[ J

- 59A

- 2022 and J

- 59B

- 2022 ] [MO: Donohue , J. ]
IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

THE BERT COMPANY D/B/A
NORTHWEST INSURANCE SERVICES

v.

MATTHEW TURK, WILLIAMS COLLINS, JAMIE HEYNES, DAVID MCDONNELL, FIRST NATIONAL INSURANCE AGENCY, LLC, FIRST NATIONAL BANK, AND FNB
CORPORATION

APPEAL OF: MATTHEW TURK, FIRST NATIONAL INSURANCE AGENCY, LLC, FIRST NATIONAL BANK, AND FNB
CORPORATION

THE BERT COMPANY D/B/A
NORTHWEST INSURANCE SERVICES

v.

MATTHEW TURK, WILLIAM COLLINS, JAIME HEYNES, DAVID MCDONNEL, FIRST NATIONAL INSURANCE AGENCY, LLC, FIRST NATIONAL BANK AND FNB
CORPORATION

MATTHEW TURK

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: No. 1 3 W AP 2022

Appeal from the Order of the Superior Court entered May 5, 2021 at No. 817 WDA 2019, affirming the Judgment of the Court of Common Pleas of Warren/Forest County entered June 3, 2019 at No. AD 260
of 2017

ARGUED : October 2 5 , 2022

No. 14 WAP 2022

Appeal from the Order of the Superior Court entered May 5, 2021 at No. 975 WDA 2019, dismissing as
moot the cross

- appeal from the Judgment of the Court of Common Pleas of Warren/Forest County
entered June 3, 2019 at No. AD 260
of 2017

ARGUED: October 25, 2022[ J

- 59A

- B

- 2022 ] [MO: Donohue , J. ]

- 2

THE BERT COMPANY, NORTHWEST BANK, AND NORTHWEST BANCSHARES, INC.

APPEAL OF: MATTHEW TURK, FIRST NATIONAL INSURANCE AGENCY, LLC, FIRST NATIONAL BANK, AND FNB
C O RPORATIO N :

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CONCURRING O PINION

JUSTICE DOUGHERTY DECIDED: JULY 19, 2023

I join the majority’s well

- reasoned opinion in full

. I write separately only to

emphasize that courts may ordinarily consider a defendant ’s wealth when evaluating

whether a punitive damages award is excessive

. See Restatement (Second) of Torts

§908(2) (1979) ( “In assessing punitive damages, the trier of fact can properly consider

the character of the defendant’s act, the nature and extent of the harm to the plaintiff that

the defendant caused or intended to cause and the wealth of the defendant .” )

(emphasis add ed) ; and Feld v. Merriam, 485 A.2d 742, 74 7 (Pa. 1984) (adopting

§908(2))

. See also Majority Opinion at 25. A defendant’s wealth is “ relevant

, since the

purposes of exemplary damages are to punish for a past event and to prevent future

offenses, and the degree of punishment or deterrence resulting from a judgment is to

some extent in proportion to the means of the guilty person. ” Restatement (Second) of

Torts §908(2) cmt. e

.
In my view, it is simple common sense that “ if a wealthy person commits a rather

heinous act, nominal punitive damages will not deter either that person or any other

similarly situated person from committing a similar act. . . . If the resulting punishment is

relatively small when compared to the potential reward of his actions, it might then be

feasible for a tortfeasor to attempt the same outrageous conduct a second time.”

Kirkbride v. Libson Contractors, Inc., 555 A.2d 800, 80 2

- 0 3 (Pa. 1989)

. Stated di fferently

,[ J

- 59A

- B

- 2022 ] [MO: Donohue , J. ]

- 3

i f a wealthy defendant can absorb a punitive damages award without suffering financial

discomfort , the deterrent purpose of the award is undermined . After all, how can punitive

damages possibly deter future wrongdoing if a massive award represe nts a mere fraction

of the defendant’s actual worth? A company which generates millions of dollars every

year can comfortably pay hundreds of thousands of dollars assessed against it

– even if

the same figure would be unreasonably high when levied against the average person.

Because such damages are intended to inflict financial “pain” as punishment, and thus

deter similar future conduct, the wealthier the defendant, the larger the monetary loss

required to have that deterrent effect

.

It is true the “wealth of a defendant cannot justify an otherwise unconstitutional

punitive damages award.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,

427 (2003). Although evidence of great wealth may “provide[] an open

- ended basis for

inf lating awards . . . [t]hat does not make its use unlawful or inappropriate; it simply means

that this factor cannot make up for the failure of other factors, such as ‘reprehensibility,’

to constrain significantly an award that purports to punish a defendan t’s conduct.” BMW

of North America, Inc. v. Gore, 51 7 U.S. 559, 591 (1996) (Breyer, J., concurring). T he

jury’s award in the present case reflected the reprehensibility of the defendants’ conduct

in engaging in a brazen conspiracy “to steal a corporatio n,” and consideration of their

wealth in assessing the award’s excessiveness is proper

.