Com. v. Bucher, J. ( 2018 )

J-S84014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JENNIFER L. BUCHER :
:
Appellant : No. 1288 MDA 2017
Appeal from the Judgment of Sentence July 24, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-SA-0000148-2016
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 27, 2018
Appellant, Jennifer L. Bucher, appeals from the judgment of sentence
that was reinstated following the trial court’s decision to dismiss her
summary appeal from the conviction of the offense of harboring a dangerous
dog.1 Because the appeal is within the jurisdiction of our sister appellate
court, we order that the appeal be transferred to the Commonwealth Court.
The trial court set forth the relevant underlying facts of this case as
follows:
[Appellant] and her husband currently reside in a home in which
a side yard affronts a public street. When they first moved into
that home, which is located in Paxtang Borough (“the Borough”)
in Dauphin County, Pennsylvania, they applied to the Borough
for permission to build a six (6) foot high fence on the side yard
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1 3 P.S. § 459-502-A.
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of the home because they intended to adopt a family of shelter
dogs, primarily of the pit bull family of terriers. Obviously,
[Appellant] believed that a six (6) foot high fence was necessary
to keep her dogs safely contained within her yard and, inter alia,
the need to keep these dogs from having access to other
persons. Because their side yard affronts a public street,
however, Borough codes would not permit [Appellant] and her
husband to build a fence of this height (six feet); although
[Appellant] and her husband engaged in various efforts to obtain
a variance for a six (6)-foot fence and partook in various appeals
pertaining thereto, all of those appeal endeavors proved
unsuccessful. Notwithstanding their unsuccessful attempts to
secure a variance for a six (6)-foot fence, [Appellant] and her
husband nevertheless chose to adopt six dogs of the pit bull
terrier variety1 and proceeded to erect a fence of approximately
three-and-a-half (3.5) feet in height around the side yard of
their home.
1 It should not be lost on anyone that the pit bull
variety of terrier is not a usual domestic breed of
dog. The pit bull terrier was raised and developed in
England and other European countries, and
thereafter in the United States, specifically for the
blood sport of dog fighting, an event in which
spectators gathered to observe dogs that are placed
in a “fighting pit” and then viciously tear each other’s
bodies (particularly faces) to shreds, many times to
the death. As such, pit bull terriers have long been
born, bred, and trained instinctively to be an attack
breed of animal.
On May 19, 2016, two of [Appellant’s] pit bull terriers,
“Maui” and “Dozer,” became engaged in a vicious attack on one
another which prompted [Appellant] to attempt to undertake
efforts to calm and separate the two dogs. As soon as
[Appellant] attempted to undertake that task, she ([Appellant])
was attacked viciously by the dogs and sustained severe injuries
to her arms. According to various eyewitness accounts, she bled
from her elbows down to her hands, her flesh was torn to
shreds, and her fatty tissue under her skin was exposed at some
of her open wounds. Patrick Corkle (“Officer Corkle”), a Swatara
Township Police Officer who responded to the scene of the
incident, believed that it would be advisable to call an ambulance
for [Appellant], but [Appellant] resisted the dispatch of an
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ambulance for fear that her dogs would be taken away from
her.2 According to [Appellant], her husband and father
ultimately drove her to Hershey Medical Center where she
treated for the dog attack and received twenty-seven (27)
stitches on her arm.
2 According to Officer Corkle, [Appellant] remarked
to him, “You’re gonna take my dogs away. I know
you’re gonna take my dogs away.” (Transcript of
Summary Appeal Hearing, 11/28/16, at 38:9-10)
Trial Court Opinion, 7/24/17, at 1-2.
On May 27, 2016, Appellant was cited for committing the offense of
harboring a dangerous dog. On July 18, 2016, after a hearing before a
magisterial district judge, Appellant was found guilty of the offense and
sentenced to pay a fine. She then took a timely summary appeal to the
court of common pleas. On November 28, 2016, the trial court held a
summary trial, and at the close of the proceedings, the trial court directed
the parties to file briefs with the court. In an order filed on July 24, 2017,
the trial court determined that Appellant was guilty of harboring a dangerous
dog, dismissed her summary appeal, and affirmed and reinstated the
judgment of sentence entered by the magisterial district judge. Appellant
then filed this timely appeal. The trial court did not direct Appellant to file a
statement pursuant to Pa.R.A.P. 1925(b). On August 18, 2017, the trial
court filed a statement in lieu of opinion pursuant to Pa.R.A.P. 1925(a).
Before we consider any of the issues raised by Appellant in her brief,
we must determine whether we have jurisdiction over this matter.
