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CLARK v. ALLEN. (10/26/64)

October 26, 1964


Appeal, No. 228, Jan. T., 1964, from order of Court of Common Pleas of Northumberland County, Dec. T., 1962, No. 432, in case of Joseph S. Clark v. Robert E. Allen, M.D., also known as Robert V. Allen, M.D., and Henry W. Lark. Order affirmed.


Franklin L. Kury, for appellant.

Sanford S. Marateck, for appellee.

Preston L. Davis, with him Preston B. Davis, for appellee.

Before Bell, C.j., Jones, Cohen, Eagen and O'brien, JJ.

Author: Bell

[ 415 Pa. Page 486]


Joseph S. Clark brought an action of libel against Robert E. Allen, M.D. a/k/a Robert V. Allen, M.D. and Henry W. Lark, for the alleged libelous statements contained in a letter written and circulated by them opposing his candidacy for re-election to the United States Senate. Preliminary objections in the nature of a demurrer to plaintiff's amended complaint were sustained by the lower Court and from the Order dismissing the complaint, plaintiff took this appeal.

The alleged libel is contained in the following language of said letter, which appellant averred was circulated maliciously by appellees: "We are shocked at Joe Clark's record on Senate absenteeism and his A.D.A. approved voting record with its communist tendencies."

Preliminary objections (or pleadings) in the nature of a demurrer admit as true all facts which are well and clearly pleaded, but not the pleader's conclusions or averments of law: Stahl v. First Pennsylvania Banking and Trust Company, 411 Pa. 121, 191 A.2d 386; Universal Film Exchanges, Inc. v. Board of Finance and Revenue, 409 Pa. 180, 185 A.2d 542; Philadelphia Minit-Man Car Wash Corp. v. Building and Construction Trades Council of Phila. and Vicinity, 411 Pa. 585, 192 A.2d 378.

The First Amendment to the Constitution of the United States provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press: ..."

[ 415 Pa. Page 487]

Article I, § 7, of the Constitution of Pennsylvania provides: "Section 7. The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty ...."

Libel was thus defined in Bogash v. Elkins, 405 Pa. 437, 440, 176 A.2d 677: "... A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures, which tends to blacken a person's reputation and expose him to public hatred, contempt or ridicule, or injure him in his business, trade or profession: Sarkees v. Warner-West Corp., 349 Pa. 365, 37 A.2d 544; Collins v. Dispatch Publishing Co., 152 Pa. 187, 25 A. 546; Schnable v. Meredith, 378 Pa. 609, 107 A.2d 860; Mengel v. Reading Eagle Co., 241 Pa. 367, 88 A. 660.

"The question of whether the language used in the allegedly defamatory article can fairly and reasonably be construed to have the libelous meaning ascribed to it by plaintiff is in the first instance a matter of law for the Court: Mengel v. Reading Eagle Co., 241 Pa., supra; McDonald v. Lee, 246 Pa. 253, 92 A. 135; Sarkees v. Warner-West Corp., 349 Pa., supra; Naulty v. Bulletin Co., 206 Pa. 128, 55 A. 862.

"'It was the duty of the court to determine whether or not the words used were libelous per se. If they were not then in the absence of averment of special damage, binding instructions were proper:' McDonald v. Lee, 246 Pa., supra (page 255)."

See also to the same effect: Volomino v. Messenger Publishing Co., 410 Pa. 611, 189 A.2d 873; Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751.

[ 415 Pa. Page 488]

In Volomino v. Messenger Publishing Co., 410 Pa., supra, the Court said (pages 613-614): "In a defamation case, it is the function of the court, in the first instance, to determine whether or not the communication complained of is capable of a defamatory meaning: Restatement, Torts, § 614 (1); Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962); Cosgrove S. & C. Shop v. Pane, supra."

Notwithstanding the fact that the law of libel has been well settled for a long period of time, the Supreme Court of the United States has recently greatly broadened the concept and meaning of freedom (of the press and freedom) of speech and has greatly narrowed the meaning of libel when applied to a public official or a candidate for public office. See New York Times v. Sullivan, 376 U.S. 254, infra.

It is deplorable but true that during a political campaign, candidates and their supporters often indulge in gross exaggeration, invectives, distorted statements, charges of being unfit for the office sought, gross incompetence, disregard of the public interest or the welfare of our Country, prophecies of war or doom if the opponent is elected, mudslinging, half truths and outright lies which are so defamatory that they not only deeply wound the feelings of the person attacked, but undoubtedly damage his political aspirations and often (for a time) his reputation. Nevertheless, the Supreme Court has apparently taken the position that the free expression of thoughts and opinions, charges, accusations, criminations and recriminations regarding men in public life and ...

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