’s family asked about him, the Pestinikases gave erroneous or misleading information. In the meantime, they gradually withdrew money from his bank account.

After two years of this nightmare, the now-skeletal Kly died of starvation and dehydration. His bank account contained only fifty-five dollars.

The state charged the Pestinikases with murder of the third degree, arguing that their deliberate failure to care for Kly caused his death. At trial, the judge instructed the jury that they shouldn’t find the Pestinikases guilty of malicious killing unless an oral contract imposed on them a legal duty to provide Kly with food, shelter, and medicines. The trial jury found them guilty. The Pestinikases appealed to the Superior Court of Pennsylvania, arguing that a civil contract couldn’t support a legal duty that could lead to a criminal prosecution for homicide.

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