Pennsylvania Commonwealth Reports
COM. v. LOPEZ, 908 A.2d 991 (Pa.Commw. 2006) COMMONWEALTH
of Pennsylvania v. Barbara Jean LOPEZ, Appellant. No. 2512
C.D. 2005. Commonwealth Court of Pennsylvania. Submitted
on Briefs May 10, 2006. Decided September 28, 2006. Page
992
Ronald L. Russell, Greensburg, for appellant.
Noah A. Erde, Meadville, for appellee.
BEFORE: McGINLEY, Judge. SMITH-RIBNER, Judge, PELLEGRINI,
Judge, FRIEDMAN, Judge, LEADBETTER, Judge, COHN JUBELIRER,
Judge, and LEAVITT, Judge.
OPINION BY Judge SMITH-RIBNER.
Barbara Jean Lopez appeals from an order of the Court of
Common Pleas of Crawford County that found her guilty of
thirty-four counts of violating Section 201 of the Dog Law,
Act of December 7, 1982, P.L. 784. a* amended, 3 P.S.
§ 459-201, relating to applications for dog licenses,
and guilty of twenty-nine counts of violating Section 8 of
the Rabies Prevention and Control in Domestic Animals and
Wildlife Act (Rabies Act), Act of December 15, 1986, P.L.
1610, ax amended, 3 P.S. S 455.8, relating to vaccinations
required, both of which are summary offenses. Lopez
questions whether these provisions applied to her in this
case and whether the trial court had evidence beyond a
reasonable doubt that Lopez owned all of the dogs that the
trial court found that she owned.
A non-jury trial in this matter was conducted on December
14, 2004. The sole witness, Roland Yochum, stated that he
is employed by the Department of Agriculture, Bureau of Dog
Law, as a Dog Warden primarily in Crawford County. He
testified that on April 24, 2004 he and another person went
to the residence of Lopez on Route 408 in Troy Township by
appointment to determine if the kennel license previously
issued for the property had been renewed or if the property
no longer needed a license. He indicated that Lopez came
out from the mobile home on the property and met them at
the gate. There were approximately twelve pens in which
dogs were housed around the driveway and the home, and
Lopez took Yochum and the person with him to each of the
pens and identified the dogs by names, types and gender.
Yochum observed half-full bowls of food and water in the
pens, and he saw Lopez fork straw into a pen, Page 993
Yochum additionally testified that Lopez told him that she
and her husband, Mr. Lopez, were separated and that he had
moved out. The dogs remained at the residence, and she was
caring for them. There were thirty-four dogs, and Yochum
determined that by their size and the amount of their hair
they were all mature dogs. Lopez did not have a license for
any of the dogs. Yochum also determined that Lopez did not
have rabies vaccination certificates for twenty-nine of the
dogs. He agreed that a licensed kennel had existed at the
premises previously and that the premises appeared to be
the same as when it was a licensed kennel, although there
was no current kennel license.
In its opinion and verdict of December 14, 2004 and in its
opinion pursuant to Pa. R.A.P.1925 on Lopez’ statement of
matters complained of on appeal, the trial court noted that
when a kennel is being operated it is not necessary for
each dog to be registered so long as the kennel has a
kennel license issued by the Department of Agriculture.
Section 207 of the Dog Law, 3 P.S. § 459-207.
However, there was no evidence that a kennel was being
operated at the time of the visit, and there was no kennel
license. The court quoted the definitbn of “kennel” in
Section 102 of the Dog Law, 3 P.S. § 459-102, which
lists as examples various purposes for which dogs in a
kennel are kept, including breeding, training and rental,
and it concluded that there was no evidence that the
premises met that definition.[fn1] Therefore, the
individual dogs were required to be licensed. As to whether
Lopez was the “owner” of the dogs and so required to secure
the licenses, the court quoted the definition of “owner” in
Section 102 of the Dog Law, which includes both a person
who has a property right in a dog and a person who keeps or
harbors a dog and has it in his or her care.[fn2]
The trial court determined that the Commonwealth
established that Lopez was harboring and caring for the dogs
and permitting them to remain at her property. As for the
charged violations of the Rabies Act, the court noted that
neither the act nor the implementing regulations define
“owner,” but the court concluded that it made sense to use
the same definition as in the Dog Law. The court found
Lopez guilty of the sixty-three citations and ordered that
she pay a fine of $25.00 and costs for each.
