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PA Appeals Court Allows Pet Squirrel To Stay With Family

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  • Lawrence Rogak
    Message 1 of 1 , Apr 29, 2008

      J. A29015/04

      2004 PA Super 426








      v. :



      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 of

      ferrae 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

      was good.

      ¶ 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


      34 Pa.C.S.A. § 2307(a).

      testified to her opinion that the Game Commission is "against any landowner

      who posts their property."


      ¶ 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 trial

      de 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

      Appellant guilty:

      *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.



      The 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) (citing

      Dickerson 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.

      § 2307(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


      de 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.


      , 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


      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


      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."


      , 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.

      § 1921(b)).

      ¶ 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 taken


      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


      The 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 marking

      is 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

      applies here.

      ¶ 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

      offense charged[.]

      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.

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