*1
Natural JOHNSON, Geraldine T. Executrix of the Estate Thebes, Deceased, Appellant. of Darwin T.
Supreme Pennsylvania. Court of
Argued Dec. 1996. Decided June *2 for T. Johnson. Lemoyne, Geraldine Costopoulos, William C. Ruben, Diehl. Harrisburg, for Gloria Jean Richard C. CAPPY, FLAHERTY, C.J., ZAPPALA, Before NEWMAN, CASTILLE, JJ. NIGRO
OPINION ZAPPALA, Justice. whether allocatur to determine granted
We of a deceased tortfea- from the estate may be recovered ages recovered, and damages may hold that such sor. We therefore affirm. in an Thebes were involved and Darwin G.J.D.
Appellee During years. five approximately relationship intimate that time Thebes took sexually explicit photographs1 of G.J.D. which kept he then hidden. G.J.D. did not see photo- graphs until several years later after she had ended her relationship with Thebes. alleged
G.J.D. that Thebes photocopies distributed photographs throughout the community when he learned she ending was their relationship. photocopies included G.J.D.’s phone address and number as well as captions which implied that she was a prostitute. The distribution of the рhotocopies was calculated to ensure would be found by G.J.D.’s friends and children, relatives her including minor mother, brother, her her and her employer. The distribution of the photocopies ended when G.J.D. a complaint filed Thebes containing defamation, counts of intentional infliction distress, of emotional false light invasion of privacy, and invasion of privacy by publicity given to private life. *3 trial,
Before the case came to Thebes committed suicide and Johnson, his sister Geraldine Appellant, as executrix of his estatе, was substituted as defendant. The case was then tried a jury before which awarded both compensatory punitive and damages to G.J.D. and to her children as co-plaintiffs.2
The Superior Court upheld the of damages, award holding that where a tortfeasor dies after the suit is instituted but trial, before the completion of punitive damages may be assessed the estate of the deceased tortfeasor.
On appeal, neither the culpability decedent’s nor the award of compensatory damages is at issue. Appellant argues only that the recovery of punitive damages against the decedent’s estate is improper because neither of recognized policy objectives of punitive damages, punishment deterrence, and will be fulfilled when the person to be punished and deterred is deceased. fellatio;
1. photograph depicted One performing G.J.D. photo the other portrayed lying her up. nude from the waist 56,015.00 jury 2. The awarded G.J.D. compensatory damages in and 536,500.00 punitive damages. Her children were awarded a total of 515,000.00 540,000.00 compensatory damages and ages. 172 damages “function is Pennsylvania,
In v. behavior.” Martin Johns punish egregious to deter (1985) 169, 1088, 154, 1096 494 A.2d Corp., Manville 508 Pa. omitted). (citations damages may imposed Punitive willfully, maliciously, or so careless that are committed “torts party of the disregard rights indicate wanton ly as to Swank, 159, 211, 158, 176 A. 317 Pa. Thompson v. injured.” (1934). are not as additional awarded 211 Punitive Colodonato penal but are nature. See compensation purely (1983); Pa. 475 470 A.2d Corp., Rail v. Consolidated Co., Pa. Co. N.S.T. Metal Prod. 88' Inti Electronics A.2d 40
Although
recovеry
the issue of whether
estate is
deceased tortfeasor’s
permitted against
Commonwealth,
in our
it has been
impression
of first
an issue
juris-
legislatures
thirty-three
courts and
addressed
jurisdictions recovery
these
is not
twenty-eight of
dictions.
explicitly
have
legislation
allowed. Fourteen states3
enacted
have
the states which
no
recovery,
such
precluding
courts
as to
statutory
recovery,
split
bar
whether
majority
will be
of courts
have
recovery
allowed.
that punitive damages
have held
addressed
issue
The reason-
frоm the estate
tortfeasor.4
be recovered
Colorado,
(West 1994);
§
California,
377.42
Colo.
