J-A18046-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALL BUT FURGOTTEN, INC.

v.

RICHARD KLOCHAK, YVONNE 

KLOCHAK, AND ALEXSANDRIA 

KLOCHAK 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 44 WDA 2019

Appeal from the Order Entered December 19, 2018

In the Court of Common Pleas of Westmoreland County Civil Division at 

No(s): No. 4188 of 2018

BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED AUGUST 23, 2019

Richard, Yvonne, and Alexsandria Klochak (collectively “the Klochaks”) 

appeal from the order that granted the petition for reasonable costs of care 

for certain seized animals filed by All But Furgotten, Inc. (“ABF”). We affirm.

ABF is “a non-profit corporation that utilizes the services of Humane 

Society Police Officers (“Officers”) in enforcing Pennsylvania’s Animal Cruelty 

laws.” Trial Court Opinion, 2/27/19, at 4. On March 8, 2018, Officer Andrea 

Palmer of ABF received complaints about the neglect of animals at the 

Klochaks’ residence. On March 14, 2018, Officers knocked on the door of the 

Klochaks’ home to investigate, but no one answered. However, from that 

location outside the home they experienced an overwhelming stench of feces 

and urine coming from inside. After further investigation, a warrant was 

obtained and executed on March 16, 2018, resulting in the discovery of ninety-
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nine animals in the seven-room house: thirty dogs, sixty-seven cats, one 

turtle, and one deer. The Pennsylvania Game Commission removed the deer 

and the turtle, while the cats and dogs were seized by ABF and seen by 

veterinarians for required medical care. The condition of six of the animals

required that they ultimately had to be euthanized. The rest were fostered in 

volunteers’ homes, kept at ABF, or boarded elsewhere.

On September 17, 2018, with criminal charges for animal cruelty 

pending against each of the Klochaks, ABF filed a petition for reasonable costs 

of care pursuant to the Costs of Care of Seized Animals Act (“the Act”), 18 

P.S. §§ 30.1–30.10. After mishaps with service of the petition and a

continuance, a hearing was held on December 14, 2018, at which ABF and the 

Klochaks, who proceeded pro se, presented witnesses. On December 19, 

2018, the trial court issued an order granting ABF’s petition and entering a 

costs order. The order required the Klochaks to pay within seven days 

approximately $260,000 in past expenses for the seized animals, plus 

continuing costs of care of at the rate of $15 per day for each of the ninetyone animals that remained directly or indirectly under ABF’s control. 

When the Klochaks did not pay pursuant to the order, ABF moved to 

enforce the order, and, later, served a notice of default pursuant to the Act. 

See 18 P.S. § 30.6(b)(3). On January 15, 2019, the Klochaks filed a timely 

notice of appeal from the costs order. On February 1, 2019, the trial court 

denied ABF’s motion for possession of the animals based upon the Klochak’s 
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failure to pay, and granted the Klochaks a stay of the costs order pending 

appeal. 

On May 15, 2019, this Court sua sponte dismissed the appeal for failure 

to timely order and pay for transcripts, but later reinstated the appeal upon 

motion of the Klochaks. This Court granted ABF’s subsequent motion to 

expedite consideration of the case, and scheduled oral argument to take place 

shortly after briefing had been completed. The appeal is now ripe for 

disposition.

The Klochaks present the following questions for our consideration:

[1.] Whether the trial court abused its discretion by entering an 

order, dated December 19, 2018, providing the sum of

$261,191.57 due to [ABF], and an additional $15 per day 

for continuing costs of care of ninety-one (91) animals,

pursuant to [the Act] when [ABF] failed to present evidence 

and/or invoices to prove what specific costs it has incurred, 

and continues to incur for each animal.

[2.] Whether [the Act] violates Article 1, section 1 of the 

Pennsylvania constitution, as the act requires [the Klochaks]

to pay the costs of care of their seized property upon being 

charged, but not convicted, of a criminal offense; their 

property will be subject to forfeiture to [ABF] upon 

nonpayment of said costs of care; and [ABF] would have all 

rights and privileges over said property, notwithstanding the 

fact that failure to obtain a criminal conviction against [the 

Klochaks] would entitle [them] to repossession of said 

property and the return of all reasonable costs of care paid.

