jury verdict finding that debtor deliberately shot and killed plaintiff’s husband with intent to injure or kill, and not in self-defense, satisfied elements of “willful and malicious” under Section 523(a)(6)
How later courts described this case
- jury verdict finding that debtor deliberately shot and killed plaintiff’s husband with intent to injure or kill, and not in self-defense, satisfied elements of “willful and malicious” under Section 523(a)(6)
- noting that the basis of an expert witness’s specialized knowledge “can be practical experience as well as academic training and credentials.”
Written by the judges who cited it.
The opinion
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF PENNSYLVANIA
In re: :
: Chapter 7
Michael P. Picard, :
: Case No. 16-15432-AMC
Debtor :
____________________________________:
:
Sabrina Lombardi, :
Plaintiff :
: Adv. No. 16-00359-AMC
v. :
:
Michael P. Picard, :
:
Defendant :
____________________________________:
OPINION
Ashely M. Chan, United States Bankruptcy Judge
I. INTRODUCTION
In December 2011, the Montgomery County Court of Common Pleas entered a pre-
petition civil judgment against the debtor, Michael P. Picard (“Debtor”), in favor of Sabrina
Lombardi (“Ms. Lombardi”), in the amount of $250,000.00, for Ms. Lombardi’s claim for pain
and suffering she sustained from being attacked by the Debtor on September 10, 1998 (“Civil
Judgment”). Through this adversary proceeding, Ms. Lombardi now seeks a determination that
the Civil Judgment is nondischargeable under 11 U.S.C. § 523(a)(6) 1. Compl. to Deny Disch. of
Indebt. Purs. to 11 USC 523(a)(6) (“Compl.”), No. 16-15432, Adv. No. 16-00359 (“Adv.”), ECF
No. (“ECF”) 1. As discussed below, because Debtor was experiencing a psychotic episode at the
1 Unless otherwise specified, all references to “Section” or “Code” refer to provisions of the Bankruptcy Code,
under Title 11 of the United States Code.
time of the attack, he lacked the requisite intent required under § 523(a)(6) and, therefore, the
Civil Judgment does not qualify as a debt for willful and malicious injury.
II. FACTS AND PROCEDURAL HISTORY
On September 10, 1998, the Debtor, a sophomore attending West Chester University at
the time, brutally attacked fellow West Chester University sophomore, Ms. Lombardi, and her
roommate, Kelly (McDonald) Grego (“Ms. Grego”), in their off-campus residence located at 121
Linden Street, West Chester, Pennsylvania, resulting in Ms. Lombardi sustaining grave injuries,
including, inter alia, a concussion, a fractured jaw, the loss of several teeth, an injury to her left
leg, multiple facial lacerations requiring stitches, and permanent physical and psychological
scarring (“Attack”). Trial Tr., ECF 118 at 19:9-20, 20:1-16, 21:3-13, 35:18-25, 36:6-24, 37:3-8,
38:5-15, 39:16-20.
On the night of the Attack, around approximately 9:30 or 10:00 p.m., when Ms.
Lombardi arrived home for the evening after attending a gathering at her neighbor’s house, the
Debtor, who at the time was a friend of Ms. Lombardi and her roommates, was there hanging out
with some of her roommates. Id. at 19:21-20:16, 21:17-22:5, 35:13-17. The Debtor began asking
if anyone had a Bible because he wanted to “find out who the devil was.” Id. at 22:8-10, 24:16-
22. One of Ms. Lombardi’s roommates, Julie Tuckerman (“Ms. Tuckerman”), offered to let him
read her copy of the Torah, and Ms. Lombardi, Ms. Tuckerman, and Debtor subsequently went
upstairs together to Ms. Tuckerman’s bedroom to retrieve the book. Id. at 22:19-23:18, 26:9-14.
While upstairs, the Debtor commented “[w]hen I find out who the devil is they’re going out this
window and on the pavement.” Id. at 27:6-8. Considering the Debtor’s strange behavior, Ms.
