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07/31/97 DONNA HOLSTEN v. HAVERFORD TOWNSHIP

July 31, 1997

DONNA HOLSTEN, APPELLANT
v.
HAVERFORD TOWNSHIP



Appealed From No. S.A. 40555-96. Common Pleas Court of the County of Delaware. Judge MORGAN, SR., Senior Judge.

Before: Honorable Rochelle S. Friedman, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Senior Judge Lord.

The opinion of the court was delivered by: Lord

OPINION BY SENIOR JUDGE LORD

FILED: July 31, 1997

Donna Holsten appeals from a decision of the Court of Common Pleas of Delaware County finding her guilty of various violations of Ordinance No. 1806, Article I, which article is known as the "Haverford Township Humane Control and Regulations of Animals" (ordinance).

Holsten resides at 2800 Belmont Avenue in Ardmore, Pennsylvania. On September 28, 1995, the Haverford Township (township) Animal Control Officer, Robert Wellman, issued Holsten Citation No. A126478 for violating, inter alia, §§ 49-5 and 49-7 of the ordinance. This first section relates to dog licenses and the latter section concerns the control and confinement of dogs. The citation alleged that, in contravention of the ordinance, Holsten's "[three] dogs were running at large in the 2800 block of Belmont Ave." and that they had not been wearing their tags as required. On January 30, 1996, Wellman issued Holsten Citation No. A126492 for violating § 49-12(A) of the ordinance relating to animal nuisances, because he witnessed her domestic rabbit running on a neighboring property. On March 20, 1996, Wellman issued Holsten Citation No. A126505, again for violating § 49-7, claiming that, this time, her three dogs were running at large in the 600 block of Georges Lane.

The trial court convicted Holsten of these violations, assessing a $400.00 fine plus court costs for Citation No. A126478; a $200.00 fine plus court costs for Citation No. A126492; and a $500.00 fine plus court costs for Citation No. A126505. Holsten now appeals to this Court, raising these issues. 1) Whether the trial court erred in deciding she was guilty of permitting her dogs to run at large in violation of the ordinance; 2) whether the trial court erred in deciding she was guilty of permitting her rabbit to damage the property of another in violation of the ordinance; *fn1 and 3) whether § 49-7 of the ordinance is unconstitutional and violative of the township's police power.

Holsten first argues that she could not properly be convicted of violating § 49-7 unless she allowed her dogs to run loose or knew that they were running loose, citing as authority our decision in Gannon v. Upper Merion Township, 16 Pa. Commw. 630, 330 A.2d 537 (Pa. Commw. 1975). In Gannon, the ordinance section at issue provided that "it shall be unlawful for the dog owner of any dog to permit such dog to run at large within Upper Merion Township." Id., 330 A.2d at 538. (Emphasis added). We explained that Black's Law Dictionary (Revised 4th Ed. 1968) included among its definitions of "permit" the term "to acquiesce by failure to prevent," and we also said that "there is nothing in the record to support the Conclusion that Appellant acquiesced in any of the events which led to the animal's successful flight to freedom or as is termed in the ordinance to 'run at large.'" Id., 330 A.2d at 539. (Footnote omitted). We then reversed the trial court's order sustaining Gannon's conviction.

Of course, "'whether criminal intent or guilty knowledge is a necessary ingredient of a statutory offense is a matter of construction, to be determined from the language of the statute in the light of its manifest purpose and design.'" Baehr v. Lower Merion Township, 51 Pa. Commw. 241, 414 A.2d 415, 417 (Pa. Commw. 1980) (quoting Commonwealth v. Morakis, 208 Pa. Super. 180, 184, 220 A.2d 900, 903 (1966)); Gannon, 330 A.2d at 538. Gannon is clearly distinguishable from the case at bar, however, because, here, the ordinance merely provides in pertinent part:

§ 49-7. Control and confinement.

A. Owners shall at all times keep their canine(s) (male or female), whether licensed or not, from running at large, molesting passersby or passing vehicles, or attacking other animals.

Obviously, there is no language in this subsection which could be interpreted as requiring either acquiescence, criminal intent or scienter on the part of the alleged offender. *fn2 Therefore, the fact that there was no evidence adduced before the trial court that Holsten permitted her dogs to run loose or knew that they were running loose is irrelevant.

Holsten also argues that § 49-7 is unconstitutional because of the following language.

B. A canine (male or female) on the owner's premises, which is neither tied nor secured within an enclosure, is hereby ...


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