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WILLIAM A. DUFF AND DR. RICHARD W. JANSSEN AND RICHARD B. SPRINGER v. TOWNSHIP NORTHAMPTON ET AL. (10/15/87)

decided: October 15, 1987.

WILLIAM A. DUFF AND DR. RICHARD W. JANSSEN AND RICHARD B. SPRINGER, INDIVIDUALLY AND AS MEMBERS OF THE LANGHORNE ROD AND GUN CLUB, INC., LANGHORNE ROD AND GUN CLUB, INC., ITSELF, AND AS A MEMBER CLUB OF THE PENNSYLVANIA FEDERATION OF SPORTSMEN'S CLUBS, INC. AND THE PENNSYLVANIA FEDERATION OF SPORTSMEN'S CLUBS, INC., APPELLANTS
v.
TOWNSHIP OF NORTHAMPTON ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Bucks County, in case of William A. Duff and Dr. Richard W. Janssen and Richard B. Springer, individually and as members of the Langhorne Rod and Gun Club, Inc., the Langhorne Rod and Gun Club, Inc., itself, and as a member club of the Pennsylvania Federation of Sportsmen's Clubs, Inc. and the Pennsylvania Federation of Sportsmen's Clubs, Inc. v. Township of Northampton, Board of Supervisors of Northampton Township, Chief of Police of Northampton Township, No. 84-8310.

COUNSEL

Steven J. Schiffman, Serratelli & Schiffman, with him, Robert C. Whitley, III, for appellants.

Jeremiah J. Cardamone, with him, Stephen J. Fireoved and Ann Thornburg Weiss, Timoney, Knox, Hasson & Weand, for appellees.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 110 Pa. Commw. Page 279]

This case involves the question of whether a state statute prohibiting hunting with firearms within 150 yards (450 feet) of any occupied dwelling precludes a municipal ordinance operating in the same area. The Court of Common Pleas of Bucks County (trial court) issued a final decision and order on September 12, 1986 dismissing Petitioners' exceptions to its decision and order of June 17, 1986 which concluded that the Northampton Township (Township) Ordinance No. 204 (Ordinance), as amended, is valid and not preempted by The Game Law (Game Law), Act of June 3, 1937, P.L. 1225, as amended, 34 P.S. §§ 1311.1-1311.1502.*fn1 The trial court further held that the Township, a second class township, had the power to enact the Ordinance as a reasonable exercise of its police powers. The trial court, in rejecting the preemption argument, concluded that the right to hunt is only a qualified privilege and that the Game Law's "safety zone" does not provide as much protection as that provided in the Ordinance and, therefore, the state's "safety zone" must be treated as only a minimum "safety zone". The trial court, concurring with the New Jersey Court in Township of Chester v. Panicucci, 62 N.J. 94, 299 A.2d 385 (1983), held that the Game Law is incomplete and that the Township could and did adopt complementary regulations. The trial court further opined that the Game Law seeks

[ 110 Pa. Commw. Page 280]

    primarily to protect the hunter and the hunted and not the non-hunter. For the reasons set forth below, we respectfully reverse.

Petitioners, in their appeal of the trial court's decision, supported by the Attorney General*fn2 and the Pennsylvania Game Commission (Game Commission), as amici curiae, contend that the Game Law, administered by the Game Commission made up of eight commissioners appointed by the Governor and confirmed by a two-third vote of the Senate, has preempted the field and that the ordinance is invalid as an unreasonable exercise of the Township's police power. Our scope of review is limited to a determination of whether the trial court abused its discretion or committed an error of law. Kasavage v. City of Philadelphia, 105 Pa. Commonwealth Ct. 554, 524 A.2d 1089 (1987); Pidstawski v. South Whitehall Township, 33 Pa. Commonwealth Ct. 162, 380 A.2d 1322 (1977).

The Petitioners commenced this action by filing a complaint seeking a declaratory judgment that the Ordinance is invalid. The Petitioners are made up of residents of: (1) the Township and licensed by the Game Commission to hunt; (2) residents who are seeking to obtain a license to hunt, having taken the Game Commission hunter's safety education course required for any first time hunter; (3) the rod and gun club, which owns 53 acres in the Township and has approximately 500 members who are hunters and licensed to hunt by the Game Commission; and (4) the Pennsylvania Federation

[ 110 Pa. Commw. Page 281]

    of Sportsmen's Clubs, with approximately 580 clubs in 62 counties of Pennsylvania and 83,000 members, including residents of the Township who are licensed to hunt.

Section 808 of the Game Law, 34 P.S. § 1311.808, prescribes a "safety zone", which prohibits hunting or discharging firearms within 150 yards ". . . of any occupied dwelling house, residence or other building or camp occupied by human beings, or any barn, stable or other building unit in connection therewith" without permission of the owner or the tenant thereof (emphasis added).*fn3 Thus, under the Game Law, hunting may take place throughout the Commonwealth so long as the hunter is not within 150 yards of any dwelling structure referred to above. The moving radius established by the Game Law or "safety zone" translates into 14.6 acres which are controlled by any dwelling place. The 14.6 acres are calculated by drawing a circle with the dwelling place as defined in the above statute in the center and the 150 yards as the radius. Therefore, the "safety zone", restricts hunting within 14.6 acres. There is no provision in the Game Law which limits hunting in areas as large as 20 acres as provided in the Ordinance.

The Township, a second class township in Bucks County, has a population of approximately 31,000 people and an area of approximately 26.6 square miles. The Township, pursuant to complaints by a number of Township residents regarding the dangers of hunting in the more heavily populated parts of the Township, and relying on the authority granted in Section 702 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65747,*fn4 enacted the Ordinance

[ 110 Pa. Commw. Page 282]

    in October, 1983. This Ordinance, as amended in 1986, makes it unlawful for any person "to hunt for or kill game of any kind through the use of a bow and arrow or any firearm or weapon from which a shot or other object is discharged" within an area designated as the Township "safety zone", except that the Township Chief of Police shall grant the owner or person in control of 20 or more contiguous acres of property within the "safety zone" a permit to hunt on that property.*fn5

The "safety zone" created by the Ordinance divides the Township into two districts, the boundary between them being Second Street Pike, a major road which runs through the Township. The "safety zone" south of Second Street Pike, encompasses the more densely populated portion of the Township. In ...


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