PA Appeals Court Allows Pet Squirrel To Stay With Family
2004 PA Super 426
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
BARBARA GOSSELIN, :
Appellant : No. 1978 MDA 2003
Appeal from the Judgment entered November 21, 2003, in
the Court of Common Pleas of Schuylkill County,
Criminal, at No. S03-1528.
BEFORE: HUDOCK and KLEIN, JJ., and McEWEN, P.J.E.
OPINION BY HUDOCK, J.: Filed: November 5, 2004
¶ 1 This appeal revolves around the life and times of Nutkin the squirrel.
¶ 2 Nutkin's early life was spent in the state offerrae naturae, in the state
of South Carolina, and, as far as we can tell, in a state of contentment. She
apparently had plenty of nuts to eat and trees to climb, and her male
friends, while not particularly handsome, did have nice personalities. Life
¶ 3 Then one day tragedy struck: Nutkin fell from her tree nest!
¶4 But fate was kind. Nutkin was found and adopted by Appellant and
her husband who, at that time, were residents of South Carolina. Appellant
lovingly nursed Nutkin back to health, and Nutkin became the family pet. A
large room-sized enclosure was built so Nutkin had plenty of room to run
and climb. Life was good again.
¶ 5 Nutkin's captivity and domestication were perfectly legal in South
Carolina, possibly a reflection of that state's long tradition of hospitality to
¶ 6 In 1994, Appellant and her husband moved to Pennsylvania and
brought Nutkin with them. Life was full of promise.
¶ 7 Dark clouds began to gather, however, in November, 2002, when
Appellant's husband phoned the Pennsylvania Game Commission concerning
a hunter who he and Appellant believed was hunting near an area on their
property where they had set out food for deer. In response to that
complaint, a Wildlife Officer appeared at Appellant's property to investigate.
At that time the Officer became aware that a deer had been illegally shot on
Appellant's property and dragged to a neighboring property. Appellant and
her husband requested that the Game Officer further investigate the
poaching of the deer. The Officer refused to do so, but when he spotted
Nutkin in her room-sized enclosure, he advised Appellant that it was a
violation of the law to keep Nutkin in this manner. The Game Officer
acknowledged that the squirrel was too old and too tame to be released to
the wild (A situation akin to that of an old appellate judge, like the
undersigned, attempting to return to the boiling cauldron of the trial court
after being tamed by years of peace and quiet above the fray. Chances of
survival of both species are poor.) He offered to forgo citing Appellant if she
would relinquish Nutkin to his control. Appellant and her husband refused.
¶ 8 The reasons for this refusal are not apparent of record, but familial ties
no doubt played a part in the decision. (At oral argument, our esteemed
colleague, Judge Klein, alluded to the possibility of "squirrel stew", but there
is insufficient evidence to support this horrific supposition.)
¶ 9 Nutkin would then learn the shocking truth that the cheery
Pennsylvania slogan "You've got a friend in Pennsylvania" did not apply to
four-legged critters like Nutkin. On December 2, 2002, the Wildlife
Conservation Officer issued a citation directed to Appellant's husband for
violating section 2307(a) of the Game and Wildlife Code, entitled "Unlawful
taking or possession of game or wildlife".1 For some unexplained reason,
this citation was withdrawn and a new citation alleging the same violation
was directed to Appellant.
¶ 10 Appellant had become known to the Pennsylvania Game Commission
by appearing to testify before the Game and Fisheries Committee of the
Pennsylvania House of Representatives in September, 2001. In this
testimony, the Appellant complained about the enforcement proceedings of
the Pennsylvania Game Commission, and particularly complained of the fact
that every year "bubba" hunters showed up in the woods near their house to
drive out the deer and the hunters were guilty of various other displays of
bad hunting manners. Stipulation of Facts, 8/5/03, Exhibit C. She further
134 Pa.C.S.A. § 2307(a).
testified to her opinion that the Game Commission is "against any landowner
who posts their property."Id.
¶ 11 While there is no explicit claim of retaliatory prosecution, the
stipulated facts show an interesting temporal relationship between
Appellant's complaints both to the Game Commission and the General
Assembly and her present difficulties.
¶ 12 In any event, Appellant was convicted of the offense before a district
justice and again before the common pleas court in a trialde novo based
upon stipulated facts. She was fined $100.00 plus the costs of prosecution.
While the trial court did not file an opinion, it did provide the following
reasoning in support of its decision in a footnote to the order finding
*To sustain this finding, reference must be had to
the PA Code Title 58 Chapter 137 in which it is
provided at 137.1(a), "unless otherwise provided in
this section or the Act, it is unlawful for a person to
possess (9) game or wildlife taken alive from the
wild or (10) game or wildlife held captive or game or
wildlife held in captivity or captive bred in another
state." Also, 137.31(b) a person violating this
subchapter will be subject to the penalties provided
in 2307 of the Act (relating to unlawful taking or
possession of game o[r] wildlife).
