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.
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
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 ...