¶1Dissenting Opinion by
¶2The plaintiff, a distinguished member of the United States Senate, was a candidate for re-election. The defendants, in an effort to influence the electorate against his candidacy, circulated through the mails a letter accusing him, inter alia, of having a voting record in the Senate with Communist tendencies. This action in libel followed.
¶3The complaint alleged, inter alia, that the letter was false and “maliciously” circulated. The lower court sustained preliminary objections to the complaint in the nature of a demurrer and entered a summary judgment in favor of the defendants. The correctness of this ruling is the only question presently before us.
¶4It is fundamental that a demurrer admits all well-pleaded facts in the complaint. Hence, it is admitted that the accusation was false and maliciously circulated. Even so, say the majority, this does not constitute actionable libel. With this I cannot agree.
¶5A libel is a maliciously written or printed publication which tends to blacken a person’s reputation, or to expose him to public hatred, contempt or ridicule, or to injure him in his business or profession: Volp*498mino v. Messenger Publishing Co., 410 Pa. 611, 189 A. 2d 873 (1963); and Cosgrove S. & C. Shop, Inc. v. Pane, 408 Pa. 314, 182 A. 2d 751 (1962). It is the duty of the Court to determine in the first instance whether the publication is capable of a defamatory meaning. The majority rule that the accusation involved is not such. To me, this is unrealistic and without foundation in fact or logic.
¶6The letter involved clearly and unmistakably places a communistic label on an individual who is privileged to represent the people of the United States in one of the highest and most responsible positions in government. Its meaning is unambiguous and no amount of word legerdemain can change it one iota. That it subjects the accused to public aversion and contempt is to me beyond argument.
¶7One of the most sacred and important functions of one serving in the United States Senate is his vote on questions submitted to that body. It reflects his own beliefs and convictions. To say that a Senator’s voting record has communistic tendencies necessarily implies that he himself possesses the same sympathies. Thus, such an accusation not only imputes conduct inconsistent with the proper exercise of the duties of the office and actions in derogation of his oath (of office), but seriously reflects upon the individual personally.
¶8The majority opinion admits that to state one is a Communist is defamatory per se, but concludes that to state he has communistic tendencies is not. This is the most tenuous of distinctions. This reasoning neglects to evaluate the effect of the language and forgets that a libelous charge need not be positively and directly asserted, but may be accomplished indirectly in the form of innuendo and insinuation. See, Spanel v. Pegler, 160 F. 2d 619 (7th Cir. 1947). Moreover, the difference is one of degree only. The effect, which is of primary importance, is one and the same. Fur*499ther, the majority ruling is in conflict with prior decisions of this Court and those of every other jurisdiction in the land. See, Matson v. Margiotti, 371 Pa. 188, 88 A. 2d 892 (1952); Mosler v. Whelan, 28 N. J. 397, 147 A. 2d 7 (1958); Grant v. Reader’s Digest Ass’n, Inc., 151 F. 2d 733 (2d Cir. 1945); Utah State Farm Bureau Federation v. National Farm. Union Service Corp., 198 F. 2d 20 (10th Cir. 1952); Spanel v. Pegler, supra;Toomey v. Jones, 124 Okla. 167, 254 Pac. 736 (1926); and MacLeod v. Tribune Publishing Co., Inc., 52 C. 2d 536, 343 P. 2d 36 (1959).
¶9The majority opinion also indicates that the recent decision of the Supreme Court of the United States in New York Times v. Sullivan, 376 U. S. 254 (1964), precludes the present action. I do not so understand that decision. What that case holds is that a factual error in a defamatory statement published against an official’s reputation does not give rise to actionable libel unless the plaintiff alleges and proves that the statements were published with actual malice. Therein it was held that the proof at trial did not meet this test. While the complaint in the instant case is deficient in not specifically spelling out actual malice, it was filed long before the recording of the New York Timesopinion. Admittedly that decision changed the concept of the law of libel in important respects. In all fairness, an opportunity to amend the complaint should be afforded before a summary judgment is entered.
¶10I dissent.