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Sixth Angel Shepherd Rescue, Inc. v. Bengal

May 27, 2010

SIXTH ANGEL SHEPHERD RESCUE, INC. AND TERRY ELIZABETH SILVA PLAINTIFFS,
v.
GEORGE BENGAL, NICOLE WILSON AND PENNSYLVANIA SPCA DEFENDANTS.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

Plaintiffs Sixth Angel Shepherd Rescue, Inc. ("Sixth Angel") and Terry Silva bring this action against Defendants George Bengal, Nicole Wilson, and the Pennsylvania Society for the Prevention of Cruelty to Animals ("PSPCA") based on Defendants' continued possession of three dogs that Plaintiffs claim to own. Plaintiffs claim that Defendants' retention of their dogs violates their constitutional rights. They also bring a state law conversion claim. Plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction seeking the return of their dogs. Having held a hearing on the matter on April 27, 2010, and having reviewed the parties supplemental briefs, the Court grants Plaintiffs motion for a preliminary injunction and orders that the dogs be transferred to Plaintiffs' forthwith.

I. FACTS

Plaintiff Sixth Angel is an organization based in Marcus Hook, Pennsylvania that rescues dogs from dangerous conditions. (Apr. 27, 2010 Hrg. Tr. at 7, 11.) It employs a network of foster homes to temporarily house dogs while it attempts to find them permanent homes. (Id. at 14-15.) Plaintiff Terry Silva is the head of Sixth Angel's Board of Directors. (Id. at 24.) This lawsuit involves Plaintiffs' attempts to rescue three dogs from North Carolina.

Two of the dogs that Plaintiffs attempted to rescue, "Tank" and "Butter," came from the Wayne County North Carolina Animal Control Facility ("Wayne County Facility"). (Id. at 9.) On March 31, 2010 and April 1, 2010 Plaintiffs exchanged e-mails with a representative of the Wayne County Facility about rescuing several dogs, including Tank and Butter. (Pl.'s Mot. for TRO and/or Prelim. Inj. on Initial Compl. [TRO Mot.] Ex. 4 [Wayne County e-mails].) Plaintiffs arranged for Tank and Butter to be removed from the Wayne County Facility, and to be boarded at Camp Cupcake for pets until they could be transported to Pennsylvania. (Id. Ex. 7 [Cupcake Invoice]; Apr. 27, 2010 Hrg. Tr. at 9-10.)

The third dog, "Nikki" a/k/a "Herbie," a cross-eyed Labrador, was removed from Elizabethtown, North Carolina. (Apr. 27, 2010 Hrg. Tr. at 6; TRO Mot. Ex. 1 [Nikki's Form].) He was held in a Sixth Angel-affiliated foster home in North Carolina while Plaintiffs arranged for him to be transported to Marcus Hook, Pennsylvania, during which time Sixth Angel paid for his health costs. (Apr. 27, 2010 Hrg. Tr. at 6-7, 33.) Plaintiffs had arranged for Nikki to be sponsored by a school -- the students pooled money to send him treats and toys. (Id. at 37.) They also arranged for Nikki to be entrusted to the temporary care of Heather Stevens upon his arrival in Pennsylvania. (Id. at 35, 37.) The health form that accompanied Nikki indicated that the owner, ASF, was releasing him to Terry Silva, 13 West 10th Street, Marcus Hook, PA. (Nikki's Form.)

Plaintiffs contracted to have all three dogs placed on one transport vehicle driven by Anne Marie Wessel, who was associated with Camp Cupcake. (Apr. 27, 2010 Hrg. Tr. at 115; Cupcake Invoice.) This was the first and only time that Plaintiffs used the services of this transporter. (Id. at 5.) Plaintiffs were to meet the transport on the evening of April 10, 2010 in a McDonald's parking lot in Marcus Hook, Pennsylvania to receive the dogs. (Cupcake Invoice.) Plaintiffs were waiting for the transport at the rendezvous point that evening. (Apr. 27, 2010 Hrg. Tr. at 76, 98-99.) However, based on an a confidential tip suggesting poor conditions on the transport, the Pennsylvania Bureau of Dog Law Enforcement ("Dog Law") intercepted and seized the vehicle and its contents in the McDonald's parking lot. (Id. at 92.) Conditions on the transport were allegedly subpar,*fn1 and the driver was allegedly cited by Dog Law for her violations. (Id. at 86-87, 96, 116.) All the documents on the transport relating to the dogs were seized, and Dog Law and the PSPCA took pictures of the documents. (Id. at 77-80.) Dog Law turned the dogs over to Defendant PSPCA for the original purpose of providing them with veterinary examinations. (Id. at 76, 117.) PSPCA, however, is still in possession of the dogs. (Id. at 132-33.)

In the transport vehicle, officials found a handwritten log containing names and addresses. (Id. at 109; Apr. 27, 2010 Hrg. Pl.'s Ex. 13 [Transport Papers].) The first handwritten entry in the log reads:

Terry 3 13 West Tenth Street 135 B 300T 435 Marcus Hook PA (Transport Papers.) The Camp Cupcake Invoice reads in relevant part:

Boarding: 3 dogs x 9 days x 5.00 = 135.00

Transport: 3 dogs x 100.00 = 300

Grand Total: 435.00

(Cupcake Invoice.) When these two documents are read together, the entry in the driver's log becomes clearer: "135B" represents the $135 boarding cost; "300T" represents the $300 transport cost; "435" represents the total owed; and 3 represents 3 dogs. The address in the log, 13 West Tenth Street, Marcus Hook, PA is Sixth Angel's Address, thus the name "Terry" in the log refers to Terry Silva. Dog Law also recovered a typed invoice on the letterhead of Critters on the Go!! Rescue Transport Services, which listed Sixth Angel's address; listed Terry as the contact; described the critters as: 1 Brown Pup, 1 White GP/Shep, and 1 Black Lab; and listed a price of $435.00. (Transport Papers.) A Dog Law official saw Silva hand Wessel an envelope before the vehicle and its cargo were seized. (Apr. 27, 2010 Hrg. Tr. at 76-77.) Dog Law's search of the envelope revealed that it contained $200.00 in cash and a check from Sixth Angel to Camp Cupcake in the amount of $210.00 dated April 10, 2010. (Id. at 76-78.)

Authorities also found a large envelope in the possession of the transport driver -- written in the center of the envelope was "Sixth Angel Shepherd Rescue," and in the top left corner was "W.C.A.C."*fn2 (Id. at 109; Transport Papers.) The envelope contained one picture each of Nikki, Tank, and Butter. (TRO Mot. Ex. 1; Id. Ex. 3.) It also contained a Companion Animal Certificate of Veterinary Examination from the North Carolina Department of Health and Human Services. (Transport Papers.) This form indicates that Wayne County Animal Control shipped Tank and Butter to Terry Silva at 15 West 10th Street, Marcus Hook, PA. (Id.) Tellingly, there is a third dog on the list, named Lakota, who Plaintiffs undisputedly own and who is in Plaintiffs' possession. (Apr. 27, 2010 Hrg. Tr. at 10; TRO Mot. Ex. 7.) Lakota was rescued from the same Wayne County Facility as Tank and Butter. (Id.) Plaintiffs have Lakota's Animal Control Form from Wayne County. (Id.) In the disposition section of that form, the box next to "release to rescue" is checked and Sixth Angel is named as the rescue organization. (Id.) The Sixth Angel envelope also contained an Articles of Incorporation--Non-Profit form from the Pennsylvania Department of State for Sixth Angel, identifying it as an animal rescue, and naming Terry Silva as ...


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