Order dated 11/21/03. This timely appeal followed.2
2The Commonwealth Court of Pennsylvania is conferred with jurisdiction over
appeals from criminal prosecutions brought pursuant to the Game and
Wildlife Code.Commonwealth v. Neitzel, 678 A.2d 369, 370 n. 2 (Pa.
Super. 1996) (citingDickerson v. Commonwealth, 587 A.2d 379, 380-81
(Pa. Cmwlth. 1991)).See also 42 Pa.C.S.A. § 762(a)(2)(ii)
¶ 13 Two issues are raised on appeal:
A. Whether, based on the exception set forth in 34
Pa.C.S.A. § 2307(c), the trial court erred in
convicting [Appellant] for violating 34 Pa.C.S.A.
B. Whether the trial court, in convicting [Appellant]
for violating 34 Pa.C.S.A. § 2307(a) improperly
applied 58 Pa. Code § 137.1[?].
Appellant's Brief at 6 (emphasis deleted). The essence of Appellant's
arguments is that her possession of Nutkin is permitted pursuant to the
language of 34 Pa.C.S.A. section 2307(c). Appellant contends that the trial
court not only failed to consider this provision, but, rather convicted her for
violating a provision of the Pennsylvania Code (58 Pa. Code section 137.1)
with which she was not charged.
¶ 14 Our standard of review of a trial court's adjudication entered following
ade novo trial on a summary offense has been summarized as follows:
[An appellate court's review of a]de novo trial on a
summary offense is limited to whether the trial court
committed an error of law and whether the findings of the
trial court are supported by competent evidence. The
adjudication of the trial court will not be disturbed on
appeal absent a manifest abuse of discretion. An abuse of
the Commonwealth Court has jurisdiction over criminal proceedings for
violations of regulatory statutes administered by Commonwealth agencies).
However, because oral argument has already occurred and the parties have
not challenged the Superior Court's jurisdiction, we will, in the interest of
judicial economy, address the merits of the issues raised in the appeal.
Neitzel, 678 A.2d at 370 n. 2. See also Pa.R.A.P. 741(a) (stating that
"[t]he failure of an appellee to file an objection to the jurisdiction of an
appellate court . . . shall . . . operate to perfect the appellate jurisdiction of
such appellate court, notwithstanding any provision of law vesting
jurisdiction of such appeal in another appellate court").
Discretion exists when the trial court has rendered a
judgment that is manifestly unreasonable, arbitrary, or
capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias, or ill will.
Commonwealth v. Parks, 768 A.2d 1168, 1171 (Pa. Super. 2001)
(citations and quotation marks omitted). Moreover, because the issues on
appeal concern the interpretation of a statute, it is purely a question of law,
over which our review is plenary.R.M. v. Baxter, 565 Pa. 619, 624, 777
A.2d 446, 449 (2001).
¶ 15 This case concerns the interpretation of 34 Pa.C.S.A. section 2307,
under which Appellant was charged and convicted. Section 2307 provides,
in relevant part, as follows:
§ 2307. Unlawful taking or possession of game or wildlife
(a) General rule.It is unlawful for any person to
aid, abet, attempt or conspire to hunt for or take or
possess, use, transport or conceal any game or
wildlife unlawfully taken or not properly marked or
any part thereof, or to hunt for, trap, take, kill,
transport, conceal, possess or use any game or
wildlife contrary to the provisions of this title.
* * *
(c) Wild Birds and wild animals taken outside
Commonwealth.Nothing in this title shall prohibit
the possession, at any time, of wild birds or wild
animals lawfully taken outside of this
Commonwealth which are tagged and marked in
accordance with the laws of the state or nation
where the wild birds or wild animals were taken. It
is unlawful to transport or possess wild birds or wild
animals from another state or nation which have
been unlawfully taken, killed or exported.
34 Pa.C.S.A. § 2307 (a) and (c). "The basic tenet of statutory construction
requires a court to construe the words of the statute according to their plain
meaning."Grom v. Burgoon, 672 A.2d 823, 825 (Pa. Super. 1996)
"[W]ords and phrases contained in a statute shall be construed according to
rules of grammar and according to their common and approved usage."
R.M., 565 Pa. at 626, 777 A.2d at 451; 1 Pa.C.S.A. § 1903(a). "When the
words of a statute are clear and free from ambiguity the letter of it is not to
be disregarded under the pretext of pursuing its spirit."Id. (citing Pa.C.S.A.
¶ 16 Our review of the language of section 2307 leads us to conclude that
Appellant's interpretation of the statute is consistent with the plain meaning
of the text. The language of section 2307 clearly and unambiguously
provides that possession of wild animals in this Commonwealth is not
prohibited where: (1) the wild birds or wild animals are lawfully taken3
outside of this Commonwealth; and, (2) the wild birds or wild animals are
tagged and marked in accordance with the laws of the state or nation where
the birds or animals were taken.
