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Sixth Angel Shepherd Rescue Inc v. Susan West

May 3, 2011

SIXTH ANGEL SHEPHERD RESCUE INC.,
PLAINTIFF,
v.
SUSAN WEST, ET AL.,
DEFENDANTS.



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

MEMORANDUM

Dog rescue organization Sixth Angel Shepherd Rescue, Inc. ("Sixth Angel") alleges that state and local officials have harassed its members since the Pennsylvania Society for the Prevention of Cruelty to Animals ("PSPCA") seized three of its dogs in April 2010. Sixth Angel's Third Amended Complaint alleges constitutional challenges to the Pennsylvania Dog Law, federal civil rights claims, and state-law tort claims. Specifically, Sixth Angel identifies two groups of Defendants: the "Dog Law Defendants" consisting of the Dog Law Bureau, its director Susan West, and Dog Warden Joseph Loughlin; and the "Marcus Hook Defendants," comprising Marcus Hook Borough, Mayor James Schiliro, and Officer Ricci Pyle. All Defendants have filed motions to dismiss. For the reasons that follow, the Court will grant these motions.

I. BACKGROUND

A. The April 10, 2010 Dog Seizure

Sixth Angel is a rescue network kennel licensed in Pennsylvania. (Third Am. Compl. ¶ 1.*fn1

The organization rescues dogs from southern animal shelters and transports them to the northeast for adoption. (Id. ¶ 21.) On the evening of April 10, 2010, volunteers from Sixth Angel waited for a van of dogs from North Carolina in Marcus Hook, Pennsylvania. (Id. ¶¶ 17, 26, 36.) The van arrived around 9:00 p.m. (Id. ¶ 36.) Joseph Loughlin, a dog warden from the Pennsylvania Dog Law Enforcement Bureau ("Dog Law Bureau"), then appeared with uniformed officers. (Id. ¶¶ 38, 40, 192.) Sixth Angel alleges Loughlin acted at the orders of Susan West, the Dog Law Bureau's Director of Dog Law Enforcement, who "had direct conversations with the representatives at the scene" via telephone. (Id. ¶¶ 4, 49; see also Pl.'s Resp. to Mot. of Commw. Defs. to Dismiss [Pl.'s Dog Law Resp.] 7 n.6.)

Loughlin seized documents from the van's driver, Ann Wessel. (Third Am. Compl. ¶¶ 36, 38.) He took the volunteers' car keys and told them they could not leave. (Id. ¶ 41.) Loughlin also threatened to cite them for violations of the Pennsylvania Dog Law, a statutory scheme regulating dog kennels and the sale and transport of dogs. (Id.; see 3 Pa. Cons. Stat. § 459-101.) Loughlin did not read anyone their Miranda rights or produce a warrant. (Third Am. Compl. ¶ 42.) He also threatened to arrest Wessel and summoned PSPCA agents to investigate her van. (Id. ¶¶ 38, 40, 49.)

Loughlin cited Wessel and Thunder's Angels, another Pennsylvania dog rescue organization, for violations of the Pennsylvania Dog Law. (Id. ¶¶ 45, 56.) Loughlin and PSPCA officials also told Wessel they would confiscate her own dogs if she did not surrender the dogs in the van. (Id.) Loughlin and the PSPCA officials then threatened the Sixth Angel members at the scene with citations for the poor conditions in which Wessel had transported the dogs, and for Wessel's failure to obtain a Pennsylvania out-of-state dealer license. (Id. ¶¶ 53, 55.) Wessel had applied for a license, but had not yet received one. (Id. ¶ 56.) As Loughlin questioned the Sixth Angel volunteers, they were "subject to public ridicule" and "humiliation in Saturday night traffic with local residents and local police mandating Plaintiff's representatives leave the many dogs in cages in the parking lot, walk them, etc." (Id. ¶¶ 157, 192.) Sixth Angel alleges the PSPCA questioned and threatened its volunteers because West and Loughlin directed them to do so. (Id. ¶¶ 49, 53.)

PSPCA Director of Investigations George Bengal first asserted that Sixth Angel itself was operating without PSPCA approval. (See id. ¶ 59.) When Bengal discovered Sixth Angel was "an approved rescue," he refused to return Sixth Angel's dogs until a PSPCA veterinarian had examined the dogs. (Id. ¶¶ 48, 59.) Sixth Angel's volunteers waited for the veterinarian until 1:30 a.m. Loughlin told the Sixth Angel members that they could retrieve the organization's dogs from the PSPCA "the following day or the day after" once a veterinarian had seen them. (See id. ¶ 48.)

