Loading...
HomeMy WebLinkAboutCP-21-SA-0000047-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CP-21-SA-0047-2012 MARGARET GRAF : CP-21-SA-0080-2012 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., July 19, 2013:-- I. Background The Commonwealth, under the auspices of West Pennsboro Township (Township), Cumberland County, filed citations against Margaret Graf 12 (Defendant) on November 4, 2011 and on April 5, 2012 alleging numerous 3 violations of a dog barking ordinance. After a de novo hearing on March 27, 2013, the court found the Defendant guilty of one violation at the November citation and four violations regarding the April citation and sentenced her to pay the costs of prosecution and fines totaling $1,500.00 ($300.00 for each violation). Defendant’s concise statement of errors complained of raises the following issues: 1. Reasonable doubt. Is there reasonable doubt that the barking is “unreasonable” if the barking emanated from the operation of a commercial kennel where: 1) the zoning is agricultural, 2) the kennel is properly licensed, 3) the kennel is adjacent to Rt. 11 and the record is not in dispute that the sound of the barking does not rise to the level of traffic on Rt. 11 and 4) the Township Board vested with statutory authority to hear and decide the matter found as a fact that the 1 Com. Ex. No. 3, Citation P8294240-3. 2 Com. Ex. No. 4, Citation P8294226-3. 3 Com. Ex. No. 2, West Pennsboro Township, Ordinance No. 2011-03. CP-21-SA-0047-2012 CP-21-SA-0080-2012 operation of the kennel “will not adversely affect the public health, safety, welfare, comfort and convenience or the public in general and the residents in the neighborhood in particular. . . .” 2. The Ordinance is unconstitutionally vague on its face. Is the Township ordinance unconstitutionally vague in that a reasonable person cannot determine what an “unreasonable” level of barking is? 3. The Ordinance is unconstitutional as applied. Is the Township ordinance unconstitutional as th applied, under the Due Process clause of the 5 th and 14 Amendments to the U.S. Constitution and analogous state provisions, where: 1) the zoning is agricultural, 2) the kennel is properly licensed, 3) the kennel is adjacent to Rt. 11 and the record is not in dispute that the sound of the barking does not rise to the level of traffic on Rt. 11, 4) the Township Board vested with statutory authority to hear and decide the matter found as a fact that the operation of the kennel “will not adversely affect the public health, safety, welfare, comfort and convenience or the public in general and the residents in the neighborhood in particular. . . .” and 5) the record is undisputed that a commercial kennel cannot be operated without barking? II. Facts This saga began when Defendant obtained a conditional use permit to 4 operate a kennel on December 15, 2003. Complaints regarding the kennel started shortly thereafter in January of 2004, when the Township received a 5 petition from nineteen neighbors. On September 11, 2009, the Township received another petition from the property owners complaining about the dog 6 barking. Darrell Shears, the Township’s Assistant Zoning and Codes 4 Notes of Testimony, March 27, 2013, p. 23-24 (hereafter N.T. ). Com. Ex. No. 6. 5 N.T. at 28, Com. Ex. No. 11. 6 N.T. at 29, Com. Ex. No. 12. -2- CP-21-SA-0047-2012 CP-21-SA-0080-2012 Enforcement Officer, wrote the Defendant a letter on September 16, 2009 7 apprising her of the petition and warning her about the barking. Not long after that, the Township issued a citation for a violation of the prior dog barking 8 ordinance, to which the Defendant entered a plea of guilty. At a meeting on August 22, 2011, the Township Board of Supervisors duly enacted Ordinance No. 2011-03 (ordinance), which we set forth in full: AN ORDINANCE REGULATING THE BARKING OF DOGS; DECLARING THE UNREASONABLE BARKING TO BE A NUSIANCE [sic]; AND PRESCRIBING PENALTIES FOR VIOLATIONS THEREOF . BE IT ENACTED AND ORDAINED by the Board of Supervisors of West Pennsboro Township, Cumberland County, Pennsylvania, and it is hereby enacted by authority of the Board of Supervisors of West Pennsboro, that allowing dogs to disturb the peace as set forth herein, on public or private property is hereby declared a nuisance and prohibited as set forth herein: 1. This ordinance shall be known as the “West Pennsboro Township Dog Barking Ordinance.” 2. For purposes of this ordinance, the word “owner” when applied to the proprietorship of a dog(s), shall include every person who has either a right of property in such dog(s), or who keeps or harbors a dog(s) or has the same in his/her care, or who permits a dog(s) to remain on or about any premises occupied by him/her. 3. It shall be unlawful for the owner of any dog(s) to cause or permit such dog(s) to bark or otherwise make any noise or 7 N.T. at 29, Com. Ex. No. 13. 