Lombardi assumed he was under the influence of drugs or alcohol. Id. at 23:19-21, 27:12-17.
After about a half hour had passed from when the Debtor and Ms. Lombardi went
upstairs, another one of Ms. Lombardi’s roommates came to the door of Ms. Tuckerman’s
bedroom, and Debtor said “[d]on’t touch her, don’t go near her,” and suddenly, put his hand
around Ms. Lombardi’s throat, started to strangle her, and swung at and hit Ms. Lombardi in the
face with a closed fist hard enough to knock her down against the wall, rendering her
unconscious. Id. at 28:7-29:1, 30:19-32:15. Subsequently, Ms. Lombardi’s roommate, Ms.
Grego, ran upstairs and saw the Debtor “punching [Ms. Lombardi] in the face where she was
knocked unconscious” and “blood everywhere.” Id. at 43:21-23. Ms. Grego thought Ms.
Lombardi was dead because she was not moving. Id. at 44:5-6. When Ms. Grego started
screaming for the Debtor to stop, Debtor turned to Ms. Grego, told her that he was going to kill
her and Ms. Lombardi, and began attacking Ms. Grego by pulling her by her hair into Ms.
Tuckerman’s bedroom, kicking her in the face, and hitting her over the head with a lamp,
causing Ms. Grego to black out. Id. at 45:16-46:6.
After the Attack, on the same night, Ms. Lombardi was taken to the hospital at the
Brandywine Trauma Unit where she began receiving treatment for her significant injuries,2 and
the police apprehended the Debtor and transported him to the Chester County Hospital
Emergency Department where he arrived restrained and highly combative, and was admitted
around approximately 11:38 p.m. Id. at 35:3-36:3, 61:6-63:3, 71:12-72:12, 88:7-13. See also Ex.
D-18 at 20:18-21:24. The treating physician and Co-Chairman of the Chester County Hospital
Department of Emergency Medicine at the time, Dr. Beverly Mikuriya (“Dr. Mikuriya”),
recalled that the Debtor’s arrival at the hospital made a considerable commotion and that it took
seven people to transfer the Debtor from the ambulance stretcher to the hospital stretcher. Trial
2 Ms. Lombardi’s injuries required additional treatment for many years after the Attack. Trial Tr., ECF 118 at 38:3-
15. In fact, some of her treatment is still ongoing. Id. at 38:15, 39:19-20.
Tr., ECF 118 at 63:2-3, 72:11-15. See also Ex. D-18 at 21:20-24; Ex. D-10, Curriculum Vitae of
Beverly Mikuriya at 2. While receiving treatment, the Debtor was yelling profanities, threatening
to kill the hospital staff, and accusing those offering treatment of conspiring to kill him and of
being possessed by Satan. Trial Tr., ECF 118 at 75:3-25. See also Ex. D-18 at 22:4-12. Dr.
Mikuriya concluded based on the results of the Debtor’s drug screen that “this was an acute
psychiatric emergency, not secondary to drugs” and that there was only a very negligible amount
of alcohol in his system. Trial Tr., ECF 118 at 82:2-83:3. He was ultimately diagnosed by Dr.
Mikuriya as experiencing an acute psychosis, defined as “acute detachment from the
reality…frequently manifest…by religious ideation and paranoia.” Id. at 84:16-85:2. In the early
morning hours of September 11, 1998, Dr. Mikuriya arranged for the Debtor to be committed to
a psychiatric facility, explaining in the application for involuntary commitment:
18[-year-old] brought to [Emergency Department] by police after beating one girl
unconscious and striking and kicking another girl…When asked why he beat the
first girl he told staff she had the devil in her and that he felt that he had to beat it
out of her. The [patient] was in restraints and when I refused to remove them, he
told me he would break my neck and rip my heart out when he got out. When
asked who told him to do these acts the [patient] stated that God was telling him
to do them.
Ex. D-12 at 3; Trial Tr., ECF 118 at 85:4-86:1, 88:7-25, 90:22-91:25.
