*1 713 A.2d 1127 D.K., Minor, by G.J.D., GJ.D. and His Parent and Natural Guardian, J.K., Minor, by GJ.D., Her Parent and Guardian, Appellees,

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 photocopies 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 estate, 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 recovery 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- from 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 jurisdictions Colligan, hold: Doe 753 P.2d 144 tive of the that so v. Moreno, 509, 1988); (1970); (Alaska Ariz.App. 11 466 P.2d 60 Braun v. Breeden, (D.C.1995); Byrd, 522 So.2d v. 665 A.2d 929 Lohr v. Woodner Co., (Iowa (Fla.1988); Ins. 639 Rowen v. LeMars Mut. 282 N.W.2d 845 Quackenbush, 1979); F.Supp. 1516 Fehrenbacher v. 759 118, law); Levy, (D.Kan.l991)(predicting Johnson v. 122 La. 47 Kansas (Minn. (1908); Petroff, 400 Thompson So. 422 v. Estate 319 N.W.2d

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); 562 P.2d 487 see also Woodner at 940 Nev. (Minn.). that at 408 These courts have found Thompson depends upon perception by deterrent element general being punished. that the tortfeasor is See Parker at others (Fla.). (N.M.); at (Wyo.); 525 State Farm at 449 Lohr 846 if innocent further reason that it is the estate and They himself, that are and not the tortfeasor punished beneficiaries specu- becomes diffused and is deterrent element (D.Kan.); Quackenbush at 1521 Stale lative at best. See (Fla.).5 (N.M.); Farm at 449 Lohr at 846 currently permit recovery Five states courts from the estate of a deceased tortfeasor.6 Some than, policy have based their decisions on considerations other to, objectives Pennsyl- policy recognized or addition vania, those of and deterrence the tortfeasor. punishment example,

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. 761 P.2d 446 McAdams v. Blue, 169, (1968); Barton, N.C.App. 3 4, 164 S.E.2d 490 Morriss v. 200 Gill, (1947); Hayes Okla. 190 P.2d 451 216 Term. S.W.2d 390 (1965); 1995). Artery, (Wyo. 213 Parker v. 889 P.2d 520 (Second) 5. The Restatement of Torts also does not allow the tortfeasor, punitive damages against of a estate see 926(b) (1979). (1979); § § 908 comment a discussed, Hampshire, 6. New in addition to the five states is considered However, damages. some to allow such there is no consensus among legal scholars as to whether these are allowed or not. Inc., (1972)(reject- See Vratsenes v. N.H. Auto 112 N.H. A.2d 66 ing punitive damages allowing in tort actions but the award of liberal compensatory damages compensate plaintiff's for the "vexation and "wanton, malicious, question distress” when the conduct in was Raudonis, oppressive”). See also Munson v. 118 N.H. 387 A.2d (1978)(allowing recovery damages against of such the estate of tortfeasor). a deceased *5 174

deterrence, provide are utilized to additional punitive damages wanton conduct. compensation to the victims of reckless and (1982). Melton, 397, 171 299 S.E.2d 8 Perry v. W.Va. Alabama, from a recovery punitive damages In of deceased Alabama provided Supreme tortfeasor’s estate is state’s death statute. wrongful Court’s interpretation 100, (1954), Ala. 73 77 Shirley Shirley, v. 261 So.2d of punitive court held that the deterrent effect dam- ages justification wrongful was sufficient under state’s a decedent’s damages against death statute to allow such (5th Zuck, court in Ellis v. 546 F.2d 643 Cir. estate. The 1977), in reasoning Shirley relied on the to hold that from recovery punitive damages of estates is limited actions. The Ellis court that all wrongful death stated dam- action in Alabama ages wrongful recoverable under a death the death of the tortfeasor. The and survive legislature court further determined that the intended to allow tortfea- recovery punitive damages against in in sor’s estate order to deter others similar situations. Therefore, that punitive damages the court concluded also survive the death of the tortfeasor and be recovered from in than wrongful his estate actions other death actions. recently, Most the courts Montana and Illinois have also recovery punitive damages allowed from a deceased tortfea- Supreme interpreted sor’s estate. The Montana Court state’s statute to the lan- according plain It that “a ... guage provides jury may the statute. award damages for for the example purpose sake § Ann. 27-1-220 punishing the defendant.” Mont.Code (1995). The court held that the appropriateness imposing example public order to set an to the is a matter for the trier of fact to determine. Tillett v. Lippert, 1, 275 Mont. 909 P.2d 1158 Illinois,

Finally, the court allowed to be imposed against the estate of a deceased in Penber- tortfeasor Price, 902, thy 281 216 Ill.Dec. 666 N.E.2d 352 Ill.App.3d (1996) . There the court noted that in Illinois punitive ages punish serve the tortfeasor and deter the tortfeasor Id. at engaging from like conduct. and others The court noted that the 666 N.E.2d at 356. IlLDec. influence, Penberihy, driving presents under the conduct *6 damages. The allowing punitive reasons important policy effect combined with court held that the deterrent driving justified the strong public policy against drunken at 216 Ill.Dec. punitive damages. of Id. at 357. N.E.2d trial court by Pennsylvania

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 are 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 as 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 several 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 555 A.2d 800 the Darwin punished committing will not be or deterred from further acts, the of perverse egregious imposition punitive ages upon engaging his estate serve deter others from of others like conduct. The deterrent effect the conduct is no than in speculative more the instant case cases where the tortfeasor is alive.

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 Reference 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 pala 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 because 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 awareness 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 & Vernon 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 punitive 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 lack 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 available 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 tortfeasor 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), 485 A.2d 742 we reiterated that this court has § embraced as a guideline 908 of the Restate- (Second) ment In Torts. addition to disallowing the recov- ery of punitive damages estate, from a tortfeasor’s the Re- statement sets forth factors which must be considered when punitive damages are sought. Feld, As this court held supra, “one must look to the act itself together with all the circumstances including ... the relations between the par- ” (internal ties .... Id. at 485 A.2d at 748 quotation omitted).3 marks case, present there is no relationship between the

aggrieved party and beneficiaries, the estate the 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. 69 L.Ed.2d 616 disallowing municipality on a as a plaintiff punishes windfall to the only which taxpayers). innocent decision, this With survivors. a convict’s afforded tions “unre- in the engage juries encourage continues court warned impulses” of their venting strained 97,105, Inc., 555 A.2d 521 Pa. Contractors v. Lisbon Kirkbride dissenting). (1989)(Flaherty, J. 800, 804 Therefore, I dissent.