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DeSanctis v. Hurley Pritchard (Petition for Allowance of Appeal) (2002)

Plaintiff's Attorney:   Albert Momjian, Esquire, Nancy Winkelman, SCHNADER HARRISON SEGAL & LEWIS LLP & John S. Carnes, Jr

Topic: Custody of dog

Jurisdiction:   PA - Pennsylvania Supreme Court

Year Case Filed:   2002


Printible Version



Plaintiff seeks enforcement of contract with ex-spouse for sharing possession of dog. Lower court refused to enforce agreement saying that dogs were just property and shared possession was not possible.

 

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

 

 

NO.                         M.D. ALLOCATUR DOCKET 2002

 

 

ANTHONY DeSANCTIS,

                                                                                                            Appellant/Petitioner

 

v.

 

LYNDA HURLEY PRITCHARD,

                                                                                                            Appellee/Respondent

 

 

PETITION FOR ALLOWANCE OF APPEAL

 

 

 

 

Petition for Allowance of Appeal from the Order of the Superior Court of Pennsylvania dated July 5, 2002, at No. 2990 EDA 2001, affirming the Order Entered by the Honorable William P. Mahon of the Court of Common Pleas of Chester County, on October 5, 2001 at No. 01-04543

 

 

 

Albert Momjian, Esquire, Nancy Winkelman,  SCHNADER HARRISON SEGAL & LEWIS LLP & John S. Carnes, Jr.

                                                                        1600 Market Street, Suite 3600

                                                                        Philadelphia, PA  19103-7286

                                                                        (215) 751-2000

 

                                                                        John S. Carnes, Jr., Esquire

                                                                        Attorney No. 47338

                                                                        202 North Church Street

                                                                        P.O. Box 3449

                                                                        West Chester, PA 19381-3349

                                                                        (610) 436-6604

 

                                                                        Attorneys for Petitioner, Anthony DeSanctis


TABLE OF CONTENTS

PAGE

 

TABLE OF AUTHORITIES. ii

OPINIONS BELOW... 1

TEXT OF THE ORDER IN QUESTION.. 2

QUESTION PRESENTED FOR REVIEW... 3

STATEMENT OF THE CASE. 4

REASONS RELIED UPON FOR ALLOWANCE OF APPEAL. 7

A.    The Superior Court Erred In Disregarding The Parties’ Agreement
        To Share Possession Of Barney. 7

 

B.     The Superior Court Decision Is Contrary To Public Policy Because
        It Fails To Recognize The Unique Character Of Pets  10

 

CONCLUSION.. 18

APPENDIX

Superior Court Judgment and Opinion, dated July 5, 2002... EXHIBIT A

Chester County Court of Common Pleas Order, dated October 4, 2001 EXHIBIT B

Chester County Court of Common Pleas Supplemental Order and Opinion,

                        dated November 30, 2001                        EXHIBIT C

 

Newspaper Articles                        EXHIBIT D

 

Pastore v. Pastore, 1999 Conn. Super. LEXIS 2821 (Conn. Super. Ct.
                        October 20, 1999)                        EXHIBIT E


TABLE OF AUTHORITIES

 

CASES

 

Arrington v. Arrington, 13 S.W.2d 565 (Tex. App. 1981)........ 11

Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (N.Y. Civ. Ct. 1980)........ 13

Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App. 1994)........ 17

Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Haw. 1981) 14

Capers Estate, 34 Pa. D. & C. 2d 121 (1964)................. 15

Carosone v. Carosone, 688 A.2d 733 (Pa. Super. Ct. 1997)...... 8, 9

Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d 182 (N.Y. Civ.
      Ct. 1979)      12, 13

In re Estate of Brand, No. 28473 (Chittenden County, Vt. Prob. Ct. Mar. 17, 1999).. 14