Cal.Civ.Proc.Code
(1987);
(1987);
§
Georgia,
§
3-505
13-20-101
Ga.Code Ann.
Rev.Stat.
Maine,
Idaho,
(1990);
§
Ann. tit. 18-
Idaho Code 5-327
Me.Rev.Stat.
Massachusetts,
A,
(West 1981);
ch.
§
Mass. Gen. Laws Ann.
3-318
(1973);
(West 1974);
§
Mississippi,
§ 2
Miss.Code Ann.
91-7-235
Ne-
York,
vada,
(1979);
§
New
Powers
Nev.Rev.Stat.
41.100
N.Y. Est.
&
11-3.2(1)
1981);
(McKinney
Oregon,
§
Law
Or.Rev.Stat.
Trusts
30.080,
Island,
(1985);
(1983);
§
§§
Vermont,
30.020
Rhode
R.I. Gen.Laws
9-1-8
*4
14,
(1989); Virginia,
§ 1454
Va.Code
Vt. Stat. Ann. tit.
(1977); Wisconsin,
(West 1983).
§
§
Wis. Stat.
8.01-25
Ann.
895.01
proposition
punitive damages may
recovered
that
not be
from
For
representa-
following
of a
case law is
the estate
deceased tortfeasor
jurisdiсtions
Colligan,
hold: Doe
173
that
essentially
primary
these decisions
ing behind
imposing punitive
furthered
purposes
Anderson,
See Allen v.
93
the tortfeasor is deceased.
when
(D.C.);
204,
(1977);
For
Texas courts have held
inconvenience,
fees,
for attorneys’
include reimbursement
compensation.
and for
too remote to be considered
losses
Lavender,
Virginia,
v.
679
470
S.W.2d
West
Hofer
in addition
the traditional
functions of
Hill,
1982);
F.Supp.
Ford Motor Credit Co. v.
245
796
law);
(W.D.Mo.l965)(predicting Missouri
State Farm Mut. Auto. Ins.
Maidment,
568,
(App.1988);
Co. v.
107 N.M.
deterrence,
provide
are utilized to
additional
punitive damages
wanton conduct.
compensation to the victims of reckless and
(1982).
Melton,
397,
171
Finally,
the court allowed
to be
imposed against the estate of a deceased
in Penber-
tortfeasor
Price,
902,
thy 281
216 Ill.Dec.
A was taken a approach similar Schwab, Bates, in v. 12 Pa.D. & C.4th 162 Schwab damages against the estate of granted punitive the trial court injured driving the when he was while plaintiff a decedent who The Schwab court first noted that our courts intoxicated. that of a deceased long recognized plaintiff have the estate from a When de- may punitive damages recover defendant. true, weighed whether the converse was the court termining harm that possible by family be suffered harm that against prevented deceased defendant could be Finding if that driving while intoxicated is deterred. the court con- deterring driving prevailed, interest drunk of was proper.7 cluded that the award We persuaded by approach. this interests as yet equally involved here arе distinct as in a significant concerning driving. By those case drunk acts, distributing photographs performing of G.J.D. sexual unquestionably right privacy, Thebes violated GJ.D.’s highly regarded rights which is one the most His distribution of these photographs, along Commonwealth. name, number, telephone language with G.J.D.’s indicat was a short of ing prostitute, nothing outrageous. she a pattern The dissemination the materials followed Thebes, J.D., with whereby residing physical- behavior while G. expressly making 7. The court stated that it was no determination as to imposed against whether not be the estate should However, involving conduct. of a defendant in cases other forms of Sherman, Pennsylvania opinion, trial 13 Pa.D. another court Morfesi (1991), permit punitive damages to be & C.4th 552 the court did not resulting imposed malpractice ground medical on the that the in a case speculative. deterrent effect would be Thebes’s ly psychologically abused her and her children. egregious acts of domestic violence are no less than drunk done, To that it driving. may reasonably the extent a on applied law should be so аs to have deterrent effect such conduct. note, however, that whether law allows punitive
We to be assessed the estate of of tortious conduct depend category tortfeasor does not Rather, we hold that there is no se per involved the case. such an prohibition against imposing punitive damages against question appro estate. The whether priate particular case should be resolved the trier fact the nature of acts committed. considering First,
We base our decision on sevеral reasons.
