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decided: September 13, 1982.


No. 444 January Term, 1979, No. 445 January Term, 1979, Appeal from the judgment entered by the Superior Court of Pennsylvania on April 27, 1979 at No. 549 October Term, 1977, which reversed in part and remanded with directives the order of the Court of Common Pleas of the Thirty-First Judicial District, Criminal Division, at Nos. 1147 and 1322 of 1974.


Thomas A. Wallitsch, Public Defender, James T. Huber, Carol K. McGinley, Asst. Public Defenders, George A. Hahalis, Bethlehem, for defendant-appellant.

William Platt, Dist. Atty., Henry S. Perkin, Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., files a concurring opinion. McDermott, J., files a dissenting opinion in which Larsen, J., joins.

Author: Flaherty

[ 498 Pa. Page 640]


This is an appeal from an order of the Superior Court*fn1 which reversed a decision of the Court of Common Pleas of the Thirty-First Judicial District granting a Motion in Arrest of Judgment to the appellants, Dorothy A. Konz and Stephen R. C. Erikson, subsequent to their being found guilty of involuntary manslaughter in a trial by jury. The prosecution of Dorothy Konz arose from her failure to comply with an alleged duty to seek medical assistance for Reverend David G. Konz, her husband, when he was stricken with a diabetic crisis which proved fatal. The prosecution of Erikson rested upon his alleged role as an accomplice in that breach of duty.

[ 498 Pa. Page 641]

Viewed in the light most favorable to the Commonwealth, as verdict winner, the following facts were established at trial. In September, 1973, Reverend Konz, while serving as a teacher, counselor, and chaplain at United Wesleyan College, became acquainted with Erikson, a student at the College. A close friendship, based on their common interest in religion, formed between Erikson and Reverend Konz as the former became a regular visitor at the latter's residence.

Reverend Konz was a thirty-four year old diabetic and had, for seventeen years, administered to himself daily doses of insulin. On March 4, 1974, however, following an encounter on campus with a visiting evangelist speaker, Reverend Konz publicly proclaimed his desire to discontinue insulin treatment in reliance on the belief that God would heal the diabetic condition. He assured the president of the College and members of the student body that he would carefully monitor his condition and would, if necessary, take insulin. On only one or two occasions did the Reverend thereafter administer insulin. On March 18, 1974, however, Erikson and Reverend Konz formed a pact to pray together to enable the latter to resist the temptation to administer insulin.

Mrs. Konz was informed of the prayer pact, and, on the morning of Saturday, March 23, 1974, when her husband evidenced symptoms of insulin debt, she removed his insulin from the refrigerator and concealed it.*fn2 Later that day, the Reverend attempted to obtain insulin from the refrigerator, and, upon discovering that the medicine had been removed, strongly indicated that it should be returned. He then attempted to proceed from room to room but his passage was blocked by Erikson. Harsh words were exchanged, and Erikson, after kneeling in prayer, forced the Reverend into a bedroom where, accompanied by Mrs. Konz, Erikson and the Reverend conversed for approximately one half hour. During that time, the Reverend tried to telephone police to obtain assistance but was prevented from doing so by Erikson and Mrs. Konz, who, during a struggle with the Reverend,

[ 498 Pa. Page 642]

    rendered at least that telephone permanently inoperable.*fn3 Immediately after this confrontation, the Reverend, his wife, and Erikson returned amicably to the kitchen for coffee, and no further request for insulin was ever made. In addition, the Reverend approached his aunt who resided in the same household and stated, in an apparent reference to the preceding confrontation with Erikson, that "It's all settled now," and told her that there was no cause for concern. He also told his eleven year old daughter that "Everything is fine," and indicated to her that he did not intend to take insulin. The Reverend then departed from the house, accompanied by Erikson, and returned an hour later. As the day progressed, Reverend Konz cancelled his speaking commitment for the following day and drove his wife to an institution having hospital facilities to pick up a close friend who was a practical nurse. Late on Saturday night, while waiting inside the institution for the nurse to complete her duties, the Reverend appeared very fatigued and complained that he was developing an upset stomach. Both of these conditions were symptomatic of lack of insulin, but neither the Reverend nor his wife requested that insulin, which was available at the institution, be administered. With regard to the Reverend's condition at that time, the nurse observed that he travelled with unimpaired mobility, and that he was conversant, rational, and cognizant of his environs. Nevertheless, he made no mention of a need for insulin, and the nurse made no inquiry as to such a need because the Reverend had on a previous day become very upset at her inquiry as to his diabetic condition.

Upon returning home from this errand, Reverend Konz experienced increasing illness, vomiting intermittently Saturday night and Sunday morning, and remained in bed all day Sunday except for trips into the bathroom. On Sunday afternoon visitors arrived at the Konz residence. The Reverend, recognizing their voices, called to them from his room to inquire whether they wished to see him; having

[ 498 Pa. Page 643]

    been informed of the Reverend's nausea, however, the visitors declined to stay. As the Reverend's condition worsened and he became restless, his wife and Erikson administered cracked ice but did not summon medical aid. The Konz's eleven year old daughter then inquired as to why a doctor had not been summoned but Mrs. Konz responded that her husband was "going to be getting better." Late Sunday night or early Monday morning everyone in the household fell asleep. On Monday morning at approximately 6 AM, while the others were still asleep, Reverend Konz died of diabetic ketoacidosis.

Appellants were found guilty by a jury of the crime of involuntary manslaughter pursuant to Section 2504 of the Pennsylvania Crimes Code, which provides: "A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person." 18 Pa.C.S.A. § 2504. To impose criminal liability for an omission as opposed to an act, the omission must be "expressly made sufficient by the law defining the offense." 18 Pa.C.S.A. § 301(b)(1), or "a duty to perform the omitted act [must be] otherwise imposed by law." 18 Pa.C.S.A. § 301(b)(2). Since the involuntary manslaughter provision of the Crimes Code does not expressly address omissions as a basis for liability, only 18 Pa.C.S.A. § 301(b)(2) has potential applicability. The determinative issue on appeal, therefore, is whether Mrs. Konz had a duty to seek medical attention for her spouse. Under the circumstances of this case, we find no such duty to have been present; hence, the conviction of Mrs. Konz, and that of Erikson as her accomplice, cannot be sustained.*fn4

Courts have, in limited circumstances, departed from the longstanding common law rule that one human being is

[ 498 Pa. Page 644]

    under no legal compulsion to take action to aid another human being. One such circumstance is where there exists a requisite status of relationship between the parties, as is present in the relationship of parent to child. Hence, a parent has been held guilty of involuntary manslaughter for failure to seek medical assistance for his sick child. Commonwealth v. Breth, 44 Pa.C. 56 (1915); Commonwealth v. Hoffman, 29 Pa.C. 65 (1903). See also Commonwealth v. Comber, 170 Pa. Super. 466, 469, 87 A.2d 90, 93 (1952) (dicta), rev'd on other grounds, 374 Pa. 570, 97 A.2d 343 (1953). The inherent dependency of a child upon his ...

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