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November 17, 1982


The opinion of the court was delivered by: LUONGO

 Plaintiff, Amrit Lal, brought this diversity action seeking damages for defamation (Count I) and trespass (Count II) arising out of the production and publication of a news report aired by defendant, CBS, Inc. (CBS), through WCAU-TV, a station operated by CBS in Philadelphia. CBS has moved for summary judgment. Fed.R.Civ.P. 56. For reasons hereafter stated, I conclude that CBS is entitled to summary judgment only as to the trespass count of the complaint. With respect to the defamation count, material issues of fact remain and, therefore, summary judgment is inappropriate.

 Summary judgment should not be granted unless the moving party establishes that there is no material issue of fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c), Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). Further, all inferences from the undisputed facts must be drawn in favor of the non-moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).

 From the record as presented on this motion, the following facts are not in dispute. Amrit Lal, a professor of political science at Cheyney State College, owns various properties in West Chester, Pennsylvania, including a dwelling house located at 217 East Nield Street. In March 1980, Lal leased the East Nield Street house to five students of West Chester State College. On or about March 9, 1980, Lal learned that Ellen Sands, editor of the Quad, the student newspaper at West Chester State College, was preparing an article concerning conditions at properties plaintiff owned in West Chester. On March 17, 1980, after Sands refused Lal's request to review the proposed article, Lal filed suit in the Court of Common Pleas for Chester County against Sands, West Chester State College and several others to redress alleged violations of his civil rights. In addition to seeking legal and equitable relief, plaintiff also sought to preliminarily enjoin the publication of the article until he had an opportunity to review and respond to it. A hearing on plaintiff's petition for a preliminary injunction was scheduled for March 21, 1980.

 A hearing on Lal's petition for a preliminary injunction was held as scheduled on March 21, 1980. From the transcript of that hearing, which is part of the record on this motion, it appears that the hearing lasted only a few minutes. Lal addressed the court initially and asked to withdraw his petition as moot because the Quad article had been published three days earlier. Counsel for West Chester State College then directed the court's attention to the March 18 edition of the Quad and also requested the court to dismiss the petition. *fn1" Lal's request to withdraw his petition was then granted, and the hearing was adjourned. This court has been apprised by Lal's counsel that the suit in the Court of Common Pleas for Chester County is still pending.

 Roseanne Cerra, a news reporter for WCAU-TV, had been assigned to attend the preliminary injunction hearing and to report on the proceedings. Accordingly, she and two WCAU-TV technicians were present at the hearing and, at its conclusion, conducted videotaped interviews of Lal, Sands, and the president of West Chester State College. In compiling her story, Cerra also visited 217 East Nield Street and, after asking tenant Amy Wertz for permission to inspect and film the interior of the house, Cerra and her crew filmed various conditions in the premises at the time. None of these conditions were created or aggravated by Cerra or the technicians. Finally, to complete her story, Cerra and the two technicians visited and filmed individuals at work in the offices of the Quad at West Chester State College.

 That evening, CBS aired Cerra's report during the 5:30 p.m. edition of WCAU-TV's News Telecast. The report began with anchorwoman Sherry Bank stating that a "case centered on an article about bad conditions at some off-campus student housing" had ended in "triumph" for students at West Chester State College. Roseanne Cerra then stated:

Reporters at West Chester State College's student newspaper, the Quad, were busy working on today's edition without the aid of their editor-in-chief, Ellen Sands. Sands was at a hearing at the Chester County Court House this morning ready to defend her rights as a journalist. Sands had written an article in the student paper accusing a West Chester landlord of not making necessary repairs to an off-campus house where five students lived. The tenants said their many complaints of leaky roofs, faulty wiring and other eyesores were never answered. They also said their landlord threatened to vacate any tenant who spoke to the press. The landlord, Amrit Lal, a political science professor at Cheyney State College, accused Sands of printing lies to generate racial tensions within the community. Lal, a native of India, also claimed his civil rights were violated.

 The video portion of the report which was shown simultaneously with Cerra's reference to "leaky roofs, faulty wiring and other eyesores" contained views of the interior of the three-story dwelling house at 217 East Nield Street. Specifically, a waterstained first-floor ceiling was shown as the viewer heard the words "leaky roofs"; an unshaded and imperfectly attached ceiling light fixture was shown as mention was made of "faulty wiring"; and exposed insulation on the back porch of the house was shown as Cerra spoke the words "other eyesores".

 After Cerra completed her summary of the Quad article, portions of the three interviews taped earlier were shown. Cerra then summarized what transpired at the preliminary injunction hearing and closed by quoting Sands' statement that "she would continue to write articles on landlords -- landlords of every race, color and creed."

 The production and broadcast of the WCAU-TV news report form the foundation of plaintiff's suit in this court. In Count I of the complaint, the defamation count, Lal alleges that the broadcast was false, known by CBS to be false, and that CBS' motive in publishing the news report was "to sensationalize, exaggerate and totally imply a false misleading impression of plaintiff's character, person and community status." (Complaint para. 9). In Count II, Lal alleges that Cerra and her crew trespassed on his property by entering 217 East Nield Street without his permission. CBS seeks summary judgment on each of these counts.

 The threshold issue raised on CBS' motion for summary judgment on the defamation claim is whether the news report is capable of a defamatory meaning. Under Pennsylvania law, which applies to this diversity action, *fn2" "[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971) (quoting Restatement of Torts ยง 559 (1938)). Further, "it is the function of the court, in the first instance, to determine whether the communication complained of is capable of a defamatory meaning." Id. Applying these principles, CBS contends that the report is not capable of a defamatory meaning.

Viewed in its entirety, the news story simply reported the results of a court hearing on a lawsuit initiated by Lal to enjoin the publication of the Quad article. The broadcast described the portions of the article which Lal found objectionable and communicated his accusation ...

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