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Pennsylvania S.P.C.A., Inc v. Sixth Angel Shepherd Rescue

October 24, 2011

PENNSYLVANIA S.P.C.A., INC., APPELLEE
v.
SIXTH ANGEL SHEPHERD RESCUE, INC., AND TERRY SILVA, INDIVIDUALLY AND ON BEHALF OF SIXTH ANGEL SHEPHERD RESCUE, INC., APPELLANT



Appeal from the Order Entered February 23, 2011, in the Court of Common Pleas of Philadelphia County, Civil Division, at No(s): 110102179 Jan. Term 2011

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

J-S56044-11

BEFORE: FORD ELLIOTT, P.J.E., BENDER, and BOWES, JJ.

OPINION BY BOWES, J.:

Sixth Angel Shepherd Rescue, Inc. and Terry Silva ("Sixth Angel") appeal from the order granting the Pennsylvania Society for the Prevention of Cruelty to Animals ("S.P.C.A.") petition to confirm disposition of surrendered or forfeited property. We affirm.

The salient facts are as follows. S.P.C.A. is an organization charged with enforcing 18 Pa.C.S. § 5511, this Commonwealth's cruelty to animals statute. The S.P.C.A. employs humane society police officers who investigate allegations of animal cruelty, file criminal charges, and prosecute violations of the above-referenced statute. Sixth Angel is a dog rescue operation and licensed kennel operator.

In November 2010, the S.P.C.A. received a complaint regarding animals being cared for at a property possessed by Steve Alston. The kennel license displayed on Mr. Alston's property indicated that the property was a kennel operated by Sixth Angel. Thus, Mr. Alston was acting as an agent for Sixth Angel and, under the Dog Law, 3 Pa.C.S. § 459-102,*fn1 was an owner of Sixth Angel's dogs that were located at that property. Mr. Alston was charged with summary violations of 18 Pa.C.S. § 5511 and, in

December of 2010, entered into a consent decree wherein he agreed that the animals at the property were living in unsanitary conditions and were being denied veterinary care.

Pursuant to § 5511, forfeiture of maltreated animals is authorized. 18 Pa.C.S. § 5511(m) ("the authority imposing sentence upon a conviction for any violation of this section may order the forfeiture or surrender of any abused, neglected or deprived animal of the defendant to any society or association for the prevention of cruelty to animals duly incorporated under the laws of this Commonwealth."). Accordingly, based on Mr. Alston's entry into a consent order, the dogs housed at his property and owned by Sixth Angel were lawfully subject to forfeiture. In January 2011, Sixth Angel contacted the S.P.C.A. and requested the return of the dogs, indicating that it was not notified of the seizure. Thereafter, on January 14, 2011, the S.P.C.A. filed a petition to confirm the forfeited property and served Sixth Angel. Rather than reply to the petition, Sixth Angel filed a notice of removal with the federal eastern district court of Pennsylvania on February 3, 2011. Sixth Angel, however, failed to ensure that it properly filed a copy of its notice of removal in state court.

Subsequently, on February 16, 2011, Sixth Angel filed a motion in federal court, but not in state court, seeking an extension of time to respond to S.P.C.A.'s state petition to confirm. On February 23, 2011, the state court, having not received a response by Sixth Angel, entered an order granting S.P.C.A.'s petition to confirm.*fn2 On March 3, 2011, Sixth Angel again filed a motion in federal court regarding this matter. That motion requested that the federal court remand to the state court. The S.P.C.A. filed a response the following day and the federal court granted the motion on March 18, 2011. This appeal followed on March 25, 2011. The trial court directed Sixth Angel to file and serve a Pa.R.A.P. 1925(b) statement, and it complied. The matter is now ready for our review. Sixth Angel raises the following two issues.

1. Whether the trial court's order is void as the case had been removed to federal court which was exercising jurisdiction until and unless remanded.

2. Whether a grant of a petition in state court as "uncontested" is a violation of Defendant Sixth Angel Shepherd Rescue, Inc.'s rights under the federal constitution to be protected against deprivation of property without due process of law.

Appellant's brief at 4.

Sixth Angel's initial contention is that the trial court lacked jurisdiction to grant S.P.C.A.'s petition since it filed a notice of removal with the federal district court under 28 U.S.C. ยง 1446 prior to the court's disposition of the petition. The S.P.C.A. replies that the state court had concurrent jurisdiction because Sixth Angel ...


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