Comparison definition. Some courts have come to the conclusion that the 'per se/per quod' distinction is without validity in the modern law of libel, and should be abolished as a means of allocating the plaintiff's burden of proof in a libel case.
The import of 'per se' in a defamation case originally the term meant one thing when attached to slander, and something entirely different when attached to libel. In the courts these separate meanings and the separate rules they entailed gradually drifted toward, into, and among one another, until nowadays 'per se' is used so inconsistently and incoherently in the defamation context that any lawyer or judge about to use it should pause and replace it with the English words it is intended to stand for.
Recent attempts by the United States Court of Appeals for the Third Circuit to sort out the various meanings of 'per se' in Pennsylvania defamation law have gone virtually unnoticed in the state courts, and arguably contribute their own share of confusion. In Altoona Clay Products, Inc. v. Dun & Bradstreet, Inc., 367 F.2d 625 (3rd Cir. 1966), the court distinguished between 'actionable per se' and 'defamatory per se.' Whether a publication is 'actionable per se,' the court said, has to do with whether or not the plaintiff must prove special damages to recover for it, and this is 'without question a matter of state law.' Id. at 628. Not to be confused with this determination, the court said, is whether a particular publication is defamatory on its face ('defamatory per se,' 'libelous per se,' or 'slanderous per se'). This latter determination is strictly procedural and means only that an 'innuendo' must be or need not be pleaded. The authorities tell us that these pleading requirements are oft-times ridiculous and frequently result in injustice. McCormick, Damages § 113 at 417-419; Prosser, Torts § 92 at 79 et seq. (2d ed.). 367 F.2d at 629. The court reiterated the same analysis of 'per se' in Rannels v. S.E. Nichols, Inc., 591 F.2d 242 (3rd Cir. 1979), indicating that the Pennsylvania courts have done nothing in the intervening years to clarify Pennsylvania law.
The difficulty the courts have had with 'per se' springs directly from the historical distinction between libel and slander. Before going further, we should make that distinction. Libel may be defined conveniently as 'A method of defamation expressed by print, writing, pictures, or signs.' Black's Law Dictionary 824 (5th ed. 1979). Slander, broadly, is usually understood to mean oral defamation. Id. at 1244.
'Per se' first cropped up in defamation law in connection with slander. At early common law a person generally could not recover for slanderous utterances unless they caused him 'special harm,' meaning harm of a material and generally of a pecuniary nature . . . . result[ing] from conduct of a person other than the defamer or the one defamed which conduct is itself the result of the publication or repetition of the slander. Loss of reputation to the person defamed is not sufficient to make the defamer liable under the rule . . . unless it is reflected in material harm. Restatement of Torts § 575, Comment b (1938). The common law courts' insistence that a plaintiff in slander prove 'material harm' in turn 'goes back to the ancient conflict of jurisdiction between the royal and ecclesiastical courts, in which the former acquired jurisdiction over some kinds of defamation only because they could be found to have resulted in 'temporal' rather than 'spiritual' damage.' Restatement (Second) of Torts § 575, Comment b (1977).
Early exceptions to the requirement of proving special harm were carved for slanders imputing crime, loathsome disease, shortcomings affecting the plaintiff in his business, trade, profession, or calling, or (later) unchastity to a woman. Prosser, supra, § 112 at 754; 3 W. Blackstone, Commentaries 123-24. These 'per se' slanders were supposed to be so naturally injurious that the law allowed recovery of general or presumed damages for loss of reputation, even without proof of actual injury.
'Per se' and its counterpart 'per quod' were common law pleading devices used to indicate whether the plaintiff's cause of action depended on general or special damages. Francis Murnaghan, in From Figment to Fiction to Philosophy -- the Requirement of Proof of Damages in Libel Actions, 22 Cath.U.L.Rev. 1, 13 (1972), explains: In common law pleading, the right to recover general damages meant that the portion of the writ employed for institution of the suit devoted to specification of damage, and introduced by the words 'per quod,' became inapplicable whenever damages were presumed. To fill the void, and to signify that something had not been overlooked, the draftsmen in such cases would simply insert 'per se' where the allegations of damages, headed by the phrase 'per quod' otherwise would be expected.
