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Zimmerman v. Wolff

December 18, 2008

ERVIN ZIMMERMAN
v.
DENNIS C. WOLFF, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF AGRICULTURE



The opinion of the court was delivered by: O'Neill, J.

MEMORANDUM

Plaintiff Ervin Zimmerman initiated this action against defendant Dennis C. Wolff in his official capacity as Secretary of the Pennsylvania Department of Agriculture on August 12, 2008 asking the Court to enjoin defendant from seizing plaintiff's dogs and from preventing him from operating his dog kennel under his federal license. He simultaneously filed a motion for a temporary restraining order and a preliminary injunction. This case was reassigned from the Honorable Thomas M. Golden to this Court on August 14, 2008. The parties have responded to my Order of August 20, 2008 to brief the Court on jurisdiction and on the merits of the motion for a preliminary injunction and the temporary restraining order. I stayed a decision on these issues pending a decision in the Pennsylvania Court of Common Pleas of Lancaster County, Pennsylvania Department of Agriculture v. Ervin S. Zimmerman, docket number CI-08-08689, on the status of plaintiff's Pennsylvania kennel license. On December 2, 2008, the Pennsylvania Commonwealth Court entered an Order denying plaintiff's November 14, 2008 application for a stay requesting that that Court stay the case pending in Lancaster County. On December 5, 2005, the Lancaster County Court entered an order granting defendant's petition for an injunction which enjoins plaintiff from operating a dog kennel within the Commonwealth of Pennsylvania without a valid kennel license issued by defendant. As the parties have waived a hearing on these issues, I will make a determination on plaintiffs' motion for an injunction and a restraining order and defendant's unanswered motion to dismiss upon the papers presently before me.

BACKGROUND

The following facts are derived from the joint stipulations of facts provided by the parties. Plaintiff who sells and transfers dogs in interstate commerce has been licensed by the United States Department of Agriculture ("USDA") as a licensed Class A Breeder under the Federal Animal Welfare Act, 7 U.S.C. §2131, et seq. ("AWA"), from approximately 1991 through the current date. From approximately 1991 through 2007, the Pennsylvania Department of Agriculture annually issued plaintiff a Pennsylvania K5 Dog Kennel License pursuant to the Pennsylvania Dog Law, 3 P.S. §459-101 et seq.

In January 2008, pursuant to the Pennsylvania Dog Law at 3 P.S. §459-211(a), the Pennsylvania Department of Agriculture's Bureau of Dog Law Enforcement denied plaintiff's application for a 2008 license because of convictions under the Pennsylvania Dog Law; convictions under the Pennsylvania Cruelty to Animals Law, 18 Pa. C.S. §5511(c)(1), and for failure to comply with the Pennsylvania Dog Law.

Specifically, on May 30, 2008, in a trial de novo in the Lancaster County Court of Common Pleas plaintiff was found guilty of ten charges of cruelty to animals resulting from a November 2007 inspection of his kennel; four charges of Pennsylvania Dog Law violations; and one charge under the Pennsylvania Rabies Act for failure to keep adequate records. These convictions are on appeal to the Pennsylvania Superior Court.

The Bureau inspected plaintiff's kennel in February and March 2008 and issued citations for violations of the Pennsylvania Dog Law and the Pennsylvania Cruelty to Animal Law. The Bureau re-inspected plaintiff's kennel several times since March 25, 2008. The kennel satisfactorily passed the inspections and the Bureau found that none of plaintiff's dogs' health, safety or welfare was endangered.

Plaintiff appealed the Bureau's denial of a 2008 license and requested a supersedeas of the refusal order pending the outcome of his administrative appeal. Defendant Wolff granted the supersedeas on February 22, 2008.

The USDA last inspected plaintiff's kennel on June 4, 2008. At that time there were 170 dogs in the kennel. The USDA inspector found that the nails of seven dogs needed to be trimmed, which plaintiff corrected during the inspection, and that a litter of dogs born April 7, 2008 was overdue for vaccination and de-worming, which plaintiff says he corrected the following day. The USDA inspector had no other written observations.

Following an administrative hearing at which plaintiff appeared and was represented by counsel, on July 25, 2008, Wolff affirmed the denial of a license and terminated the supersedeas.

On August 4, 2008, state dog wardens determined that Zimmerman continues to operate a kennel. Pursuant to the Pennsylvania Dog Law, at 3 P.S. §459-207(a), on August 6, 2008, the Department of Agriculture initiated an enforcement action before the Lancaster Court of Common Pleas to enjoin plaintiff from operating a kennel without a Pennsylvania kennel license and seeking monetary fines as provided in the Pennsylvania Dog Law.

On August 18, 2008, plaintiff filed a petition for review of Wolff's July 25 Order by the Pennsylvania Commonwealth Court. Plaintiff's kennel currently holds approximately 200 dogs, although that number varies. It is a violation of the Pennsylvania Dog Law, specifically 3 P.S. §459-206(a), for an unlicensed kennel to possess an annual cumulative total of 26 or more dogs. Since plaintiff's kennel is not currently licensed under the Pennsylvania Dog Law, plaintiff is in violation of the Pennsylvania Dog Law for possessing an annual cumulative total of 26 or more dogs.

On September 15, 2008, this Court entered an order deferring a ruling on plaintiff's motion for a temporary restraining order and preliminary injunction pending disposition of a case in the Court of Common Pleas of Lancaster County, Pennsylvania known as Pennsylvania Department of Agriculture v. Ervin S. Zimmerman, docket number CI-08-08689 ("Lancaster County case").

On October 23, 2008, plaintiff made a written request that defendant reinstate a previously issued supersedeas to permit plaintiff to continue operating a dog kennel pending final disposition of appeals he filed in the Pennsylvania Commonwealth Court and Pennsylvania Superior Court ("state court appeals"). ...


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