Lopez first contends that Section 201 of the Dog Law and
Section 8 of the Rabies Act do not apply; rather, the
kennel laws apply to the dogs at issue. Lopez states that
there was no credible evidence that Mr. Lopez failed to
apply timely to renew his kennel license or that he was
ever advised that his license would not be renewed and
afforded due process of law. She refers to testimony of
Yochum stating that he made the appointment to follow up on
why the kennel license was not renewed for the year 2004,
N.T. p. 6, Reproduced Record (R.R.) 31; that they went
there to find out if the kennel license had been renewed or
if the operation had been closed, downsized or moved, N.T.
p. 7, R.R. 32; and that Yochum knew that Mr. Page 994
Lopez had not applied for a license, N.T. p. 22, R.R. 47.
Lopez states that the trial court did not allow
questioning on cross-examination to show that the kennel
remained in operation as a kennel, citing N.T. pp. 25-2X,
R.R. 50-53.[fn3] Yochum did testify, however, that
basically nothing about the operation had changed since the
time when he knew that there was a license. Lopez quotes
the definition of “kennel” in Section 102 of the Dog Law,
see n. 1 above, and she points out that the definition
makes no reference to a license. Rather, the license
require ment is stated in Section 206. $ P.S. §
459-206, which provides in part.
(a) Applications, kennel license classifications and
fees. — Any person who keeps or operates a Class I,
Class II, Class III, Class IV or Class V Kennel, Boarding
Kennel Class I, Boarding Kennel Class II, Boarding Kennel
Class III or nonprofit kennel shall, on or before January
1 of each year, apply to the department for a kennel
license. . . A kennel license is required to keep or
operate any establishment that keeps, harbors, boards,
shelters, sells, gives away or in any way transfers a
cumulative total of 26 or more dogs of any age in any one
calendar year. All kennel licenses shall expire on
December 31.
Lopez asserts that under the statute a license is something
applied for because a kennel exists, not something that
makes a kennel exist. She maintains that Section 207(a.1),
3 P.S. § 459-207(a.1), sets forth the procedure for
dealing with a kennel operating without having or renewing
its license.[fn4]
Lopez argues that this is a case where a kennel not
belonging to her is alleged to have failed to renew its
license. She characterizes Yochum’s testimony as
conflicting in regard to whether he knew that the license
had not been renewed, and she states that he never spoke to
the kennel’s owner, Mr, Lopez, to find out. She submits
that the Commonwealth failed to produce sufficient evidence
that the kennel had ceased to exist so as to permit a
person who worked at the kennel to become the dogs’ owner,
and she finds no evidentiary support for the trial court’s
statement that no license had been issued and therefore for
its conclusion that the operation did not meet the
definition of a kennel. Rather, the kennel law applied but
instead of following procedures set forth in Section
207(a.1), the authorities inappropriately charged Lopez.
Under the assertedly overbroad wording in the definition of
owner, any worker at a kennel would be the owner of all the
dogs for which he or she cared. Without citation, Lopez
argues that the statutory definition permits ownership to
attach in an arbitrary manner based on casual human to Page
995 dog contact and permits the imposition of serious
financial responsibility upon a person without his or her
knowledge due to the failure of the kennel owner to act.
Lopez’ closely related second argument is that there was
no evidence before the trial court to prove beyond a
reasonable doubt that she owned all of the dogs that it
determined she owned. Although familiar with the statutory
definition of owner, Yocham responded “no” when asked if he
had anything to prove that Lopez was the owner of the dogs.
