Full Opinion (html_with_citations)

J-S39019-23
2023 PA Super 269



 BRENDA BARTLETT                          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 MICHELLE DEMICH AND MARYJO               :   No. 446 MDA 2023
 ENGLEMAN                                 :

             Appeal from the Order Entered February 22, 2023
  In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                               2023-01990


BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

OPINION BY McLAUGHLIN, J.:                     FILED: DECEMBER 20, 2023

      Brenda Bartlett appeals from the order of the trial court finding she

failed to sustain her burden in this replevin action and finding that Rescue

Warriors Cat Rescue owned and had the right to possess Toby the cat. We

affirm.

      Toby the cat was a foster cat placed with Bartlett by Rescue Warriors

Cat Rescue, and he resided at Bartlett’s store, Village Pet Supplies and Gifts.

Rescue Warriors Cat Rescue is headed by Michelle Demich, and MaryJo

Engleman assists her at the non-profit organization.

      In February 2023, Demich and Engleman removed Toby from Bartlett.

Bartlett filed a complaint in replevin seeking an order directing Demich and

Engleman to return Toby. She also raised claims of conversion by extortion,
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breach of a verbal contract, and unjust enrichment. In addition, she filed a

motion for ex parte relief and writ of seizure.

      The trial court issued a rule to show cause on the motion for ex parte

relief and writ of seizure. At a hearing, the parties presented witnesses and

conducted cross-examination of witnesses. After the hearing, the trial court

issued the following findings of fact:

         1. [Bartlett] is the owner of Village Pet Supplies and Gifts.

         2. [Demich] is an adult individual and the head of Rescue
         Warriors Cat Rescue, a 501(c)(3) charitable organization.

         3. [Englehart] is an adult individual who assists Demich at
         the Rescue Warriors Cat Rescue.

         4. Rescue Warriors Cat Rescue does not have a shelter
         location but rather rescues cats and either places them with
         individuals as fosters or places them with individuals who
         adopt the cat.

         5. The subject of this litigation is a male cat named Toby.

         6. At some point in 2019, Toby was placed as a foster with
         Bartlett at Village Pet Supplies and Gifts.

         7. The cat resided in the store at Village Pet Supplies and
         Gifts from the date of placement until February 9, 2023
         when Demich and Engleman on behalf of Rescue Warriors
         Cat Rescue took back Toby and all other cats that were
         placed at Village Pet Supplies and Gifts.

         8. Bartlett over the course of years has donated personal
         funds to Rescue Warriors Cat Rescue and has also raised
         funds for Rescue Warriors Cat Rescue.

         9. Bartlett has paid for the food for Toby and has provided
         housing for him at her store.

         10. Bartlett has employees who have also cared for Toby
         and have provided Toby with his medication.



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          11. Demich and Engleman on behalf of Rescue Warriors Cat
          Rescue have paid for most of Toby’s veterinary
          appointments and for medications/treatment.

          12. Demich and Engleman on behalf of Rescue Warriors Cat
          Rescue would transport Toby for veterinary appointments.
          During that time the cat would stay overnight with a
          representative of Rescue Warriors Cat Rescue for the night
          preceding veterinary care and then would be returned to
          Village Pet Supply and Gifts the following day.

          13. Toby is microchipped and the certificate lists Rescue
          Warriors Cat Rescue as the owner.

          14. All of the veterinary records for Toby list Rescue
          Warriors Cat Rescue as the owner with Demich being
          primary contact.

Order, Findings of Fact and Conclusions of Law, filed Feb. 22, 2023, at 1-2.

       The trial court concluded that Bartlett failed to sustain her burden. It

reasoned that it “was undisputed that the cat was placed at the Village Pet

Supply and Gifts store as a foster placement,” and “no evidence . . . would

suggest that ownership of the subject cat lies with Bartlett.” Id. at 3. It found

that “[t]he placement of the cats in foster care by Rescue Warrior Cat Rescue

together with the fact that the chip registry and all veterinary records list

Rescue Warriors Cat Rescue as the owner supports the finding that ownership

and right of possession of Toby is with Rescue Warriors Cat Rescue.” Id.1




____________________________________________


1 Because the order determined ownership of Toby and found Bartlett did not

sustain her burden in the replevin action, we conclude the order was a final
order. See Pa.R.A.P. 341(a) (stating an appeal can be taken as of right from
a final order), (b) (defining final order as, among other things, any order that
disposes of all claims and all parties).