[3.] Whether [the Act] violates Article 1, section 9 of the 

Pennsylvania constitution as it requires [the Klochaks] to 

pay the costs of care of their seized property upon being 

charged, but not convicted, of a criminal offense; their

property is subject to forfeiture upon nonpayment of said 

costs of care and thus deprives them of their property before 

they have an opportunity to be judged by their peers in a 
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criminal proceeding; and [ABF] would have all rights and 

privileges over said property prior to trial, notwithstanding 

the fact that failure to obtain a criminal conviction against

[the Klochaks] would entitle [them] to repossession of said 

property and the return of all reasonable costs of care paid. 

[4.] Whether [the Act] constitutes a bill of attainder and 

therefore violates Article 1, sections 9 and 18 of the 

Pennsylvania constitution as it punishes [the Klochaks] 

without judicial process; specifically, subjecting [their] 

property to forfeiture upon nonpayment of costs of care

before they have an opportunity to be judged by their peers 

in a criminal proceeding.

Klochaks’ brief at 4-5 (unnecessary capitalization omitted).

We begin our consideration of the Klochaks’ questions with a review of 

the pertinent legal principles. “In evaluating a trial court’s application of a 

statute, our standard of review is plenary and is limited to determining 

whether the trial court committed an error of law.” Commonwealth v. 

Morris, 958 A.2d 569, 578 (Pa.Super. 2008) (cleaned up). Similarly, “a 

challenge to the sufficiency of the evidence presents a pure question of law[.]” 

In re Vencil, 152 A.3d 235, 243 (Pa. 2017).

The statute in question provides that if animals are seized upon criminal 

charges relating to animal cruelty, a society, association, or other nonprofit 

organization providing care for the animals may file a petition for the 

reasonable costs of care for the seized animals. 18 P.S. § 30.3(a)(2). 

Reasonable costs of care are defined as follows:

(1) The reasonable costs of caring for seized animals, including 

the provision of food, water, shelter and medical care, beginning 

at the date of the seizure and continuing until the earlier of one of 

the following:
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(i) At least 30 days following a hearing on a petition for costs 

of care.

(ii) The seized animals are no longer under the control of 

the petitioner.

(iii) The owner and defendant have relinquished all interests 

in the seized animals.

(2) Reasonable costs of care shall be limited to $15 per day per 

animal, in addition to necessary medical care, as determined by a 

licensed veterinarian and documented by invoices.

18 P.S. § 30.2. 

Upon the filing of the petition, the court is to schedule a hearing, at 

which the petitioner has the burden of producing evidence to demonstrate the 

amount of reasonable costs and that the seizure was warranted. 18 P.S. 

§ 30.5(c). No more than five days after the hearing, the court is required to 

enter an order granting or denying the petition. If it grants the costs of care, 

“the order shall include any filing fees paid by the petitioner to file the petition 

. . . and the amount of reasonable costs of care, both of which shall be paid 

by the defendant.” 18 P.S. § 30.5(e)(1). The order further must contain “a 

schedule of monthly payments for costs of care to be paid by the defendant 

beginning 30 days after the initial payment designated in the order.” 18 P.S. 

§ 30.5(e)(2). “The defendant’s ability to pay shall not affect the court’s 

determination as to the amount of the reasonable costs of care.” Id. 

The costs order continues in effect until final judgment is issued on the 

criminal charges, the defendant/owner surrenders all rights to the animals, or 
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the animals are no longer under the petitioner’s control. 18 P.S. § 30.7(a). 

If the criminal charges do not result in a conviction and the costs were timely 

paid pursuant to the order, the owner is entitled to return of all costs of care 

paid and of the animals. 18 P.S. § 30.7(b)(2). However, if the defendant 

does not pay the initial amount within seven days of service of the order, or 

fails at any time to make payment in accordance with the continuing order, 

all legal rights and privileges in the animals are forfeited to the petitioner. 18 

P.S. § 30.6(a), (b).

In the case sub judice, ABF attached to its petition an affidavit from 

Officer Catherine Wilson indicating that the animals seized from the Klochaks 

had been subject to animal cruelty. Petition for Costs of Care, 9/17/18, at 

Exhibit B. ABF also produced invoices detailing medical costs for the animals, 

as well as a calculation of the cost to feed and shelter each of the animals at 

$15 per day, adjusted to account for the six animals that were euthanized at 

various times while in ABF’s care. Id. at Exhibits C, F. ABF further included 

another affidavit of Officer Wilson, its shelter manager, attesting that the cost 

of food, water, and shelter for each animal exceeds $15 per day. Id. at Exhibit 

E. 