8 N.T. at 29, 30. -3- CP-21-SA-0047-2012 CP-21-SA-0080-2012 disturbance which results in a nuisance as defined herein. 4. The nuisance as contemplated by this ordinance shall be the unreasonable barking or making of noise by a dog(s), which noise interferes with or deprives any person of the peace, quiet, rest, sleep, or legitimate enjoyment of their property. 5. Any unreasonable barking or other noise making by a dog(s) shall be presumed by the proof of the barking or making of such noise for two periods, each of which is in excess of fifteen (15) minutes, and both of which periods occur within twenty-four (24) hours of each other. 6. Anyone found in violation of any of the provisions of this ordinance shall upon conviction by a Magisterial District Judge, be ordered to pay a fine or penalty not to exceed Three Hundred ($300.00) Dollars for the first offense, and not to exceed Six Hundred ($600.00) for the second and subsequent offenses, plus costs of prosecution. The continuation of such violation(s) for each additional day(s) shall constitute a separate offense. 7. All other ordinances or parts of ordinances inconsistent herewith are expressly repealed; Ordinance No. 2006-02 is expressly repealed. 8. This ordinance shall become effective immediately. nd Enacted and ordained this 22 day of August, 2011, by the Board of Supervisors of West Pennsboro 9 Township. On September 2, 2011, before the ink was dry on the new Ordinance, the 9 Com. Ex. No. 2, West Pennsboro Township Ordinance No. 2011-03. -4- CP-21-SA-0047-2012 CP-21-SA-0080-2012 10 neighbors submitted another petition, followed by a warning letter from Mr. 11 Shears. Mr. Shears testified at great length regarding his subsequent 12 investigation of the complaint. Although there was some confusion regarding the dates of the barking, Mr. Shears testified credibly that he saw and heard the dogs barking loudly on numerous occasions. In anticipation of a defense raised throughout the hearing, that the barking was from other sources, counsel for the Township queried “how do you know it was [Defendant’s] dogs,” to which Mr. Shears responded “I’m looking at them. I see their mouth yapping and you hear 13 them. I mean, they’re right there. …” A second, repeated line of inquiry was the duration or continuous nature of the barking as it related to the “fifteen-minute presumption” of unreasonableness under paragraph 5 of the Ordinance. When questioned by defense counsel about any breaks in the barking, Mr. Shears noted that the “lulls weren’t even 14 long enough to record.” Following the testimony of Mr. Shears, the Township presented the testimony of four neighbors, Barry Ludwig, Grace Kennedy, Timothy Kennedy and Donna Fetterman. Their combined testimony can be summarized as follows: on numerous occasions multiple dogs on the Defendant’s property barked for over fifteen minutes straight, causing great annoyance, inconvenience, and disruption of their lives. The neighbors’ supplemented their compelling testimony 10 Com. Ex. No. 14. 11 Com. Ex. No. 15. 12 N.T. 31-47. 13 N.T. 45. 14 N.T. 64. -5- CP-21-SA-0047-2012 CP-21-SA-0080-2012 15 with documentation of their distress.Although extensive, the documentation was not all inclusive as noted by the Kennedys’ email from November 2, 2011 – 16 “they do not in the least represent the constant barking that goes on.” Defense counsel attempted to impeach these witnesses by suggesting they were mistaken about which dogs in the neighborhood were barking. The neighbors were unwavering that the dogs they heard and saw were the Defendant’s. Further, the neighbors were clear that because multiple dogs were barking, the barking was in fact continuous. Defendant offered the testimony of Dr. John Stoner, a veterinarian, to dispute the continuous nature of the barking. He stated it was unlikely for a 17 single dog to bark continuously for fifteen minutes. However, he noted “the word continuous, you know, is subjective … it’s not the same as the same dog 18 barking nonstop for fifteen minutes.” (emphasis added). Defendant’s second witness was Mary Davis, a police officer from Montgomery County, Maryland experienced with working K-9s. She emphasized 19 that dogs must bark to communicate and that working dogs of the type trained 20 by the Defendant provide a public service. Joshua Curley, an engineer with Phoenix Noise and Vibration provided his opinion with respect to the noise levels around the Defendant’s property. Among other tidbits, Mr. Curley found that the insects in the back corner of the property 15 Com. Ex. Nos. 18, 19 and 20. 16 Com. Ex. No. 19. 17 N.T. at 11. 18 N.T. at 13. 19 N.T. at 17. 