These archaic pleading terms stuck so hardily to slander actions that today 'slander per quod' and 'slander per se' retain their original meanings as, respectively, slander actionable only on a showing of special harm to the plaintiff, and slander actionable even without special harm. See Murnaghan, supra. The substantive law of defamation continues to recognize the original four categories of slander 'actionable per se,' see Restatement (Second), supra, § 570, with all other slanders actionable only on a showing of special harm, see id., § 575. Accord, Solosko v. Paxton, 383 Pa. 419, 119 A.2d 230 (1955), aff'g 4 Pa.D. & C.2d 240 (C.P. Somerset Co. 1954).
The per se/per quod distinction in libel originated differently. It was used to distinguish libel defamatory on its face ('libel per se') from libel not defamatory on its face ('libel per quod'). 'Libel per quod' required a showing of facts and circumstances imparting a defamatory meaning to otherwise innocent or neutral words. Prosser's 'classic case' of libel per quod is Morrison v. Ritchie & Co.,  4 Fr. 645, 39 Scot.L.Rep. 432. Defendant's newspaper published a report that the plaintiff had given birth to twins. There were readers who knew she had been married only one month. Prosser, supra, at 763 n. 30. The plaintiff in libel per quod had to plead and prove the extrinsic facts (the 'inducement') imparting defamatory meaning, and the defamatory meaning (the 'innuendo') imparted. General Motors Corp. v. Piskor, 27 Md.App. 95, 117 n. 15, 340 A.2d 767, 782 n. 15 (1975), aff'd in part, rev'd in part, 277 Md. 165, 352 A.2d 810 (1976).
Originally, the per se/per quod distinction in slander, by which some slanders were actionable without proof of special damages while others were not, had no parallel application to libel. Any libel, whether libelous on its face or libelous only upon proof of extrinsic circumstances, was actionable with or without proof of special damages. The willingness of the law to presume damages for all libels as opposed to all slanders arose partly from the greater permanency, dissemination, and credence, and hence the greater harm, supposed naturally to attend defamations in printed or written form. See Collins v. Dispatch Publishing Co; Prosser, supra, at 751-52.
Inevitably, use of the identical per se/per quod terminology in two torts so similar in nature led to the distinct rules for libel and slander being blurred and melded together in the courts. The rule of slander per quod, requiring proof of special damages for any slander not coming under one of the four time-honored exceptions, came to be applied to 'libel per quod' (i.e., libel not defamatory on its face). Under this 'hybrid' rule of libel per quod, a libel not defamatory on its face was not actionable without proof of special harm. As a further twist to the hybrid scheme, a libelous imputation of crime, loathsome disease, unfitness for business or calling, or unchastity (the four imputations actionable without proof of special harm in slander) was held to be actionable without proof of special harm in libel, even if the libel were 'per quod' (proven libelous through extrinsic facts). See Dean Prosser's Libel Per Quod, 46 Va.L.Rev. 839 (1960).
Although Prosser believed the hybrid rule of libel per quod to be the majority rule in America, see Prosser, Torts, supra, at 762-63, the American Law Institute, in both the First and Second Restatements of Torts, consistently has adhered to the traditional rule that all libels are actionable 'per se,' irrespective of special harm. Restatement of Torts § 569; Restatement (Second) of Torts § 569. The Institute views Prosser's hybrid rule as the 'minority position.' See Restatement (Second) of Torts § 569, Comment b. Laurence Eldredge, for many years Court Reporter for the Pennsylvania Supreme Court, championed the ALI position and disputed Prosser's. See Eldredge, The Spurious Rule of Libel Per Quod, 79 Harv.L.Rev. 733 (1966). Eldredge listed Pennsylvania among those states holding that all libels, whether defamatory on their face or through extrinsic facts, were actionable without the need to prove special harm. Upon surveying Pennsylvania cases, we are unable either to confirm or disconfirm Eldredge's view. Instead, our survey demonstrates that Pennsylvania law on the subject remains fundamentally unsettled. We have also found that there are indeed cases to support the court en banc's position that 'libel per quod' is not actionable in Pennsylvania without special damages. However, searching analysis and contrary authority cast grave doubt on these cases' validity.
