2011 PA Super 226
PENNSYLVANIA S.P.C.A., INC.,
IN THE SUPERIOR COURT OF
SIXTH ANGEL SHEPHERD RESCUE, INC.,
AND TERRY SILVA, INDIVIDUALLY AND
ON BEHALF OF SIXTH ANGEL SHEPHERD
No. 894 EDA 2011
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
BEFORE: FORD ELLIOTT, P.J.E., BENDER, and BOWES, JJ.
OPINION BY BOWES, J.:
Filed: October 24, 2011
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
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.
operation and licensed kennel operator.
Sixth Angel is a dog rescue
In November 2010, the S.P.C.A. received a complaint regarding
animals being cared for at a property possessed by Steve Alston.
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. § 459-102,1 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
The relevant definition reads:
“Owner.” When applied to the proprietorship of a dog, includes
every person having a right of property in such dog, and every
person who keeps or harbors such dog or has it in his care, and
every person who permits such dog to remain on or about any
premises occupied by him.
3 P.S. § 459-102.
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
Rather than reply to the petition, Sixth Angel filed a notice of
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.2
On March 3, 2011, Sixth Angel
again filed a motion in federal court regarding this matter.
requested that the federal court remand to the state court.
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
The order was dated February 16, 2011, but was not filed until
February 23, 2011.
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. § 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 failed to properly file a copy of its notice of removal
with the state court. We agree.
The issue before us presents a question of statutory interpretation.
Thus, our standard of review is de novo and our scope of review plenary.
Pennsylvania, 985 A.2d 909, 912 (Pa. 2009).
The federal notice of
removal statute reads in pertinent part,
Promptly after the filing of such notice of removal of a civil action
the defendant or defendants shall give written notice thereof to
all adverse parties and shall file a copy of the notice with the
clerk of such State court, which shall effect the removal and the
State court shall proceed no further unless and until the case is
28 U.S.C. § 1446(d). Our Supreme Court has held that the federal removal
statute at issue “is subject to strict construction and its provisions must be
strictly complied with before the jurisdiction of a state court can be
ousted[.]” Crown Const. Co. v. Newfoundland American Ins. Co., 239
A.2d 452, 455 (Pa. 1968). Only where the party filing the notice of removal
complies with the removal statute will the state court lose jurisdiction. Id.
As the High Court stated therein, “Both the statutory language and case law
indicate that, until Prompt notice is given and a copy of the removal petition
Promptly filed with the clerk of the state court, the state court retains its
Id.; see also Miller Block Co. v. U.S. Nat. Bank in
Johnstown, 567 A.2d 695, 697 (Pa.Super. 1989) (“where there has not
been strict compliance with the removal statute, or where the removal is
subsequently determined to be invalid for lack of subject matter jurisdiction,
proceedings in the state court between the filing of the removal petition and
its denial are valid.”). Here, the docket does not reflect that the trial court
was ever properly alerted that Sixth Angel filed a notice of removal in federal
court. Sixth Angel failed to ensure that its notice of removal was correctly
filed in state court and did not remove the case from the state court’s
Accordingly, the court had jurisdiction to grant S.P.C.A.’s
Appellant’s second issue is equally without merit. It is long standing
law that notice to an agent is notice to a principal.
Fidelity Bank v.
Pierson, 264 A.2d 682 (Pa. 1970); Hepburn v. McDowell, 17 Am.Dec.
255 (Pa. 1828). Hence, Sixth Angel’s contention that it was not notified of
the original seizure of its dogs must fail since Mr. Alston was acting as its
Since the S.P.C.A. is statutorily authorized to seize dogs that are
maltreated and Mr. Alston was an agent operating on behalf of Sixth Angel,
the S.P.C.A. lawfully seized the dogs and Sixth Angel had constructive notice
of that seizure.
Moreover, Sixth Angel was afforded due process in this
matter because S.P.C.A. properly served it with its petition alerting Sixth
Angel to the legal proceedings. Sixth Angel simply failed to respond to the
petition or ensure that its notice of removal was properly filed in state court.
For these reasons, we affirm.