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ALLAN R. CASE AND EMMA CASE T/D/B/A CASE FARM HATCHERY v. COMMONWEALTH PENNSYLVANIA (12/31/87)

decided: December 31, 1987.

ALLAN R. CASE AND EMMA CASE T/D/B/A CASE FARM HATCHERY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF AGRICULTURE, BUREAU OF ANIMAL INDUSTRY, MAX A. VAN BUSKIRK, JR., V.M.D. DIRECTOR, RESPONDENT



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.

COUNSEL

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 ...


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