The Debtor would later be diagnosed with bipolar disorder. Trial Tr. at 95:23-96:1. See also Ex.
D-18 at 4:17-7:16.
Subsequent to the Attack, the Debtor pled guilty to two counts of aggravated assault3 in
connection with the Attack (“Guilty Plea”). See Ex. D-18 at 61:12-13. By way of background, in
the ensuing criminal case, on February 16, 2000, the sentencing hearing was held where
testimony was offered by, inter alia, Ms. Lombardi, Ms. Grego, Dr. Mikuriya, the Debtor, and
3 18 Pa. Cons. Stat. § 2702(a)(1).
Dr. James Schaller, Debtor’s psychiatrist at the time of sentencing. See Ex. D-18. After hearing
the testimony, the sentencing judge acknowledged the opinion of the Commonwealth’s own
expert, whose report indicated that the Debtor “was unable to conform his conduct to the
requirements of the law as a result of the perceived need to protect himself arising out of his
psychosis at that time[,]” and commented that despite what he considered to be “a valid legal
defense to [the] charges,” the Debtor “nonetheless pled guilty, sparing, . . . the young ladies from
having to go through a trial.” Ex. D-18 at 64:24-65:14. The Debtor was then sentenced to two
consecutive twenty-year terms of probation, and ordered to pay the costs of his prosecution, as
well as “any out-of-pocket medical expenses,” or “follow-up treatment or evaluation[s]” that Ms.
Lombardi may incur as a result of her injuries. Id. at 68:18-70:20. Thereafter, on December 27,
2011, Ms. Lombardi obtained the Civil Judgment for the pain and suffering she sustained from
the Attack. Trial Ex. P-1, J. Entd. Against [Debtor], Lombardi v. Picard, Case No. 2001-14287
(Ct. Comm. Pl. Dec. 27, 2011) (“Trial Ex. P-1”).
On July 31, 2016, the Debtor filed a voluntary petition for relief under chapter 7 of the
Bankruptcy Code. Vol. Ch. 7 Pet., No. 16-15432, ECF No. 1. On October 12, 2016, Ms.
Lombardi initiated the above captioned adversary proceeding seeking a determination under 11
U.S.C. § 523(a)(6) that the Civil Judgment is nondischargeable as a debt arising from a willful
and malicious injury (“Adversary Proceeding”). Compl. Adv. ECF 1.
On June 13, 2017, upon request of the parties to participate in the court-annexed
mediation program, the Court entered an order assigning the Adversary Proceeding to mediation.
Adv. ECF 9, 11. After approximately two months of settlement discussions, mediation concluded
unsuccessfully. Adv. ECF 13. Nevertheless, over the course of the next few years, the parties
engaged in multiple status conferences, and continued to explore the possibility of settlement.
See generally Lombardi v. Picard, Adv. No. 16-359.
Meanwhile, on March 4, 2018, Ms. Lombardi filed a motion for summary judgment
(“Summary Judgment Motion”) in which she averred that, based upon the Guilty Plea and
affidavit of probable cause in the criminal case, the doctrine of issue preclusion prevented the
Debtor from presenting defenses to his conduct during the Attack. Adv. ECF 27 at ¶ 12; Mem.
Law Supp. Pl’s. Mot. Sum. J., Adv. ECF 27-3 at 4-8. The Debtor responded by arguing, inter
alia, that issue preclusion was inapplicable because reckless conduct satisfies the elements
necessary for an aggravated assault conviction in Pennsylvania pursuant to 18 Pa. Cons. Stat.
§ 2702(a)(1), and thus the Guilty Plea alone, which did not indicate whether the plea was based
upon reckless or intentional conduct, could not as a matter of law establish that the Civil
Judgment based on the same conduct as the Guilty Plea is a debt for “willful and malicious
injury” pursuant to § 523(a)(6). Mem. in Opp. to Pl.’s Mot. Sum. J., Adv. ECF 39 at 9, 14-15.
