Nutkin the Squirrel

I was going to just do this on my practice blog, but figured, heck, I can probably turn my messing around into a blog post.

I mentioned earlier that I am working on a series of “law” related posts. Right now, I’m trying to figure out the best way to present court cases. Should I cut and paste the relevant part on my blog? What if it’s too long? Should I post a link to the case? If I do that, you may have to slog through a lot of boring crap to get to the good part. Maybe a combination of both? I need to find a way to highlight the good parts for you. And maybe research Google Docs for those cases I can't link to. This is why I don't post much. I get all frustrated and exhausted just trying to figure out the technical aspects, then I give up and go watch television.

Anyway, here’s a case that made me laugh and feel all warm and fuzzy inside. It’s the story of Nutkin the Squirrel.

Superior Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Appellee,

v.

Barbara GOSSELIN, Appellant.

Argued Aug. 31, 2004.

Filed Nov. 5, 2004.

BEFORE: HUDOCK and KLEIN, JJ., and McEWEN, P.J.E.

OPINION BY HUDOCK, J.:

¶ 1 This appeal revolves around the life and times of Nutkin the squirrel.

¶ 2 Nutkin's early life was spent in the state of ferrae naturae, in the state of South Carolina, and, as far as we can tell, in a state of contentment. She apparently had plenty of nuts to eat and trees to climb, and her male friends, while not particularly handsome, did have nice personalities. Life was good.

¶ 3 Then one day tragedy struck: Nutkin fell from her tree nest!

¶ 4 But fate was kind. Nutkin was found and adopted by Appellant and her husband who, at that time, were residents of South Carolina. Appellant lovingly nursed Nutkin back to health, and Nutkin became the family pet. A large room-sized enclosure was built so Nutkin had plenty of room to run and climb. Life was good again.

¶ 5 Nutkin's captivity and domestication were perfectly legal in South Carolina, possibly a reflection of that state's long tradition of hospitality to all.

¶ 6 In 1994, Appellant and her husband moved to Pennsylvania and brought Nutkin with them. Life was full of promise.

¶ 7 Dark clouds began to gather, however, in November, 2002, when Appellant's husband phoned the Pennsylvania Game Commission concerning a hunter whom he and Appellant believed was hunting near an area on their property where they had set out food for deer. In response to that complaint, a Wildlife Officer appeared at Appellant's property to investigate. At that time the Officer became aware that a deer had been illegally shot on Appellant's property and dragged to a neighboring property. Appellant and her husband requested that the Game Officer further investigate the poaching of the deer. The Officer refused to do so, but when he spotted Nutkin in her room-sized enclosure, he advised Appellant that it was a violation of the law to keep Nutkin in this manner. The Game Officer acknowledged that the squirrel was too old and too tame to be released to the wild (A situation akin to that of an old appellate judge, like the undersigned, attempting to return to the boiling cauldron of the trial court after being tamed by years of peace and quiet above the fray. Chances of survival of both species are poor.) He offered to forgo citing Appellant if she would relinquish Nutkin to his control. Appellant and her husband refused.

¶ 8 The reasons for this refusal are not apparent of record, but familial ties no doubt played a part in the decision. (At oral argument, our esteemed colleague, Judge Klein, alluded to the possibility of “squirrel stew”, but there is insufficient evidence to support this horrific supposition.)

¶ 9 Nutkin would then learn the shocking truth that the cheery Pennsylvania slogan “You've got a friend in Pennsylvania” did not apply to four-legged critters like Nutkin. On December 2, 2002, the Wildlife Conservation Officer issued a citation directed to Appellant's husband for violating section 2307(a) of the Game and Wildlife Code, entitled “Unlawful taking or possession of game or wildlife”.

¶ 10 Appellant had become known to the Pennsylvania Game Commission by appearing to testify before the Game and Fisheries Committee of the Pennsylvania House of Representatives in September, 2001. In this testimony, the Appellant complained about the enforcement proceedings of the Pennsylvania Game Commission, and particularly complained of the fact that every year “bubba” hunters showed up in the woods near their house to drive out the deer and the hunters were guilty of various other displays of bad hunting manners. Stipulation of Facts, 8/5/03, Exhibit C. She further testified to her opinion that the Game Commission is “against any landowner who posts their property.” Id.

¶ 11 While there is no explicit claim of retaliatory prosecution, the stipulated facts show an interesting temporal relationship between Appellant's complaints both to the Game Commission and the General Assembly and her present difficulties.

[1] ¶ 12 In any event, Appellant was convicted of the offense before a district justice and again before the common pleas court in a trial de novo based upon stipulated facts. She was fined $100.00 plus the costs of prosecution. While the trial court did not file an opinion, it did provide the following reasoning in support of its decision in a footnote to the order finding Appellant guilty:

*To sustain this finding, reference must be had to the PA Code Title 58 Chapter 137 in which it is provided at 137.1(a), “unless otherwise provided in this section or the Act, it is unlawful for a person to... possess... (9) game or wildlife taken alive from the wild or (10) game or wildlife held captive or game or wildlife held in captivity or captive bred *999 in another state.” Also, 137.31(b) a person violating this subchapter will be subject to the penalties provided in 2307 of the Act (relating to unlawful taking or possession of game o[r] wildlife).

Order dated 11/21/03. This timely appeal followed.

The rest of the case is a discussion of the law.

You can read the entire case here if you want to. If you don't want to read the whole case, Nutkin won in the end.

I wish all cases were as entertaining as this one.

Okay. I'm publishing this sucker now. I need to see if it's too long and if the link works. I already know the fonts are screwed up. And what's the deal with the link? I've tried fixing it but I'm tired of this. Maybe after my nutritious breakfast of those little white donuts and chocolate milk, I will come back and work on it again. Sugar and chocolate can make anything better.