Stauch Estate , 451 Pa. 288 ( 1973 )

Opinion by

Mr. Justice Pomeroy,

The Commonwealth has appealed from a decree of the orphans’ court division of the court below holding that a criminal fine levied against the decedent in his lifetime abated at his death and therefore could not be recovered from his personal representative as a claim against the estate.

The decedent, Bussell Stauch, was found guilty in 1949 in the Court of Oyer and Terminer of Allegheny County¹ of performing an unlawful abortion resulting in death. He was sentenced to five to ten years’ imprisonment and fined §6,000. Stauch died testate in 1955 having served his sentence, but with the fine remaining unpaid.

Western Pennsylvania National Bank, administrator d.b.n.c.t.a., in 1968 presented a petition for distribution listing Allegheny County as an unpaid creditor in the amount of $6,000.² The auditing judge awarded the balance of the account ($2,707.95) to the Commonwealth “for partial payment of Claim resulting from fine of $6,000.00.” Exceptions were filed by the executors of the residuary legatees, who contended that the fine was discharged by decedent’s death. The court en bane sustained the exception and held the criminal fine imposed in 1949 had abated upon the death of the defendant-decedent. The balance for distribution was thus decreed in equal shares to the estates of the legatees. The Commonwealth appeals from that determination.³ We affirm.

The Commonwealth argues that a fine which is unpaid at the time of the death of a defendant constitutes a debt of the defendant’s estate and must be paid to the Commonwealth by the personal representative from the assets of the estate. We are unable to agree. Like imprisonment or any other sanction imposed following-conviction of a crime, a fine is a form of punishment, not a debt. Its sole purpose is protection of the public by the deterrence, including correction of the defendant, believed to be achieved through its imposition.

In Commonwealth v. Embody, 143 Pa. Superior Ct. 354, 17 A. 2d 620 (1941) the Superior Court was confronted with the exact situation now before this court. In a well reasoned opinion by Judge Stadtpeld, speaking for a unanimous court, it was held that a fine abates upon the death of the defendant and cannot be enforced against his estate whether or not the judgment of sentence had become final at the time of death. Quoting from an Oklahoma decision, the court said: “The reason for the rule has been stated as follows: ‘In a criminal action the sole purpose of the proceedings is to enforce the criminal law and punish the person found guilty of a violation thereof. The personal representative of the deceased is not responsible for the alleged violation of the law by the defendant during his lifetime, and cannot be required to satisfy the judgment rendered against him. It is only the person adjudged guilty who can be punished, and a judgment cannot be enforced when the only subject matter upon which it can operate has ceased to exist’.” [Citations omitted]. The Superior Court also relied, among other authorities, on Blackwell v. State, 185 Ind. 227, 229, 113 N.E. 723 (1916), quoting from it as follows: “In a case where a fine is imposed as a punishment, no principle of compensation is involved. A fine is imposed for the purpose of punishing the offender, and when the offender dies, he passes beyond the power of human punishment. There could be no justice in enforcing a fine against the estate of an offender, for such a course would punish only the family or those otherwise interested in the estate.” Supra at 357.

The decision in Embody was in accord with authority elsewhere, as Judge Stadtfeld’s opinion shows. See 21 Am. Jur. 2d §608; Annotation, 83 A.L.E. 2d 864 (1962). It has since been followed in Commonwealth v. Gumming, 203 Pa. Superior Ct. 711, 712, 199 A. 2d 486 (1964) holding, per curiam, that the appeals there involved were abated because of appellant’s death,⁴ and most recently in U. S. ex rel. Schwartz v. Lennox, 320 F. Supp. 754, 755 (E.D. Pa. 1971), holding that the personal representative of a deceased habeas corpus petitioner could not continue the collateral attack on a judgment of sentence following the deefndant’s death, since the fine abated. While we are not bound to follow the Superior Court, its decision in Embody has stood as the law of this state for over thirty years, and we are satisfied that its reasoning was valid when the decision was announced and remains equally so today.

The Act of 1901, P. L. 143, §1, 12 P.S. §1001 (1953) allowing criminal money judgments to be certified to a court of common pleas and there indexed in the judgment docket, and the Act of 1959, P. L. 342, §1, 12 P.S. §1032 (Supp. 1972), prohibiting the altering of a judgment of sentence after the expiration of the term in which rendered do not help the Commonwealth’s position. Aside from the fact that the record shows no such certification of the judgment here involved, these statutes are inapplicable to the present situation. It is not a question of the orphans’ court either enforcing or disregarding a final judgment of sentence of a criminal court; the question is, upon Stauch’s death in 1955 what then was the status in any court of the fine imposed on him in 1949? The answer of Embody is that the efficacy and vitality of criminal judgments, whether in relation to a fine or imprisonment, is dependent upon the existence of the person subject to it. Upon his death the punishment, whether it be the continued deprivation of his liberty or the collection of an unpaid fine, must necessarily come to an end.

The court below expressed the fear that the rule of abatement will lead to purposeful delay by criminal defendants in paying fines. (See footnote 3, supra.) No empirical data is cited to indicate that this has been the experience over the past thirty years, and in fact the fear seems quite unrealistic. The Commonwealth is not powerless to enforce criminal money judgments. For over a century the courts have had by statute “power to award process to levy and recover such fines . . . as shall be imposed by them . . .”. Act of March 31, 1860, P. L. 427, §32, 17 P.S. §361. Whether a fine is paid voluntarily or collected by process involuntarily during the lifetime of a defendant, the defendant is thereby being punished. If, however, it is collected after his death, whether in the course of orphans’ court proceedings or otherwise, the punishment falls not upon the guilty person, but upon his estate, which normally means his family. The result is not only to inflict punishment on those not guilty of any crime, but also to run counter to the recognized reasons for sanctions in the criminal law.

Decree affirmed. Costs on appellant.

1 In Allegheny County the jurisdiction of the former court of oyer and terminer is now in the court of common pleas, to be exercised through the criminal division of that court. Act of December 2, 1868, P. L. 1142, §2, 17 P.S. §235.2 (Supp. 1972).

2 The petition for distribution was not presented until 1968, thirteen years after the probate of decedent’s will. This seemingly inordinate delay is unexplained in the record.

3 The court en bane below, in its opinion, recommended an appeal on the ground that its decree, while mandated by decisions by which the court felt bound, was not “good law”. The court’s reason was that a criminal defendant “only needs to wait until he passes away at which time the fine will be discharged, regardless of the size of the estate which he leaves.”

4 The Gumming decision is probably inconsistent with this court’s recent decision in Com. v. Walker, 447 Pa. 146, 288 A. 2d 741 (1972), which held that death of the defendant during the pendency of his direct appeal did not abate the proceedings. The Walker decision (from which the writer of the present opinion dissented) is however in no way inconsistent with Embody or our holding today.