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FAIRVIEW TOWNSHIP v. DENNIS L. SCHAEFER AND GERALDINE T. WHITEMAN. APPEAL DENNIS L. SCHAEFER (08/04/89)

decided: August 4, 1989.

FAIRVIEW TOWNSHIP
v.
DENNIS L. SCHAEFER AND GERALDINE T. WHITEMAN. APPEAL OF DENNIS L. SCHAEFER, APPELLANT



Appeal from Common Pleas Court, Erie County; Honorable Michael T. Joyce, Judge.

COUNSEL

Daniel J. Brabender, Jr., Carney & Good, Erie, for appellant.

Michael S. Jan Janin, with him, Donald C. Buseck, Quinn, Gent, Buseck & Leemhuis, Inc., Erie, for appellee Fairview Township.

Craig and Smith, JJ., and Narick, Senior Judge. Narick, Senior Judge, dissenting.

Author: Craig

[ 128 Pa. Commw. Page 80]

Although both parties argue this case as a conflict between the statutory powers of a state agency and a political subdivision, the salient issue is not which of two statutes carries greater weight, but whether a court of equity has the authority to intervene and provide specific relief when a nuisance exists.

Dennis L. Schaefer appeals an order by Judge Joyce of the Court of Common Pleas of Erie County, granting Fairview Township a mandatory injunction requiring Schaefer to remove from the township a live tiger which he maintains in captivity.

[ 128 Pa. Commw. Page 81]

Schaefer keeps the tiger at his residence in the second class township of Fairview. The tiger, caged by a six-foot-high chainlink fence with a roof, has been declawed. Schaefer intends to defang the animal at a later date. The Pennsylvania Game Commission has authorized Schaefer's possession of the tiger by issuing, under the guidelines of section 2963 of the Game and Wildlife Code, 34 Pa.C.S. § 2963, an "Exotic Wildlife Possession Permit."*fn1

On August 17, 1988, Fairview Township filed a complaint in equity for a preliminary and final injunction in the Common Pleas Court of Erie County, requesting an order mandating removal of the tiger from the township. The township contends that the presence of the tiger is a prohibitable nuisance under section 702, cl. XII, of the Second Class Township Code,*fn2 and a threat to the safety of all persons within the township. Section 702, cl. XLVII, of the Second Class Township Code, 53 P.S. § 65747, authorizes the township to "take all needful means for securing" against such threats.

Schaefer's response is that the tiger is not a threat to the community, and that the township's police power under the Second Class Township Code does not supersede the commission's authority as granted by the Game and Wildlife Code. Additionally, Schaefer asserts that the presence of the tiger does not constitute a nuisance.

On August 29, 1988, Judge Joyce held a hearing on the matter, and after viewing the tiger in its surroundings, made the following findings of fact:

(1) "[A] very real danger presently exists that a person, perhaps even an unknowing or curious child, might approach the properly confined tiger and still sustain injury, possibly of a serious nature;

(2) "[D]espite the inspection and certification of the cage facilities by the Pennsylvania Game Commission, it is difficult

[ 128 Pa. Commw. Page 82]

    to believe that mere chainlink fencing would be enough to hold back a 600 pound tiger desiring to free itself from its confines for whatever reason. It should be noted that the tiger, already a healthy 225 pounds, has succeeded in pushing the chainlink fence approximately one foot from true vertical so that bulges appear in the fence. It is the court's opinion that while the small chainlink cage can at this time hold off the tiger's normal tendency to be free, the fence will be ineffective to withstand the impact of the tiger's body once it reaches maturity (i.e. approximately 600 pounds);"

(3) "[T]he court noted [at the viewing] that the tiger at one point reached its paw out of the cage and encircled the defendant's calf with one of its paws. This type of action presents a very real danger to an innocent onlooker, despite the fact that each of the tiger's paws have been declawed, her rather menacing teeth are intact. In short, the tiger presently possesses the ability to seriously harm an unwary, curious onlooker;"

(4) "[The tiger] most certainly presents a serious risk of harm to all who come into contact with it, even while it is confined to the cage;" and

(5) "[T]he tiger constitutes an 'attractive nuisance' that will continue to draw children, and others wanting to get a closer look, towards the tiger's cage."

On the basis of the findings, the trial court ordered Schaefer to remove the tiger from Fairview Township.

Schaefer now appeals to this court, contending that the specific guidelines of the Game and Wildlife Code, to which the commission must adhere when issuing a possession permit, supersede the general police power of section 702, cl. XLVII, of the Second Class Township Code. Additionally, Schaefer asserts that the trial court did not have sufficient evidence to rule that the tiger is a nuisance.

The subject matter before us -- possession of an exotic wildlife animal that may also be a nuisance -- is one of first impression. However, the Pennsylvania Supreme

[ 128 Pa. Commw. Page 83]

Court has addressed the analogous situation of a lawfully authorized business being challenged as a nuisance.

In Perrin's Appeal, 305 Pa. 42, 156 A. 305 (1931), an adjoining landowner contested the construction of a gasoline station in a restricted zoning district. Even though zoning officials had granted a permit, the Supreme Court negated the permit and held that

Acts of municipal officers under zoning legislation permitting the use of property for what is or may be a nuisance, do not oust the jurisdiction of equity to determine whether a nuisance in fact exists and should be restrained. It would be contrary to the constitutional guarantee, if, through statute, ordinance, or under a so-called exertion of police power, one's property could be taken, injured, or destroyed, and one's health made to suffer from the use of another's property for the benefit of the latter owner. The use is not relieved of its offensive incidents as far as equity is concerned even though a majority of the owners under a consent ordinance agree that land may be so used; those who do not consent have a right to be heard in a legal forum in opposition to the use. In equity, the court will regard such ordinances in the nature of ...


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