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decided: December 31, 1987.


Original Jurisdiction in the case of Allan R. Case and Emma Case t/d/b/a Case Farm Hatchery v. Commonwealth of Pennsylvania, Department of Agriculture, Bureau of Animal Industry, Max A. Van Buskirk, Jr., V.M.D. Director.


Lewis H. Markowitz, Markowitz & Markowitz ; Of Counsel: John W. Thompson, Jr., for petitioner.

Thomas B. York, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 112 Pa. Commw. Page 257]

Allan R. and Emma Case, t/d/b/a Case Farm Hatchery, (Petitioners) filed a petition for review with this court asking that it be considered a complaint in the nature of a mandamus action against the Department of Agriculture in our original jurisdiction, or alternatively, as an appeal of a decision of the Department in our appellate jurisdiction. The Department has filed preliminary objections directed against the complaint in our original jurisdiction and a motion to quash the petition for review in our appellate jurisdiction. The petition, preliminary objections and motion to quash are all before us for disposition.

The underlying undisputed facts are as follows. On May 1, 1986, the Department quarantined Petitioners' poultry, eggs, poultry products and equipment to

[ 112 Pa. Commw. Page 258]

    prevent the spread of a suspected infection of pullorum in Petitioners' flock. Subsequent blood tests on Petitioners' fowl showed that approximately 15% of the birds were infected with the bacterium Salmonella pullorum. In a letter dated May 15, 1986, Max A. Van Buskirk, Jr., the Director of the Bureau of Animal Industry of the Department, informed Petitioners that:

Both state and federal laws prohibit the movement of fowl infected or exposed to Pullorum disease except directly to slaughter. The quarantine imposed on your operation on May 1, 1986 therefore prohibits the movement of any live poultry or fertile eggs or other contaminated articles from your farm except by permit of the Department.

Permits will be granted only to move poultry directly to slaughter processing facilities and to move sanitized non-fertile eggs for table use. . . .

Inasmuch as the Department has not condemned your Pullorum infected birds they are not eligible for indemnity payments from the Department.

If you plan to continue breeding poultry and you plan to resume sale of live poultry and fertile eggs to other poultrymen, it appears imperative that you depopulate your infected flocks as soon as possible. Depopulation may be accomplished by slaughtering these flocks for meat purposes or by euthanatizing and disposal by burial, rendering or incineration.

By letter dated October 8, 1986, the Department informed Petitioners that the quarantine placed on their premises was released.

Petitioners consulted an attorney, who, on December 5, 1986, wrote a letter to Van Buskirk suggesting

[ 112 Pa. Commw. Page 259]

    that the Department had in actuality condemned Petitioners' fowl pursuant to section 1 of the Act of June 22, 1931 (Act), as amended, 3 P.S. § 398*fn1 and therefore Petitioners were entitled to compensation pursuant to section 2.1 of the Act, 3 P.S. § 399.1.*fn2 The Department, via its legal counsel, responded in a letter dated December 22, 1986 that since it had not ordered Petitioners' birds slaughtered, there had been no condemnation, and consequently, there was no entitlement to compensation. Petitioners' counsel, in letter dated February 13, 1987, requested a form on which to file a claim for compensation or alternatively, acknowledgment from the Department that it had received from Petitioners, prior to their representation by counsel, a detailed inventory containing the current value of the diseased birds. The Department's legal counsel responded to this request, by letter dated February 18, 1987, indicating again that the animals were not condemned and therefore Petitioners

[ 112 Pa. Commw. Page 260]

    did not have a claim subject to the appraisement procedures in 7 Pa. Code §§ 8.11-8.13.*fn3

Petitioners filed their complaint with this court in May, 1987. In their mandamus action, Petitioners request that we order Van Buskirk to furnish them with the appropriate forms for appraisal and to conduct an appraisal pursuant to 7 Pa. Code § 8.11-8.13 or to compensate them as provided by section 2.1 of the Act. If their petition for review is determined to be in our appellate jurisdiction, Petitioners request that we remand the case to the Department either for a hearing and adjudication in accord with section 504 of the Administrative Agency Law, 2 Pa. C.S. § 504 and the Department's own regulations at 7 Pa. Code §§ 131.1-131.36 or for a hearing solely to determine the amount of compensation due pursuant to section 2.1 of the Act.

The Department's preliminary objections to the complaint in our original jurisdiction raise the issues of (1) jurisdiction, (2) failure to state a cause of action, and (3) unavailability of mandamus. The essence of Petitioners' complaint is that they are entitled to compensation for their diseased fowl because the Department, in actuality, had condemned their birds. They are in effect asking us to reverse a decision of the Department that the diseased birds had not been condemned, which is an appeal. We conclude that this complaint does not fall within our original jurisdiction.