N.T. p. 24, R.R. 49. He stated that Lopez told him that Mr.
Lopez had all of the information concerning current
licenses and vaccinations. Further, she asserts that there
was nothing of record to show that she owned the trailer or
the land, and she contends that it is only an assumption
that the area where the kennel was located was part of the
parcel with the trailer in which she resided. Without
sufficient proof that the dogs were at Lopez’ residence,
she is not established as the owner under the statute, and
the conviction cannot stand.
The Commonwealth states that the proper standard of review
of the sufficiency :>f the evidence to sustain a conviction
is to view the evidence in the light most favorable to the
Commonwealth as the verdict winner and to accept as true
all evidence and reasonable inferences upon which, if
believed, the fact finder could have based the verdict and
to determine whether such evidence and inferences are
sufficient to prove guilt beyond a reasonable doubt, citing
Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986).
It responds to the second argument first, stating that at
the summary appeal trial it provided the trial court with
evidence that proved beyond a reasonable doubt that Lopez
owned all of the dogs found at the premises. Yochum
testified that Lopez told him that her husband had moved
out, that she lived alone at the premises and that she was
the one taking care of the dogs. She identified each of
them by name, and she was providing food and water.
Countering Lopez’ assertions regarding lack of proof of her
ownership of the premises, the Commonwealth notes that
Section 102 of the Dog Law does not require that a person
be the land owner; it merely requires that she be a person
who “keeps or harbors such dog or has it in [her] care” or
who “permits such dog to remain on or about any premises
occupied by [her].”
Second, the Commonwealth argues that Section 201 of the
Dog Law and Section 8 of the Rabies Act apply. Section 8 of
the Rabies Act provides in part: “(a) Requirement.
— Every person living in this Commonwealth, owning
or keeping a dog or cat over three months of age, shall
cause that dog or cat to be vaccinated against rabies.”
Pursuant to Section 201(a) of the Dog Law: “the owner of
any dog, three months of age or older, . . . shall apply to
the county treasurer of his respective county . . . for a
license for such dog.” Although Lopez argues that the
matter should be treated as one where a kennel was in
operation and the operator failed to reapply for a license,
the fact is that Lopez never owned or operated a kennel.
After her husband left and she assumed the care of the
dogs, she became the private owner of thirty-four dogs
under the terms of Section 102 of the Dog Law. She could
have applied for a kennel license, but she did not; hence,
she was subject to the requirements of licensing and
securing vaccinations.[fn5] Page 996
Under the facts established, the Court must affirm the
order of the trial court. First, there is no question
whatsoever that the credited testimony of Yochum supported
a finding that Lopez was caring for the dogs and permitting
them to remain “on or about” a premises occupied by her.
That finding brought her within the definition of “owner”
in Section 102 of the Dog Law, which by its express terms
is broader than a person simply having a property interest
in a dog. The plain intent of the statute is that dogs be
licensed. and if one having the property interest in a dog
does not perform that function, then the statute requires
one harboring or caring for the dog to perform it. The
object of all statutory interpretation is to ascertain and
to give effect to the intent of the legislature. See
Section 1921(a) of the Statutory Construction Act of 1972,
1 Pa. C.S. § 1921(a).
Furthermore, Yochum’s testimony that the former kennel
license had not been renewed supported the trial court’s
determination that no license was in effect, Under Section
206 of the Dog Law. a kennel license is required to operate
any establishment that keeps, harbors or transfers
twenty-six or more dogs in a calendar year. In the absence
of a valid kennel license, this was not a kennel. The Court
notes that had a charge of operating a kennel without a
license been successfully prosecuted, the minimum fine of
$100 per day under Section 207(a.1) would have resulted in
substantially greater fines.
The Court’s review of the statutory appeal in this case
where the trial court heard the matter de novo is limited
to determining whether its findings are supported by
substantial, competent evidence, whether it committed an
error of law and whether it abused its discretion.
