Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Upper Merion Township v. Edward Gannon, No. 839 January Term, 1973.
E. William Heuser, for appellant.
Gregory J. Dean, for appellee.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate in the reargument. Opinion by Judge Crumlish, Jr. President Judge Bowman dissents. Dissenting Opinion by Judge Blatt. Judge Wilkinson joins in this dissent.
[ 16 Pa. Commw. Page 631]
This is the case of the Capering Canine and requires our construction of an ordinance which was enacted to prohibit such offensive conduct.
The Court of Common Pleas of Montgomery County (Criminal Division) sustained the conviction of Edward Gannon who was accused of violating the "Dog Ordinance" of Upper Merion Township.
On February 7, 1973, the animal control officer of Upper Merion Township (Appellee) spotted a dog, a pet of the Edward Gannon family.*fn1 He successfully pursued the dog to the Gannon home and upon arriving where the animal was in residence, admonished Mrs. Gannon that the beast had been frolicking vigorously "at large." The officer, recognizing what he obviously considered to be his mandate as a law enforcement officer, later in the day filed a criminal complaint supported by an appropriate affidavit against Edward Gannon, master of the household, and owner of the personal property, equivalent of entireties in real property law, charging him with violation of Upper Merion Township Ordinance No. 67-201,
[ 16 Pa. Commw. Page 632]
alleging that he permitted his dog to run "at large."*fn2 This exercise in diligence and fidelity to duty by the officer reminds us of the celebrated case of The People of the City of New York on complaint of Officer Harry Moran v. William C. Fields (better known to us as W. C. Fields), Defendant, heard in the City Magistrate's Court of the City of New York Borough of Manhattan: Seventh District, on September 14, 1928. On February 26, 1973, Gannon, in absentia, was found guilty as charged by the District Justice of the Peace. When he failed to pay the fine and costs, grave consequences ensued. In full compliance with the procedural prescription of the law, a warrant for his arrest was issued, and subsequently he was incarcerated.
He appealed to the Court of Common Pleas of Montgomery County and on May 9, 1973, after a complete evidentiary rerun, he again was found guilty. We are now called upon to determine the propriety of that ruling.
The "Dog Ordinance of Upper Merion" No. 67-201 provides in relevant part:
1. Dog Owner. Any person, firm or corporation, who or which owns, possesses, maintains, houses or keeps any dog or dogs within Upper Merion Township, ...