Thereafter, on May 21, 2018, at the commencement of the hearing on the Summary Judgment
Motion, Ms. Lombardi immediately withdrew her Summary Judgment Motion. See Adv. ECF
46.
On June 22, 2021, the Court entered the ninth, and final, amended pretrial order (“Ninth
Pretrial Order”), the terms of which were proposed by the parties, and which set a deadline of
July 19, 2021, for the parties to file a joint-pretrial statement, while leaving the date for trial
open. Adv. ECF 89, 90 ¶¶ (1)(C)(iii), (4). The Ninth Pretrial Order obligated plaintiff’s counsel
“to initiate, assemble and submit the proposed pretrial statement.” Adv. ECF 90 at ¶ (1)(C)(iii).
The Ninth Pretrial Order also directed plaintiff’s counsel to submit to defendant’s counsel “a
proposed joint pretrial statement . . . not less than 7 days prior to the deadline for its submission.”
Id.
Thereafter, on August 2, 2021, two-weeks after the deadline to file a joint-pretrial
statement, the Debtor filed an expedited motion to dismiss the Adversary Proceeding (“Motion to
Dismiss”), based upon Ms. Lombardi’s counsel’s failure to comply with the deadlines set forth in
the Ninth Pretrial Order. Adv. ECF 93. In the Motion to Dismiss, Debtor alleged, inter alia, that
Ms. Lombardi’s counsel “utterly failed to take a single step to prosecute this case…” Id. at ¶ 27.
Among the many issues identified in the Debtor’s Motion to Dismiss, the Debtor alleged that,
following the entry of the Ninth Pretrial Order, Ms. Lombardi’s counsel failed to fulfill any of
his responsibilities outlined therein, including, inter alia, submitting a proposed joint-pretrial
statement to the Debtor by July 12, 2021; filing a finalized joint-pretrial statement by July 19,
2021; curing certain discovery deficiencies identified by the Debtor4 on or before July 7, 20215;
providing amended pretrial disclosures pursuant to Fed. R. Civ. P. 26(a)(3);6 communicating
with Debtor’s counsel about efforts to comply with his duties under the Ninth Pretrial Order; or
participating in the case in any manner since the date that the Ninth Pretrial Order was entered.
Id. at ¶¶ 16, 21, 23, 26, 27.
The failings identified in the Motion to Dismiss were addressed on August 25, 2021, at a
pretrial conference, which also served as an initial hearing on the Debtor’s Motion to Dismiss
(“Pretrial Conference”). At the Pretrial Conference, it became apparent that Ms. Lombardi’s
counsel did not even attempt to cure the discovery deficiencies identified by the Debtor until
4 According to the Debtor’s Motion to Dismiss, on June 28, 2021, Debtor’s counsel sent Ms. Lombardi’s counsel a
detailed list of deficiencies in Ms. Lombardi’s discovery responses to the Debtor’s discovery requests. Adv. ECF 93
at ¶ 19.
5 The Ninth Pretrial Order required the parties to “either cure any such deficiencies by providing required discovery
or file for a protective order on or before July 7, 2021.” Adv. ECF 90 at ¶ (1)(A).
6 The parties had both submitted their respective Rule 26(a)(3) disclosures in the summer of 2020, see Adv. ECF 66,
74, however, Ms. Lombardi’s counsel did not file any updated/amended disclosures.
August 20, 2021, at which time only partial responses to the Debtor’s discovery requests were
produced, the sufficiency of which was disputed by Debtor’s counsel, and only a partial witness
list was provided. Audio R. Hrg. Aug. 25, 2021, Adv. ECF 97 at 10:01:12–10:33:48. Despite Ms.