Commonwealth v. Hake, 738 A.2d 46 (Pa.Cmwlth.1999). Based
on its review, the Court holds that the trial court’s
findings were sufficiently supported and that it did not
misapply provisions of the Dog Law or the Rabies Act in
arriving at its conclusions. Id. The Court therefore
affirms.
ORDER
AND NOW, this 28th day of September, 2006, the order and
verdict of the Court of Common Pleas of Crawford County is
affirmed.
FRIEDMAN, J., files dissenting opinion.
[fn1] Section 102 defines “Kennel” as “[a]ny establishment
wherein dogs are kept for ihe purpose of breeding, hunting,
training, renting, research or vivisection, buying,
boarding, sale, show or any other similar purpose and is so
constructed that dogs cannot stray there-from.”
[fn2] Section 102 defines “Owner” as follows:
When applied to the proprietorship of a dog, includes
every person having a right of property in such dog, and
every person who keeps or harbors such dog or has it in
his care, and every person who permits such dog to remain
on or about any premises occupied by him.
[fn3] On cross-examination Lope/ counsel questioned whether
it was the responsibility of a kennel owner, rather than
others, to take care of the dogs. Counsel for the
Commonwealth objected on the grounds of relevance, and the
trial court sustained the objection stating that there had
been no showing that there was a kennel because there was
no showing of a license.
[fn4] Section 207(a.1) provides:
Prohibition to operate; injunction; fines. — It
shall be unlawful for kennels described under section 206
to operate with out first obtaining a kennel license from
the department. The secretary shall not approve any kennel
license application unless such kennel has been inspected
and approved by a State dog warden or employee of the
department. The secretary may file a suit in equity in
the Commonwealth Court Lo enjoin the operation of any
kennel that violates any of the provisions of this act. In
addition, the secretary may seek in such suit the
imposition of a fine for every day in violation of this
act for an amount not less than $100 nor more than $500
per day.
[fn5] Although dogs in a licensed kennel need not have
individual licenses under Sections 206 and 207 of the Dog
Law, all dogs must be vaccinated for rabies, with owners of
certain kennels permitted to administer the vaccine
pursuant to Section 8(b) of the Rabies Act, 3 P.S. 5
455.8(b).
DISSENTING OPINION BY Judge FRIEDMAN.
I respectfully dissent. The majority holds that, when the
operator of a kennel fails to renew a kennel license, the
kennel does not become an unlicensed kennel subject to
kennel laws; according to the majority, an unlicensed
kennel is “not a kennel.” (Majority op. at 996.) The
majority also holds that, in addition to persons who have a
property right, in a dog, people who care for a dog or
permit a dog to remain on premises occupied by them are
“owners” of the dog and, as such, are responsible for the
dog’s license and rabies vaccination. (Majority op. at
995-96.) For the following reasons, I cannot agree.
The husband of Barbara Jean Lopez (Lopez) operated a
licensed kennel but, when the couple separated, he failed
to renew the kennel license. The Dog Warden visited Lopez
to learn why her husband failed to renew the kennel
license. Lopez informed the Dog Warden that she and her
husband had separated, that she was taking care of the dogs
and that her husband had all of the dog licenses and Page
997 rabies vaccination certificates. Because Lopez could
not produce the dog licenses and rabies vaccination
certificates, the Dog Warden cited Lopez, as the owner of
the dogs, for thirty-four dog license violations and
twenty-nine rabies vaccination violations.[fn1] However,
the Dog Warden admitted at trial that he had no proof that
Lopez was the owner of the dogs. {See R.R. at 49.)
I. “Kennel”
A kennel is not required to have a dog liconse for each
dog kept at the kennel.[fn2] The majority concludes that
Lopez was not caring for dogs at a kennel because an
unJicensed kennel is “not a kennel.” (Majority op. at 996.)
I cannot agree.