LaPorte v. Associated Independents, Inc., 163 So. 2d 267 (Fla. 1964)........ 13

Lobaugh v. Lobaugh, 753 A.2d 834 (Pa. Super. Ct. 2000).......... 8

McMahon v. McMahon, 612 A.2d 1360 (Pa. Super. Ct. 1992).......... 8

Mitchell v. Heinrichs, 27 P.3d 309 (Alaska 2001)................. 13

Pastore v. Pastore, 1999 Conn. Super. LEXIS 2821 (Conn. Super. Ct.
      October 20, 1999).. 11

Peck v. Peck, 707 A.2d 1163 (Pa. Super. Ct. 1998).......... 8

Raymond v. Lachman, 264 A.D.2d 340 (N.Y. App. Div. 1999). 11

Woodings v. Woodings, 601 A.2d 854 (Pa. Super. Ct. 1992).......... 8

 


STATUTES

 

3 Pa. Cons. Stat. Ann. � 459-601....... 7, 16

 

3 Pa. Cons. Stat. Ann. � 459-603.... 16

 

18 Pa. Cons. Stat. Ann. � 5511......... 16

 

23 Pa. Cons. Stat. Ann. � 3105.. 7

 

23 Pa. Cons. Stat. Ann. � 3503........... 7

 

23 Pa. Cons. Stat. Ann. � 3504........... 7

 

Tenn. Code Ann. 44-17-403 14

 

 

MISCELLANEOUS

 

 

Gerry W. Beyer, Estate Planning for Pets, 15 Prob. & Prop. 6 (2001). 14

 

Geordie L. Duckler & Dana M. Campbell, Nature of the Beast: Is Animal Law
Nipping at Your Heels?
, 61 Or. St. B. Bull. 15 (2001). 15, 16

 

Brooke A. Masters, In Courtroom Tug of War Over Custody, Roommate Wins the Kitty, Wash. Post, Sept. 13, 1997 11

 

Barbara Newell, Animal Custody Disputes: A Growing Crack in the "Legal
Thinghood" of Nonhuman Animals
, 6 Animal L. 179 (2000)........... 16

 

PetCustody.com, How far Would You go to Keep Pets Like Beanie and Annie Together?, PetCustody.com Feature Articles, at http://www.petcustody.com/features/lynn_goldstein.html 12

 

William C. Root, Note, "Man's Best Friend": Property or Family Member?
An Examination of the Legal Classification of Companion Animals and its
Impact on Damages Recoverable for their Wrongful Death or Injury
, 47
Vill. L. Rev. 423 (2002). 10

 


OPINIONS BELOW

A.            DeSanctis v. Pritchard, No. 2990 EDA 2001 (Pa. Super. Ct. July 5, 2002).  A copy of the Superior Court Judgment and Opinion affirming the October 5, 2001 Order of the Chester County Court of Common Pleas at No. 01-04543 is attached as Exhibit A.

B.            DeSanctis v. Pritchard, No. 01-04543 (Chester County Court of Common Pleas October 4, 2001).  A copy of the Court of Common Pleas Order sustaining Defendant’s Preliminary Objections to Plaintiff’s Complaint and dismissing the Complaint with Prejudice is attached as Exhibit B.

C.            DeSanctis v. Pritchard, No. 01-04543 (Chester County Court of Common Pleas November 30, 2001).  A copy of the Court of Common Pleas Supplemental Opinion and Order is attached as Exhibit C.


TEXT OF THE ORDER IN QUESTION

The Judgment of the Superior Court of Pennsylvania was entered on July 5, 2002, and reads as follows:

Order affirmed.

The Superior Court Judgment and Opinion is attached hereto as Exhibit A.


QUESTION PRESENTED FOR REVIEW

In affirming the trial court’s Order dismissing the Complaint, which sought to enforce an agreement for shared possession of a beloved family pet upon the parties’ divorce, did not the Superior Court improperly disregard the parties’ right to share a property interest in the pet and thereby violate public policy recognizing the unique character of pets?