In 1938, the first Restatement of Torts adopted the position that all libels are actionable without proof of special harm. Id. § 569. Thereafter the Superior Court of Pennsylvania explicitly approved the Restatement position. McAndrew v. Scranton Republican Publishing Co., 165 Pa.Super. 276, 67 A.2d 730 (1949) (citing Boyer and Bausewine v. Norristown Herald, Inc., 351 Pa. 634, 41 A.2d 736 (1945), as in accord). McAndrew, however, was reversed on other grounds, 364 Pa. 504, 72 A.2d 780 (1950), and later decisions reintroduced the ambiguity that had previously existed in Pennsylvania law.
In Cosgrove Studio & Camera Shop, Inc. v. Pane, the Supreme Court stated that no averments nor proof of special damages were necessary where words were defamatory 'in themselves,' thus perhaps implying the converse, that special damages are necessary where the plaintiff relies on extrinsic facts to show defamatory meaning. Accord, Wilson v. Benjamin, 332 Pa.Super. 211, 481 A.2d 328 (1984) (dictum).
In Fegley v. Morthimer, 204 Pa.Super. 54, 56, 202 A.2d 125, 126 (1964), the Superior Court made the similar statement that libel per se 'is actionable without proof of special damages.' The Court also cited Cosgrove in connection with the proposition that imputations of conduct 'incompatible with . . . duties of . . . public office . . .' are 'actionable without proof of special harm or loss of reputation.' Id. However, although Fegley was a libel case, the Court clearly was stating the rule for slander, as its further citation to sections 570 and 573 of the Restatement shows.
Finally, in Baird v. Dun & Bradstreet, 446 Pa. 266, 274, 285 A.2d 166, 171 (1971), the Supreme Court stated that 'It is a general rule that defamatory words are not actionable, absent proof of special damage.' While of course this is correct to say of slanders, as applied to libels it completely reverses the traditional rule that all libel is actionable without proof of special damages. We believe the statement cannot be taken at face value, and must be read in the context of the authorities cited for it: Solosko v. Paxton, supra (stating the general rule and exceptions for actionability in slander); Restatement of Torts § 569, Comments d, f.
Publication of Volume 3 of the Restatement (Second) of Torts in 1977 sets the stage for a revised interpretation of the law of Pennsylvania in the light of current authority. In section 569 of the Second Restatement, the American Law Institute has substantially readopted the rule of the First Restatement that all libels are actionable without proof of special harm. For a number of reasons, we believe the rule of section 569 recommends itself to this Court for adoption.
First, to adopt section 569 is in line with Pennsylvania's general tendency to follow the Restatement rule in defamation law. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) (Opinion by Brennan, J.).
Secondly, there is no longer any sound reason to distinguish for purposes of actionability between libels which are 'defamatory on their face' and libels which are defamatory through extrinsic facts and circumstances. See Restatement (Second), supra, § 569, Comment b; id. § 580B. Gertz v. Robert Welch has already placed strict constitutional limits on the ability of state defamation law to award money damages in the absence of provable harm to the plaintiff or his reputation. In Rutt v. Bethlehem's Globe Publishing Co., supra , this Court, following Gertz, held that a plaintiff must establish at least negligent publication by the defendant in order to recover for defamation. Cf. Matus v. Triangle Publications, Inc., 445 Pa. 384, 286 A.2d 357 (1971), cert. denied, 408 U.S. 930, 92 S.Ct. 2494, 33 L.Ed.2d 343 (1972). Given these newly-articulated constitutional requirements of actual harm to the plaintiff and actual fault on the part of the defendant, there is no sense and no reason in jurisprudence to impose a further artificial restriction, in the form of the need to prove 'special damages,' on the defamed plaintiff who seeks recovery for a 'libel per quod.'