A. Statutory Definition
In ascertaining the intention of the General Assembly in
the enactment of a statute technical words are to be
construed according to their peculiar meaning or definiton.
Section 1903(a) of the Statutory Construction Act of 1972,
1 Pa.C.S. § 1903(a). Section 102 of the Dog Law
defines “kennel” as follows:
Any establishment wherein dogs are kept for the purpose
of breeding, hunting, training, renting, research or
vivi-section, buying, boarding, sale, show or any other
similar purpose and is so constructed that dogs cannot
stray there-from.
3 P.S. § 459-102. This definition does not state
that a “kennel” is an establishment with a kennel license.
Thus, unlike the majority, I conclude that a “kennel”
without a license is still a “kennel.”
Here, Lopez’s husband operated a licensed “kennel” until
he and Lopez separated. Certainly, if it was licensed, the
husband’s establishment fell within the statutory definition
of “kennel.” The Dog Warden testified that, when he visited
Lopez, nothing in the keeping of the dogs had changed from
when the husband had the kennel license. (C.R. at 53.)
Thus, there can be no question that, although it had no
license, the husband’s establishment still fell under the
statutory definition of “kennel.”
B. Section 206 of the Dog Law
Section 206 of the Dog Law states: “A kennel license is
required to keep or operate any establishment that keeps . .
. 26 or more dogs of any age in any one calendar year.” 3
P.S. § 459-206. One cannot seriously argue that
section 206 of the Dog Law requires a kennel license for
establishments that are not “kennels.” Thus, any
establishment that keeps twenty-six or more dogs must be a
“kennel.” Here, Lopez’s husband was keeping more than
twenty-six dogs; thus, although he did not have a kennel
license, he needed one to be in compliance with section
206. Because Lopez’s husband needed a kennel license, his
establishment must have been a “kennel.”
C. Abrogation of Kennel Licenses
In construing a statute, we presume that the General
Assembly does not intend a result that is absurd. Section
1922(1) of Page 998 the Statutory Construction Act of
1972, 1 Pa.C.S. § 1922(1). Suppose the Dog Warden
had cited Lopez for operating a “kennel” without a license
under section 206 of the Dog Law. Using the majority’s
reasoning, i.e., that an unlicensed kennel is “not a
kennel,” Lopez would have responded that, because she did
not have a kennel license, she was not operating a
“kennel.” Thus, she did not need a kennel license. I submit
that such a result is absurd.[fn3]
D. Purpose of Kennel Licensure
Finally, I submit that the tnajority has misunderstood the
purpose of a kennel license. Licenses are issued in order
to regulate certain acts. Pittsburgh Milk Company v. City
of Pittsburgh, 360 Pa. 360, 62 A.2d 49 (1948). A “kennel”
license is issued to regulate the keeping of dogs in a
“kennel.” Without a “kennel,” there is nothing to regulate
and, thus, no need for a “kennel” license.
II. “Owner”
The majority concludes that, in addition to persons with a
property right in the dogs, Lopez was an “owner” of the
dogs because she cared for them and permitted them to
remain on premises occupied by her. I cannot agree.
A. Statutory Definition
Section 102 of the Dog Law defines “owner” as follows:
When applied to the proprietorship of a dog, [the word
“owner”] includes [1] every person having a right of
property in such dog, and [the word “owner” includes] [2]
every person who keeps or harbors such dog or has it in
his care, and [the word “owner” includes] [3] every person
who permits such dog to remain on or about any premises
occupied by him.
3 P.S. § 459-102 (emphasis added). The majority
interprets this definition to mean that, at any given time,
a dog may have multiple, unrelated “owners” with different
interests. Thus, the majority states that “if one having
the property interest in a dog does not [obtain a dog
license], then the statute requires one harboring or caring
for the dog to [obtain] it.” (Majority op. at 996.)
