The following article with 2 appendices is rather long, but I think it is important that it be disseminated as widely as possible. I'm forwarding this with permission of Thomas Cunningham, who wrote this summary. (Thomas is a member of the Small Mammals section of the CompuServe Pets Forum, of which I am co-section leader. It also is available in the Small Mammals library/Library 11 of the Pets Forum, under the title PAFERR.TXT.) I have the address of the Susquehanna Valley Ferret Club, for anyone interested in pursuing this further, or making a contribution to help defray legal costs. The club is working with Pennsylvania legislators to get ferrets written into Pennsylvania law as domestic animals, to remove the threat of such an action arising again in PA. --------------------- Katie Fritz Small Mammals Section Leader/CompuServe Pets Forum Internet: [log in to unmask] CIS: 71257,3153 Begin Forwarded Message: ----------------------------------------- "The Gallick Case: Not A Good Time To Be A Ferret In Pennsylvania" By Thomas J. Cunningham, B.S., J.D. In 1991, a ferret owned by two individuals who were residents of Pennsylvania allegedly bit an infant who had been placed on the floor of a bedroom where the ferret was loose. The infant, Brittany Gallick, was permanently scarred. Brittany's parents brought a lawsuit in federal court in Pennsylvania against the owners of the ferret, Shawnee Miller and Todd Long, as well as the Miller and Long's landlords, Bruce and Betty Barto. The Bartos filed what is known as a counterclaim against the parents of Brittany, alleging that Brittany's parents were contributorily negligent in leaving her alone, on the floor, in a room with a ferret. Early in August, various ferret organizations in Pennsylvania asked the court if they could file informational briefs with the court on the issue of whether a ferret should be considered a "wild animal" under Pennsylvania law. The classification of ferrets as wild animals is significant in several reasons. First, in many states the keeper of a wild animal is "strictly liable" for injuries caused to people by that animal. Strict liability means that the person injured does not have to prove that the owner of the animal acted negligently or knew of the animal's dangerous propensity. Both would ordinarily have to be proven in a case where a person was injured by a domestic animal, such as a dog or cat. This was likely the central issue in the Gallick case, and the judge's ruling probably led to the settlement. Second, in many states, the keeper of a wild animal may need to obtain special licenses or permits. The judge in the Gallick case ruled on July 26, 1993 that ferrets were wild animals. By August 5, the parties had settled out of court. Consequently, on August 6, the court denied the ferret organization's attempts to get involved in the case. That order is included in this file as Exhibit A. The ferret organizations were interested in getting involved and trying to convince the judge that ferrets were domestic animals because of the potential effects on other ferret owners. Judges, however, must have a "live" case or controversy before them before they can decide issues. Because the Gallicks had settled with the Bartos, Miller, and Long, the judge was unable to allow the ferret organizations to join the case. More importantly, even if the case had not settled, the ferret organizations would have been unlikely to change the judge's ruling on the issue of whether ferrets were domestic or wild animals under Pennsylvania law. Under the Pennsylvania Game Law, "Wild Animals" are defined as: "All mammals other than domestic animals as defined in 1 Pa.C.S. S 1991 (relating to definitions)." Section 1991 of Title 1, Pennsylvania Code, states as follows: "'Domestic Animal.' Any equine animal, bovine animal, sheep, goat and pig." Therefore, under the Pennsylvania statute, if you're a mammal and not a horse, cow, sheep, goat, or pig, you're wild. Note that this would technically include humans. Judges in the United States are charged with the duty to enforce and apply the laws as they are written. Judges do not have the power to change the law. On occasion, a statute may be subject to differing interpretations, and in these cases the judge must decide which interpretation the legislature intended, or the interpretation that will lead to the most equitable resolution of the matter. In the Gallick case, the judge was faced with a pretty clear statute. Whether