the death
thwart
completely
purposes
the tortfeasor does
noted,
punitive damages.
the award of
As
underlying
*7
to
a
for certain outra-
damages
punish
are awarded
defendant
acts and to
him or others from
similar
geous
engaging
deter
Inc.,
v. Lisbon
521 Pa.
conduct. Kirkbride
Contractors
(1989).8
decedent,
Thebes,
Although
Second, persuaded by we are not the proposition imposing punitive damages punish only will the innocent bene- ficiaries of the estate. The heirs of the decedent tortfeasor essentially if position are the same financial as the tortfea- living damages sor were at the time were awarded. When tortfeasor, a living are awarded assets, award reduces the amount of the tortfeasor’s thus reducing the amount of funds available to the tortfeasor’s damages "exemplary damages” 8. Punitive are also referred to as which damages punish have been defined as awarded "to the defendant for his example Dictionary evil behavior or to make an of him.” Blacks Law (6th ed.1990). the amount of his estate. ultimately reducing family and damages is deceased at the time a tortfeasor When awarded, the amount of the directly the award reduces are puni- the effect of the actual difference between estate. The tortfeasor’s heirs and award on the deceased damages tive To allow a tortfeasor’s family is minimal. living tortfeasor’s com- of would be escape payment estate to transfer his injustice allowing to the defendant parable to the prior to his heirs and beneficiaries prospective wealth damages sought against in which trial of a case him. arbitrary
Finally, safeguards protect against exist instructed, can punitive damages. jury The case, of punitive was in the instant that the award as done imposed against Pennsylvania the estate. being (Civ.) § Jury provides Instruction 14.01 Suggested Standard estate of a availability punitive damages against for the jury The can then consider the value of deceased tortfeasor. in arriving proper tortfeasor’s estate at a assess- In the event award shocks the punitive damages. ment court, trial court a remittitur. may grant conscience herein, the order of Accordingly, for the reasons set forth is affirmed.9 Superior Court FLAHERTY, C.J., Dissenting Opinion. files a FLAHERTY, Justice, dissenting. Chief ob- majority correctly Pennsylvania states that jectives and deterrence of *8 Yet in the of conclusions by the tortfeasor or others. face overwhelming majority jurists legal and scholars who have view, matter, majority, my incorrectly considered this from a punitive damages concludes that are recoverable de- primarily ceased tortfeasor’s estate. This conclusion rests though assertions that even dead tortfeasors unsupported Appellees deny Appellant’s the Brief of We further "Motion Strike Including Making for Referеnce to and Materials From Matters Not of Record in This Case in Violation of Pa.R.A.P. 1921.” deterred, nor dam- punished imposing punitive can be neither may others that this ages on their estates serve deter and speculative effect is no more than when the tortfea- deterrent (or very damages may The fact that such sor is still alive. not) general this for deter- may hoped deter others renders purely speculative. rent effect law, Pennsylvania Zap- established case Mr. Justice Citing “purely penal has observed that palа in the penal nature.” This nature of results sanction in civil availability quasi-criminal proceedings. is, which serve compensatory damage That unlike civil awards injuries those who have been for compensate wronged sustained, punitive, exemplary, damages impose punish- offender, an a function example ment and make normal- for criminal law. ly reserved specific general and deterrent effects linked to this na-
ages inextricably quasi-criminal penal specifically ture. The tortfeasor is deterred becаuse of the him, of some sanction punishment penal imposed directly upon generally other tortfeasors potential deterred being are made aware of a risk of such sanctions because them imposed directly upon through pun- observation ishment of others. There is little that one who has question sufficiently punished wrongdoing been for will be deterred However, from similar acts in the future. undertaking deterrence future upon potential effectiveness wrongdoers highly questionable dependant upon numer- ous, intangible, sometimes variables.
