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TOANONE v. WILLIAMS

November 13, 1975

PHILIP A. TOANONE, Plaintiff,
v.
LAWRENCE G. WILLIAMS et al., Defendants



The opinion of the court was delivered by: HIGGINBOTHAM

 HIGGINBOTHAM, District Judge.

 Defendant, CBS Inc. ("CBS"), has petitioned this Court pursuant to 28 U.S.C. § 1441(c) *fn1" to remove the instant libel action to this Court from the Court of Common Pleas of Delaware County, Pennsylvania. Plaintiff, Philip A. Toanone ("Toanone"), has moved this Court to remand the action to the state court. For reasons that will hereinafter appear, I have concluded that the removal petition of CBS must be denied and that plaintiff's motion for remand must be granted.

 While it appears that under Pennsylvania law each republication of allegedly defamatory matter is a new publication constituting a separate cause of action against the defendant responsible for the republication, see 22 P.L.E., Libel and Slander § 21, this principle of substantive Pennsylvania law does not dispose of the issue before the court. In Professor Moore's words, "removability is dependent upon the course of pleading employed by the plaintiff." 1A J. Moore, Federal Practice para. 0.163[4.-3] (footnote omitted). In determining whether separate and independent causes of action exist under § 1441(c), courts will "look to the plaintiff's pleading, which controls." American Fire and Casualty Co. v. Finn, 341 U.S. 6, 14, 95 L. Ed. 702, 71 S. Ct. 534 (1951). The determination is to be made on the basis of the pleadings at the time removal is sought, Gray v. New Mexico Military Institute, 249 F.2d 28, 30 (10th Cir. 1957), and on the basis of what plaintiff has actually alleged, "not by what he could have asserted had he so chosen," Greenshields v. Warren Petroleum Corp., 248 F.2d 61, 65 (10th Cir.), cert. denied, 355 U.S. 907, 2 L. Ed. 2d 262, 78 S. Ct. 334 (1957). In the interpretation of plaintiff's pleading, specific allegations control over general, see 1A J. Moore, Federal Practice, supra, and "all doubts arising from defective, ambiguous and inartful pleadings should be resolved in favor of the retention of state court jurisdiction." Greenshields v. Warren Petroleum Corp., supra at 65.

 When these principles are applied to the instant case, it becomes clear that CBS has attempted to usurp plaintiff's role by articulating a theory of plaintiff's case that plaintiff himself has not chosen to plead. Four counts of the complaint -- III, IV, XI, and XII -- are relevant to the issue here. *fn2" See Complaint, Exhibit A to Petition for Removal of Defendant CBS, Doc. #7. In Counts III and IV, plaintiff alleges that defendant Williams libelled him by statements made on WCAU-TV "on the 5th day of May, 1974 and divers occasions prior thereto." Complaint, paras. 23, 31. In Counts XI and XII, plaintiff alleges that defendant CBS libelled him by broadcasting over WCAU-TV "on or about the 5th day of May, 1974" the aforesaid statements. Complaint, paras. 86, 92. Thus, in the four counts of the complaint that involve both defendant Williams and defendant CBS, plaintiff has specifically pleaded only a single injury to him, the simultaneous publication by defendant Williams and republication by defendant CBS on May 5, 1974 of allegedly libelous statements about him. *fn3"

 DATED: November 13, 1975 BY THE COURT:

 A. Leon Higginbotham, Jr. / J.

 ORDER

 AND NOW, this 13th day of November, 1975, for the reasons set forth in the attached Memorandum Opinion, it is hereby ORDERED and DECREED that the Petition for Removal filed by defendant CBS, Inc. is DENIED, the Motion for Remand filed by plaintiff Philip A. Toanone is GRANTED, and this case is REMANDED to the Court of Common Pleas of Delaware County, Pennsylvania.

 BY THE COURT:

 A. Len Higginbotham, ...


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