There are sound policy reasons for allowing a plaintiff to recover for any libel even where he cannot prove special harm in the form of direct economic or pecuniary injury. As Justice Eagen said in Gaetano v. Sharon Herald Co., supra note 8, 426 Pa. at 183, 231 A.2d at 755, The most important function of an action for defamation is to give the innocent and injured plaintiff a public vindication of his good name. Its primary purpose is to restore his unjustly tarnished reputation, and 'reputation is the estimation in which one's character is held by his neighbors or associates.' Restatement, Torts § 577, comment b (1938).
By its very nature, injury to reputation does not work its greatest mischief in the form of monetary loss. Where an individual is made the victim of a false, malicious, and defamatory libel published to third persons, it is unfair to hold that vindication of his good name in the courts depends upon proof that the injury to his reputation has injured him economically as well. Once reputational damage alone is proven, the plaintiff in libel has proven his entitlement to recovery, and to make that recovery contingent on whether the damage was done by words 'defamatory on their face' merely adds another irrelevant factor to the equation.
The perceived requirement of 'special damages' has been narrowly interpreted by trial courts in Pennsylvania. It is seen as a complete bar to relief in defamation if the plaintiff fails to prove that reputational injury has caused concrete economic loss computable in dollars. See McCabe v. Village Voice, Inc., 550 F.Supp. 525 (E.D.Pa. 1982); Fogel v. Forbes, 500 F.Supp. 1081 (E.D.Pa. 1980); Rannels v. S.E. Nichols, Inc., 447 F.Supp. 417 (E.D.Pa. 1978), rev'd, 591 F.2d 242 (3rd Cir. 1979); Belikoff v. McLaughlin, 7 Pa.D. & C.3d 160 (C.P. Bucks Co. 1977); Degnan Chevrolet, Inc. v. Cocco, 63 Pa.D. & C.2d 572 (C.P.Phila.Co. 1973); Duh v. Bethlehem's Globe Publishing Co. (No. 2), 48 Pa.D. & C.2d 274 (C.P. Northampton Co. 1969); Mumma v. Pomeroy's, Inc., 38 Pa.D. & C.2d 594 (C.P.Dauph.Co. 1965); Shaines v. R.C. Dun & Co., 8 Pa.D. & C. 597 (C.P.Phila.Co. 1927). These cases are disapproved to the extent they conflict with the rule we announce today: a plaintiff in libel in Pennsylvania need not prove special damages or harm in order to recover; he may recover for any injury done his reputation and for any other injury of which the libel is the legal cause. See Restatement (Second), supra, § 621 & Comments. Courts in libel cases should be guided by the same general rules regarding damages that govern other types of tort recovery. Of course, the First Amendment places outer limits on the recovery of punitive damages or presumed damages in excess of actual loss proven. See Gertz v. Welch, supra part 3. The availability of nominal damages in a defamation action after Gertz remains open to debate. Id. § 620 & Comments; see Rimmer v. Colt Industries Operating Corp., 656 F.2d 323, 327 (8th Cir. 1981) (an award of nominal damages to vindicate a legal right 'is a common law tradition squarely cemented in American jurisprudence'). Interestingly, in a recent libel case this Court affirmed an award of $ 5,000 punitive damages where no compensatory damages had been awarded. Laniecki v. Polish Army Veterans Association of Lucyan Chwalkowski, 331 Pa.Super. 413, 480 A.2d 1101 (1984). The court noted, however, that the plaintiff proved a 'cause of action' for compensatory damages.