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COUGHLIN v. WESTINGHOUSE BROADCASTING & CABLE

June 21, 1988

James Coughlin
v.
Westinghouse Broadcasting and Cable, Inc., et al.



The opinion of the court was delivered by: POLLAK

 POLLAK, UNITED STATES DISTRICT JUDGE

 This matter has an extended history. It has its origins in a broadcast in 1982. A television representation of the activities of plaintiff, a Philadelphia police officer, was regarded by plaintiff as defamatory, and he initiated a proceeding sounding in defamation in which the defendant was Westinghouse, the owner of the local television station in question. That proceeding resulted in a grant by Chief Judge Luongo of summary judgment in favor of defendant. 603 F. Supp. 377 (E.D. Pa. 1985). Judge Luongo determined that there was no basis for a finding of malice. Accordingly, the plaintiff could not prevail under New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964).

 Judge Luongo's determination was affirmed by the Court of Appeals, 780 F.2d 340 (3d Cir. 1985) (per curiam), and the Supreme Court denied certiorari, Chief Justice Burger and Justice Rehnquist dissenting from the denial of certiorari, 476 U.S. 1187, 106 S. Ct. 2927, 91 L. Ed. 2d 554 (1986).

 In 1987, plaintiff initiated an action in the Court of Common Pleas against Westinghouse and an individual defendant, James Thompson, station manager of the local television station. This action sounded not in defamation, but in breach of a duty to retract. Alleged in the complaint was the transmission of a letter demanding retraction of the fallacious broadcast. Alleged further was that retraction had been denied.

 That proceeding was removed to this court on diversity grounds, there being diversity between the plaintiff and Westinghouse, just as there had been in the original proceeding. Plaintiff moved to remand on the ground that there was also a non-diverse defendant, Mr. Thompson. Defendant took the position that the joinder of Mr. Thompson was fraudulent in the doctrinal sense that there could be no possible recovery against Mr. Thompson -- that Mr. Thompson's insulation from liability was an a fortiori case as compared with the non-liability of defendant Westinghouse, on which defendants also insisted.

 The argument largely turned on whether there was any significant likelihood that the courts of Pennsylvania would recognize -- and, therefore, that this federal district court in diversity, as a surrogate court of Pennsylvania, should recognize -- a right of retraction, or, in the alternative, a right to be compensated in damages for failure to retract where it was alleged that a defendant had published false and defamatory matter and then declined retraction when the falsity was so plain that non-retraction connoted malice.

 I determined as an initial matter that though I thought it less than likely, there was, nonetheless, in my judgment, a reasonable possibility that such a claim could be maintained, and that it would lie not only against the television station, but a station manager, and I granted the motion to remand.

 In the light of that, I concluded that I had been in error before. My determination, as I gave it from the bench on January 15, 1988, was as follows:

 
I grant the motion to reconsider my order of remand, and on reconsideration I conclude that that order should be vacated and the motion to remand denied.
 
Again, through the prism of Judge Gerry's opinion, [ American Dredging Co. v. Atlantic Sea Con, Ltd., 637 F. Supp. 179, 183 (D.N.J. 1986)], I now conclude "that there is no possible basis for imposing liability on the non-diverse defendant," namely Mr. Thompson. Therefore, the joinder of Mr. Thompson is improper, and the diversity jurisdiction of this court comprehends the lawsuit of Officer Coughlin against Westinghouse.

 Transcript at 14.

 Subsequent to that determination, Officer Coughlin moved to supplement his complaint. That motion operates as a vehicle to call upon me to reconsider my decision vacating the prior order of remand. The motion to supplement the complaint requests court permission to make the following allegations:

 
One, defendant Thompson (even if it is assumed arguendo that he was insulated by his attorney from receipt of the September 30, 1986, retraction demand letter), did in fact become aware of and read that letter after service of the first complaint and still declined to issue a retraction.
 
Two, the determination, alleged by defendants, to refuse to present Mr. Thompson with the September 30, 1986 letter was a knowing and deliberate act by the defendant Westinghouse, and the attorneys for defendants Westinghouse and Thompson. The attorney for all the named defendants was asked in writing specifically to inform plaintiff's counsel in the event he, as the attorney, would not accept service of the letter on Mr. Thompson. Defendants' counsel did not inform plaintiff's counsel that he refused to let Mr. Thompson read the letter. Indeed, the letter refusing a retraction made no mention of any refusal to provide the plaintiff's letter to defendant Thompson. The complaint was filed following receipt of the letter from defendants' attorney refusing to retract and without any knowledge by plaintiff of the alleged refusal to provide a copy of the letter to Mr. Thompson.
 
Three, as may be inferred from the limitation in Westinghouse's original affidavits and directly from evidence of the duties of Mr. Thompson's predecessor, the general manager of KYW-TV3 possesses substantial authority to make a retraction. Any alleged decision of Westinghouse officers or legal counsel to divest the station manager of that authority in this case further establishes negligent ...

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