The most obvious factor which upon general deterrence depends potential wrongdoer is that order for a to be effectively by deterred some sanction he must be aware penal words, that the sanction exists. tort- potential other exemplary feasor must have had an where he experience consequences became aware of the of certain acts witness- ing, example, responsible as an of those held acts. like
179 that certainty is the one’s of this awаreness aspect One fact, in studies of the in punishment. actions will result deterrent, both legal as a punishment general of effectiveness that the certain- commentators have concluded and behavioral on deter- significant impact has a far more ty punishment of is, in That order to be severity penalty.1 rence than the of the deterred, a rea- possess tortfeasor would have potential high wrongdoing that is a risk that his certainty sonable there liable, compensatory held first for will be detected and damages. then for punitive assumes, course, rationally has
This that the tortfeasor analysis potential consequences a cost-benefit of the conducted actions, untimely that even his death will knowing of his paying estate creditors from potential insulate his heirs and give I do not wrongdoing. wrongdoers, suggest, for his Most do, to their actions. For those who such consideration benefit of outweighed by perceived risk of up point probability punish- their actions to the where the level; they unacceptable ment increases the risk factor to an illustrate, it. To most drivers they get away believe will with punishable by limit is fines exceeding speed are aware that example, To use an proportion speed. to the excess time, drivers, willing to take a many order to save some limit to the that the posted up point chance and exceed the any probability they caught that will be and fined exceeds go any perceived They unwilling benefit of time saved. faster, but because severity penalty, not because of the Gerety, Experimental e.g., Block & Vеrnon E. Some See Michael K. Prisoner Reactions to Evidence on Between Student and Differences Risk, (1995); Legal Monetary 24 Stud. 123 Daniel W. Penalties and J. Law, Shuman, 42 Psychology Deterrence in Tort U. Kan. L. Rev. Pestello, (1993); Reconceptualiza- Deterrence: A 115 and H. Frances tion, Compare with Panel On Research 30 Crime & Delinq. Effects, Panel, Incapacitative Report On Deterrent And Deter- Estimating Incapacitation: The Effects Of Criminal Sanctions On rence And (Alfred eds.l978)(concluding et al. that there is Blumstein Crime Rates scientifically deterrent insufficient valid evidence to associate severity directly with increases in the effect on those not sanctioned sanctions), certainty penal B. Dobbs, Dan Handbook (1973)(stating punitive damages have not on the Law of Remedies deterrents). been shown to be effective they caught penalty are more certain that will be and a
will be imposed. *10 that criminal ordinary person
The reasonable is aware it or behavior carries with the commensurate risk of fines however, same cannot imprisonment; the be said the same person’s consequences awareness of the of tortious conduct. legal who have some to exposure Other than individuals had matters, unfamiliar people simply concepts most are with the they may vague and of civil law. While have a idea processes suit, subject them to a do might they that certain conduct civil truly consequences potentially not understand the of their actions other than the chance that be they may tortious sued form of it damages; highly unlikely and “fined” the is that average distinguishes the individual between compensatory It is that punitivе damage likely and awards. even less such if person, even aware of the difference between compensatory punitive damages, possess any and would reasonable level of him, certainty subject that his conduct will or his should estate die, Any may he to sanctions. deterrent effect he experience likely simply is more to derive from the risk of in a having (along to defend himself lawsuit with the associat- cost) potential having ed and the without pay damages, or regard they compensatory punitive. whether It is this laсk of precisely certainty, even awareness cases, many which leaves the effectiveness of ages as a deterrent nebulous highly suspect. While it to use as a acceptable general deterrence justification of such when the actual tortfeasor is punished, hypothetical justification such a basis is insufficient innocent, inflicting punishment hoping on the off chance that some tortfeasor potential may be deterred. majority attempts by stating to bolster its conclusion they “are not that persuaded proposition imposing a tortfeasor’s will punish only [on estate] [estate, innocent beneficiaries because heirs of the the] in essentially posi- decedent tortfeasor are the same financial tion if living as the tortfeasor were at the time were true; appears awarded.” On its face statement to be fundamentally flawed. however, underlying reasoning in a this that is no difference true case like there While it is estate of a available to future the amount funds between of the same estate those аvailable living tortfeasor damages, of punitive the award predeceases who tortfeasor distinction. important fails to an majority grasp being it who is case is the tortfeasor himself In the first credi- Any future heirs or estate potential directly punished. all, only incidentally to the punished, tors if at being they have Particularly, he is wrongdoer. since estate; nemo est haeres no interest his future vested (a yet are not living person heirs) has no viventis — importantly, primary goals Most ascertained. been pun- been achieved. The tоrtfeasor has
damages have
and,
deterred;
now
as an exam-
he
serves
presumably,
ished
*11
too
may
in the
be deterred.
