# Moyer v. PHILLIPS, MD

> Supreme Court of Pennsylvania · July 7, 1975 · 462 Pa. 395

URL: https://www.frixlaw.com/law-library/cases/9651467

## Case

- **Full name:** John A. MOYER, Appellant, v. C. E. PHILLIPS, M.D.
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 7, 1975
- **Citations:** 462 Pa. 395; 341 A.2d 441; 77 A.L.R. 3d 1339; 1975 Pa. LEXIS 895
- **Precedential status:** Published
- **Opinion:** Concurrence by Roberts
- **Judges:** Jones, Eagen, O'Brien, Roberts, Nix, Manderino, Pomeroy
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9651467

## Opinion text

ROBERTS, Justice
(concurring).
I agree that section 3371 of the Probate Estates, and Fiduciaries Code 1 is unconstitutional insofar as it pro *405 vides that causes of action for slander or libel do not survive the death of the defendant. 2 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).’ ”
*406 Eisenstadt v. Baird, 405 U.S. 438, 446-447 , 92 S.Ct. 1029, 1035 , 31 L.Ed.2d 349 (1972), quoting Reed v. Reed, 404 U.S. 71, 75-76 , 92 S.Ct. 251, 253 , 30 L.Ed.2d 225 (1971); Baltimore & O. R. R. v. Commonwealth Department of Labor and Industry, 461 Pa. 68, 82-83 , 334 A.2d 636, 643 (1975); Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 9 , 331 A.2d 198, 201-02 (1975).
At common law, the defendant in a defamation action might be faced with a substantial burden of proof.
“In an action for defamation, the plaintiff’s prima facie case is made out when he has established a publication to a third person for which the defendant is responsible, the recipient’s understanding of the defamatory meaning, and its actionable character. It is then open to the defendant to set up various defenses, which to some extent have moderated the rigors of the law of libel and slander. Two of these — privilege and truth — are complete defenses, avoiding all liability when they are established.”
W. Prosser, Law of Torts § 114, at 776 (1971) (footnote omitted); see id. § 116, at 798. To establish a qualified privilege, the defendant would be required to show his own good faith or lack of “malice.” Id. § 115, at 794-95.
Under this scheme, the focus of litigation in a defamation suit was normally on the issues where the burden of proof rested with the defendant: truth and privilege. Especially as to the latter, where proof of the defendant’s state of mind would frequently be crucial, the testimony of the defendant would be peculiarly necessary. This unique combination of a heavy burden of proof on the defendant with a peculiar need for the testimony of the defendant would render it much more difficult for a decedent’s estate to defend a defamation action than to defend most other actions. Consequently, the General Assembly, when balancing the equities of allowing or not allowing survival, could reasonably determine that the unusually heavy burden of defending a defamation action *407 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). 3 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. 4 Similarly, as a practical matter, *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 5 and denies to plaintiffs in defamation actions the equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution.
NIX, J., joins in this concurring opinion.
. 20 Pa.C.S. § 3371 (1975). This section 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.”
. This case does not present any question regarding the constitutionality of that portion of section 3371 which provides that an action for slander or libel does not survive the death of the plaintiff. That question would depend upon substantially different considerations and I express no views as to its answer. To the extent that the majority opinion may do so, it is, of course, mere dictum.
. That decision was rendered after the decisions of both the court of common pleas and the Superior Court in this case. While those decisions appear to me to have been correct when rendered, an appellate court must normally apply the law in effect at the time that it renders its decision. E. g., Bradley v. School Board, 416 U.S. 696, 711-21 , 94 S.Ct. 2006, 2016-21 , 40 L.Ed.2d 476 (1974); Thorpe v. Housing Authority, 393 U.S. 268, 282 , 89 S.Ct. 518, 526 , 21 L.Ed.2d 474 (1969); United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 , 2 L.Ed. 49 (1801) (Marshall, C. J.).
. The pertinent portion of the note reads as follows:
“It is apparent that there is an innate conflict between the constitutional fault (negligence or worse as to truth or falsity) required by § 580B, and the lack of reasonable grounds for belief in truth (the equivalent of negligence as to truth or falsity) which was a basis of abuse of privilege under § 601 as the First Restatement. If the plaintiff proves the required constitutional negligence (or greater fault) in order to have a cause of action at all, he has by that very action proved that any possi *408 ble conditional privilege was abused. The result is that all of the conditional privileges (§§ 593-598A) completely lose their significance, and the sections on abuse of conditional privilege (§§ 599-605A) are also no longer relevant.”
. The requirements of article III, section 32 and the Equal Protection Clause are substantially the same. Baltimore & O. R. R. v. Commonwealth Dept. of Labor and Industry, 461 Pa. 68 , 334 A.2d 636 , 643 (1975); Bargain City U.S.A. v. Dilworth, 407 Pa. 129, 131-33 , 179 A.2d 439, 441-42 (1962).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9651467. Public record. Not legal advice.