Pennsylvania v Gosselin (2004) H&FLR 2015-33

Commonwealth of Pennsylvania v Barbara Gosselin (2004) H&FLR 2015-33

Superior Court of Pennsylvania

5 November 2004

Coram: Hudock and Klein JJ; McEwen PJE

Appearing for the Prosecution: No appearance
Appearing for the Defendant: Dick Berger

Catchwords: Pennsylvania – pets – squirrel – wildlife – marking

Facts: The defendant was a resident of South Carolina in the early 1990s.  While a resident there she took into her care an injured squirrel which became the family pet.  In 1994 the defendant, her husband and the squirrel relocated to Pennsylvania, where the squirrel was housed in a room-sized enclosure.  In 2002 an officer of the Pennsylvania Game Commission became aware of this and requested that the squirrel be released into his charge on the basis that it was unlawful to keep it in this manner.  The defendant declined to release the squirrel and was charged with unlawfully possessing wildlife.

Section 2307 of the Pennsylvania Game and Wildlife Code (34 Pa CSA §2307) relevantly provides that –

(a) It is unlawful for any person to … possess … any … wildlife contrary to the provisions of this title.

(c) Nothing in this title shall prohibit the possession … of … wild animals lawfully taken outside of [Pennsylvania] which are tagged and marked in accordance with the laws of the state or nation where the … wild animals were taken. It is unlawful to … possess … wild animals from another state or nation which have been unlawfully taken, killed or exported.

It was common ground that the squirrel was a wild animal and that South Carolina law allowed the taking and domestication of squirrels without requiring them to be tagged or marked.

The defendant was convicted of the charge and fined $100.00: Pennsylvania v Gosselin, Morning Call, 14 May 2003 (Orwigsburg Dist. Ct., Feb. 2003).  She appealed to the Court of Common Pleas which upheld the conviction: Pennsylvania v Gosselin, Morning Call, 28 November 2003 (Schuykill Co. Ct. Comm. Pleas, Nov. 2003).  She further appealed to the Superior Court.

Held: Allowing the appeal and dismissing the charge, that because South Carolina law did not require the squirrel to be tagged or marked, the absence of tagging or marking met the requirements of §2307(c).  Because it was agreed that the squirrel was lawfully taken in South Carolina, the exception in paragraph (c) was made out.

Judgment

The Court’s judgment is available here.