In Commonwealth versus Pestinikas, the question of legal duty to protect human life is examined. Specifically the concept of a contract for care and preservation is brought into question. I admit that I pose some extremes for liability, but as in most cases discretion of prosecutors and a grand jury determines whether or not a case is brought against an individual.


The case of the Commonwealth v. Pestinikas begins with an ailing Joseph Kly arranging for housing and care from Walter and Helen Pestinikas. Joseph Kly had difficulty consuming food and was hospitalized due to malnutrition. Upon recovering sufficiently he was to be discharged from the hospital into the care of Walter and Helen Pestinikas. Walter and Helen Pestinikas confirmed with the nurse that they would be his caretakers and would administer his medications to him.

What followed was Walter and Helen Pestinikas were added to Joseph Kly’s savings account such that they could withdraw money for him. It was believed by Kly’s family that he would be residing within the Pestinikas home; however, this was not the case and it was a lie perpetuated by Walter and Helen Pestinikas that he was living with them. Kly was in fact being lodged on an enclosed porch of another property of the Pestinikases where he was subjected to the elements and did not have access to a refrigerator or running water .

During Kly’s final year, the Pestinikases began withdrawing more than the 300 dollars a month that Kly had agreed to pay the Pestinikases for his housing and care. The estimated amount of money which the Pestinikases withdrew exceeds 30,000 dollars.

Joseph Kly was discovered dead on November 15th, 1984 by the Pestinikases who subsequently called the police. The Pestinikases told the police they were Kly’s caretakers and had been with him that morning and given him food to eat. Subsequent autopsy showed Kly was likely dead for as many as two days prior to police arrival, and that the cause of death was a combination of dehydration and starvation.

The Pestinikases were charged and found guilty of 3rd degree murder via 18 Pa.C.S 301 (a) and (b) (as cited in Samaha, 2008):

“(a) General rule. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically able.

(b) Omission as basis of liability. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:

  1. the omission is expressly made sufficient by the law defining the offense; or
  2. a duty to perform the omitted act is otherwise imposed by law.”

These Pennsylvania statutes allow the state to bring charges against individuals who by nature of a contract have an obligation to another individual.

The court of appeals was faced with the following questions, first: did the Pestinikases indeed have a binding contract with Joseph Kly that necessitated providing Kly with food and medicine in addition to housing? Second: does a contractual duty mean a duty that is imposed by law?

The opinion of the court of appeals was that a contractual duty is sufficient to what the legislature meant by “imposed by law” in 18 Pa.C.S 301 (a) and (b). Furthermore, they found that in the case of Commonwealth v. Pestinikas, sufficient evidence existed for the jury to have believed a binding contract existed between Joseph Kly and the Pestinakases.

This court case has broad implications toward an individuals responsibilities within the realm of civil law as well as the interaction of civil law with that of criminal law. The people of the state of Pennsylvania expect their citizens to be true to their word and established that agreeing to care for another is legally binding whether a written contract exists or not. Further implications as a result of this court case include criminal sanctions against those who fail to meet their contractual obligations and as a result injury occurs to another individual.

For example, a security guard who is contracted to protect the staff of a facility but is found to be sleeping on the job when one of those staff is killed by a thief could be charged with murder himself. Should the jury convict the security guard, the legal precedent holds that his conviction is entirely valid.

Theoretically, under these precedents, if a drowning individual calls to someone on the shore pleading for help and another individual on the shore replies that they will help but fails to take any actions that a reasonable person would take in order to affect a rescue, it could be argued they are guilty of murder based on their agreement to help the drowning person. Whether or not a jury would agree that an agreement and legal requirement existed is entirely dependent on the jury and the level of disgust that would exist toward individuals who do not show compassion nor act upon compassion.

Another simple lesson that you will hear echoed from every court, be it that of the Supreme court or “The People’s Court” is that a written contract should always be obtained as failure to do so can cause individuals many legal troubles.


Commonwealth v. Pestinikas 617 A.2D 1339 (1992)

Samaha, J. (2008). Criminal Law, 9th ed. Belmont, California: Thomson Wadsworth.