ferrets are _really_ domestic or wild is in a sense irrelevant. The judge is stuck with the law as it is written. The judge here was required to find that ferrets were wild animals under Pennsylvania law. The Pennsylvania law, however, did not seem to be geared toward animals kept as pets, such as ferrets. Rather, it seemed to be directed at farm animals. Therefore, in late June, the Pennsylvania legislature changed the law to provide for a new definition for domestic animal. Because the events involved in the Gallick case took place prior to the date the law was passed, the old law applied to that case. The new law, known as "state act 66," now provides that "any wild or semiwild animal held in captivity" is to be considered a domestic animal. (State Act 66 is included in this file as appendix B). Therefore, the ruckus about the Gallick case is moot. If Brittany Gallick were injured by a ferret today, the judge would be forced to rule that the ferret was a domestic animal. Note, however, this does not mean that the Bartos, Miller, and Long would not have been liable. It just means that the Gallicks would have been held to a more difficult standard of proof. Ferret owners would be well advised to keep their pets in secure cages when strange children are coming to visit. Any interaction between the children and the ferrets should be closely supervised. If the ferret does bite someone, get medical care immediately, but say as little as possible. Do not "discuss" the attack to the extent that is possible. If you have a regular lawyer, it would be a wise precaution to call him or her just to let him or her know that the ferret bit someone. If you are sued, contact your lawyer immediately. You should also contact one of the ferret organizations, either at the national or local level. Their involvement in your case could be of tremendous significance. ------------------------------------------ Exhibit A IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA LEONARD GALLICK and SONINA GALLICK, his wife, Individually and as Parents and Natural Guardians of BRITTANY GALLICK, a Minor, Plaintiffs, v. BRUCE BARTO and BETTY BARTO, his wife, Defendants and Third- Party Plaintiffs, v. LEONARD GALLICK and SONINA GALLICK, his wife, Individually and as Parents and Natural Guardians of BRITTANY GALLICK, a Minor, Third-Party Defendants, and SHAWNEE MILLER and TODD LONG, Third-Party Defendants. Order #1 August 6, 1993 BACKGROUND: On March 8, 1991, plaintiff Brittany Gallick, an infant then aged seven months, was bitten on and about the face by a ferret owned by Shawnee Miller and Todd Long. The bites left open wounds which have left scars on the face of Brittany. Her parents, Leonard and Sonina Gallick, initiated this action to recover for Brittany's injuries. Originally, the defendants were Bruce and Betty Barto, the landlords of Miller and Long. They raised affirmative defenses against the Gallicks, and eventually Miller and Long were joined as third-party defendants. The Gallicks have been named as third-party defendants. Before the court is a motion to intervene filed by: Ferret United and Registration Organization of Elon College, North Carolina; Lehigh Valley Ferret Association of Harrisburg, Pennsylvania; American Ferret Association of Frederick, Maryland; Path Valley Farms of Willow Hill, Pennsylvania; and League of Independent Ferret Enthusiasts of Burke, Virginia. The motion is filed pursuant to Fed. R. Civ. P. 24(a), (b). Included in the motion to intervene is a motion for a stay of these proceedings. The ground raised for this motion is that the court did not have before it expert testimony concerning the nature of ferrets, to be used in the court's determination of whether or not a ferret is a wild animal. Movants claim that they will be adversely affected by the court's determination that, under Pennsylvania law, ferrets are wild animals for purposes of personal injury actions. DISCUSSION: In pertinent part, Fed. R. Civ. P. 24 reads as follows: Rule 24. Intervention. >> (a) Intervention as of right. Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (b) Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.