B. Sixth Angel's Disputes With the Dog Law Bureau and PSPCA

The documents Loughlin seized from Wessel included bills and receipts memorializing Sixth Angel's ownership of three dogs in the van. (Id. ¶¶ 17, 26, 50.) Some of these records identified the dogs' owner as Terry Silva, Sixth Angel's founder and counsel in this action. (See id. ¶¶ 8, 28 n.4.) Despite this evidence that Sixth Angel and/or Silva owned the dogs, "Defendants came up with various excuses to delay and play along with one another" rather than return the dogs. (Id. ¶ 62.) A PSPCA representative finally told Sixth Angel that it intended to offer the dogs for adoption. (Id.)

On April 14 and April 15, 2010, Sixth Angel informed Defendants that it would file a lawsuit seeking return of its dogs. (Id. ¶ 63.) Sixth Angel and Silva then 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 I"). Sixth Angel established ownership of the dogs and the Court therefore ordered their return. Id. at *4-5. The PSPCA returned Sixth Angel's dogs on June 11, 2010. (Third Am. Compl. ¶ 32 n.6.) Sixth Angel I is now stayed pending resolution of the PSPCA's appeal.

Sixth Angel alleges that its lawsuit caused the Dog Law Bureau and PSPCA to retaliate against it. (Id. ¶ 166.) First, Silva received a citation from Loughlin on April 26, 2010, accusing her of buying and paying for the transfer of dogs with respect to the April 10 incident. (Id. ¶¶ 64-65.) The citation, dated April 10, 2010, states that "Defendant [Terry Silva] did pay for transfer of dogs at above location," referencing the street address where Loughlin encountered Silva. (Id. Ex. 2 [Dog Law Citation].) The Dog Law Bureau withdrew the citation on September 20, 2010. (See Third Am. Compl. ¶¶ 43, 118.) However, Sixth Angel claims this citation "still looms as to Plaintiff's activities." (Id. ¶ 118.) Silva has yet to receive a refund of the fee she paid to respond to the citation in pleading not guilty. (Id. ¶ 43.)

In addition, Sixth Angel alleges the Dog Law Bureau ignored the evidence it seized from Wessel. (Id. ¶ 70.) These documents allegedly demonstrated Sixth Angel owned the dogs in Wessel's van before they arrived in Marcus Hook. (Id.) The organization attributes this to the Dog Law Bureau's failure to "create policies mandating investigation, review of documents and prompt property return in violation of the United States Constitution." (Id. ¶ 72.) Sixth Angel also alleges that the Dog Law Bureau and PSPCA knew all along that Sixth Angel was not "buying" dogs on April 10, 2010 because Defendants "said as much at the time of the seizure." (Id. ¶ 87.)

Sixth Angel identifies other instances of Dog Law Bureau and PSPCA harassment. The Dog Law Bureau and PSPCA removed Sixth Angel's designation as an "approved" rescue organization on the PSPCA and Delaware County SPCA registries "without notice or explanation." (Id. ¶ 60.)

The Delaware County SPCA meanwhile singled out Sixth Angel for investigation. (See id. ¶ 66.)

West and the Dog Law Bureau also issued statements regarding the April 10 seizure of Sixth Angel's dogs. Sixth Angel alleges these communications "defamed and blamed the rescues including Plaintiff for the conditions of the transport and further falsely stated that the rescues present were 'buying' dogs and were not allowed to use paid transports." (Id. ¶ 162.) Sixth Angel has provided a copy of an e-mail from West dated April 14, 2010, in which West responds to a request for "clarification" regarding an "article/blog" about the seizure:

The rescue had dogs in a van with poor ventilation, one crate didn't have a bottom on it and so the urine from that dog had no place to go but down, the crates were stacked on top of one another and crates did not have adequate space for the number of dogs in each one, some were very dirty . . . I hope you get the picture. There were dogs without health certificates and money exchanged hands (a sale in a public place is illegal).

We have nothing against rescues, and are happy to see people helping dogs. But there is a right and a wrong way to do things. We are required to enforce the dog law. If dogs are not housed correctly, that is bad for a dog regardless of whether the person is a rescue or a commercial kennel. (Id. Ex. 1 [West e-mail].) Sixth Angel alleges West, Loughlin and the Dog Law Bureau circulated "other such defamatory and disparaging statements without correction." (Id. ¶¶ 75, 183.)

C. Sixth Angel's Disputes With Marcus Hook

Sixth Angel claims the PSPCA and Dog Law Bureau meanwhile coordinated with authorities in Marcus Hook to harass Silva and Sixth Angel's volunteers. (Id. ¶¶ 14, 88.) Silva lives and works in Marcus Hook, where she maintains Sixth Angel's office and a network of foster homes for its rescued dogs. (See id. ¶¶ 9, 127-28.) Silva is also involved in a property rental business in the area. (Id. ¶ 108.) Since April 10, 2010, Sixth Angel claims Marcus Hook officials have focused their attention on its employees and volunteers, particularly Silva. (See, e.g., id. ¶¶ 9, 92, 95.)