20 N.T. at 19. -6- CP-21-SA-0047-2012 CP-21-SA-0080-2012 21 rendered the dog barking negligible on his meter. Ultimately, he concluded that the barking from the Defendant’s dogs did not significantly increase the ambient 22 noise level at the property. Significantly, Mr. Curley visited Defendant’s property at 11:00 a.m. as opposed to 11:00 p.m., at which time there would be less noise from traffic that might muffle or compete with the barking during the daytime. The Defendant called Christie Larochelle, who has a Ph.D. in physics and teaches at Franklin and Marshall College, as an expert in physics. Specifically, Dr. Larochelle’s testified regarding the propagation of sound. In short, she attempted to rebut the testimony of the neighbors regarding the source of the barking and opined that they could not pinpoint the location of the barking from 23 inside their homes. Moreover, Dr. Larochelle suggested that the barking came from various locations other than Defendant’s property and merely bounced off 24 Defendant’s barn, thereby creating a misperception about the source. Finally, the Defendant testified regarding the nature of her business and the circumstances surrounding the times when her dogs bark. The Defendant owns and boards German Shepherds, with her kennel generally housing 12 dogs, but having 25 room for up to 31. She noted that her dogs are “highly trained animals that are 26 naturally suspicious of strangers” and that the behavior of Mr. Shears when 27 observing her property alarmed the dogs and triggered their barking. Contrary to all 21 N.T. at 124. 22 N.T. at 126-127. 23 N.T. at 159-160. 24 N.T. 161-162. 25 N.T. 142-143. 26 N.T. at 135. 27 N.T. at 135-137. -7- CP-21-SA-0047-2012 CP-21-SA-0080-2012 of the Township witnesses, Defendant claimed her dogs are brought inside overnight 28 and are shut inside by 11:00 p.m. and are not taken outside until 8:30 a.m. Also, in line with her expert’s testimony, Defendant suggested that the neighbors mistakenly believed that her dogs were barking when in fact it was a random menagerie of other neighbors’ dogs. III. Discussion Defendant’s first statement of error claims there was “reasonable doubt” as to whether the barking in question was “unreasonable.” We treat this error comprehensively as an amalgamated challenge to both the sufficiency of the evidence and the weight of the evidence. We take this approach so that no one need speculate on our rationale. A. Sufficiency of the Evidence 1. Legal Standard In evaluating a challenge to the sufficiency of the evidence, the court must view the record in the light most favorable to the verdict winner, giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d 226, 231 (Pa. Super. 2007) (citation omitted). “Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005), appeal denied (887 A.2d 1239 (2005)). Further, the trier of fact has “the responsibility of assessing the credibility of the witnesses and weighing the evidence presented.” Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa. Super. 2010). And, 28 N.T. at 138-141. -8- CP-21-SA-0047-2012 CP-21-SA-0080-2012 finally, it is axiomatic that the trier of fact is free to believe all, part or none of a witness’s testimony. In doing so, as would a jury, the court must use its understanding of human nature and its common sense. 2. Elements Our review of the Ordinance yields the following material elements that the Township was obligated to prove: 1. The Defendant is the owner of the dogs in 29 question. 2. The Defendant caused or permitted her dogs to 30 bark resulting in a nuisance. 3. The Defendant’s dogs engaged in unreasonable 31 barking or making of noise. 4. The noise interfered with or deprived Defendant’s neighbors of the “peace, quiet, rest, sleep, or 32 legitimate enjoyment of their property.” Initially, we note that there is no question that the Defendant is the owner/trainer of at least 12 German Shepherds housed on her property. There is also no question that barking, from some source, has deprived Defendant’s neighbors of their peace, quiet, rest, sleep and legitimate enjoyment of their property. The only issues for the court to determine were whether the barking that disturbed the neighbors came from Defendant’s dogs and whether such barking was unreasonable. In addition to the above elements, the Ordinance provides a presumption that the barking is “unreasonable” if it occurs for two 33 periods of fifteen minutes each within twenty-four hours of each other. 29 Ordinance, ¶ 2. 30 Ordinance, ¶ 3. 31 Ordinance, ¶ 4. 32 Ordinance, ¶ 4. 