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JOHN A. MOYER v. C. E. PHILLIPS (07/07/75)


decided: July 7, 1975.



Andrew K. Parker, Sunbury, for appellant.

Leonard R. Apfelbaum, Sunbury, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Manderino, J., filed a concurring opinion. Roberts, J., filed a concurring opinion in which Nix, J., joined. Pomeroy, J., did not participate in the consideration or decision of this case.

Author: Jones

[ 462 Pa. Page 397]


Appellant alleges a cause of action in libel. After suit was filed but before trial, the defendant, Dr. Phillips, died. The trial court entered an order dismissing any further proceedings on the basis that the cause of action died with the defendant. The Superior Court affirmed per curiam. We granted allocatur in order to consider the constitutional issues raised.*fn1

The complaint alleges that Mr. Moyer, a tractor-trailer driver for over thirty-five years, went to Dr. Phillips for a physical examination as required by ICC regulations. As a consequence of the examination, Dr. Phillips wrote to Mr. Moyer's employer, Hall's Motor Transit Company, that he considered Mr. Moyer a chronic alcoholic; and that although Mr. Moyer could return to work, he ought not be allowed to drive a truck. Mr. Moyer had been employed with Hall's for about seven years during which he attained a perfect driving record. He alleges that as a result of Dr. Phillips' continuing libel, he has suffered and continues to suffer damage in the nature of deprivation of his professional status, employment, company and union benefits, retirement, health, welfare and life insurance benefits and good name.*fn2

The trial court dismissed appellant's cause of action pursuant to Section 3371 of the Probate, Estates, and Fiduciaries Act of 1972, No. 164, as amended, 20 P.S. § 3371, which provides:

"All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the

[ 462 Pa. Page 398]

    death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants."

Appellant argues that the exception of libel from this section today is an arbitrary denial of equal protection and a denial of his access to the courts for injury suffered.*fn3 We agree.

Sir Frederick Pollock in his work on Torts (12th Edition) pp. 60-62, discussed the effect of the death of a party on common law liability, calling it one of the "least rational parts" of our law. The rule's origin is obscure and post-classical. At one time the rule may have been justified by the vindicative and quasi-criminal character of suits for civil injuries since a process which is felt to be a substitute for private war may seem incapable of being continued on behalf of or against a dead man's estate, an impersonal abstraction. But "once the notion of vengeance has been put aside and that of compensation substituted, the rule actio personalis moritur cum persona seems to be without plausible ground." Id. at 62. Prosser similarly states:

"The best conjecture on the subject is that it was a result of the development of the tort remedy as an adjunct and incident to criminal punishment in the old appeal of felony and the act of trespass which succeeded it. Since the defendant could not be punished when he was dead, it was natural to regard his demise as terminating the criminal action, and tort liability with it. If it was the plaintiff who died, the early cases usually were those of homicide, for which the Crown executed the defendant and confiscated all his property,

[ 462 Pa. Page 399]

    so that nothing was left for tort compensation; and if not homicide, it was still to be expected that lesser crimes should be redressed by the Crown rather than successors of the deceased."

Prosser, Law of Torts (4th Edition, 1971), at 898.

In the early nineteenth century survival statutes were enacted, along with wrongful death acts, to modify what was considered the harsh and unjust rule of common law. The history of their development in Pennsylvania is one of gradual expansion by the legislature limited by some narrow interpretation by the courts. See Miller v. Wilson, 24 Pa. 114 (1854); Maher v. Philadelphia Traction Co., 181 Pa. 391, 37 A. 571 (1897); Boyd v. Snyder, 207 Pa. 330, 56 A. 924 (1904); Sunanday v. McKentley, 244 Pa. 533, 90 A. 799 (1914), and compare with Rodebaugh v. Philadelphia Traction Co., 190 Pa. 358, 42 A. 953 (1899). In Sunanday and Boyd the Court read the survival statute as having no application to suits involving less tangible interests in personalty such as malicious prosecution and criminal conversation. As a result, the legislature restated the survival provisions in the Act of 1917*fn4 so as to clearly state that all causes of action except libel and slander survived the death of either party. Presumably, libel and slander were excepted because at the time, they were still considered as adjunct and incident to criminal punishment.*fn5 The criminal libel statute has since been repealed by the Act of December 6, 1972, P.L. 1482, No. 334, § 5, 18 C.P.S.A.

All causes of action survive the death of either party today except those alleging injury to reputation.

[ 462 Pa. Page 400]

    object of the legislation so that all persons similarly circumstanced shall be treated alike.

The survival statute divides injured parties into two classes. The first class is composed of all parties who suffer legal injuries other than those to reputation. The second class is composed of those persons who suffer legal injury to reputation. The survival statute assures that all members of the first class will not have an accrued cause of action extinguished by the death of a party, while for the second class, extinguishment in similar circumstances is mandated.

The purpose of the survival statute is remedial and the statute is broadly drawn. Centovani v. Penna. R. R., 244 Pa. 255, 263, 90 A. 558, 561 (1914). Cf. Johnson v. People's First Nat. Bk. and Tr. Co., 394 Pa. 116, 124, 145 A.2d 716, 719-720 (1958). The broadness of the statute comprehends the modern theory of torts which is generally compensatory in nature. See Pollock, supra ; 1 Sedgwick, Damages (9th Edition, 1912), §§ 29, 30. Another purpose of the statute is compensation of the victim's creditors. Burns v. Goldberg, 210 F.2d 646, 650 (3d Cir. 1954).

