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PENNSYLVANIA GAMEFOWL BREEDERS ASSOCIATION v. COMMONWEALTH PENNSYLVANIA (12/08/88)

decided: December 8, 1988.

PENNSYLVANIA GAMEFOWL BREEDERS ASSOCIATION, BRUCE KINSINGER, PRESIDENT, AND JOSE LOPEZ, JR., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, LEROY ZIMMERMAN, ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA AND HENRY S. KENDERDINE, JR., DISTRICT ATTORNEY OF LANCASTER COUNTY; HUMANE LEAGUE OF LANCASTER COUNTY; RONALD D. CASTILLE, DISTRICT ATTORNEY OF PHILADELPHIA COUNTY, AND PENNSYLVANIA SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, RESPONDENTS



Original jurisdiction in the case of Pennsylvania Gamefowl Breeders Association, Bruce Kinsinger, President, and Jose Lopez, Jr. v. Commonwealth of Pennsylvania, LeRoy Zimmerman, Attorney General of the Commonwealth of Pennsylvania.

COUNSEL

Ken Gormley, Mansmann, Cindrich & Titus, for petitioners.

Joseph S. Sabadish, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

Judges Barry and Palladino, and Senior Judge Narick, sitting as a panel of three. Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge MacPhail did not participate in the decision in this case.

Author: Palladino

[ 122 Pa. Commw. Page 53]

Before us in this case are preliminary objections to the Pennsylvania Gamefowl Breeders Association's (Petitioner) amended petition for review in the nature of a declaratory judgment. For the reasons which follow, we sustain the preliminary objections and dismiss the petition for lack of jurisdiction.

Petitioner filed a petition for review in the nature of a declaratory judgment in this court's original jurisdiction on May 4, 1987. Petitioner requested that this court declare unconstitutional, under the United States and Pennsylvania Constitutions, recent amendments to section 5511 of the Crimes Code (cruelty to animals), 18 Pa. C.S. § 5511.*fn1 The petition for review named the Commonwealth of Pennsylvania and LeRoy Zimmerman, Attorney General, (Commonwealth parties) as respondents.

[ 122 Pa. Commw. Page 54]

The Commonwealth parties filed preliminary objections to the petition. Argument on the preliminary objections was heard before this court by a three judge panel. On November 25, 1987, the court sustained the preliminary objections and dismissed the petition for review on the grounds that the petition did not present a controversy ripe for review. Pennsylvania Gamefowl Breeders Assoc. v. Commonwealth (Gamefowl I), Pa. Commonwealth Ct. , 533 A.2d 838 (1987). Subsequently, this court granted Petitioner's request to amend the petition.*fn2

Petitioner filed an amended petition for review in the nature of a declaratory judgment on April 4, 1988. The amended petition added the District Attorneys of Lancaster and Philadelphia Counties, the Humane League of Lancaster County, and the Pennsylvania Society for the Prevention of Cruelty to Animals (collectively Additional Respondents) as respondents. The amended petition alleges that three of Petitioner's members have been arrested and prosecuted by the Philadelphia and Lancaster County District Attorneys for possessing gamefowl for the purpose of animal fighting in violation of 18 Pa. C.S. § 5511. Petitioner's amended petition, paragraphs 30, 33 and 39. Petitioner seeks the same relief as in its original petition. The content of the subsections of section 5511 of the Crimes Code, 18 Pa. C.S. § 5511, which are challenged and the basis of the challenge are detailed in Gamefowl I and will not be repeated here.

[ 122 Pa. Commw. Page 55]

The Commonwealth parties and Additional Respondents filed preliminary objections to the amended petition which raise jurisdictional questions and a demurrer. We conclude that the petition fails to allege a controversy between Petitioner and the Commonwealth parties, requiring dismissal of the petition as to the Commonwealth parties and, as a consequence of the Commonwealth's dismissal, ...


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