Lombardi’s counsel’s failure to fulfill his responsibilities under the Ninth Pretrial Order, the
Court elected to continue the hearing on the Motion to Dismiss at that time and allow the case to
proceed to trial. Id. However, the Court informed Ms. Lombardi’s counsel that, due to his failure
to provide Debtor’s counsel with a complete witness list, he would be bound by the partial list
that he provided, and therefore, only be permitted to call the Debtor and Ms. Lombardi’s
roommate as witnesses, and their testimony would be limited only to that which could be
probative of the Debtor’s mental state at the time of the Attack. Id.
Thereafter, on September 29, 2021, the parties appeared before the Court to discuss
setting a date for trial and the remaining pretrial matters that needed to be addressed (“September
2021 Hearing”). Specifically, the parties addressed that (1) the joint pretrial statement remained
due and (2) an order governing the procedures for conducting the trial via Zoom needed to be
entered. Audio R. Hrg. Sept. 29, 2021, Adv. ECF 99 at 16:15:52 – 16:19:20. At the September
2021 Hearing, the parties agreed on a trial date of January 6, 2022, and also to work together to
prepare the outstanding joint pretrial statement and Zoom order. Id. Subsequently, on October
21, 2021, the Court entered an order setting forth the procedures for the trial to be conducted via
Zoom (“Zoom Order”). Adv. ECF 101. The Zoom Order required both parties to file, and serve,
on or before December 20, 2021, both a “Remote Witness List” and a list of all exhibits to be
introduced at trial. Adv. ECF 101 at ¶¶ 1-2. Notably, the Zoom Order made clear that,
“FAILURE TO COMPLY STRICTLY WITH THE REQUIREMENTS OF
PARAGRAPHS 1-4 MAY RESULT IN THE EXCLUSION OF EVIDENCE OFFERED
DURING THE HEARING.” Id. at ¶ 5.
On December 20, 2021, the Debtor timely filed a motion to extend the time to file his
pretrial witness list and exhibits, which the Court granted on December 22, 2021. Adv. ECF 103,
106. However, Ms. Lombardi’s counsel failed to produce her witness and exhibit lists on or
before December 20, 2021, and did not file a motion to extend the time for doing so. This failure
prompted the Debtor to amend his pending Motion to Dismiss (“Amended Motion to Dismiss”)
to argue that, because Ms. Lombardi’s counsel had failed to file both a pretrial witness list and
list of exhibits, and failed to file any motion for extension of the deadlines thereof, Ms. Lombardi
effectively continued to fail to prosecute her complaint and, upon consideration of the prejudice
inflicted upon the Debtor, dismissal was justified at that time. Adv. ECF 104 at ¶ 29, 31.
On January 6, 2022, instead of holding the trial, the Court addressed the Amended
Motion to Dismiss and Ms. Lombardi’s counsel’s failure to comply with the Zoom Order. Adv.
ECF 109, 113. Ms. Lombardi’s counsel acknowledged responsibility for the failure to timely file
the witness and exhibit lists. Audio R. Hrg. Jan. 6, 2022, Adv. ECF 113 at 16:01:28 – 16:37:41.7
However, upon consideration of the prejudice inflicted upon the Debtor by Ms. Lombardi’s
counsel’s failure to comply with the Zoom Order, and in lieu of a dismissal, the Court made a
series of rulings with respect to the admissibility of Ms. Lombardi’s proposed exhibits and the
scope of the testimony of her witnesses. Id. Specifically, the Court ruled that Ms. Lombardi
7 The January 6, 2022 hearing began at or around 10:00 a.m., and lasted approximately thirty-six (36) minutes; but
due to the delay in processing Zoom audio recordings, the time- and date-stamp of the actual audio file was
erroneously recorded as January 12, 2022, beginning at 16:01:27 p.m. Moreover, on the recording, the parties
mistakenly refer to the Court’s rulings at the Pretrial Conference as having occurred on September 29, 2021.