STATEMENT OF THE CASE

Appellant, Anthony DeSanctis, and Appellee, Lynda Hurley Pritchard, were married in 1991.  (R. 16a).[1]  The parties separated in December of 1996 and a divorce decree was entered on or about October 18, 2000.  (R. 18a).  During the marriage, in June of 1994, the parties purchased Barney, a mixed-breed Golden Retriever/Golden Labrador dog, from the Chester County Society for the Prevention of Cruelty to Animals.  (R. 16a).

Following the parties’ separation, but prior to their divorce, Pritchard drafted an Agreement regarding the distribution of marital property.  (R. 17a).  The Agreement focused primarily on the parties’ arrangements for their beloved pet, Barney.  (R. 17a).  In executing the Agreement, DeSanctis agreed to assume a significant amount of the marital debt in order to share possession of Barney.  (R. 21a).  The Agreement provided it would become effective upon issuance of a final divorce decree or on October 12, 2000, whichever occurred first.  (R. 28a).  Thus, the Agreement became effective on October 12, 2000.  The Agreement specifically provided in Paragraph 2: “Barney is Lynda’s property and she will have full custody.  Tony is granted visitation only in accordance with this agreement.”  (R. 28a).  Paragraph 4 specified in part: “The weekend will be the second weekend of the month,” and Paragraph 7 further provided: “Pick-up will occur at 5:30 p.m. on Friday of the second weekend of the month and return at 8:00 p.m. on Sunday.”  (R. 28a, 29a).  Paragraph 7 additionally included: “If Lynda moves to a new pick up location, somewhere half-way between Lynda and Tony will be mutually agreed to,” and Paragraph 13 provided: “In the event of Lynda’s death, Barney will go to Tony.”  (R. 29a).

Between October of 2000 and February 2001, the parties shared possession of Barney in accordance with the Agreement.  In addition, DeSanctis also regularly saw Barney informally at Lloyd Park several times per week.  (R. 18a).  DeSanctis fully complied with his obligations under the Agreement.  However, following Pritchard’s remarriage and relocation, she refused to comply with the terms of the Agreement, refusing to allow DeSanctis any access at all to Barney.  (R. 18a, 20a).  As a result, DeSanctis has not seen his beloved pet since January of 2001.  (R. 20a).  Additionally, Barney’s health is a concern, because although he is currently in remission, he had a cancerous tumor removed in November of 1999.  (R. 18a).

On May 29, 2001, DeSanctis filed a Complaint in Equity/Declaratory Judgment to enforce the Agreement.  (R. 16a).  The complaint sought injunctive and declaratory relief and specific performance or reformation of the Agreement.  Specifically, DeSanctis requested, inter alia, a ruling that “Defendant is in breach of the Agreement and that Plaintiff is entitled to visitation with Barney under the terms of the Agreement” and that “Defendant is in willful breach of the Agreement and providing Plaintiff with immediate access to Barney and restorative time with Barney and further visitation in accordance with the terms of the Agreement.”  (R. 23a, 25a).  On June 4, 2001, DeSanctis also filed a Petition to Enforce Agreement and/or for Injunctive Relief.  (R. 33a). 

Pritchard filed Preliminary Objections to Plaintiff’s Complaint, which DeSanctis answered.  (R. 93a).[2]  After oral argument on the Preliminary Objections, the trial court sustained Pritchard’s Preliminary Objections to the Complaint and dismissed the Complaint with prejudice. (R. 5a).  (A copy of the trial court’s October 4, 2001 Order is attached as Exhibit B; and a copy of its November 30, 2001 Supplemental Order and Opinion is attached as Exhibit C.)

DeSanctis appealed to the Superior Court.  The Superior Court affirmed.  The Superior Court refused to recognize that parties could create a shared property interest in a pet, describing DeSanctis’ Complaint as “seeking an arrangement analogous, in law, to a visitation schedule for a table or a lamp.”  DeSanctis v. Pritchard, No. 2990 EDA 2001, 2002 Pa. Super. Ct. LEXIS 1513, at **5 (Pa. Super. Ct. July 5, 2002) (Exhibit A, at 4).