33 Ordinance, ¶ 5. -9- CP-21-SA-0047-2012 CP-21-SA-0080-2012 3. Analysis The court found the testimony of Defendant’s experts to be interesting but far from persuasive regarding both the nature, source, and volume of the barking. We were liberal in permitting her witnesses to offer expert opinions in spite of the basis for and relevance of those opinions. With no disrespect intended, we found their opinions to be useless in our determination of the facts. One need not be a scientist or audiologist to determine whether the barking noise you hear is coming from the chorus of German Shepherds across the street or the Shih Tzu down the lane. We prefer to place our trust in both the common sense and the senses of the neighbors. Additionally, the testimony of Mr. Shears was credible regarding his observations of Defendant’s dogs. Given the various locations from which Mr. Shears observed the dogs and the various times he observed them, we did not find credible Defendant’s argument that the German Shepherds only barked because they were excited and suspicious. Clearly, the cacophony of barking heard by the neighbors at all times of the day and night when no one is disturbing the dogs belies the argument that they merely bark when provoked. In sum, the Commonwealth proved beyond a reasonable doubt that the Defendant caused or permitted her dogs to bark in a manner that unquestionably interfered with and deprived her neighbors of the peace, quiet, rest, sleep and legitimate enjoyment of their property. Further, although the evidence was such that we did not need to rely upon a presumption of unreasonableness, the -10- CP-21-SA-0047-2012 CP-21-SA-0080-2012 testimony was overwhelming with respect to the barking lasting in excess of fifteen minutes for at least two periods of time within 24 hours of each other. Therefore, we concluded that unreasonable barking occurred on at least one 34 occasion with respect to the November citation and on March 30, 31, April 1 and 2 of 2012 as alleged in the April citation. B. Weight of the Evidence 1. Legal Standard To the extent that Defendant is challenging the credibility of the testimony offered by the Township, we note that a claim of that nature is more properly characterized as a weight of the evidence challenge. Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003). Ultimately, a challenge to the weight of the evidence questions which evidence is to be believed. Commonwealth v. Charlton, 902 A.2d 545, 561 (Pa. Super. 2006). In that vein, we trust that our verdict is not shocking or likely to cause our reviewers to fall out of their chairs. 2. Analysis As noted in our discussion of the sufficiency of the evidence, when it comes to which evidence is to be believed, we found the Township witnesses to be far more credible than the Defendant’s witnesses. In particular, we did not find Defendant credible regarding keeping her dogs inside at night or the nature of their barking. We hasten to add that we do not suggest Defendant’s expert witnesses testified falsely; however, much of their testimony was simply not relevant. The fact that dogs communicate by barking and will do so when in a 34 Although the court would have been inclined to find multiple violations of this citation, only one was charged. -11- CP-21-SA-0047-2012 CP-21-SA-0080-2012 kennel does not, in and of itself, mean that there was no violation of the ordinance in question. Nor, does the fact that a single dog would be physically challenged to bark non-stop for fifteen minutes matter – clearly, the Ordinance applies to dogs in the plural. As for noise levels, the fact that insects on the “back 40” are making a racket does not mean a pack of dogs cannot be heard by 35 the neighbors. Similarly, the fact that these dogs provide a public service (at locations such as the courtrooms in which we sit), does not mean that we must give them a pass when they are being boarded or trained at local kennels. We truly appreciate the service that dogs provide throughout our society, and remember with great fondness the “Twilight Bark” from Disney’s 1961 classic 101 Dalmatians. However, Defendant’s German Shepherds were engaged in boisterous bravado, at best, and were not trying to save little puppies from the clutches of Cruella DeVille. Finally, the weight of the evidence challenge is not bolstered by Defendant’s argument that her property is located in an agricultural zoning district and that the kennel is properly licensed. Perhaps, if the Defendant had attended the Township meeting at which the 2011 Ordinance was enacted, a “carve out” could have been placed in the Ordinance for kennel operations like hers. Although, such efforts may have been unlikely to succeed, those arguments are 35 We take judicial notice that the 17-year-old cicada nymphs emerged in May 2013, after Mr. Curley visited the property, and long after the dates of the offenses. Practically, we are satisfied that only a swarm of locusts of Biblical proportion would drown out Defendant’s German Shepherds. -12- CP-21-SA-0047-2012 CP-21-SA-0080-2012 irrelevant to whether reasonable doubt existed. Rather, we will address them briefly in the following section. C. Constitutionality The Defendant’s second and third alleged errors claim that the Ordinance is unconstitutionally vague on its face and unconstitutional as applied. For the following reasons, we disagree. 1. Legal Standard Ordinances are presumed to be constitutional and “a heavy burden is placed on the one seeking to challenge the constitutionality of an ordinance.” Commonwealth v. Fisher, 350 A.2d 428, 431 (Pa. Cmwlth. 