However, the Pretrial Conference occurred on August 25, 2021. Therefore, all references regarding the hearing held
on September 29, 2021, made during the audio recording of the hearing on January 6, 2022, and all references to the
same in the order issued on January 7, 2022, in-fact refer to the rulings made during the Pretrial Conference, held on
August 25, 2021. See generally Adv. ECF 115.
would be permitted to call Ms. Lombardi and Ms. Grego as witnesses to testify regarding the
Debtor’s state of mind during and after the Attack, and Ms. Lombardi would be permitted to
introduce as evidence the criminal docket and the Civil Judgment. Id.
Thereafter, a trial was conducted via Zoom on February 24, 2022 (“Zoom Trial”), where
Ms. Lombardi and Ms. Grego testified, followed by Dr. Mikuriya, who testified as an expert in
diagnosing acute psychiatric conditions in the practice of emergency medicine and emergency
treatment.8 Trial Tr., ECF 118 at 66:21-67:3, 70:15-19. She explained that she had diagnosed
Debtor with acute psychosis on the night of the Attack based upon the presentation of “religious
ideations…and his paranoia including the devil in a lot of his conversation… his age, late teens,
early 20’s when the beginning of psychotic or psychiatric psychosis happens” and based upon
the results of the drug screen and his history. See id. at 76:11-20, 77:22-78:15, 83:11-84:4,
84:16-19. When asked if she had come to any conclusion within a reasonable degree of medical
certainty regarding “whether [Debtor] could have taken any intentional action in striking [Ms.
Lomardi and Ms. Grego] that night,” based on her “interactions, observation, attempts to talk
with him, the medication [she] gave and his reactions to it,” she responded “I don’t think that this
was really directed at the women personally. I think that this was his thinking derangement, his
cognitive derangement that made him do it, not that he intended to do it. I don’t think he had any
8 See Ex. D-10 and Trial Tr., ECF 118 at 56:1-66:19 for Dr. Mikuriya’s extensive medical background and
experience. In particular, Dr. Mikuriya held certifications in both internal and emergency medicine for
approximately twenty years, has been an emergency room physician for approximately thirty years, and over the
course of her career, she went from serving as an emergency room physician to becoming the head of the
Emergency Department at Chester County Hospital. Trial Tr., ECF 118 at 59:1-12, 59:22-60:3, 60:20-61:1. At the
time Dr. Mikuriya encountered the Debtor on September 10, 1998, she had been working in Chester County
Hospital’s Emergency Department for approximately twenty years and was the co-chairman of the Emergency
Department. Id. at 61:9-13, 63:2-3. Dr. Mikuriya testified that “psychiatric etiology” is a consideration in the
evaluation of nearly every patient who presents in the Emergency Department for purposes of determining a
diagnosis. Id. at 63:18-64:11. Accordingly, the Court, without hesitation, finds that Dr. Mikuriya’s extensive
experience as an emergency room physician frequently requiring her to consider psychiatric etiology in diagnosing
her patients more than qualifies her as an expert in this matter. See e.g., Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir.
1998) (noting that the basis of an expert witness’s specialized knowledge “can be practical experience as well as
academic training and credentials.”).
control over what he was doing.” Id. at 94:24-95:10. After the trial, post-trial briefing was
completed by the parties on April 22, 2022. Adv. ECF 117, 118, 119, 129, 130.
III. DISCUSSION
Ms. Lombardi asserts that the Civil Judgment is nondischargeable because it constitutes a
debt for a willful and malicious injury within the meaning of Section 523(a)(6). Compl., ECF 1
at 5 ¶ 23. The Debtor claims that he was clearly acting under the inducement of acute psychosis
at the time of the Attack, and, under those circumstances, he lacked the requisite capacity to act
willfully or maliciously when he attacked Ms. Lombardi. See Trial Tr., ECF 118 at 84:18-19,
91:6-7, 93:18-21; Ex. D-12 at 3; Ex. D-18 at 3-5.
For the reasons discussed below, the Court concludes that, because the Debtor was
experiencing acute psychosis at the time of the Attack, he was unable to form the requisite intent
to act willfully when inflicting Ms. Lombardi’s injuries. As such, the Court concludes that the
Civil Judgment does not constitute a debt for a willful and malicious injury under § 523(a)(6)
and is therefore dischargeable.
