Walter and Helen Pestinakas were convicted of third degree murder in the Court of Common Pleas, Criminal Division, Lackawanna County. Each was sentenced to serve not less than five years or more than ten years in prison. Defendants appealed. The Superior Court, Nos. 375 and 395 Philadelphia 1989, affirmed. WIEAND, J.

Joseph Kly met Walter and Helen Pestinakas 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. In the hospital, Kly was given food, which he was able to swallow and, as a result, regained some of the weight that 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 the Pestinakases that he wanted to speak with them. As a consequence, arrangements were made for the Pestinakases 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 the Pestinakases came for him on that day they were instructed by medical personnel regarding the care that 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 the Pestinakases’ home to administer vitamin B-12 supplements to Kly. The Pestinakases agreed orally to follow the medical instructions and to supply Kly with food, shelter, care, and the medicine he required. 

The prescription was never filled, and the Pestinakases told the visiting nurse 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, the Pestinakases 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 9 feet by 30 feet, with no insulation, no refrigeration, no bathroom, no sink, and no telephone. The walls contained cracks that exposed the room to outside weather conditions. 

Kly’s predicament was compounded by the Pestinakases’ 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, the Pestinakases 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 Pestinakas, pursuant to which moneys could be withdrawn without Kly’s signature. Bank records reveal that from May 1982, to July 1983, the Pestinakases withdrew amounts roughly consistent with the $300 per month Kly had agreed to pay for his care.

Beginning in August 1983, and continuing until Kly’s death in November 1984, however, the Pestinakases withdrew much larger sums so that when Kly died, a balance of only $55 remained. In the interim, the Pestinakases had withdrawn in excess of $30,000. 

QUESTIONS 

1. List all the facts relevant to deciding whether the Pestinakases had a legal duty to Joseph Kly. 

2. List all of the failures to act and voluntary acts that are relevant to deciding whether the Pestinakases failed to perform a legal duty to Mr. Kly. 

3. Summarize the arguments regarding criminal omission of both the majority and dissenting opinions. 

4. In your opinion, did the Pestinakases have a legal duty to Joseph Kly? 

Assuming they did have a legal duty, did they reasonably perform their duty? Back up your answer with facts and arguments in the case excerpt.