Specifically, the Court held the terms of the Agreement “void to the extent that they attempt to award custodial visitation with or shared custody of personal property.”  Id.  In the Court’s view, the Agreement “explicitly awarded [Barney] to Appellee.”  Id.  Thus, “Barney and his social schedule belong exclusively to Appellee” notwithstanding the terms of the Agreement and the parties’ clear intent to share possession of Barney, DeSanctis had no rights whatsoever in Barney.  Id. at **6 (Exhibit A, at 5).


REASONS RELIED UPON FOR ALLOWANCE OF APPEAL

A.                 The Superior Court Erred In Disregarding The Parties’ Agreement To

                        Share Possession Of Barney.                                                                       

Pursuant to 23 Pa. Cons. Stat. Ann. � 3105, parties may seek to enforce agreements not merged or incorporated into a divorce decree to the same extent as if the agreement were a court order.  Here, DeSanctis and Pritchard entered into just such an Agreement, and DeSanctis merely sought to have that Agreement enforced.  The Superior Court erred in determining that 23 Pa. Cons. Stat. Ann. �� 3503 (Effect of divorce on property rights generally) and 3504 (Disposition of property after termination of marriage), rather than � 3105 (Effect of agreement between parties), governed this case.  Clearly, the intent of the parties was to create a shared property interest in Barney. 

The Superior Court was correct that dogs are considered to be personal property in Pennsylvania.  See 3 Pa. Cons. Stat. Ann. � 459-601(a).  Therefore, according to section 3105(c) of the Divorce Code, “[i]n the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties …shall not be subject to modification by the court.”  23 Pa. Cons. Stat. Ann. � 3105(c) (emphasis added).  But that is precisely what the Superior Court did -- and what it should not have done: it modified the Agreement by giving force to the portion that granted Pritchard “full custody” and voiding the portion that granted DeSanctis “visitation.”  It would entirely undermine the purpose of � 3105, enforcing agreements freely entered into between parties, if �� 3503 and 3504 could be applied to negate such agreements. 

And while the parties’ use of the terms “custody” and “visitation” may have been somewhat unfortunate, as a practical matter, it was understandable, given that the parties were making arrangements to share possession of a pet, not (notwithstanding the Superior Court’s characterization to the contrary) of a table or a lamp.  Certainly, the parties’ use of these terms does not justify, in essence, voiding the Agreement.

Several Superior Court cases have addressed the application of section 3105 of the Divorce Code and applied a contract law analysis.  In Woodings v. Woodings, the court enforced an agreement for equitable distribution of a marital estate.  601 A.2d 854 (Pa. Super. Ct. 1992).  The former husband sought to cease alimony payments due to former wife’s cohabitation.  Id. at 855.  The court found that the former husband was not entitled to cease making the payments agreed to because the payments were being made pursuant to a property settlement agreement between the parties, and not resulting from a court ordered award.  Id. at 856.  “Alimony due under an agreement of the parties, even if incorporated in a court Order, is paid as a result of the agreement and not of an award.  Section [3105] forbids modification of an agreement for alimony, and by implication an attempt to terminate a provision of the agreement would be beyond the powers of the court unless expressly provided in the agreement.”  Id.  See also Lobaugh v. Lobaugh, 753 A.2d 834, 835 (Pa. Super. Ct. 2000) (finding enforcement of marital property settlement controlled under � 3105); Peck v. Peck, 707 A.2d 1163, 1165 (Pa. Super. Ct. 1998) (refusing to modify order mirroring alimony provision in property settlement agreement; “‘[t]he starting point for determining the intent of the parties is the language and terms of the agreement itself.’”); McMahon v. McMahon, 612 A.2d 1360 (Pa. Super. Ct. 1992) (recognizing � 3105 prohibition against modification of agreements).