ple
hope
to others
case,
at all.
punished
tortfeasor is not
In the second
the
Instead,
out
example
he held
as an
others.
Neither is
directly
upon
subsequently
inflicted
ascer-
Their
innocent
creditors of the estate.
heirs and
tained
in the estate attach at the time the tortfeasor dies.
interests
However,
damages
in
plaintiffs
compensatory
a
interest
occurs,
in
at the time
harm
unlike his interest
attaches
by a
damages which
not attach until handed down
do
award of
jury.2
prior
If the tortfeasor should die
to the
has
damages,
plaintiffs
compensatory
interest
must then
attached and if he
court he
already
prevails
However, his
in his lot with the other estate creditors.
throw
any
such
has
attached and
interest
already
interest of
expense
is at the
attached
recovery
estate. While
the innocent beneficiaries and creditors
minor,
distinction,
it is
disregard
a
pedantic
seem
justice;
society
notion of
our
antithetical to the fundamental
of another.
wrongdoing
does not
innocent for
punish
determined,
previously
"punitive damages are con-
has
As this court
right....’”
plaintiff
and not a
sidered a ‘windfall
matter
475,
Corp., 504 Pa.
470 A.2d
v. Consolidated Rail
Colodonato
(4th ed.1971)).
§ 2 at 9
(1983)(citing W.
Prosser,
Law of Torts
This concept bears particular relevance to the imposition of
punitive damages on a deceased tortfeasor’s estate when
considered
light
our previous
In
holdings.
Feld v.
Merriam,
506 Pa.
(1984),
aggrieved party and beneficiaries, the estate thе estate credi- tors, or itself, even the estate regardless of the loathsome egregiousness nature and of Thebes’ conduct. Neither the beneficiaries, the creditors nor the estate responsible were that conduct. only claim aggrieved party has the estate is the already vested interest in compensatory damages.
Punitive
are quasi-criminal fines imposed upon
civil
in system
defendants
which lacks the constitutional and
procedural safeguards afforded criminal defendants.
in-
To
flict
quasi-criminal
punishment upon these innocent parties
on the basis of something as hypothetical and nebulous as
general deterrence is illogical and manifestly unjust. The only
difference between imposing criminal penalties on the surviv-
*12
ors of deceased convicts and the imposition of punitive dam-
ages on a deceased tortfeasor’s estate is that the tortfeasor’s
survivors cannot avail themselves of the
protec-
constitutional
setting
addition to
forth the
imposing
standards
punitive
damages,
this court
jaundiced eye
has also cast a
upon
imposition
punitive
Feld,
damages
(conclud-
parties.
e.g.,
on innocent
supra
See
ing
party
that a
cannot be
assessed
upon
based
others),
outrageous acts of
Feingold
Transp.
Southeastern Pa.
Auth.,
512 Pa.
517 A.2d
(1986)(relying
Newport
v. Fact
Concerts, Inc.,
(1981),
453 U.S.
101 S.Ct.