That brings us to the Department's motion to quash, which is premised on the alleged untimeliness of Petitioners' appeal. The Department contends that its letter of May 15, 1986 was a final adjudication of Petitioners' right to compensation for the diseased fowl

[ 112 Pa. Commw. Page 261]

    and that Petitioners' petition for review filed in May, 1987 was not filed within the 30 day requirement of Pa. R.A.P. § 1512. The Department argues that even if the February 18, 1987 letter is considered the final adjudication, Petitioners' appeal is still untimely and must be quashed.

Petitioners rely on this court's decision in Brooks v. Department of Agriculture, 105 Pa. Commonwealth Ct. 196, 523 A.2d 845 (1987), in support of the timeliness of their appeal. In Brooks, this court stated:

Our Supreme Court in Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981), rev'g 39 Pa. Commonwealth Ct. 609, 396 A.2d 81 (1979), held that a decision which does not comply with the procedures of the Administrative Agency Law is an invalid adjudication and the date on which it was issued has no legal significance when measuring the time in which an appeal must be taken. Petitioner's appeal is, therefore, not time barred.

Id. at 201, 523 A.2d at 847 (footnotes omitted). Petitioners contend that they, like the Brooks, were not accorded the procedures of section 504 of the Administrative Agency Act (Act), 2 Pa. C.S. § 504.

Section 504 of the Act provides that "[n]o adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard." Our review of the materials filed in this case shows that Petitioners were summarily informed that they were not entitled to any compensation because, even though the Department had determined that their birds were diseased and their operation quarantined except for movement (by Department permit)*fn4 to a slaughterhouse,

[ 112 Pa. Commw. Page 262]

    the Department had not "ordered" the diseased birds slaughtered. Petitioners were given no notice of a hearing nor were they afforded an opportunity to be heard even when they engaged counsel who requested a meeting to discuss compensation.*fn5 As we held in Brooks, the date of a decision reached without compliance with the Administrative Agency Law has no legal significance. Therefore, Petitioners' appeal is not time-barred.*fn6 However, for the reasons which follow, we find the materials submitted in this case insufficient for appellate review on the merits.

The Department has filed as a record in this case a series of letters, which detail its actions in respect to Petitioners' fowl, and the laboratory reports containing the results of the tests performed on Petitioners' birds. This material is nothing more than the contents of the Department's file. The file indicates that the Department informed Petitioners that if they intended to continue their operation in the future, it was "imperative that you [Petitioners] depopulate your infested flocks" and slaughtering was recommended as a means of performing this.*fn7 The file shows that an authorized agent of the Department adjudged specific fowl belonging to Petitioners to be diseased.*fn8 It also shows that the Department

[ 112 Pa. Commw. Page 263]

    quarantined Petitioners' entire operation to prevent spread of the disease*fn9 and would only allow movement of Petitioners' diseased fowl to slaughter-processing facilities.*fn10

When these facts are viewed in light of the definition of condemnation in the Act, a close correlation is apparent. Section 1 of the Act provides that a bird is condemned when it has been "adjudged, by an authorized officer or agent of the Department of Agriculture, to be diseased and ordered to be slaughtered to prevent the spread of disease."*fn11 However, the Department is authorized by the Act of April 17, 1929, as amended, 3 P.S. §§ 341-351, to quarantine farms to prevent the spread of disease. We note that section 5 of the Act of April 7, 1929, 3 P.S. § 345 specifically permits the Department to establish a special quarantine "to kill any animal . . . for the purpose of preventing . . . the spread of a dangerous transmissible disease."

The materials submitted in this case are insufficient for this court to make a determination on whether the Department erred in its decision that Petitioners' diseased

[ 112 Pa. Commw. Page 264]

    birds had not been condemned. In Brooks, 105 Pa. Commonwealth Ct. at 202, 523 A.2d at 848, we remanded to the Department because there was " no record in this case nor a statement of agreed upon facts which would enable us to perform our appellate review function in addressing the merits. . . ." (Emphasis in original.) Such is also the situation here. The materials submitted are insufficient to constitute a record and no stipulation of facts was submitted by the parties. Appellate review is not possible. Accordingly, we remand to the Department for a hearing in accordance with this opinion.


And Now, December 31, 1987, the Department of Agriculture's preliminary objection to our original jurisdiction is sustained. The motion of the Department to quash the appeal is denied and the case is remanded to the Department for a hearing in accordance with the foregoing opinion.

Jurisdiction relinquished.


Preliminary objection sustained and motion to quash denied. Case remanded.

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