As the Superior Court explained in Carosone v. Carosone, 688 A.2d 733, 734 (Pa. Super. Ct. 1997), “[m]arriage settlement agreements are governed by the law of contracts”:

When construing agreements involving clear and unambiguous terms, this court need only examine the writing itself to give effect to the parties’ understanding.  The court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. When the terms of a written contract are clear, this Court will not re-write it to give it a construction in conflict with the accepted and plain meaning of the language used.



Furthermore, a written contract must be construed as a whole and the parties’ intentions must be ascertained from the entire instrument; effect must be given to each part of the contract.

Id. at 735 (citations omitted).

Here, DeSanctis merely seeks to enforce an Agreement freely reached between Pritchard and himself.  Applying section 3105 of the Divorce Code and contract principles to the case at hand, only one conclusion can be reached:  the Agreement between DeSanctis and Pritchard should have been enforced in its entirety and should not have been modified.  It was obviously the intent of the parties to share possession of their beloved pet, Barney.  While the language used by the parties may not have been perfect, their intent could not be clearer.  Just as the law allows for shared interest in inanimate property following divorce, the law should allow for shared property rights in pets, who are lawfully considered to be personal property.  It is beyond the power of a court to pick and choose which provisions should be given effect.  Each portion must be given effect, and the Agreement at issue, as a whole, clearly establishes the intent of the parties to maintain shared possession of Barney.  The parties complied with that Agreement from October of 2000 through February of 2001, when Pritchard relocated and refused to comply.  To force DeSanctis to relinquish all interest in Barney not only would violate section 3105, but would also be a miscarriage of justice. 

B.                 The Superior Court Decision Is Contrary To Public Policy Because It Fails

                        To Recognize The Unique Character Of Pets.                                                 

While animals are considered property for legal purposes, courts and legislatures are increasingly concluding that the unique character of companion animals sets them apart from inanimate property, and thereby merits enhanced legal protection.  Despite the Superior Court’s characterization of this case as “seeking an arrangement analogous, in law, to a visitation schedule for table or lamp,” there are several striking distinctions between a table or lamp and a living, breathing family pet.  Those distinctions make clear that the Superior Court erred in refusing to recognize a shared property interest in pets.

Statistics alone reveal the importance of companion animals to American families. 

In the United States, there is nearly one pet for every two Americans.  Further, approximately 124 million dogs and cats live in American households.  In one study, forty-five percent of dog owners reported that they take their pets on vacation.  Another recent survey revealed that more than half of companion animal owners would prefer a dog or a cat to a human if they were stranded on a deserted island.  Another poll revealed that fifty percent of pet owners would be “very likely” to risk their lives to save their pets, and another thirty-three percent indicated they would be “somewhat likely” to put their own lives in danger.  These statistics indicate that companion animal owners view their pets as family members, rather than as personal property.

William C. Root, Note, “Man’s Best Friend”: Property or Family Member?  An Examination of the Legal Classification of Companion Animals and its Impact on Damages Recoverable for their Wrongful Death or Injury, 47 Vill. L. Rev. 423, 423 (2002).

In recognition of the value that American culture puts on pets, courts increasingly have given effect to parties’ possessory interests in their pets.  In Raymond v. Lachman, for example, the Appellate Division of the Supreme Court of New York acknowledged the “cherished status accorded to pets in our society,” in determining that in a dispute over possession of a cat, the cat should “remain where he has lived, prospered, loved and been loved for the past four years.”  264 A.D.2d 340, 341 (N.Y. App. Div. 1999).  In Zovko v. Gregory, the Court considered the best interests of a cat at the center of a dispute between two former roommates, and awarded the cat to the party that provided the most care.  See Brooke A. Masters, In Courtroom Tug of War Over Custody, Roommate Wins the Kitty, Wash. Post, Sept. 13, 1997, at B1.