Specifically, it appears that jurisdiction should be transferred to the
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Commonwealth Court under 42 Pa.C.S. § 762. That statute provides, in
pertinent part, as follows:
§ 762. Appeals from courts of common pleas
(a) General rule.--Except as provided in subsection (b), the
Commonwealth Court shall have exclusive jurisdiction of appeals
from final orders of the courts of common pleas in the following
cases:
***
(2) Governmental and Commonwealth
regulatory criminal cases.--All criminal actions or
proceedings for the violation of any:
(i) Rule, regulation or order of any
Commonwealth agency.
(ii) Regulatory statute administered by
any Commonwealth agency subject to
Subchapter A of Chapter 5 of Title 2
(relating to practice and procedure of
Commonwealth agencies). The term
“regulatory statute” as used in this
subparagraph does not include any
provision of Title 18 (relating to crimes
and offenses).
42 Pa.C.S. § 762(a)(2).
In Commonwealth v. Hake, 738 A.2d 46 (Pa. Cmwlth. 1999), the
Commonwealth Court made the following determination pertaining to cases
involving the “Dangerous Dog Law”:
Jurisdiction lies in the Commonwealth Court, as opposed to the
Superior Court, because the Dangerous Dog Law at 3 P.S. §
459–502–A is not a penal statute under the Crimes Code (Title
18), but is a regulatory statute, administered and enforced by
the Department of Agriculture (Title 7, Chapter 27 of the
Pa.Code). Therefore, in accordance with 42 Pa.C.S. § 762
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[(a)](2)(ii), this Commonwealth Court has exclusive jurisdiction
of appeals from final orders of the courts of common pleas in
Commonwealth regulatory criminal cases for criminal actions or
proceedings for the violation of any regulatory statute
administered by a Commonwealth agency not included in Title
18 relating to crimes and offenses.
Hake, 738 A.2d at 47 n.3.
We are mindful this Court has explained that where neither party has
objected to our jurisdiction of an appeal, we may exercise jurisdiction
pursuant to 42 Pa.C.S. § 704(a)2 and Pa.R.A.P. 741(a).3 However, we also
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2 Section 704 of the Judicial Code provides, in relevant part, as follows:
§ 704. Waiver of objections to jurisdiction.
(a) General rule. — The failure of an appellee to file an
objection to the jurisdiction of an appellate court within such
time as may be specified by general rule, shall, unless the
appellate court otherwise orders, operate to perfect the appellate
jurisdiction of such appellate court, notwithstanding any
provision of this title, or of any general rule adopted pursuant to
section 503 (relating to reassignment of matters), vesting
jurisdiction of such appeal in another appellate court.
42 Pa.C.S. § 704(a).
3 Rule 741 is based on 42 Pa.C.S. § 704, and states, in part, as follows:
Rule 741. Waiver of Objections to Jurisdiction.
(a) General rule. The failure of an appellee to file an objection
to the jurisdiction of an appellate court on or prior to the last day
under these rules for the filing of the record shall, unless the
appellate court shall otherwise order, operate to perfect the
appellate jurisdiction of such appellate court, notwithstanding
any provision of law vesting jurisdiction of such appeal in
another appellate court.
(Footnote Continued Next Page)
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“retain the power and, indeed, the responsibility to determine whether
retention of jurisdiction in this case is appropriate or, alternatively, whether
the matter should be transferred to the Commonwealth Court.” Wilson v.
School District of Philadelphia, 600 A.2d 210, 211 (Pa. Super. 1991)
(citations omitted). Furthermore, once we have:
concluded that this matter is within the Commonwealth Court’s
jurisdiction, it is within our discretion to determine whether
transfer to that court is appropriate. In making this
determination, we conduct a case-by-case analysis. We may
retain jurisdiction if such action would serve the interests of
judicial economy, but should transfer the matter if to do so
would serve other interests, such as avoiding the establishment
of possibly conflicting lines of authority.
Id. at 213 (citations omitted). As we have long stated, “we should be most
cautious in assuming jurisdiction over matters that properly belong before
the Commonwealth Court.” Lara, Inc., v. Dorney Park Coaster Co., Inc.,
534 A.2d 1062, 1066 (Pa. Super. 1987).
Here, our review reflects that jurisdiction is properly vested in the
Commonwealth Court pursuant to 42 Pa.C.S. § 762(a)(2)(ii). Hake, 738
A.2d at 47 n.3. Our further analysis indicates the preferable course in this
matter is to transfer the appeal to the Commonwealth Court. Indeed, the
Commonwealth Court’s expertise in this area is apparent because the
relevant case law reveals the Commonwealth Court has historically
(Footnote Continued) _______________________
Pa.R.A.P. 741(a).
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entertained appeals from and analyzed issues regarding 3 P.S. § 459-502-A.
Accordingly, we transfer this appeal.
Appeal transferred to Commonwealth Court.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2018
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