In my view, the definition simply presents three scenarios
that would result in sole “ownership” of a dog. First, if
an individual has a right of property in a dog, the
individual is “owner” of the dog. Second, if an individual
encounters a stray dog and decides to keep and care for the
dog, the individual is “owner” of the dog. Third, if a
stray dog wanders onto property occupied by an individual
who decides not to keep or care for the dog but to allow
the dog to remain on the premises, the individual is
“owner” of the dog. The definition does not suggest to me
that, if an individual with a property right in a dog
occasionally asks the neighbor’s ten-year-old son to care
for the dog, the boy is an “owner” of the dog.[fn4] Page
999
Here, there is no evidence that Lopez had a property right
in any of the dogs kept at her husband’s unlicensed kennel.
Absent such evidence, T would conclude that the Dog Warden
failed to prove that Lopez was the “owner” of the dogs.
B. Bailment
Our supreme court has indicated that a dog owner may bring
a breach of bailment action against a kennel for failure
to return a dog. Price v. Brown, 545 Pa. 216, 6SO A.2d 1149
(1996). This means that. when a dog owner takes a dog to a
kennel, the dog owner enters into a bailment agreement with
the kennel for care of the dog. “Bailment” has been defined
as the “rightful possession of goods by one who is not the
owner.” Black’s Law Dictionary 152 (8th ed. 2004) (quoting
4 Samuel Williston. Law of Contracts 2888 (rev. ed. 1938))
(emphasis added). Thus, although tie majority holds
otherwise, when a person with a property right in a dog
takes tne dog to a kennel, the fact that the kennel cares
for the dog and permits it to remain on its premises does
not make the kennel or its employees “owners” of the dog.
C. Abandonment by Owner
Section 601(c)(2) of the Dog Law states that when a dog is
placed in a kennel for care and is abandoned by its
“owner,” the dog may be turned over to the humane society
ten days after proper notice is given to the “owner.” 3
P.S. § 459-601(c)(2). If a kennel must give notice
to the “owner” of an abandoned dog, then a kennel-worker
cannot be the “owner” of the dog.
Because I conclude that Lopez simply was working at her
husband’s unlicensed “kennel” and was not the “owner” of
the dogs, I would reverse.
[fn1] Section 201(a) of the Dog Law, Acl of December 7,
1982, P.L. 784, as amended, 3 P.S. § 459-201(a),
requires that the owner oi any dog three months of age or
older apply for a license for such dog. Section 8(a) of the
Rabies Prevention and Control in Domestic Animals and
Wildlife Act, Act of December 15. 1986, P.L. 1610, 05
amended, 3 P.S. § 455.8(a), requires that persons
owning or keeping” a dog over three months of age cause
lhat dog to be vaccinated against rabies.
[fn2] The Dog Warden conceded in his testimony that dogs
kept in a kennel are not required to have dog licenses.
(R.R. at 46-47).
[fn3] Moreover, if the majority is correct that an
unlicensed kennel is “not a kennel,” a Dog Warden can never
cite an unlicensed establishment that falls within the
statutory definition of “kennel” for failure to obtain a
kennel license.
[fn4] My interpretation of the definition avoids any
confusion regarding the “ownership” of a dog. Suppose a
hypothetical person named Mary purchases a pure bred puppy
for $2,000, spends thousands of dollars to prepare it for
showing, wins dog shows and succeeds in making her dog
extremely valuable lor breeding purposes. Because Mary has
a right of property in the dog, I consider Man’ to be the
sole “owner” of the dog. If Mary lakes her dog to an elite
kennel for special care or breeding, I do not consider the
kennel-workers who keep or breed the dog and permit it to
remain on the premises occupied by them to be “owners” of
Mary’s dog. If a kennel-worker takes Mary’s dog. I consider
it a theft. If I were to adopt the majority’s position,
however, there could not be a theft because the
kennel-worker was a statutory “owner” of the dog. See
section 601(a) of the Dog Law, 3 P.S. § 459-601 (a)
(stating that dogs are personal property and subjects of
theft).