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Sixth Angel Shepherd Rescue Inc., et al v. Pennsylvania Spca

February 15, 2011


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


Dog rescue organization Sixth Angel alleges that state and local officials have harassed its members since seizing three of its dogs. Sixth Angel's Second Amended Complaint references numerous causes of action, including facial and as-applied challenges to the Pennsylvania Dog Law, federal civil rights claims, and state law tort claims. All Defendants have filed motions to dismiss. For the reasons that follow, the Court will grant these motions in part and deny them in part.


Sixth Angel is a rescue network kennel licensed in Pennsylvania. (Second Am. Compl. ¶ 1.) The organization rescues dogs from southern animal shelters and transports them north for adoption. (Id. ¶ 26.) On the evening of April 10, 2010, in a McDonald's parking lot in Marcus Hook, Pennsylvania, volunteers from Sixth Angel and other dog rescue groups waited for a van of dogs rescued from North Carolina animal shelters. (Id. ¶¶ 38-39.) The van arrived around 9:00 p.m. (Id.

¶ 38.) Joseph Loughlin, a dog warden from the Pennsylvania Dog Law Enforcement Bureau ("Dog Law Bureau"), appeared with officials from the Pennsylvania Society for the Prevention of Cruelty to Animals ("PSPCA") just as the dogs were changing hands. (Id. ¶¶ 40, 235.)

Loughlin seized transport documents from the van's driver, Ann Marie Wessel. (Id. ¶¶ 38, 40.) He also took the volunteers' car keys, told them they could not leave, and said he would cite them for violations of the Pennsylvania Dog Law, a statutory scheme regulating dog kennels and the sale and transport of dogs. (Id. ¶ 40; see also 3 Pa. Cons. Stat. § 459-101.) He did not advise anyone of their Miranda rights or produce a warrant. (Second Am. Compl. ¶ 43.) Meanwhile, a PSPCA official threatened Silva with a citation under the Pennsylvania Dog Law for using an unlicensed transporter, as Wessel had applied for - but had not obtained - a Pennsylvania out-of-state dealer license. (Id. ¶ 52.)

Sixth Angel suggests this comment referred to a provision of the Pennsylvania Dog Law, 3 Pa. Cons. Stat. § 459-209(b). Section 459-209(b) states that it is unlawful for licensed Pennsylvania kennels "to knowingly accept, receive, buy, barter or exchange a dog with an unlicensed out-of-state dealer for resale." The consequences of violating this provision include civil and criminal penalties. (Second Am. Compl. ¶¶ 52, 164; see also 3 P.S. §§ 459-209, 459-903.)

Loughlin and the PSPCA officials told the dog rescue volunteers to remove the dogs from the van. (Second Am. Compl. ¶ 41.) They inspected the vehicle and questioned Wessel. (Id. ¶¶ 40-42.) The PSPCA then took custody of the dogs and refused to release them until they had been examined by a veterinarian. (Id. ¶¶ 41-42, 48.) A PSPCA official also threatened to cite Silva, claiming she violated the law by allowing the dogs to travel on Wessel's van. (Id. ¶ 54.) Silva received no citations that night and left the scene around 1:30 a.m. after Loughlin assured her she could retrieve Sixth Angel's dogs within a few days. (Id. ¶ 48.)

A second rescue organization with dogs on Wessel's van, Thunders Angels, received a citation and retrieved its dogs on April 11, 2010. (Id. ¶ 127.) The PSPCA did not, however, return Sixth Angel's dogs. Sixth Angel sent the PSPCA documents reflecting its ownership of the dogs on April 12 and April 13, 2010. (Id. ¶ 224.) Nevertheless, the PSPCA informed Sixth Angel that it would put its dogs up for adoption rather than return them. (Id. ¶ 60.) Sixth Angel and Silva filed a lawsuit in this Court on April 16, 2010, alleging that the PSPCA's retention of the dogs was unconstitutional and constituted conversion. Sixth Angel Shepherd Rescue, Inc. v. Bengal, et al., Civ. A. No. 10-1733, 2010 WL 2164521, at *1 (E.D. Pa. May 27, 2010). Sixth Angel established ownership of the dogs and the Court ordered their return. Id. at *4-5. The case is stayed pending the PSPCA's appeal.

