The opinion of the court was delivered by: DUMBAULD
On December 6, 1969, the complaint was amended by adding allegations of adultery. Subsequently other proceedings were had, including appointment of a master, and an order of February 17, 1970, requiring defendant to pay $400 for counsel fees and $70 per week for support, in accordance with 23 P.S. §§ 46 and 47.
On December 2, 1970, defendant filed petition for removal of the case to this Court under 28 U.S.C. §§ 1441 and 1446. Argument has been had as to whether the case is properly removable or should be remanded under 28 U.S.C. § 1447.
Various challenges are made by defendant to the constitutionality of the Pennsylvania divorce law. The principal contention is that there is denial of equal protection in that husbands and wives are not treated equally in that the husband is subjected to the duty of paying alimony and counsel fees whereas no such obligation is placed upon female defendants in divorce cases. We cannot say that these allegations are frivolous, or at least that they are more frivolous than many allegations which are favorably received in some courts in these days of "womens' lib," "racist pigs" and the like. But in any event it is open to defendant to assert these constitutional claims in the State court, which will presumably give due recognition to federal constitutional requirements. Holiday Inns of America, Inc. v. Holiday House, Inc., 279 F. Supp. 648, 650 (W.D. Pa. 1968); Dumbauld, "Judicial Interference with Litigation in Other Courts," 74 Dickinson L. Rev. (No. 3, Spring, 1970) 369, 388; McGowan, The Organization of Judicial Power in the United States (1969) 61.
Such claims form no basis for the removal procedure prescribed by 28 U.S.C. § 1441 et seq. The terms and provisions of the removal statute itself must be pursued and observed in order to invoke whatever benefits may be supposed to flow from utilization of federal courts in a case which is removable under those provisions.
28 U.S.C. § 1441(a) provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
Accordingly, an indispensable condition for removability is that the action could have originally been brought in a United States District Court. Robertson Motor Freight, Inc. v. Brady Motorfrate, Inc., 287 F. Supp. 449, 451 (W.D. Pa. 1968).
Could Mrs. Blank have instituted in this Court her divorce suit against her husband on September 25, 1969?
Obviously not, since the removal petition discloses that on that date both parties were citizens of Pennsylvania, and the diversity of citizenship required by 28 U.S.C. § 1332 was lacking.
Repeated declarations by the Supreme Court of the United States have made unquestionably clear the proposition that divorce cases are not a proper subject ...