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Keith v. Commonwealth

Commonwealth Court of Pennsylvania

May 13, 2015

Barbara Keith, Andrea Shatto, Margaret Ehmann and the Animal Legal Defense Fund, Petitioners
v.
Commonwealth of Pennsylvania, by and through, Pennsylvania Department of Agriculture and Secretary of Agriculture George Greig, Respondents

Argued March 9, 2015

Court of ORIGINAL JURISDICTION.

Jeffrey Pierce, Cotati, CA, for petitioners.

Page Darney, Deputy Attorney General, Harrisburg, for respondents.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge.

OPINION

Page 757

BONNIE BRIGANCE LEADBETTER, JUDGE

Before us for consideration is the Pennsylvania Department of Agriculture's preliminary objection to Petitioners' amended complaint in this Court's original jurisdiction requesting injunctive relief and a declaratory judgment that regulations promulgated by the Department are in conflict with the mandates set forth in the Dog Law, Act of December 7, 1982, P.L. 784, as amended, 3 P.S. § § 459-101 - 459-1205.[1] The individual Petitioners are Pennsylvania residents who each own a licensed dog. The Animal Legal Defense Fund (ALDF), of which the individual Petitioners are members, is a non-profit organization located in Cotati, California. ALDF seeks to protect the lives of animals and advance their interests.

Section 207(i)(3)(i) of the Dog Law, 3 P.S. § 459-207(i)(3)(i), prohibits Kennel Class C[2] license holders from using metal strand flooring in the primary enclosure of adult dogs. Section 207(i)(4)-(6), 3 P.S. § 459-207(i)(4)-(6), requires that Kennel Class C license holders provide adult dogs with unfettered access from the primary enclosure to an exercise area. The Department promulgated regulations, applicable only to such commercial kennels, relating to flooring in primary enclosures and access to exercise areas. The regulation at 7 Pa. Code § 28a.8(5) provides:

Primary enclosures, including whelping boxes, housing bitches with nursing litters or housing dams or foster dams with puppies under 12 weeks of age must be constructed so that at least 50% of the flooring of the primary enclosure complies with the standards established under section 207(i)(3) of the act.

The regulation at 7 Pa. Code § 28b.1 provides that a commercial kennel owner is compliant with the requirements of Section 207(i)(6)(viii) of the Dog Law if a nursing mother is provided with daily access to an exercise area.

Petitioners assert that the Department is not authorized to exempt nursing mothers from the statutory ban on metal strand flooring and from the statutory requirement of unfettered access to exercise areas. Petitioners request that this Court enjoin the Department from enforcing 7 Pa. Code § § 28a.8 and 28b.1, declare these sections to be in conflict with the Dog Law and, therefore, unlawful and order the Department to revise the regulations in a

Page 758

manner consistent with the Dog Law. The Department filed preliminary objections asserting that Petitioners lack standing and have not satisfied the prerequisites for obtaining a preliminary injunction. Because Petitioners had not requested a preliminary injunction, the latter objection was dismissed on ...


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