Loughlin mailed Silva a citation for violating the Pennsylvania Dog Law by paying for the transfer of dogs. (Second Am. Compl. ¶ 62.) Sixth Angel asserts that Silva was cited after she threatened to file a lawsuit; according to Sixth Angel, Loughlin told her to expect a citation in the mail "because of how you have chosen to proceed." (Id. ¶¶ 138, 226.) Silva received the citation on April 26, 2010. (Id. ¶ 132.)

The citation, dated April 10, 2010, describes Silva's alleged violation of a provision of the Pennsylvania Dog Law which prohibits the transfer of dogs at any public place other than a kennel, certain dog shows, or "transfer by a rescue network kennel within its own network or to another rescue network kennel." (Second Am. Compl. Ex. 1 [Dog Law Citation].) In the citation's "remarks" section, Loughlin noted that "Defendant did pay for transfer of dogs at above location," referencing the street address of the Marcus Hook McDonald's were he encountered Silva. (Id.) The Dog Law Bureau withdrew the citation on September 20, 2010. (Second Am. Compl. ¶¶ 44, 130; see also Commw. Defs.' Mot. to Dismiss Second Am. Compl. Ex. 3 [Magisterial District Court docket sheet].)

Shortly after the PSPCA seized the dogs, the Dog Law Bureau's director Susan West "sent out an announcement that 'the rescues' violated transport requirements" due to the poor conditions in the transport van. (Second Am. Compl. ¶¶ 71, 117.) Sixth Angel alleges West and the Dog Law Bureau issued announcements to this effect in writing and on the Internet. (Id. ¶ 117.) As a result, there "are now blogs and publications defaming Plaintiff circulating far and wide." (Id. ¶ 139.)

PSPCA and Dog Law Bureau officials meanwhile coordinated with authorities in Marcus Hook to harass Silva and Sixth Angel's volunteers. (Id. ¶¶ 198, 234.) Silva lives and works in Marcus Hook, where she maintains Sixth Angel's office and a network of foster homes for rescued dogs. (See id. ¶ 235.) Since the April 10, 2010 incident, Sixth Angel alleges Marcus Hook officials have harassed its employees and volunteers. (Id. ¶¶ 90-91, 261.) The pattern of harassment Sixth Angel describes includes accusations that Marcus Hook officials: issued Sixth Angel groundless citations for loose dogs and failure to remove dog feces; maintained a "stake out" of Sixth Angel's office; issued zoning citations intended to force Sixth Angel to change locations; and performed snap inspections of rental properties owned by Silva. (Id. ¶¶ 90-93, 98, 192-96, 261.) Sixth Angel further alleges that the mayor of Marcus Hook went door to door to each Sixth Angel foster home "in the company of several police officers," demanding that Sixth Angel's volunteers "get rid of their dogs and/or threatened them with citations of seizures." (Id. ¶¶ 7, 94-95, 102, 194.)

Silva, Sixth Angel and a second rescue organization, All Breed Rescue, filed this action on June 25, 2010. All Breed Rescue, a Vermont non-profit organization, had also had dogs on Wessel's van which the PSPCA had not released. However, by December 14, 2010, Sixth Angel and All Breed learned from the PSPCA that the dogs had been adopted. Sixth Angel then amended its Complaint to remove Silva, the PSPCA, and All Breed as parties. Sixth Angel's Second Amended

Complaint pits Sixth Angel against two groups of Defendants: (1) the "Dog Law Defendants" consisting of the Pennsylvania Dog Law Enforcement Bureau, its director Susan West, and Dog Warden Loughlin, and (2) the "Marcus Hook Defendants," comprising Marcus Hook Borough, Mayor James Schiliro, and Officer Ricci Pyle.


The Federal Rules of Civil Procedure mandate dismissal of complaints which fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Court accepts "as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom," viewing them in the light most favorable to the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Third Circuit applies a two-part analysis to determine whether claims should survive a Rule 12(b)(6) motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The Court must first separate the factual and legal elements of each claim, accepting well-pleaded facts as true but disregarding legal conclusions. See id. Second, the Court must determine whether the facts alleged in the complaint are sufficient to show a plausible claim for relief. See id. at 211 (citing Phillips, 515 F.3d at ...

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