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decided: December 14, 1984.


No. 18 E.D. Appeal Dkt. 1983, Appeal from the Order of the Court of Common Pleas of Chester County dated February 15, 1983, entered at No. 36 May Term, 1976.


William H. Lamb, Edwin P. Rome, Ronald H. Surkin, Philadelphia, for appellants.

David H. Marion, Richard L. Cantor, West Chester, for appellees.

Nix, C.j., and Flaherty, Hutchinson, Zappala and Papadakos, JJ. Larsen and McDermott, JJ., did not participate in the consideration and decision of this case.

Author: Nix

[ 506 Pa. Page 308]


The instant civil libel action resulted from a series of five "investigative" articles appearing in The Philadelphia Inquirer which purported to link Maurice S. Hepps, General Programming, Inc. and a number of independent corporate entities who operated beer and beverage distributorships as franchises of General Programming, Inc. to certain named "underworld" figures and to organized crime generally.

[ 506 Pa. Page 309]

Maurice Hepps, the individual plaintiff-appellant was the principle stockholder of the corporate plaintiff-appellant, General Programming, Inc. ("General"). General owns the trademarks "Thrifty Beverage" and "Brewer's Outlet," and licenses such marks and provides management and consultation services to licensees. The remaining corporate and individual plaintiff-appellants, approximately nineteen in number, are licensees of General. As a result of these articles, the plaintiff-appellants instituted a civil action in libel against Philadelphia Newspapers, Inc., the publisher of the newspaper in question, and William Ecenbarger and William Lambert, the reporters who prepared the series of articles.

After a six-week trial, the jury returned a general verdict in favor of defendant-appellees. Plaintiff-appellants based their challenge to the judgment rendered below upon the trial court's decision to instruct the jury that the plaintiff bears the burden of proving the falsity of the defamatory publication. This instruction was given after the trial court had ruled that 42 Pa.C.S. § 8343(b)(1) was unconstitutional in that it requires the defendant in a civil libel suit to establish the truth of the defamatory publication by way of an absolute defense to the action. Plaintiff-appellants also appeal the trial court's dismissal of their claim for punitive damages. This direct appeal seeking the award of a new trial is entertained by this Court pursuant to 42 Pa.C.S. § 722(7).


It has long been the decisional law of this Commonwealth that truth is a complete defense to a civil action for libel, and that the burden of proving truth rests upon the defendant. Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952); Kilian v. Doubleday & Co., Inc., 367 Pa. 117, 79 A.2d 657 (1951); Montgomery v. Dennison, 363 Pa. 255, 69 A.2d 520 (1949); Mulderig v. Wilkes Barre Times, 215 Pa. 470, 64 A. 636 (1906); Burkhart v. North American Co., 214 Pa. 39, 63 A. 410 (1906); Bryant v. Pittsburgh Times, 192 Pa. 585,

[ 506 Pa. Page 31044]

A. 251 (1899); Wood v. Boyle, 177 Pa. 620, 35 A. 853 (1896); Collins v. Dispatch Pub. Co., 152 Pa. 187, 25 A. 546 (1893); Conroy v. Pittsburgh Times, 139 Pa. 334, 21 A. 154 (1891); McLenahan v. Andrews, 135 Pa. 383, 19 A. 1039 (1890); Press Co. v. Stewart, 119 Pa. 584, 14 A. 51 (1888); Rowand v. DeCamp, 96 Pa. 493 (1880); Barr v. Moore, 87 Pa. 385 (1878); Burford v. Wible, 32 Pa. 95 (1858); Chapman v. Calder, 14 Pa. 365 (1850); Steinman v. McWilliams, 6 Pa. 170 (1847). In 1953, this common law principle was codified in the Act of August 21, 1953, P.L. 1291, No. 363, § 1(2)(a), 12 P.S. § 1584a(b)(1) (Repealed 1978), which provided:

In an action for defamation, the defendant has the burden of proving, when the issue is properly raised;

The truth of the defamatory communication.

The provision was reenacted in the Judicial Code on July 9, 1976, effective June 27, 1978, 42 Pa.C.S. § 8343(b)(1):

Burden of defendant. -- In an action for defamation, the defendant has the burden of proving, when the issue is properly raised:

The truth of the defamatory communication.

