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Commonwealth v. Pestinikas

Citation. 617 A.2d 1339 (1992)
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Brief Fact Summary.

Defendants Helen and Walter Pestinikas were charged with the murder of Joseph Kly. The defendants were required to perform certain duties regarding the care of Kly per a contract between the parties. However, the defendants failed to perform these duties, which resulted in the death of Kly.

Synopsis of Rule of Law.

When parties have agreed to perform certain duties imposed in a private contract, the failure to perform those duties can be the basis for criminal liability.


Defendants Helen and Walter Pestinikas were charged with the murder of Joseph Kly. Kly had been hospitalized and diagnosed with a disease, which made it difficult to swallow food. Kly contacted the defendants about the prearrangement of his funeral proceedings. After Kly was discharged from the hospital the defendants were given care instructions and told they were to fill a prescription for Kly. The defendants and Kly made arrangements for the defendants to care for Kly in their home, however instead placing him in their home, they placed him in small, distant building, with no bathroom and no protection from exposure to weather conditions. The defendants proceeded to take Kly down to his bank and have their names added to his bank account. As time went on, the defendants removed over $30,000. Eventually, Kly was found dead in the home due to starvation and severe dehydration, about two years after his initial discharge from the hospital. At trial, the jury was instructed that the only way the defendants could be convicted of murder was if there was a special duty imposed under the contract between the parties. The statute at issue states that an omission can only support a criminal conviction if the omission is defined in the criminal statute or “otherwise imposed by law.”


Whether the failure to perform duties imposed under a contract can serve as the basis for criminal liability?


Yes, the failure or omission to perform certain duties under a private contract can be the basis for criminal liability if (1) the failure to perform those duties was the cause of the death of another person, and (2) all the other elements of the criminal offense are satisfied.


All that is required in the jury instructions is that the failure to perform a civil contract imposing care taking duties is enough by itself to meet the requirements of the criminal statute. The phrase “otherwise imposed by law” was intended to mean imposed by another criminal statute, not a private contract.


If parties have a contractual agreement to perform a legal duty then that legal duty is enforceable. The failure to perform that legal duty can be the basis for criminal culpability if the requisite mens rea is present. Without the presence of malicious intent, a failure to perform duties under a contract can not serve as the basis for a murder charge. Here, there was in fact a precscence of maliciousn intent on the part of the defendants. Kly’s death was directly caused by the defendant’s failure to provide Kly with food and water, and they maliciously deprived him of the basic daily necessities needed to live. Thus, the defendants failure to perform care taking duties imposed by the contract can serve as a basis for a murder charge.

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