At the hearing, ABF produced witnesses who testified to all of the above. 

Officer Wilson described the conditions in which the animals were found, with 

filth and debris everywhere, and reviewed photographs of the scene ABF 

encountered when the warrant was executed. N.T., 12/14/18, at 14-28. The 
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animals “suffered multiple degrees of neglect one way or another, covered 

with feces, urine, overgrown nails. There was urine burns on dogs, hot spots, 

flea dermatitis, ear infections, eye infections, missing hair, fearfulness.” Id. 

at 15. Officer Wilson confirmed the accuracy of the invoices attached to the 

petition, and discussed the medical, grooming, and boarding costs. Id. at 34-

36. Officer Palmer agreed with Officer Wilson’s testimony, and added that the 

people executing the warrant had to wear masks because the stench in the 

Klochak’s house was so bad, and that she herself had to leave the residence 

a number of times to vomit. Id. at 83-84. Veterinarians provided updated 

totals for medical costs, and discussed the necessary care they provided to 

the animals, including testing for infectious diseases; treatment for 

respiratory, ear, dental, and skin ailments; and the supply of fluids and pain 

medications. Id. at 91-98, 110-12.

Through cross-examination of ABF’s witnesses and the presentation of 

their own, the Klochaks attempted to establish that the animals were beloved 

pets that were not neglected, and that the conditions encountered by the 

Officers in March 2018 were not typical. For example, specifying the various 

dogs and cats by name, they sought to prove that the animals that did not 

move well or had organ problems suffered from ailments common to animals 

of that age and breed, that a dog deemed “unresponsive” at the time the 

warrant was executed was deaf, and that the animals did receive medications 

for their conditions. Id. at 58-59, 99-104, 116-17. Dr. Constance Matson 
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testified that Alexsandria Klochak brought animals to her for treatment, that 

she generally followed through with treatment and care recommendations, 

that the animals she saw were in good spirits, and that Ms. Klochak always 

“tried to do the very best [she] could for them.” Id. at 136, 151. However, 

Dr. Matson conceded that Ms. Klochak should not have tried to care for that 

many animals in her home, which was the result of Ms. Klochak’s “difficulty 

turning animals away.” Id. at 142-43. Magdalen Anderson testified the 

Klochaks “love animals” and “would sacrifice their lives before they would hurt 

or harm an animal.” Id. at 172. Ms. Anderson explained that the conditions 

at the house were the result of “a perfect storm that just came towering down 

on top of them,” in that there had been a fire at the residence in December, 

explaining the debris, that the elder two Klochaks had been ill, delaying plans 

to leave the residence to move to New Jersey. Id. at 169-72. 

The trial court credited ABF’s witnesses and concluded that the seizure 

of the animals was warranted and that ABF established its entitlement to $15 

per day per animal plus medical expenses. Order, 12/19/18, at 1. 

The Klochaks present two challenges to the sufficiency of the evidence 

to sustain the trial court’s findings. First, they contend that the trial court 

failed to make a determination as to when the timing of the euthanizing of 

animals in ABF’s care, such that no further costs were incurred for those 

animals. Klochak’s brief at 9. Second, the Klochaks argue that, now that 
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most of the animals are in foster care, ABF no longer bears the costs of caring 

for those animals. Id. Neither argument merits relief.

As to the six animals that veterinarians determined required 

euthanizing, the dates of death were provided in the petition, and the $15 per 

day for each of those animals was deducted for the relevant time periods. 

See Petition for Costs of Care, 9/17/18, at Exhibit F. Regarding the continuing 

care, Ms. Wilson testified that $15 per day per animal is not enough to pay for 

boarding, food, shelter, and water for each of them. N.T., 12/14/18, at 36. 

She indicated that when one takes an animal for boarding, it typically costs 

$25 per day. Id. Further, she indicated that ABF is responsible for the cost 

of food, medication, and enrichment items, such as beds, treats, and toys, 

even when the animal is fostered by a volunteer. Id. at 75, 79.

While we may question whether, excluding medical care, ABF actually 

expends $1,380 per day to care for the now ninety-one animals within its 

control, given that the cats are being maintained on ABF’s premises, and all 

but five of the dogs are being fostered by volunteers, the trial court’s findings 

to that effect are supported by the record based upon its credibility 

determinations. Further, while the Act requires that medical expenses be 

documented by invoices, there is no such requirement for non-medical costs 

of care. See 18 P.S. § 30.2(2). We are unwilling to hold that $15 per day is 

per se unreasonable, even in the instant circumstances wherein the sheer 

number of animals involved may suggest a volume discount. As such, we 
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cannot conclude that the evidence was insufficient to support the trial court’s 

costs order.