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       Bartlett filed a timely notice of appeal. In both her concise statement of

errors complained of on appeal and in the statement of questions involved

section of her appellate brief, Bartlett raises the following issues:

          1. The Trial Court erred as a matter of law and/or abused
             its discretion in finding that [Bartlett] did not meet her
             burden, finding, “there is no evidence before the Court
             that would suggest that the Ownership of the subject cat
             lies with Bartlett,” despite testimony that the subject
             animal resided in the near exclusive possession of
             [Bartlett] for nearly four years, along with additional
             testimony and evidence provided as Exhibits to
             [Bartlett’s] Complaint. citing Madero v. Officer Luffey,
             et. al Civ. Act. No. 2:19-cv-700 (W.D. Pa. 2020), Beard
             v. Mossman, L44 Pa. Super[.] 508, 508 (Pa. Super. Ct.
             1941).

          2. The Trial Court erred as a matter of law and/or abused
             its discretion in finding veterinarian records and
             microchip records, which the veracity of was not testified
             to by the record-producer, as credible evidence of
             ownership.

          3. The Trial Court erred as a matter of law in finding
             veterinarian records and micro-chip record certificates as
             determinative evidence of ownership of the subject
             animal. citing Madero v. Officer Luffey, et. al. Civ.
             Act. No. 2:19-cv-700 (W.D. Pa. 2020)[.]

          4. The Trial Court erred as a matter of law and/or abused
             its discretion in not giving significant weight to the
             financial investment by [Bartlett] in [Rescue Warriors Cat
             Rescue] and to [Bartlett’s] financial investment in the
             care of the subject animal, in the Court’s February 21st,
             2023[2] Order.

          5. The Trial Court erred as a matter of law and/or abused
             its discretion in disregarding both [Demich’s and
             Engleman’s] statements that each did not have
____________________________________________


2 The trial court’s order was dated February 21, but filed February 22, 2023.


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              [Bartlett’s] permission to enter her store and retrieve the
              subject animal, in the court’s February 21st, 2023 Order.

           6. The Trial Court erred as a matter of law and/or abused is
              discretion in stating “the placement of the cats in foster
              care by Rescue Warrior Cat Rescue together with . . .” as
              a basis for its determination, despite testimony produced
              at trial distinguishing ownership of the subject animal
              from other fosters [Demich and Engleman] had placed
              with [Bartlett]. (Transcript at 7; 17-22; 27; 30-31; 40;
              41-42), in the Court’s February 21st, 2023 Order.

Bartlett’s Br. at 2-3 (answers below omitted); see also Concise Statement of

Errors Complained of on Appeal Pursuant to Pa.R.C.P. 1925(b), filed Apr. 10,

2023.

        Although Bartlett includes six issues in the statement of questions

involved section of her brief, she argues only two issues in the brief’s

argument section—whether the court erred in reaching a final determination

as to ownership after a hearing on the writ of seizure and whether the court

erred in finding Rescue Warriors Cat Rescue owned Toby.

        Bartlett waived her claim that the court should not have reached a final

determination as to ownership of Toby after the hearing on the writ of seizure.

She did not include this issue in her Rule 1925(b) statement or the statement

of questions involved section of her brief, and therefore waived it for appellate

review. Failure to include an issue in a concise statement of issues raised on

appeal     results   in   waiver   of   the   issue.   Pa.R.A.P.   1925(b)(4)(vii);

Commonwealth v. Lord,
719 A.2d 306
, 309 (Pa. 1998). Furthermore, this

issue does not appear in the statement of questions involved. This Court will




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not consider any question “unless it is stated in the statement of questions

involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a).

      Bartlett next argues that she is the true owner of Toby. She states that

the legislature has defined the “owner” of a “domestic animal” as “a person

owning, possessi[ng] or harboring any domestic animal” and has provided that

the “term shall also include any person who allows a domestic animal

habitually to remain about the premises inhabited, managed or owned by such

person.” Bartlett’s Br. at 11 (quoting 3 Pa.C.S.A. § 2303). She maintains that

for the past four-and-a-half years she was the person owning, possessing, or

harboring Toby. She argues that although Rescue Warriors Cat Rescue

provided veterinary care and medicine for Toby, this should not be a

determinative factor. She maintains Demich and Engleman should not have

an unfettered right to take back each animal they place in a foster home. She

contends that to have such a right, they should have had a contract with foster

homes, like they do with those that adopt.