Moreover, courts consider family pets in marital property distribution.  In Arrington v. Arrington, the Court affirmed a property division which included reasonable visitation with the family dog.  613 S.W.2d 565 (Tex. App. 1981).  While stating that “[a] dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such,” the Court went on to convey the “hope that both Arringtons will continue to enjoy the companionship of [the dog] for years to come within the guidelines set by the trial court,” and finally noted, in regard to the dog, that “[l]ove is not a commodity that can be bought or sold – or decreed.  It should be shared and not argued about.”  Id.  In Pastore v. Pastore, the Superior Court of Connecticut ruled that any disputes concerning personal property distribution and the pets would be referred to the Family Relations Office for mediation.  1999 Conn. Super. LEXIS 2821, at *9 (Conn. Super. Ct. October 20, 1999).  Pet owners view their animal companions as more that mere inanimate property, and are willing to go to great lengths to maintain possession of them during domestic disputes.[3]

The status of companion animals also has received attention beyond the realm of domestic relations.  Parties often seek non-economic damages for the injury to or death of their companion animal through tort actions.  See Root, supra, at 423.  Notwithstanding that damages regarding property generally are limited to the fair market value of the property, some courts have awarded enhanced damages in tort litigation for animals that are injured or killed, in recognition of the unique character of companion animals.  In Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d 182 (N.Y. Civ. Ct. 1979), for example, a dog owner brought a tort action for the improper treatment of her deceased pet’s body.  The court held that “a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.”  Id. at 183.  The court went on to state:

In ruling that a pet such as a dog is not just a thing I believe the plaintiff is entitled to damages beyond the market value of the dog.  A pet is not an inanimate thing that just receives affection; it also returns it.  I find that plaintiff Ms. Corso did suffer shock, mental anguish and despondency die to the wrongful destruction and loss of the dog’s body.

…[A piece of property] while it might be the source of good feelings is merely an inanimate object and is not capable of returning love and affection.  It does not respond to human stimulation; it has no brain capable of displaying emotion which in turn causes a human response. …To say [a dog] is a piece of personal property and no more is a repudiation of our humaneness.  This I cannot accept.

Id.

                        Similarly, other courts have used the actual value of the companion animal to its owner, rather than fair market value, to calculate damages.  Recently, the Supreme Court of Alaska, discussing at length their approach to damages in such cases, came to the conclusion that the actual value of the pet to the owner may exceed its fair market value.  Mitchell v. Heinrichs, 27 P.3d 309 (Alaska 2001).  While that court did not allow for damages for sentimental value, it noted that it does allow intentional infliction of emotional distress claims for the intentional or reckless killing of a pet, as well as punitive damages for the killing of a pet.  Id. at 311-12.   A Civil Court in the City of New York considered the protective value of a dog and the loss of companionship suffered by its owner as elements of the actual value of the pet to its owner.  Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (N.Y. Civ. Ct. 1980). 

In keeping with the trend of the law to recognize the special status of pets, some jurisdictions have allowed pet owners to recover damages for emotional injuries resulting from the death of their pet.  The Florida Supreme Court allowed recovery for the mental suffering of a woman whose dog was maliciously killed.  LaPorte v. Associated Independents, Inc., 163 So.2d 267 (Fla. 1964).  In Hawaii, a family was awarded damages for negligent infliction of emotional distress, even though they did not witness the death of their dog.  Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Haw. 1981). 

Through recently enacted legislation, Tennessee recognizes a pet owner’s right to recover non-economic damages in connection with the wrongful death of a pet.  See Tenn. Code Ann. 44-17-403 (2001).  Tennessee’s T-Bo Act, named after Tennessee Senator Steve Cohen’s deceased dog, allows recovery of up to $4,000.00 in non-economic damages “if a person’s pet is killed or sustains injuries which result in death caused by the unlawful and intentional, or negligent, act of another….” Tenn. Code Ann. 44-17-403(a).  Clearly, some jurisdictions are responding to the sentiment of society that companion animals, though personal property legally, in reality are more than mere property.  Yet under the Superior Court’s opinion, pets are no more than a table or a lamp, with no ability of their owners to share possession of them upon divorce.

