Commonwealth v. Gosselin
861 A.2d 996, 2004 Pa. Super. 426, 2004 Pa. Super. LEXIS 3947 (2004)
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Rule of Law:
A wild animal lawfully taken in another state may be lawfully possessed in Pennsylvania under the statutory exception in 34 Pa.C.S.A. § 2307(c) if it is tagged and marked in accordance with the laws of the state where it was taken, which includes situations where that state has no such tagging or marking requirements.
Facts:
- A squirrel, later named Nutkin, was born in the wild in South Carolina.
- After falling from her nest, Nutkin was found and adopted by Appellant and her husband, who were residents of South Carolina.
- Appellant nursed Nutkin back to health, and the squirrel became a domesticated family pet.
- The taking and domestication of squirrels was legal in South Carolina.
- In 1994, Appellant and her family moved to Pennsylvania, bringing Nutkin with them.
- In November 2002, Appellant's husband contacted the Pennsylvania Game Commission about a hunter on their property.
- A responding Wildlife Officer saw Nutkin in her enclosure and advised Appellant that possessing the squirrel was a violation of Pennsylvania law.
Procedural Posture:
- The Pennsylvania Game Commission issued a citation to Appellant for violating 34 Pa.C.S.A. § 2307(a), unlawful possession of wildlife.
- Appellant was convicted of the summary offense before a district justice.
- Appellant appealed to the Court of Common Pleas, which held a trial de novo based on stipulated facts.
- The Court of Common Pleas again found Appellant guilty and imposed a fine of $100 plus costs.
- Appellant filed a timely appeal of the conviction to the Superior Court of Pennsylvania.
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Issue:
Does the exception in 34 Pa.C.S.A. § 2307(c), which permits possession of wildlife lawfully taken in another state and marked in accordance with that state's laws, apply to a wild animal from a state that has no marking or tagging requirements for such animals?
Opinions:
Majority - Hudock, J.
Yes. The exception in 34 Pa.C.S.A. § 2307(c) applies, and therefore Appellant's possession of the squirrel is not unlawful. The court reasoned that the plain language of the statute creates a two-part test for the exception to apply: (1) the animal must be lawfully taken outside of Pennsylvania, and (2) it must be tagged and marked in accordance with the laws of the state where it was taken. The parties stipulated that Nutkin was lawfully taken in South Carolina, satisfying the first prong. They also stipulated that South Carolina has no laws requiring the tagging or marking of such animals. Therefore, the court concluded that the lack of a tag or mark on Nutkin is 'in accordance with the laws of the state where the wild animals were taken.' Because both prongs of the exception were met, the conviction was improper. The court also rejected the Commonwealth's reliance on a conflicting regulation (58 Pa.Code § 137.1), holding that where a statute and a regulation conflict, the statute must prevail.
Analysis:
This case clarifies the scope of the statutory exception for possessing wildlife legally acquired outside the Commonwealth. It establishes that the 'in accordance with' language in the statute requires compliance with the source state's laws, even if those laws impose no requirements. This prevents Pennsylvania from indirectly imposing its own standards on animals legally acquired in states with different regulatory schemes. The decision also reinforces the fundamental principle of administrative law that a regulation promulgated by an executive agency cannot override or conflict with a statute enacted by the legislature.