A. 11 U.S.C. § 523(a)(6).
Section 523(a)(6) of the Bankruptcy Code provides that a debt “for willful and malicious
injury by the debtor to another” is excepted from discharge. 11 U.S.C. § 523(a)(6). The
overriding purpose of the Bankruptcy Code is to provide relief to debtors in the form of a fresh
start from the weight of oppressive indebtedness and, as a result, “exceptions to discharge are
strictly construed against creditors and liberally construed in favor of debtors.” Viener v. Jacobs
(In re Jacobs), 381 B.R. 128, 136 (Bankr. E.D. Pa. 2008) (citing In re Cohn, 54 F.3d 1108, 1113
(3d Cir. 1995)). Therefore, “the creditor bears the burden of demonstrating nondischargeability
by a preponderance of the evidence.” Id. (citing Grogan v. Garner, 498 U.S. 279, 291, 111 S. Ct.
654, 112 L. Ed. 2d 755 (1991)).
Courts in this circuit have generally examined “willfulness” and “malice” as distinct
elements. Webb v. Webb (In re Webb), 525 B.R. 226, 232 (Bankr. M.D. Pa. 2015) (citing CB
Research & Dev. Inc. v. Kates (In re Kates), 485 B.R. 86, 100 (Bankr. E.D. Pa. 2012)); Estate of
DiSabato v. DiGiovanni (In re DiGiovanni), 446 B.R. 709, 716 (Bankr. E.D. Pa. 2011). A willful
injury is “a deliberate or intentional injury, not merely a deliberate or intentional act that leads to
an injury.” Watkins v. Fleisch (In re Fleisch), 543 B.R. 166, 170 (Bankr. M.D. Pa. 2015)
(quoting Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S. Ct. 974, 140 L. Ed. 2d 90 (1998)). This
interpretation eliminates from Section 523(a)(6) “reckless” or “negligent” conduct and adopts
principles of tort law to strictly limit the discharge exemptions under Section 523(a)(6) to only
those debts which arise from injuries that resulted from a debtor who “intend[ed] ‘the
consequences of an act,’ not simply ‘the act itself.’”9 Geiger, 523 U.S. at 61-2, 64. “Actions
taken for the specific purpose of causing an injury as well as actions that have a substantial
certainty of producing injury are ‘willful’ within the meaning of § 523(a)(6).” In re Kates, 485
B.R. at 100. Therefore, “under § 523(a)(6), for there to be a ‘willful’ injury, ‘the Bankruptcy
Code requires at least a deliberate action that is substantially certain to produce harm.’” GMAC
Inc. v. Coley (In re Coley), 433 B.R. 476, 497 (Bankr. E.D. Pa. 2010). Generally, a debtor must
9 Under 18 Pa.C.S.A. § 2702(a)(1), to which Debtor pled guilty, a person is guilty of aggravated assault if he, in
pertinent part, “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the value of human life.” Pursuant to the plain
language of the statute, the crime of aggravated assault can be satisfied by reckless conduct in Pennsylvania. The
Court appreciates that by virtue of the Guilty Plea, Debtor has certainly bound himself to the underlying facts
surrounding the Attack, which he does not appear to dispute in any event. See Domitrovich v. Monaca, No.
2:08cv1094, 2010 WL 3489137, at *5 (W.D. Pa. Sept. 1, 2010) (finding a party is collaterally estopped from
denying facts which formed the factual basis for the entry of a guilty plea.). But as a matter of law, the Court cannot
conclude that the Civil Judgment is nondischargeable based on the Guilty Plea alone given the Supreme Court’s
clear direction that injuries resulting from reckless conduct are not considered willful and malicious injuries,
particularly in the absence of any indication respecting whether Debtor pled guilty based upon the intentional,
knowing, or reckless standard.
be subjectively aware that his or her actions are substantially certain to cause injury or have been
willfully blind to the substantial certainty of harm from his or her actions. In re Malloy, 535 B.R.