Another example of the unique character of companion animals comes from the probate arena.  Studies show that between 12% and 27% of pet owners include provisions regarding their pets in their wills.  Gerry W. Beyer, Estate Planning for Pets, 15 Prob. & Prop. 6 (2001).  Commentators have even provided guidance on how to successfully provide legally for a pet after its owner’s death.  See, e.g., id.  While pet owners often provide for the well-being of their pets through their will, some order the destruction of their animals.  Courts have found will clauses ordering the destruction of animals void as contrary to public policy.  In In re Estate of Brand, a will provision directed the executor to crush the decedent’s Cadillac and destroy his horses.  No. 28473 (Chittenden County, Vt. Prob. Ct. Mar 17, 1999).  The Court found the horses to be a “unique type of ‘property’” and set aside the provision directing their destruction.  Id. at 4. 

In Capers Estate, the Court found a will provision directing the destruction of pet dogs void.  34 Pa. D. & C.2d 121 (1964).  Noting the “well stated” and “memorable words” of the late Senator George G. Vest of Missouri, the Court quoted at length from a closing argument once made by him:

Gentlemen of the jury, a man’s dog stands by him, in prosperity and poverty, in health and sickness.  He will sleep on the cold ground, where the wintry wind blows and the snow drives fiercely if only he may be near his master’s side.  He will kiss the hand that has no food to offer; he will lick the wounds and sores that come in encounter with the roughness of the world.  He guards the sleep of his pauper master as if he were a prince.

When all other friends desert, he remains.  When riches take wing and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.

If fortune drives his master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight his enemies, and when the last scene of all comes and death takes the master in its embrace and his body is laid away, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even unto death.

Id. at 123. 

Anti-cruelty statutes provide a further example of the special status afforded animals in our society.  All fifty United States have anti-cruelty laws.  Geordie L. Duckler & Dana M. Campbell, Nature of the Beast:  Is Animal Law Nipping at Your Heels?, 61 Or. St. B. Bull. 15 (2001).  While each state has misdemeanor provisions, as of 2001, 31 states, including Pennsylvania, also have felony provisions in their anti-cruelty laws.  Id. at 18.  In Pennsylvania, 18 Pa. Cons. Stat. Ann. � 5511 covers cruelty to animals.  The statute specifically covers, inter alia, killing, injuring, abusing, neglecting, transporting, and fighting animals.  18 Pa. Cons. Stat. Ann. � 5511.  In addition to stating that dogs are personal property and the subjects of theft, 3 Pa. Cons. Stat. Ann. �459-601 criminalizes the poison and abandonment of animals.  Also, 3 Pa. Cons. Stat. Ann. �459-603 limits the selling, bartering or trading of dogs.  Pennsylvania clearly recognizes the need to protect animals within its borders.  Therefore, “it makes no sense to punish cruelty to animals as a serious criminal offense on one hand, yet act as though their welfare were immaterial in civil cases that set a course for the rest of the animals’ lives.”  Barbara Newell, Animal Custody Disputes:  A Growing Crack in the “Legal Thinghood” of Nonhuman Animals, 6 Animal L. 179, 183 (2000). 

In failing to recognize the unique character of pets, the Superior Court’s decision runs contrary to public policy.  American culture encourages an enhanced property interest in pets.  It is in the best interest of its residents that Pennsylvania courts accept that companion animals are more that simply personal property, and permit divorcing parties to provide for shared possession of pets.[4] 

A Texas judge perhaps most eloquently stated the rationale for recognizing the unique character of pets, as opposed to inanimate property.

The law must be informed by evolving knowledge and attitudes.  Otherwise, it risks becoming irrelevant as a means of resolving conflicts.  Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property.  The law should reflect society’s recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.  In doing so, courts should not hesitate to acknowledge that a great number of people in this country today treat their pets as family members.  Indeed, for many people, pets are the only family members they have.