<< The motion to intervene will be denied for four reasons. First, it is not timely. Second, the interest which movants assert is not an interest relating to the property or transaction which is the subject of this litigation. Third, the facts and procedural posture of this case weigh against permissive intervention. And fourth, the proferred scientific evidence is not relevant to our determination that ferrets are wild animals under Pennsylvania law, which was an interpretation of clear statutory language and case law. A. Timeliness This motion to intervene was filed on August 5, 1993. On the same date, the court was notified by the parties to this action that a settlement agreement had been reached. For that reason alone, there is no longer a case in which to intervene. Had the case not been settled, the motion would, nevertheless, have been untimely. The jury was selected August 2, 1993, and the case was then scheduled to be presented to the jury August 9, 1993 or, at the latest, August 10, 1993. When selected, the jurors were expressly cleared for availability the week of August 9, and no other, and the parties are prepared for trial. To allow intervention at this critical time would emasculate any sense of proper ordering of this court's business and the timely adjudication of the dispute of these litigants. B. Intervention as of right As set forth above, Rule 24(a) states that the court must permit a party to intervene if the party "claims an interest relating to the property or transaction which is the subject of the action. . ." "[A] person may intervene as of right if (1) the motion for intervention is timely; (2) the applicant has a sufficent interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately represented by an existing party in litigation. _Harris v. Reeves_, 946 F.2d 214, 219 (3d Cir. 1991) (citing _Harris v. Pernsley_. 820 F.2d 592, 596 (3d Cir.), _cert. denied_, 484 U.S. 947 (1987)), _cert. denied sub nom._ _Abraham v. Harris_, 112 S. Ct. 1516 (1992). As noted above, this action is not timely. Moreover, the applicants do not have a sufficient interest in the outcome. While not specifically defined, a "sufficient interest" is one which is "significantly protectable," "legally protectable," and "direct." _Id._ (citing _Harris v. Pernsley_, 820 F.2d at 596-597). The present action is wholly between the parties named in the caption. It was the ferret belonging to Shawnee Miller and Todd Long which allegedly injured Brittany Gallick. She alleges claims based upon physical injuries, medical expenses, and pain and suffering. The premises on which the incident occurred belong to Bruce and Betty Barto. Brittany's parents, Leonard and Sonina Gallick, are alleged to have been negligent as well. None of the movants can claim an interest relating to the property at issue, or the transaction, which is the alleged attack upon Brittany. Any interest of the movants is contingent upon their members being sued in the future for injuries caused by ferrets owned by the members. The movants themselves would not even be liable, unless the organizations own the ferrets themselves. And the potential litigation may never come to pass. Every potential tortfeasor does not have the right to intervene in any case which may have an impact on an uncommitted tort. In short, the movants do not have a direct interest in the outcome of this litigation, and have claimed an interest only in one particular ruling. That ruling does not affect them directly, and may never affect them at all. Movants may not intervene as of right under Rule 24(a). C. Permissive intervention As the language of Rule 24(b) suggests, a district court has discretion when considering a motion for permissive intervention. _See also_ _Harris v. Pernsley_. _supra_, 820 F.2d at 597; _Brody v. Spang_, 957 F.2d 1108, 1124 (3d Cir. 1992). The applicants here have no claim or defense, since they are not involved in any suit. Moreover, there has already been a settlement reached between the parties, and the motion is otherwise most untimely, coming after jury selection and only four or five days prior to scheduled presentation of the case to the jury. Finally, as set forth below, the proferred evidence which movants seek to present is not relevant to the determination they seek to challenge. We therefore exercise our discretion and deny permissive intervention, since intervention by these parties can only detract from these proceedings. It is crystal clear that to allow intervention at this stage of the proceedings would unduly delay _and_ prejudice the adjudication of the rights of the original parties. D. Scientific Evidence Finally, movants relate in their motion that the court's finding that ferrets are wild animals is unsubstantiated by scientific evidence of