The Second Restatement (Tentative Draft No. 21, 1975) states that the tort law of libel and slander serves three separate functions: compensation of the plaintiff for the injury to reputation, for pecuniary loss and for emotional distress; vindication and restoration of his reputation; and punishment of defendant in order to dissuade him and others from publishing defamatory statements. We have stated that vindication and restoration of the victim's reputation is the most important function of the cause of action. Gaetano v. Sharon Herald Co., 426 Pa. 179, 183, 231 A.2d 753, 755 (1967).

Today a defamation action as any other tort action is punitive only in the sense that it serves the social objective of regulating the conduct of defendant while alive

[ 462 Pa. Page 402]

    and the conduct of others. Its purpose above all is compensation for and restoration of the victim's good name. It can no longer be said that the tort of libel or slander is adjunct to the crime of libel, the legislature having repealed the criminal libel law subsequent to the re-enactment of the 1972 Probate Code. Furthermore, it has been determined that exemplary damages, which are clearly punitive, are consistent with the policies of the statute and do survive. Hennigan v. Atlantic Refining Co., D.C., 282 F.Supp. 667, 683, aff'd, 400 F.2d 857 (3d Cir. 1967), cert. den., 395 U.S. 904, 89 S.Ct. 1739, 23 L.Ed.2d 216 (1969).

The preclusion of the victim's estate or, as in the instant case, the victim himself from ever vindicating and restoring his good name does not further the statute's remedial purpose nor does it serve the essential compensatory purpose of the statute where the plaintiff suffered and continues to suffer substantial and real damages.*fn7 As for allowing a tortfeasor's estate to escape liability for tortious conduct, it not only deprives the plaintiff of compensation but also his creditors who must bear the burden of the deceased tortfeasor's acts. For example, the plaintiff here has been placed on state welfare by his loss of employment and has been placed in arrears with his creditors.

[ 462 Pa. Page 403]

In a word, as the court of a sister state recently has said, any distinction, for purposes of survival, which differentiates libel and slander from other actions is arbitrary.*fn8 No function of the survival statute or of the law of defamation is served by the statute's exception.*fn9 Diligent search reveals no other policy or purpose in any way furthered by the exception. While the classification may have borne at least some relation to a legislative

[ 462 Pa. Page 404]

    purpose in earlier times, any such rationale no longer exists to validate the rule. Cf. Niederman v. Brodsky, 436 Pa. 401, 413, 261 A.2d 84, 89-90 (1970). As it exists today, the exception is arbitrary and bears no relationship to the objective of the statute. Accordingly, it cannot stand.*fn10

Order vacated and case remanded for further proceedings consistent with this opinion.

MANDERINO, Justice (concurring).

I concur in the opinion and decision of the Court.

I would like to add, however, that the Court should explicitly overrule Menefee v. Columbia Broadcasting System, Inc., 458 Pa. 46, 329 A.2d 216 (1974) (see concurring opinion by Mr. Justice Manderino). In Menefee the plaintiff died. In this case, the defendant died. As the majority indicates, whether the plaintiff or the defendant dies following the act of libel or slander makes no difference, the cause of action continues.

ROBERTS, Justice (concurring).

I agree that section 3371 of the Probate Estates, and Fiduciaries Code*fn1 is unconstitutional insofar as it provides

[ 462 Pa. Page 405]

    that causes of action for slander or libel do not survive the death of the defendant.*fn2 However, I find it necessary to address more fully than does the majority certain considerations which might be thought to support the validity of the statute.

The question presented in this case is whether section 3371 denies equal protection of the laws to plaintiffs in defamation actions by abating their causes of action upon the death of the defendant while allowing all other causes of action to survive the death of the defendant. The standard which must be applied to determine this question is well known:

"'[T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1885); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920).'"

[ 462 Pa. Page 406]

    against a deceased defendant justified singling out that cause of action to abate with the death of the defendant. Since the classification thus bore a "fair and substantial relationship" to a proper legislative objective, I conclude that it did not deny equal protection to plaintiffs in defamation actions so long as the special circumstances justifying the classification continued.

However, a substantial change in the law of defamation was wrought by the decision of the United States Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).*fn3 That case held that, as a matter of constitutional law, liability for defamation may not be imposed without some showing of fault, amounting at least to negligence, on the part of the defendant. Id. at 345, 94 S.Ct. at 3010; see Restatement (Second) of Torts §§ 580A, 580B (Tent. Draft No. 21, 1975). This change drastically shifts the burden of proof in defamation actions and thereby reduces the unusually heavy burden heretofore placed on defendants in such actions. In proving the necessary element of fault to make out his cause of action, the plaintiff will necessarily have to prove facts that would ordinarily negate the existence of a conditional privilege. Id. Topic 3, Special note, at 46-47.*fn4 Similarly, as a practical matter,

[ 462 Pa. Page 408]

    the plaintiff will find it necessary to prove the falsity of the statement in order to establish the necessary element of fault; to this extent, the defendant is relieved of the burden of proving truth as a defense. Id. § 582, comment b., & § 580B, comment i.

In my judgment, this radical reallocation of the burden of proof in defamation actions has sufficiently removed the special burdens of defending such an action brought against a deceased defendant as to negate the prior justification for the challenged provision of section 3371. Consequently, I conclude that there is no longer any rational basis for singling out defamation as the only cause of action which abates on the death of the defendant. Therefore, to the extent that section 3371 does this, it is a special law prohibited by article III, section 32 of the Pennsylvania Constitution*fn5 and denies to plaintiffs in defamation actions the equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution.

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