Losing a beloved pet is not the same as losing an inanimate object, however cherished it may be.  Even an heirloom of great sentimental value, if lost, does not constitute a loss comparable to that of a living being.  This distinction applies even though the deceased living being is a nonhuman. 

 

Bueckner v. Hamel, 886 S.W.2d 368, 378 (Tex. App. 1994) (Andell, E., concurring).


CONCLUSION

                        For the reasons set forth above, Petitioner respectfully requests that this Court entertain an appeal from the Judgment of the Superior Court of Pennsylvania.

                                                                        Respectfully submitted,

                                                                        _________________________

                                                                        Albert Momjian, Esquire

                                                                        Attorney No. 04774

                                                                        Nancy Winkelman, Esquire

                                                                        Attorney No. 48928

                                                                        SCHNADER HARRISON SEGAL & LEWIS LLP

                                                                        1600 Market Street, Suite 3600

                                                                        Philadelphia, PA  19103-7286

                                                                        (215) 751-2000

 

                                                                        John S. Carnes, Jr., Esquire

                                                                        Attorney No. 47338

                                                                        202 North Church Street

                                                                        P.O. Box 3449

                                                                        West Chester, PA 19381-3349

                                                                        (610) 436-6604

 

                                                                        Attorneys for Petitioner, Anthony DeSanctis

 

Dated:  August 2, 2002


CERTIFICATE OF SERVICE

                        This is to certify that I, Nancy Winkelman, Esquire, have this 2nd day August, 2002, served true and correct copies of the foregoing Petition for Allowance of Appeal, with Exhibits A-E, upon the opposing counsel by depositing one copy of the same in the United States mail, first class, postage prepaid, addressed as follows:

                        John M. Larason, Esquire

                        Law Offices of Jennifer C. Etzrodt, P.C.

                        301 Oxford Valley Rd., Suite 1902A

                        Yardley, PA 19067

 

 

                                                                                                _________________________

                                                                                                Nancy Winkelman



[1] Citations are to the Reproduced Record filed in the Superior Court of Pennsylvania, a copy of which has been submitted along with this Petition for Allowance of Appeal.

[2] In her Preliminary Objections, Pritchard also filed what she termed a “Counter Claim for Abuse of Process.”  The trial court sustained DeSanctis’ Preliminary Objections to the abuse of process counterclaim; that Order is not before this Court in this petition.

[3] In Nichols v. Goldstein, a judge awarded the dogs to the wife and the cats to the husband.  See PetCustody.com, How Far Would You go to Keep Pets Like Beanie and Annie Together?, PetCustody.com Feature Articles, at http://www.petcustody.com/features/lynn_goldstein.html (last visited July 24, 2002).  The wife refused to turn the cats over to the husband and lied under oath about their whereabouts.  Id.  The judge sentenced her to one month in jail for violating his order to relinquish the cats.  Id.

[4] The public and the media response to this and similar cases demonstrates the importance of the issue at hand.  See Martin Indars, Editorial, Another Dog Caught in a Custody Battle, Daily Local News, July 28, 2002 (voicing the need for new laws regarding shared possession of pets); Mitchell Sommers, Despite Court’s Ruling, a Dog is Not Like a Table: The Judges Should Have Allowed Joint Custody of Barney, Philadelphia Inquirer, July 17, 2002 (disagreeing with Superior Court decision in this case); Martin Indars, Editorial, Court Was Right, But Dog-Owner had a Valid Point, Daily Local News, July 10, 2002 (supporting laws “that would provide some legal relief to people like DeSanctis”); David Barnard, Man Appeals Custody Ruling for Former Pet, at http://www.dailylocal.com/site/news, April 29, 2002 (quoting parties and case materials regarding this case).  For the Court’s convenience, copies of these articles are attached as Exhibit D.

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