The pattern of harassment Sixth Angel describes includes accusations that Marcus Hook officials: (1) issued Sixth Angel groundless citations for loose dogs and failure to remove dog feces; (2) maintained a "stake out" of Sixth Angel's office; (3) issued zoning citations intended to force Sixth Angel to change locations; and (4) inspected rental properties owned by Silva. (Id. ¶ 88.) Sixth Angel further alleges that Marcus Hook police officer Ricci Pyle contacted police in another jurisdiction to have them harass a Sixth Angel volunteer who had moved out of Marcus Hook. (Id. ¶ 105.) Sixth Angel states that it has paid over $2,000 in "appeal fees" required to challenge citations from Marcus Hook.

1. Zoning dispute

About two weeks after Sixth Angel filed Sixth Angel I, a Marcus Hook zoning officer cited Sixth Angel at its Marcus Hook office on April 28, 2010. (Id. ¶ 110.) The zoning officer issued a cease and desist letter accusing it of operating a "dog intake facility" in violation of the local zoning code. (Id. ¶ 110, 113, 127.) Sixth Angel appealed the zoning officer's decision to the Marcus Hook Zoning Hearing Board. (Id. ¶ 127.)

The Zoning Hearing Board originally scheduled a hearing for July 13, 2010, but Silva could not attend the hearing because she was in court for another case. (Id. ¶¶ 133-34.) The Zoning Hearing Board rescheduled the hearing to August 30, 2010, but Silva could not attend the hearing on that date because one of her parents passed away. (Id. ¶ 135.) On December 2, 2010, the Zoning Hearing Board noticed the hearing for December 15, 2010. (Id. ¶¶ 137-38.) Silva responded that she could not attend due to a court commitment in another county. (Id. ¶ 139.) The hearing proceeded in Silva's absence. (Id. ¶ 141-42.)

The Zoning Hearing Board issued a decision dated December 17, 2010. (Id. ¶ 144.) The Zoning Hearing Board based its decision on "testimony of Borough officers, which the Board found highly credible, and various relevant letters and documents." (Id.) It affirmed the zoning officer's determination that Sixth Angel was "operating a dog kennel in the Central Retail zoning district without a zoning permit in violation of the zoning ordinance." (Id. Ex. 3 [Zoning Hearing Board decision].) The decision states that Sixth Angel's zoning permit specifically "notes that it does not provide for the keeping, housing, kenneling, [or] maintaining" of dogs on the property. (Id.)

Sixth Angel alleges the Board heard "almost solely the hearsay, un-crossexamined 'testimony' of Defendant Schilero [sic], in an effort to usurp Plaintiff's constitutional rights for an order of 'no dogs allowed.'" (Third Am. Compl. ¶ 114.) The organization also states that the Board violated the Pennsylvania Municipalities Planning Code by failing to permit Silva, Sixth Angel volunteer Samantha Kenney, and other "volunteers and board members . . . [to] attend and testify at the hearing and have the opportunity to cross-examine witnesses and present evidence." (Id. ¶ 143.) Sixth Angel is currently pursuing an appeal of the Board's decision through the Pennsylvania court system. (Id. ¶ 144; see also Pl.'s Answer to Marcus Hook Borough Defs.' Mot. to Dismiss the Third Am. Compl. [Pl.'s Marcus Hook Resp.] 11 n.8, 28.)

2. Rental license fees

In addition to her work with Sixth Angel, Silva has been "involved in a property management company on several properties in Marcus Hook since 2003." (Third Am. Compl. ¶ 147.) Silva received citations for failure to pay rental license fees "regularly from 2009 onward." (Id.) Sixth Angel claims these fees were all either paid in full or not yet due when Silva was cited for non-payment. (Id. ¶ 154.)

Silva challenged the citations in a local court. Prior to a hearing scheduled for October 7, 2010, Marcus Hook withdrew "all citations and charges." (Id. ¶¶ 149-50.) Nevertheless, a constable accosted Silva on the evening of February 9, 2011, threatening to arrest her at her home for "failure to pay one of the 'rental license fees' that had been withdrawn a year and a half earlier." (Id. ¶ 152.) Silva paid a fine and scheduled an appointment with a local district justice rather than submit to imprisonment. (Id. ¶ 153.) Sixth Angel claims Marcus Hook pursued these "spurious charges" to harass Silva in her capacity as a Sixth Angel member. (See id. ¶ 154.)

3. Abusive adopter

Sixth Angel alleges that Mayor Schiliro caused an individual who had adopted a dog from the organization, Joseph Neher, to become abusive and threatening toward Sixth Angel staff in February of 2011. (Id. ¶¶ 96-101.) Sixth Angel claims Schiliro is responsible for "defam[ing] and disparag[ing] Plaintiff and its representatives [and] causing an otherwise precarious individual to become unstable, harassing and threatening to the volunteers and representatives at Sixth Angel's location (including a teenage volunteer) and to" Silva. (Id. ¶ 100.) Specifically, Neher called Silva's office "only to insult, threaten, ...


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