2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-14-2011

Sixth Angel Shepherd Rescue, I v. George Bengal

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2543

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Recommended Citation

"Sixth Angel Shepherd Rescue, I v. George Bengal" (2011). 2011 Decisions. Paper 359.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 10-2543

_______________

SIXTH ANGEL SHEPHERD RESCUE, INC;

TERRY ELIZABETH SILVA

v.

GEORGE BENGAL; NICOLE WILSON;

PENNSYLVANIA SPCA

Appellants

_______________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-10-cv-01733)

District Judge: Honorable Berle M. Schiller

_______________

Submitted Under Third Circuit LAR 34.1(a)

September 22, 2011

_______________

Before: AMBRO, CHAGARES, and GARTH, Circuit Judges

(Opinion filed: October 14, 2011 )

_______________

OPINION

_______________

AMBRO, Circuit Judge

Appellants George Bengal, Nicole Wilson and the Pennsylvania Society for the 

Prevention of Cruelty to Animals (collectively, the “PSPCA”) appeal a decision by the 
2

District Court granting a preliminary injunction in favor of Appellees Sixth Angel 

Shepherd Rescue, Inc. and Terry Silva (together, “Sixth Angel”) and ordering the PSPCA 

to transfer three dogs to Sixth Angel. Because we believe the District Court did not 

abuse its discretion in granting the motion for a preliminary injunction, we affirm.

I.

As we write solely for the parties, we recite only those facts necessary to our 

decision. Sixth Angel Shepherd Rescue, Inc. is an organization based in Pennsylvania 

that rescues dogs. Terry Silva was the head of its Board of Directors during the time 

relevant to this appeal.

1

 Sixth Angel rescued three dogs—Tank, Butter and Nikki—from 

North Carolina and contracted to have them delivered to Pennsylvania via a transport 

vehicle. Based on a confidential tip suggesting poor conditions on that vehicle, the

Pennsylvania Bureau of Dog Law Enforcement (“Dog Law”) intercepted and seized the 

vehicle and its contents, including Tank, Butter and Nikki. Dog Law turned the three 

dogs over to the PSPCA for the purpose of providing them with veterinary examinations. 

The PSPCA retained the dogs despite Sixth Angel’s requests to have them returned to it. 

Sixth Angel filed an action against the PSPCA, alleging that the PSCPA’s 

retention of the three dogs violated its constitutional rights and constituted state law 

conversion. It also filed a motion for a temporary restraining order and/or preliminary 

injunction seeking the return to it of the dogs. The District Court granted the motion

 

1 Certain documents regarding the three dogs identify Terry Silva rather than Sixth Angel 

Shepherd Rescue, Inc. as the dogs’ apparent owner. Silva thus has standing. See Friends 

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
3

based on the state law conversion claim and ordered that the three dogs be returned to 

Sixth Angel. 

II.

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have 

jurisdiction under 28 U.S.C. § 1292(a)(1). In reviewing the District Court’s decision to 

grant a preliminary injunction, we review the District Court’s findings of fact for clear 

error, its conclusions of law de novo, and its ultimate decision to grant the preliminary 

injunction for abuse of discretion. Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir. 2010). 

A party seeking a preliminary injunction must satisfy a four-factor test: “(1) a likelihood 

of success on the merits; (2) he or she will suffer irreparable harm if the injunction is 

denied; (3) granting relief will not result in even greater harm to the nonmoving party; 

and (4) the public interest favors such relief.” Id. at 147.

Under Pennsylvania law, conversion is the deprivation of another’s right in

property without the owner’s consent or lawful justification. Prudential Ins. Co. of Am. 

v. Stella, 994 F. Supp. 318, 323 (E.D. Pa. 1998). As detailed by the District Court, the 

evidence demonstrates that Sixth Angel is the rightful owner of Tank, Butter and Nikki. 

On appeal, the PSPCA argues that its possession of the three dogs is lawful because Dog 

Law impounded the dogs as contraband. Dog Law did not issue Sixth Angel a citation 

concerning the conditions under which the dogs were transported. Sixth Angel made a 

regrettable choice in transporters, but this does not affect its ownership of the dogs. The 

District Court did not commit clear error in determining that Sixth Angel demonstrated a 

substantial likelihood of success on the merits of its state law conversion claim. 
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In retaining possession of the dogs, the PSPCA deprived Sixth Angel of its unique 

property. The harm to Sixth Angel is significant. Conversely, as the District Court 

noted, the PSPCA did not present evidence establishing its right to continued possession 

of the dogs and nothing indicates that Sixth Angel cannot maintain the health and welfare 

of the dogs. The risk of harm to the PSPCA is slight. Finally, the public interest is best 

served by returning the dogs to their owner, thereby settling property rights and allowing 

Sixth Angel to fulfill its mission by finding homes for Tank, Butter and Nikki. The 

District Court did not abuse its discretion in granting the preliminary injunction and 

ordering the PSPCA to return the three dogs to Sixth Angel.2 

For these reasons, we affirm.

 

2

Fed. R. Civ. P. 65(c) requires that a court issuing a preliminary injunction direct the 

successful applicant to post a bond. The amount of the bond is left to the court’s 

discretion. Frank’s GMC Truck Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100, 103 (3d 

Cir. 1988). The District Court did not abuse its discretion in requiring Sixth Angel to 

post a $250 bond.