81, 93 (Bankr. E.D. Pa. 2015); see S. Rep. No. 989, 95th Cong., 2d. Sess. 77–79 (1978) (defining
“willful” as “deliberate or intentional”).
A malicious injury consists of a wrongful act done without just cause or excuse, even in
the absence of personal hatred, spite, or ill-will. In re Coley, 433 B.R. at 498 (citing James
William Moore (ed.), 1A Collier on Bankruptcy ¶ 17.17, at 1650.4 (14th ed. 1978)). For a debtor
to have acted with malice for purposes of Section 523(a)(6), the debtor’s “conduct must [have
been]…‘more culpable’ or involve ‘aggravated circumstances’ to rise to the level of malice[,]”
required for Section 523(a)(6). In re Jacobs, 381 B.R. at 139.
B. The Debtor’s Attack on Ms. Lombardi Was Malicious, But Not Willful.
Based upon the evidence of record, the injury Debtor inflicted on Ms. Lombardi is
clearly malicious for purposes of Section 523(a)(6).10 The Debtor viciously beat Ms. Lombardi
with his fists and continued beating her even after she lay unconscious and defenseless. No cause
or excuse exists under these circumstances that could possibly justify the violence inflicted upon
Ms. Lombardi.
10 A civil judgment for injuries sustained from an assault is only dispositive if based upon findings that are
consistent with the definitions of willful and malicious found in Section 523(a)(6). E.g., Smith v. Pitner (In re
Pitner), 696 F.2d 447, 448-49 (6th Cir. 1982) (jury verdict finding that debtor deliberately shot and killed plaintiff’s
husband with intent to injure or kill, and not in self-defense, satisfied elements of “willful and malicious” under
Section 523(a)(6)); Milutin v. Cappozzolli (In re Cappozzolli), Nos. 03-42286 (MBK), 03-2981 (MBK), 2007 Bankr.
LEXIS 1441, at *10-12 (Bankr. D.N.J. Apr. 16, 2007) (plaintiff’s default judgment against debtor, based upon the
same conduct for which debtor had been convicted of simple assault, was determined to be nondischargeable under
523(a)(6) where the debtor intentionally hit plaintiff with a beer bottle and offered no defense or excuse to the
bankruptcy court). Here, the Civil Judgment simply states that “[j]udgment is hereby entered in favor of Plaintiff,
Sabrina Lombardi and against Defendant, Michael P Picard, in the amount of $250,000 with respect to Plaintiff’s
claim for pain and suffering” with no findings attached, and no explanation regarding the legal or factual basis for
Debtor’s liability. Trial Ex. P-1. The Court cannot possibly find the Civil Judgment has any preclusive effect
whatsoever given the absence of any information respecting the basis for the entry of the Civil Judgment.
However, the Court cannot conclude that the injury inflicted upon Ms. Lombardi was
willful for purposes of Section 523(a)(6). Dr. Mikuriya testified clearly and consistently based
upon her medical background and experience, her observation and treatment of Debtor,
information she had gathered about the Attack, and Debtor’s history, that Debtor’s conduct on
that terrible night was the product of acute psychosis and that he was simply not in control of his
actions. In fact, it was apparent that his paranoia, obsession with the devil, and aggressiveness
extended to basically everyone he encountered the night of the Attack. The Debtor was
experiencing a break from reality, which tragically resulted in him severely harming two
unsuspecting friends. Under the specific circumstances of this case, and in consideration of all
the information of record, the Court holds that the Debtor’s actions were not willful because he
lacked the requisite intent given his psychotic break from reality, and therefore the Civil
Judgment will be deemed dischargeable.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the Debtor was not of sound mind at
the time of the Attack and therefore lacked the requisite intent required under § 523(a)(6).
Accordingly, the Civil Judgment is dischargeable.
__________________________________
Honorable Ashely M. Chan
United States Bankruptcy Judge
Date: June 10, 2022