A Fight to Add Value to the Family Pet

A Broomall couple is looking to recoup $ 5,000 in vet fees after their
terrier was attacked. Pa. law caps their payment at $ 50.
By L. Stuart Ditzen
Inquirer Staff Writer

Warren and Carolyn Clein dearly love their little dog, Daisy, but the
law of Pennsylvania seems to care scarcely a hoot for the pooch.

When a neighbor's rottweiler got loose two years ago and attacked
Daisy, nearly killing her, the Cleins, of Broomall, spent more than
$ 5,000 for emergency veterinary services to save her.

But the couple later learned that it would be difficult, if not
impossible, to recover those damages from the rottweiler's owner.

That is because dogs in Pennsylvania and in most states are
considered to be "chattel" or personal property - the same as a
table, a lamp or a TV set - worth no more than their replacement
value.

Daisy, a 28-pound mixed-breed terrier, was adopted from a Montgomery
County animal shelter in 1996 for a fee of about $ 50. So, $ 50 would
be her replacement value. In the eyes of the law, that is all the 9-
year-old dog is worth.

But the Cleins are challenging that notion in a lawsuit against the
rottweiler's owners, James and Linda Graf, also of Broomall.

The Cleins' lawyer, Gerard K. Schrom, says the law should recognize
that a dog can have a value to its owner far greater than its
purchase price.

"Certainly you should be able to get the money that you spent [for
medical care] on the dog," said Schrom, who specializes in dog-bite
cases. "That would be only fair."

The Grafs declined to comment.

"You can just call my lawyer," said Linda Graf.

The lawyer, George P. Noel, was out of the country and could not be
reached.

The attack occurred Oct. 12, 2002, as Warren Clein, 69, a retired
computer systems designer, was returning to his home on Cambridge
Road after walking Daisy around the neighborhood.

According to the Cleins' court filings and a Marple Township Police
report, the Grafs' rottweiler, a 115-pound female named Cupid, had
escaped from her yard about a block away on South New Ardmore Avenue
and was running loose.

Clein was in his driveway holding Daisy on a leash when the huge dog
spotted them from across the street and charged.

"It was upon us in no time flat," Clein said. "It was like being
attacked by a lion or a tiger. It thought I was going to be killed.
It picked up Daisy like she was nothing, like she was a tennis ball."

A passing motorist stopped, got out of his car and chased the
rottweiler away, but not before Cupid had torn major wounds in
Daisy's flank and abdomen.

Police located the rottweiler a short time later in the Grafs' front
yard. They concluded that the dog had escaped from an unsecured fence
gate at the side of the house. The Grafs were ordered to quarantine
the dog with a veterinarian for a week for observation.

In legal filings, the Grafs do not dispute that the attack occurred,
but they deny all allegations of negligence or carelessness. They
also deny that their dog is violent or vicious.

The Cleins took Daisy, who was in shock, to the Veterinary School of
the University of Pennsylvania and asked the doctors to save her.
Clein said he and his wife did not give a thought to the cost.

"Our instructions to the doctor were, 'If she can live, do whatever
it takes,' " Clein said. "If it could be done, we wanted her to have
a normal dog life."

A veterinary surgeon performed extensive exploratory surgery,
reattached a kidney, repaired injured intestines, and stabilized a
fractured rib. Stitched from stem to stern, Daisy spent five days in
intensive care at the hospital.

She survived. And after a three-month convalescence, she was like new
again - playing, romping and wagging her tail.

But when the vet bills were added up, the total was $ 5,265.

The Cleins are seeking to recover those expenses in their lawsuit
against the Grafs in Delaware County Court.

Warren Clein, who was knocked down in the attack, also is seeking
more than $ 13,000 in medical expenses for treatment of pain in his
back and legs.

Though the Cleins are bucking established case law in seeking
compensation for Daisy's vet expenses, experts say that owners of
dogs that have been attacked occasionally have won such cases in
other states.

The Appellate Division of New Jersey's Superior Court ruled in 1998
that the owner of a shih tzu mauled by a bulldog was entitled to
recover $ 2,500 in veterinary expenses from the bulldog's owner.

The New Jersey court said it was simply "good sense" for the
bulldog's owner to pay. "A household pet," the court noted, "is not
like other fungible or disposable property."

Courts in Florida, Hawaii and Texas have ruled that such owners even
can recover damages for pain and suffering when their dogs are
injured or killed.

"We are seeing the beginning of a trend," said Kenneth Phillips, a
Los Angeles lawyer and a national expert on dog-bite law. "If you
look at what people do for their animals and what they spend on their
animals, the way our society feels about dogs, it won't be tolerated
to treat them like they're a table or a chair."

But the courts in many states are hesitant to open up this new realm
of legal liability for fear of triggering floods of new lawsuits.

In Pennsylvania, appellate judges have held firmly to the dogs-as-
property standard.

Whether Daisy's story changes the status quo remains to be seen. But
Schrom, the Cleins' lawyer, said his clients may be just the right
people to seek change - partly because they have a dramatic case and
partly because they are determined to make Pennsylvania's laws work
better for dog-bite victims.

Apart from their lawsuit, the Cleins have been attempting for more
than a year to enforce Pennsylvania's "dangerous-dog law" in a
private criminal complaint against the Grafs.

That law provides that anyone whose domestic animal is attacked by a
dog can file a complaint with a district justice seeking to force the
owner of the attacking dog to post warning signs on his property and
to take measures to assure that the dog is restrained at all times.

The owner also must register the dog with the state as a dangerous
dog.

After Daisy was attacked, the Cleins filed a dangerous-dog complaint
with Delaware County District Justice Robert R. Burke.

Burke refused to hear their complaint and sent them on what became a
lengthy goose chase in the courts.

Burke referred the Cleins to the District Attorney's Office, telling
them they needed permission to file a private criminal complaint.

The District Attorney's Office refused to grant permission and
referred the couple to the township animal warden. The warden took no
action.

The Cleins filed appeals in the courts.

The goose chase ended Aug. 16, when the state Superior Court ruled
that the Cleins had been "led astray" by all the referrals and should
have been allowed to proceed in front of Burke in the first place.

On Monday, they refiled the complaint at Burke's office.

Warren Clein says he is pressing the issue because he fears that the
rottweiler might get loose again and attack another dog or even a
child.

He said he has seen Cupid running free in front of the Grafs' house
since the attack on Daisy.

James Graf acknowledged in a deposition that Cupid occasionally is
allowed to be loose in front of his house when a family member is
with her.

"That's the reason that we're doing this, and I think it's the right
thing to do," Clein said. "I know what happened to me, and I don't
want it to happen to anyone else."

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Contact staff writer L. Stuart Ditzen at 215-854-2431 or
sditzen@phillynews.com.

Posted in the Philadelhia Inquirer on Sun, Sep. 05, 2004
http://www.philly.com/mld/inquirer/news/local/9582639.htm

Posted on SHARE Yahoo group Sep 5, 2004