Opinion
No. 2290 C.D. 2008.
Submitted: June 12, 2008.
Filed: July 6, 2009.
BEFORE: SMITH-RIBNER, Judge; LEAVITT, Judge; McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
This matter involves an appeal from an order of the Court of Common Pleas of Venango County denying a motion filed by James and Janeen Duff for the return of cats removed from their home on July 10, 2008 by the Pennsylvania Society for the Prevention of Cruelty to Animals (PSPCA). After an investigation into reports received by the PSPCA of violations of the Animal Cruelty Law, 18 Pa. C.S. § 5511, one of its investigators Tammy Kerr went to the Duffs' home and after gaining entry discovered cats that were in poor condition. Six animals were seized after their surrender by Mrs. Duff. The questions presented by the Duffs are whether a motion for return of property under Rule 588 of the Pennsylvania Rules of Criminal Procedure may be denied where the Commonwealth did not file a motion for forfeiture and whether the trial court erred by failing to expressly decide the question and instead denied return of the cats after concluding that they were derivative contraband.
After discussing the cats' conditions with Mrs. Duff, the investigator explained that Mrs. Duff had three options, which included obtaining veterinary care for the cats, surrendering the cats to the PSPCA or having charges initiated for cruelty to animals. Mrs. Duff thereafter agreed to surrender three cats and three kittens that were determined to be in the worst condition. She signed surrender forms for the six animals agreeing to surrender them to the PSPCA to be disposed of at the society's discretion and releasing the PSPCA from all responsibility.
The trial court pointed out the PSPCA's assertion that the cats were derivative contraband as they were held in violation of 18 Pa. C.S. § 5511(c) and furthermore that they had been surrendered by Mrs. Duff. The trial court found that the evidence pertaining to the home and physical conditions of the cats made it clear that they were neglected. The Duffs could not provide veterinary care, their home was not clean or sanitary and the cats should not be subjected to continued cruelty and gross neglect. Also, two of the cats had died as of the August 2008 hearing date. The Duffs failed to testify at the hearing, and the PSPCA's evidence showed that the cats were retained in the home in violation of the Animal Cruelty Law, which specifies that cats are more than mere property and are entitled to protection from neglect. The trial court concluded that the Duffs were not entitled to lawful possession of their cats and that they would not be returned. Also, the trial court concluded that in a Rule 588 motion, it had to determine only whether the Duffs were entitled to lawful possession, which does not require review of the lawfulness of a search, and that the issue of forfeiture was not before the court.
In Commonwealth v. Johnson, 931 A.2d 781 (Pa.Cmwlth. 2007), this Court reiterated the well-settled principle that return of property proceedings are distinct from forfeiture proceedings and that motions for the return of property seized by the police are filed under Rule 588. The moving party has the initial burden and must show by a preponderance of the evidence that he/she is entitled to lawful possession of the property. If the moving party presents sufficient evidence, the burden shifts to the Commonwealth to prove that the property is contraband. See Commonwealth v. Crespo, 884 A.2d 960 (Pa.Cmwlth. 2005). This Court's review of the trial court's order denying the Duffs' motion is limited to determining whether the factual findings are supported by competent evidence and whether the trial court abused its discretion or committed an error of law. Despite the Duffs' attempts to show that a conflict exists in case law authority and their assertion that their position brings harmony to the conflicting lines of cases, the fact remains that the cats were surrendered to the PSPCA and thereafter the Duffs no longer had any ownership interests. Also, the trial court's findings regarding the conditions of the home and the neglect of the animals were supported by competent evidence, which in turn supported the conclusions reached by the trial court. This Court therefore holds that the trial court did not err in denying the Duffs' motion and that its order should be affirmed on the basis of the well-reasoned opinion by President Judge Oliver J. Lobaugh in proceedings captioned: In Re: Property of James Duff and Janeen Duff (CCP Venango County, MD No. 59-2008, filed September 18, 2008).
ORDER
AND NOW, this 6th day of July, 2009, the order of the Court of Common Pleas of Venango County is affirmed based upon the opinion issued by President Judge Oliver J. Lobaugh in proceedings captioned In Re: Property of James Duff and Janeen Duff (CCP Venango County, MD No. 59-2008, filed September 18, 2008).