record. They therefore offer to provide the testimony of experts in the ferret field to guide the court. This testimony is irrelevant to the determination made by the court, however, as a more careful reading of our memorandum and order of July 26, 1993, would reveal. The central part of our reasoning is set forth at pages seven through nine of that memorandum, under the heading, "B. PENNSYLVANIA LAW ON WILD ANIMALS." It is clear from that section that Pennsylvania law controls the question presented. While apparently no Pennsylvania court has considered the question of whether ferrets are wild animals, courts of the Commonwealth have considered, generally, how to determine whether an animal is wild. In _Deluca v. Whitemarsh Twp._, 526 A.2d 456 (Pa. Cmwlth. 1987), the Commonwealth Court looked to the Game Law, 34 Pa. Stat. Ann. SS 1311.1 et seq. (Purdon 1967), since repealed. In _Holmes v. Borough of Lansdowne_, 9 D. & C. 4th 244 (1991), the Court of Common Pleas, based upon _Deluca_, looked to the statute which replaced the Game Law, the Game and Wildlife Code, enacted as Title 34 of the Pennsylvania Statutes Annotated. That Act defines wild animals as any animal which is not domestic under 1 Pa. Cons. Stat. Ann. S 1991. Ferrets are not included in the section defining domestic animals, and so must be considered wild animals under Pennsylvania law. We recognize that the courts of the Commonwealth of Pennsylvania may not agree with our opinion, since we are deciding the issue before they have considered it. However, we must, in essence, predict the way in which the state courts will reach their conclusions, and we must base that prediction upon the manner in which Pennsylvania courts have ruled in the past. The proffered expert testimony would not change our reading of the law of Pennsylvania, since the courts look to statutory language, and only the Pennsylvania legislature can change that language. The proffered testimony, therefore, would have been immaterial to our determination that ferrets are wild animals for purposes of personal injury actions in Pennsylvania. It follows, then, that intervention by these parties would serve no legitimate purpose. NOW, THEREFORE, IT IS ORDERED THAT: 1. The motion (record document no. 84) to intervene as defendants filed by the above-named movants is denied. 2. The motion (record document no. 84) for a stay of proceedings is denied as moot. James F. McClure, Jr. United States District Judge ------------------------------------------ Exhibit B The General Assembly of Pennsylvania SENATE BILL No. 1047 Session of 1993 Introduced By Stapleton, Madigan, O'Pake, Stewart, Stout, Porterfield and Musto, April 28, 1993. Senator Stapleton, Agriculture and Rural Affairs, As Amended, June 8, 1993. AN ACT Amending the act of July 22, 1913 (P.L. 928, No.441), entitled "An act relating to domestic animals; defining domestic animals so as to include poultry; providing methods of improving the quality thereof, and of preventing, controlling, and eradicating diseases thereof; imposing certain duties upon practitioners of veterinary medicine in Pennsylvania; regulating the manufacture, use and sale of tuberculin, mallein and other biological products for use with domestic animals; defining the powers and duties of the State Livestock Sanitary Board, and the officers and employees thereof; fixing the compensation of the Deputy State Veterinarian; and providing penalties for the violation of this act," further defining "domestic animal." The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows: Section 1. Section 1 of the act of July 22, 1913 (P.L.928, No.441), referred to as the Domestic Animal Disease Suppression Law, is amended to read: Section 1. Be it enacted, &c., That the words "domestic animal," as used in this act, shall mean any equine animal or bovine animal, sheep, goat, pig, dog, cat, [or] poultry_, BIRD, FOWL, or any wild or semiwild animal held in captivity_; and shall be taken to include the singular or plural as may be necessary in any given case. _THE PHRASE "WILD OR SEMIWILD ANIMAL," AS USED IN THIS ACT, SHALL MEAN A DOMESTIC ANIMAL WHICH IS NOW OR HISTORICALLY HAS BEEN FOUND IN THE WILD, INCLUDING, BUT NOT LIMITED TO, BISON, DEER, ELK, LLAMAS, OR ANY SPECIES OF FOREIGN OR DOMESTIC CATTLE, SUCH AS ANKOLE, GAYAL AND YAK._ Section 2. This act shall take effect in 60 days. --------------------------------------------------------------- End Forwarded Message [Posted in FML issue 0579]