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FRANCIS BAEHR v. COMMONWEALTH PENNSYLVANIA EX REL. LOWER MERION TOWNSHIP (05/08/80)

decided: May 8, 1980.

FRANCIS BAEHR, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA EX REL. LOWER MERION TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania, ex rel. Lower Merion Township v. Francis Baehr, No. 1134-78.

COUNSEL

James J. Regan, Jr., for appellant.

Mary MacNeil Killinger, with her Ronald T. Williamson, Assistant Attorneys General, Paul W. Tressler, First Assistant District Attorney, and Joseph A. Smyth, Jr., District Attorney, for appellee.

Judges Wilkinson, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson, Jr.

[ 51 Pa. Commw. Page 242]

This is an appeal from the judgment of conviction and order of the Court of Common Pleas of Montgomery County, Criminal Division entered April 25, 1979 finding appellant guilty on three citations charging violations of Section 702 of the Dog Law of 1965 (Dog Law), Act of December 22, 1965, P.L. 1124, as amended, 3 P.S. § 460-702, and on one citation charging a violation of Lower Merion Township's (township) dog ordinance. We affirm.

[ 51 Pa. Commw. Page 243]

The facts for purposes of this appeal are not disputed. Appellant is the owner of two dogs, one a St. Bernard and the other a German Shepherd, whose unattended wanderings underlie the instant appeal. Between September 15, 1977 and February 12, 1978, appellant's dogs were observed and cited for running at large by township police on six occasions. During none of the six incidents was appellant at home. Following summary convictions on all six citations before the district justice, appellant appealed to the common pleas court which found him guilty on four of the citations.*fn1

Appellant denies the township's authority to enact the ordinance under which one of the citations was issued because of the allegedly pre-emptive effect of the state's Dog Law. Authority for the township ordinance in question is initially derived from part (a) of Article XVI of The First Class Township Code, Act of June 24, 1931, P.L. 1206, 53 P.S. §§ 56601-56614 which provides for the creation of boards of health invested with substantial authority to prescribe rules and regulations necessary for the preservation of the public health. There is no question that a local ordinance which seeks to insure all dogs are safely secured or accompanied when not so confined is a valid health and safety regulation provided the state legislature has not occupied the field of such regulation to the exclusion of municipalities.

An examination of the Dog Law and its manifest purpose leads us to conclude the township's ordinance is a perfectly valid and appropriate exercise of the municipality's police power. The language of the Dog Law evidences no legislative intention to preclude local regulation of dogs running at large. As Justice, later Chief Justice, Stern wrote:

[ 51 Pa. Commw. Page 244]

[T]here is a third class of statutes which, regulating some industry or occupation, are silent as to whether municipalities are or are not permitted to enact supplementary legislation or to impinge in any manner upon the field entered upon by the State; in such cases the question whether municipal action is permissible must be determined by an analysis of the provisions of ...


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