      Bartlett further argues the court erred when it determined the ownership

of the cat based on microchip and veterinary records. She maintains the court

should have considered other factors, such as that Toby resided in her place

of business for four-and-a-half years, that she provided financial support to

Rescue Warriors Cat Rescue, and that Demich and Engleman had returned

Toby on prior occasions. She argues that other states have begun to adopt

custody laws regarding animals, which she alleges use many of the factors

she cites.

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      This is a weight of the evidence claim. We review a weight claim for an

abuse of discretion. In re Estate of Smaling,
80 A.3d 485
, 490 (Pa.Super.

2013) (en banc). “Because the trial judge has had the opportunity to hear and

see the evidence presented, an appellate court will give the gravest

consideration to the findings and reasons advanced by the trial judge when

reviewing a trial court’s determination that the verdict is against the weight of

the evidence.”
Id.
 (quoting Commonwealth v. Clay,
64 A.3d 1049
, 1055

(Pa. 2013)).

      Because Bartlett did not raise it before the trial court, she has waived

her weight of the evidence claim. Pa.R.C.P. 227.1(b)(2), (c)(2); Bensinger

v. Univ. of Pittsburgh Med. Ctr.,
98 A.3d 672
, 685 (Pa.Super. 2014).

Moreover, even if she had not waived it, we would find it meritless.

      Replevin is an action to regain possession of property. Int’l. Elecs. Co.

v. N.S.T. Metal Prods. Co.,
88 A.2d 40
, 42 (Pa. 1952). “To be successful in

a replevin action, the plaintiff must show not only title, but also the exclusive

right of immediate possession of the property in question.” Ford Motor Credit

Co. v. Caiazzo,
564 A.2d 931
, 933 (Pa.Super. 1989). “‘Exclusive’ right of

possession means only a right which excludes the defendant.”
Id.
 The plaintiff

“must show good title and right to possession as against the defendant, but is

not required to set up such a title or right as against the whole world.”
Id.

      Following the hearing, the trial court concluded that it was “undisputed

that the cat was placed at the Village Pet Supply and Gifts store as a foster

placement.” Order, Discussion, filed Feb. 22, 2023, at 3. It pointed out that

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there was no evidence before it “that would suggest that ownership of [Toby]

lies with Bartlett.”
Id.
 It reasoned that “[t]he placement of the cats in foster

care by Rescue Warrior[s] Cat Rescue together with the fact that the chip

registry and all veterinary records list Rescue Warriors Cat Rescue as owner

supports the finding that ownership and right of possession of Toby is with

Rescue Warriors Cat Rescue.”
Id.

      In its Rule 1925(a) opinion, the trial court explained that the ruling “was

reasoned within the context of the foster arrangement and its distinction from

adoption or other transfer of ownership.” Trial Court Opinion, filed June 20,

2023, at 3. It found that “[t]he microchip certification, veterinary records,

financial obligations borne by [Rescue Warriors Cat Rescue] and [Demich and

Engleman’s] continued involvement overcame Bartlett’s strength of title.”
Id.

The court pointed out that Rescue Warriors Cat Rescue was an organization

that engaged in the fostering of cats, and it “maintained [itself] as the owner

of Toby through microchip certification, veterinary records, and by taking him

to his veterinary appointments.”
Id.
 The court found that those actions,

“combined with paying for most of Toby’s veterinary appointments and

medication, amount[ed] to the evidence of Rescue Warrior’s ownership as to

Toby.”
Id.

      The court reasoned that fostering results in placing possession of an

animal with another person, but that fostering is distinguished from transfer

of ownership through adoption. Id. at 3-4. The court noted that “[i]f daily

physical possession and routine care were solely determinative of ownership,

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this type of charitable arrangement would not be possible.” Id. at 4. It noted

that Demich and Engleman visited the store multiple times a week and were

contacted when there was an urgent need regarding Toby and concluded that

Rescue Warriors Cat Rescue never relinquished ownership of Toby. Id.

      The record supports the court’s factual findings and it did not abuse its

discretion in finding the evidence supported a determination that Rescue

Warriors Cat Rescue owned Toby. Bartlett was fostering Toby, but ownership

of the cat never transferred.

      Order affirmed.

Judgment Entered.




Benjamin D. Kohler, Esq.
Prothonotary



Date: 12/20/2023




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