¶ 17 In this instance the parties have stipulated that Nutkin is a wild animal
within the meaning of this section. They have further stipulated that in the
3The word "Take" in the context of the Game and Wildlife Code has been
defined as: "[t]o harass, pursue, hunt for, shoot, wound, kill, trap, capture,
possess or collect any game or wildlife, including shooting at a facsimile of
game or wildlife, or attempt to harass, pursue, hunt for, shoot, wound, kill,
trap, capture or collect any game or wildlife or aiding, abetting or conspiring
with another person in that purpose." 34 Pa.C.S.A. § 102.
state of South Carolina the taking and domestication of squirrels is legal and
that there are no provisions for tagging or marking animals taken, as
contemplated in section (c) of the Pennsylvania statute. Thus, because it is
agreed by both parties that Nutkin is a "wild animal", and that she was
"taken" outside the Commonwealth in a lawful fashion, the first element of
the exception set forth in Section 2307(c) has been established. For the
exception in 2307(c) to apply, then it seems that Nutkin must have been
tagged and marked in accordance with the laws of the state where she was
taken. We then refer to the law of South Carolina to see what the
requirements of marking and tagging are. As stated above, it was stipulated
that there are no such marking and tagging requirements. Hence, the lack
of tagging and markingis in "accordance with the laws of the state . . .
where the . . . wild animals were taken." Accordingly, we find that both
elements of Section 2307(c) have been satisfied and, as such, the exception
¶ 18 Nonetheless, the Commonwealth argues that this interpretation of
Section 2307 is erroneous and it points to various sections of Title 58 of the
Pennsylvania Code, which it claims prohibits possession of animals taken
from the wild, no matter where the taking took place. The Commonwealth
first points to 58 Pa. Code Sections 131.1 and 131.2 which explain that Title
34 of the Pennsylvania Consolidated Statutes (the Act), which embodies the
Game and Wildlife Code, and Title 58 of the Pennsylvania Code are
interrelated and shall be construed with reference to each other. Then the
Commonwealth alludes to 58 Pa. Code section 137.1(a) which states "[i]t is
unlawful for a person to import [and/or] possess (9) [g]ame or wildlife
taken alive from the wild [or] (10) [g]ame or wildlife held in captivity or
captive bred in another state" and section 137.31 which provides that, "[i]t
is unlawful for a person to possess live wildlife taken from a wild state within
this Commonwealth", with certain exceptions not relevant here. Thus, the
Commonwealth concludes that to interpret 34 Pa.C.S.A. section 2307(c) as
Appellant does would render Section 2307(c) and 58 Pa. Code Sections
137.1 and 137.31 incongruent. The difficulty with the Commonwealth's
argument is that Section 137.1 specifically provides in subsection (a) the
language "[u]nless otherwise provided in this section or the [A]ct, it is
unlawful for a person to import, possess," etc. As stated above, the Act
itself in 34 Pa.C.S.A. section 2307(c) does provide otherwise. It provides an
exception to the otherwise blanket prohibition in section 2307(a) and the
¶ 19 The Commonwealth in further support of its argument points to 34
Pa.C.S.A. section 2163. Section 2163 provides that "[i]t is unlawful for any
person to bring or, in any manner, to have transported into this
Commonwealth from any other state or nation, any living game or wildlife
the importation of which is prohibited by the commission ." Thus, the
Commonwealth contends that because 58 Pa. Code section 137.1 is a
regulation of the commission, and it prohibits importation of wildlife,
Appellant is in violation of the regulation. While the regulation of the
commission set forth in Section 137.1 on its face seems to prohibit all
importation of wildlife, the regulation of the commission cannot conflict with
an act of the General Assembly, such as 34 Pa.C.S.A. section 2307(c), which
creates an exception.See Commonwealth v. DeFusco, 549 A.2d 140,
145 (Pa. Super. 1988 ) (providing that "where there is an apparent
conflict between a statute and a regulation promulgated thereunder, the
statute must prevail");Lookenbill v. Garrett, 490 A.2d 857, 861 (Pa.
Super. 1985) ( same);Wernersville State Hospital v. Peters, 659 A.2d
67, 69-70 (Pa. Cmwlth. 1995) (same).
¶ 20 While our disposition of Appellant's first issue requires a reversal of the
conviction, we believe Appellant's second issue also has merit. Rule 403 of
the Pennsylvania Rules of Criminal Procedure provides, in relevant part:
Rule 403. Contents of Citation
A. Every citation shall contain:
* * *
(6) a citation of the specific section and
subsection of the statute or ordinance
allegedly violated, together with a
summary of the facts sufficient to advise
the defendant of the nature of the
Pa.R.Crim.P. 403(A)(6). The citation in this case charges a violation of
section 2307(a), and it is that charge which Appellant was on notice to
defend against. The trial court's incorporation of 58 Pa. Code section
137.1(a) in its order charges a new offense in that this latter section
prohibits the importation or possession of wildlife held in captivity without
any exception for animals taken and marked and tagged in accordance with
the law of state where taken. It is obvious that 58 Pa. Code section
137.1(a) is a different offense from the one charged in Appellant's citation.
Therefore, Appellant's conviction also must fail on this basis.
¶ 21 Accordingly, for the reasons set forth above, we must reverse the
judgment of sentence and dismiss the citation.
¶ 22 Judgment of sentence reversed. Citation dismissed. Fines and costs,
if paid, to be returned.