Thus the section now being challenged is the codification of the decisional law as it has developed over the last century in this Commonwealth on this subject. We are now called upon to determine whether section 8343(b)(1), which places upon the defendant in a libel suit the burden of proving the truth of defamatory statements, is constitutionally infirm in view of the relatively recent interpretations of the First Amendment of the United States Constitution as expressed by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny. See, e.g., Bose Corp. v. Consumers Union of U.S., Inc., U.S. , 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); Wolston v. Reader's Digest Ass'n., Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); Herbert v. Lando, 441 U.S. 153,

[ 506 Pa. Page 31199]

S.Ct. 1635, 60 L.Ed.2d 115 (1979); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed. 45 (1971); Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971); Greenbelt Cooperative Publishing Ass'n. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).


Before examining the United States Supreme Court decisions relating to the impact of the First Amendment upon this area of the law, it is instructive to briefly review the Pennsylvania law of libel as it has developed over the years. The underlying premise concerning the character of the defamed individual is the principle that any man accused of wrong-doing is presumed innocent until proven guilty. The decisions reasoned this principle trancended the criminal law and was equally applicable to the ordinary affairs of life. Corabi v. Curtis Publishing Co., 441 Pa. 432, 448-49, 273 A.2d 899, 907 (1971); Montgomery v. Dennison, supra, 363 Pa. at 263 n. 2, 69 A.2d at 525 n. 2. Based upon this premise we developed the rule that in actions for defamation, the general character or reputation of the plaintiff is presumed to be good. Corabi, supra, 441 Pa. at 449, 273 A.2d at 908; Klumph v. Dunn, 66 Pa. 141, 147 (1870); Hartranft v. Hesser, 34 Pa. 117, 119 (1859); Chubb v. Gsell, 34 Pa. 114, 116 (1859). Since the gravamen of defamation is that the words uttered or written tend to harm the reputation, a consequence of the rule presuming the good reputation of the plaintiff was a presumption of the falsity of the

[ 506 Pa. Page 312]

    defamatory words. Corabi, supra; Hartranft v. Hesser, supra.

Evidentiary considerations have also been offered to justify the presumption. As noted by this Court in Corabi:

Moreover, it is manifestly the fair thing to place upon the defendant the burden of proving truth: Montgomery v. Dennison, supra [363 Pa.] n. 2 at 263 [69 A.2d 520]; 9 Wigmore, Evidence § 2486, at 276 (3d ed. 1940). Although not invariably so, it is preferable to place the burden of proof upon the party having in form the affirmative allegation and/or upon the party who presumably has peculiar means of knowledge of the particular fact in issue: See Wigmore, Evidence § 2486, supra. For example, in the context of libel, if the written communication accuses plaintiff of being a murderess, a burglar or a prostitute, the defendant knows precisely what particular event he is referring to and the source of his information, whereas the plaintiff, not knowing these facts, would experience great difficulty in refuting these general charges by showing their falsity.

Id. 441 Pa. at 450-451, 273 A.2d at 908-09 (footnotes omitted).

Particularly, where the accusation is totally general and without the specificity necessary for a response, the absence of such a presumption would force the plaintiff in the unenviable position of proving the negative. Corabi, supra, 441 Pa. at 450, 273 A.2d at 907; Conroy v. Pittsburgh Times, supra, 139 Pa. at 339, 21 A. at 156.*fn1

[ 506 Pa. Page 313]

Although falsity of the defamatory words is presumed, proof of the truth of the words by the defendant is a complete and absolute defense to a civil action for libel. Pierce v. Cities Communications, Inc., 576 F.2d 495, 507 (3d Cir.) cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 170 (1978); Lowenschuss v. West Publishing Co., 542 F.2d 180, 184 (3d Cir. 1976); Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa.1976); Fram v. Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314 (W.D.Pa.1974); Corabi, supra, 441 Pa. at 449, 273 A.2d at 907; Schonek v. WJAC, Inc., 436 Pa. 78, 84, 258 A.2d 504, 507 (1969); Schnabel v. Meredith, 378 Pa. 609, 612, 107 A.2d 860, 862 (1954); Montgomery v. Dennison, supra, 363 Pa. at 264, 69 A.2d at 525; Hartranft v. Hesser, supra at 119; Dunlap v. Philadelphia Newspapers, Inc., 301 Pa. Super. 475, 485-86, 448 A.2d 6, 11 (1982); Badami v. Dimson, 226 Pa. Super. 75, 77, 310 A.2d 298, 300 (1973); Restatement (Second) of Torts § 581A, comment b, at 235-36 (1976). Under our law, since truth is an absolute ...

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