With their remaining arguments, the Klochaks challenge the 

constitutionality of the Act under Article I, §§ 1, 9, and 18 of the Pennsylvania 

constitution. The trial court concluded that the Klochaks waived these 

arguments by failing to raise them prior to filing their 1925(b) statement. Trial 

Court Opinion, 2/27/19, at 6-7. We agree.

Pennsylvania Rule of Appellate Procedure 302(a) provides 

that “issues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.” Hence, only claims properly 

presented in the lower court are preserved for appeal. Indeed, 

even issues of constitutional dimension cannot be raised for the 

first time on appeal. 

Coulter v. Ramsden, 94 A.3d 1080, 1089 (Pa.Super. 2014) (cleaned up).

The closest the Klochaks came to alluding to any of their appellate 

counsel’s arguments while they proceeded pro se before the trial court is found 

in the following exchange at the hearing.

[A. Klochak]: . . . [The Act], after reviewing it, I feel in 

some aspects it leads some unconstitutionality to the person. We 

haven’t even been formally proven of a crime yet--charged with a 

crime. But yet as to these people that may not even have legally 

had the right to seize our pets to hand over hundreds of thousands 

of dollars.

THE COURT: For clarification, this act triggers upon the 

charging of a criminal animal cruelty charge under the criminal 

code under Title 18. Then that causes the seizure which triggers 

[the Act]. So regardless of where you stand in your proceeding, 

arraigned or not, you have already been charged, a seizure has 

already been completed. So this is the appropriate place in civil 

court to address [the Act] in accordance with the statute.
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[A. Klochak]: With the statute. But -- and I think what 

hasn’t been proven completely is that they have an active shelter 

under their organization, and they have used our case to bring in 

funds to substantiate their own cause. It’s like a self-serving 

cause. Let’s hardball these citizens and we will get paid and

hopefully we will win the criminal case.

Meanwhile, we forfeiture [sic] all this money ahead of it, 

without even proving. They have used this case -- and we don’t 

even know where our pets are still to this day, which I thought 

when we left today, we would know where they are. And there’s 

-- if they are safe and where they are put up.

N.T., 12/14/18, at 185-86.

The above does not in any way resemble the constitutional arguments 

the Klochaks now present on appeal. The mere utterance of the word 

“unconstitutional” was not sufficient to preserve any and all constitutional 

challenges that might be raised once the Klochaks obtained counsel.1 

“[A]lthough this Court is willing to construe liberally materials filed by a pro 

se litigant, a pro se appellant enjoys no special benefit.” Commonwealth v. 

Tchirkow, 160 A.3d 798, 804 (Pa.Super. 2017). “Any layperson choosing to 

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1 The Klochaks’ failure to properly raise a constitutional challenge in the trial 

court is further evidenced by their lack of notice to the Attorney General at 

the trial court level as is required by Pa.R.C.P. 235 (providing that a party 

challenging the constitutionality of a statute in a case in which the 

Commonwealth is not a party “shall promptly give notice thereof by registered 

mail to the Attorney General of Pennsylvania”). However, as they provided 

the notice when raising the issue on appeal, we do not base our waiver finding 

upon Rule 235. See, e.g., Dranzo v. Winterhalter, 577 A.2d 1349, 1354 

(Pa.Super. 1990) (explaining that the prompt notice requirement of Rule 235 

may be satisfied “where the trial court did not address the constitutional issue 

and where the Attorney General was duly notified when the issue was raised 

on appeal”). 
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represent himself in a legal proceeding must, to some reasonable extent, 

assume the risk that his lack of expertise and legal training will prove his 

undoing.” Commonwealth v. Gray, 608 A.2d 534, 550 (Pa.Super. 1992)

(cleaned up). As such, despite the Klochaks’ pro se status in the trial court, 

we hold that the Klochaks’ constitutional challenges to the Act are waived.

Accordingly, we affirm the trial court’s order. We also hereby lift the 

stay on the December 19, 2018 costs order. The Klochaks shall make

payment in accordance with the order within seven days of service of this 

memorandum, or be subject to the consequences for nonpayment pursuant 

to 18 P.S. § 30.6(b).

Order affirmed. Stay order lifted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2019