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February 8th, 2022
In Dinardo v. Kohler, 2022 PA Super 14, Sandra Dinardo, the mother and power of attorney of Cosmo Dinardo, a confessed murderer of four individuals (first-degree murder), filed suit alleging that Christian Kohler, M.D., Hospital of the University of Pennsylvania, University of Pennsylvania Health System and Trustees of the University of Pennsylvania (“the Medical Defendants”) were liable for negligent psychiatric treatment they provided to her son in the months leading up to the murders he committed in 2017.
The first two counts of Dinardo’s complaint allege the defendants were liable for “indemnification” and “gross negligence — emotional and physical pain.” Dinardo sought indemnification, i.e., recovery for (1) attorney fees and litigation costs associated with defense of the criminal prosecution and civil actions brought by estates of individuals whom Son pleaded guilty to killing, and (2) money that Cosmo pays to the decedents’ estates in the civil actions against him. Dinardo also sought compensatory damages for her son’s severe emotional distress and physical pain from living with the knowledge that he murdered four individuals while in an otherwise treatable psychopathologic state and will spend the rest of his life in prison; and knowing his family will suffer loss of substantial sums of money from business loss and having to pay defense costs and judgment. The final count of the complaint alleged the Trustees of the University of Pennsylvania were liable for “the damages described in this complaint.”
The Medical Defendants filed preliminary objections seeking demurrers, i.e., dismissal of the claim, arguing that liability was unavailable under Pennsylvania’s “no felony conviction recovery” rule. The trial court sustained the Medical Defendants’ demurrers to Dinardo’s demands for indemnification and attorney fees but overruled their demurrer to Dinardo’s demand for compensatory damages, relying on Vattimo v. Bucks County Hospital, 465 A.2d 1231 (Pa. 1983)), and Laskowski v. U.S. Department of Veterans Affairs, 918 F.Supp.2d 301 (M.D. Pa. 2013). The trial court declined to dismiss Dinardo’s claim for compensatory damages on the ground that they were not directly attributable to her son’s convictions but might have been caused by the Medical Defendants’ negligence.
The Medical Defendant appealed the trial court’s decision, claiming the Trial Court erred in overruling their preliminary objections seeking dismissal of all claims for damages related to alleged emotional distress, pain and other personal injuries, where the alleged damages were the collateral consequences of admitted criminal conduct and felony convictions based on the facts as pleaded in the complaint. Dinardo also appealed, claiming the Trial Court erred by dismissing her claim for indemnification and attorney’s fees; and by failing to accept as true that her son was not at active fault for the murders due to his mental illness.
The Superior Court discussed the “no felony conviction recovery” rule enunciated in Holt v. Navarro, 932 A.2d 915 (Pa. Super. 2007), which “applies to discourage courts from assisting convicted felons in collecting damages that would not have occurred absent the criminal conviction.” (Citing, inter alia, Mineo v. Eureka Sec. Fire & Marine Ins. Co., 125 A.2d 612 (Pa. Super. 1956)) The Court in Holt determined that under the “no felony conviction recovery” rule, the law precludes Plaintiff from benefiting in a civil suit flowing from his criminal convictions.
In Mineo, two restaurant owners were convicted of burning down their restaurant. Shortly before the fire, the owners had purchased four insurance policies on the restaurant. After their arrest, they assigned their rights under the policies to a third party. The third party initiated an action against the insurance companies to recover damages caused by the owners’ arson. Following trial, a jury returned a verdict in the third party’s favor. On appeal, the Superior Court granted judgment notwithstanding the verdict in favor of the insurance companies, reasoning that it violates public policy to permit a person convicted of a serious crime to collect damages that would not have occurred absent the criminal conviction.
Applying the aforesaid cases to Dinardo’s complaint, the Superior Court determined the complaint failed to state a valid claim for indemnification for attorney’s fees, litigation costs and compensatory damages pursuant to the “no felony conviction recovery” rule. Dinardo argued the Rule did not apply because she was not seeking profit, only compensation. The Court found that argument without merit stating that irrespective of whether one characterizes the request for damages as profit or compensation, the fact remains that the request for damages flows from the criminal conduct involving her son’s convictions for first-degree murder.
The Court also determined the cases of Vattimo and Laskowski were distinguishable from the present case. The Court explained the difference between Vattimo and the present case is that Vattimo was found not guilty by reason of insanity, whereas Dinardo’s son was convicted of four first-degree murders. Since there was no conviction in Vattimo, the “no felony conviction recovery” rule did not apply in that case. In Laskowski, the plaintiff, a veteran, brought an action under the Federal Tort Claims Act alleging the Department of Veteran Affairs committed professional negligence in treating him for post-traumatic stress disorder (“PTSD”). The plaintiff had been honorably discharged, but, several months later, he was arrested for burglary after breaking into a pharmacy and stealing drugs. Subsequently, the plaintiff entered ARD and the court dismissed all charges against him. Thus, as in Vattimo, but unlike the present case, there was no criminal conviction.
Interestingly, in Vattimo, the Pa. Supreme Court dismissed Vattimo’s claim for indemnification despite the absence of a conviction. The right to indemnity rests with a party who “without active fault on his own part has been compelled, by reasons of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. Id. at 1236. The Vattimo Court determined that because Vattimo, despite being found not guilty, played an active “part” in the events which resulted in injury, therefore, he could not recover damages occasioned by the legal process, whether civil or criminal.