1976) cert. denied 429 U.S. 1026 (1976). To determine if an ordinance is unconstitutionally vague “the test is whether the statute gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.” Widmyer v. Commonwealth, 458 A.2d 1048, 1050 (Pa. Cmwlth. 1983). Therefore, the question is whether this Ordinance, by prohibiting barking or noise that “interferes with or deprives any person of the peace, quiet, rest, sleep or legitimate enjoyment of their property,” establish an objective standard that, a person of ordinary intelligence would understand? 2. Analysis In Defendant’s Motion for Judgment of Acquittal, filed prior to the hearing, she cited two cases which are readily distinguishable from the instant case. First, Commonwealth v. Koch, 431 A.2d 1052 (Pa. Super. 1981) did not involve a specific dog barking ordinance, but rather the application of the crime of -13- CP-21-SA-0047-2012 CP-21-SA-0080-2012 disorderly conduct to the operator of a kennel in a rural community whose dogs bothered his neighbors. Specifically, the court held that the crime of disorderly conduct, “is not intended as a catchall for every act which annoys or disturbs people; it is not to be used as a dragnet for all the irritations which greed in the ferment of a community.” Id. at 1058. Essentially, the court found loud noises that may be annoying do not constitute this specific crime and are more properly redressed in a civil action for abetment of a private nuisance. Clearly, this is not applicable to the instant case. The dog barking ordinance, by its very name, is obviously intended to apply to excessive dog barking. As such, Koch is distinguishable. Defendant also cited the case of New Jersey v. Friedman, 697 A.2d 947 (N.J. App. Div. 1997). Obviously, a New Jersey case is not binding on this court, but even if it were, it would not control the outcome in the instant matter. There, a township ordinance was found unconstitutionally vague because it criminalized the making of any loud noise that would disturb “others within the limits of the township …” Id. at 949. Crucially, there was no objective qualifier to put a person on notice of what level of noise would be prohibited. Here, the dog barking ordinance applies a clear, objective standard as to what amount of noise constitutes a violation. Accordingly, Friedman is distinguishable. Not cited by the Defendant, but raised by the court during argument of this case, is Commonwealth v. Ebaugh, 783 A.2d 846 (Pa. Cmwlth. 2001). There, a township nuisance ordinance defined “nuisance” to include, in relevant part, “owning … any animal … which barks … continuously and/or intermittently for an -14- CP-21-SA-0047-2012 CP-21-SA-0080-2012 extended period which annoys or disturbs a reasonable person of normal sensitivities.” Id. at 847. In that case, the defendant who had been cited for excessive barking of his dogs challenged the ordinance on the grounds of vagueness. The court rejected that claim on the basis that the standard to determine “a reasonable person of normal sensitivities” was an objective one that would be determined based on facts adduced at a hearing. The defendant in Ebaugh also argued that the case presented a merely private nuisance to be handled as a civil matter. Again the court rejected this argument, stating “[h]ere, owning, possessing or controlling a noisy animal is classified as a nuisance by the Township’s ordinance, and excessive barking obviously interferes with the public peace. Therefore, the conduct here involves a public nuisance, and [defendant] was properly sanctioned by the Common Pleas Court.” Id. at 850. Finally, the Ordinance is constitutional as applied. The crux of Defendant’s argument is that a properly licensed and approved kennel cannot be in violation of a dog barking ordinance. That bold assertion, without supporting case law, is unpersuasive. We suggest that the contrary is true. What the Defendant misses is that the Ordinance applies to all citizens in the Township, whether they house a Shih Tzu, a Beagle, a German Shepherd, or a pack of poodles. All dog owners must take steps to ensure they comply with the Ordinance, which is not on its face or as applied directed towards any given owner of dogs. The mere fact that dogs will bark and dogs in kennels may bark more does not mean that a kennel, ipso facto, is unable to comply with the -15- CP-21-SA-0047-2012 CP-21-SA-0080-2012 provisions of the Ordinance. Nor, does it mean that kennels are automatically insulated from prosecution. Kennel operators, by the very nature of their business should be more aware of the noise created and their obligation to ensure a nuisance situation is avoided. A kennel owner, like any other dog owner, in the Township can and should take steps to comply with the 36 Ordinance. IV. Conclusion In light of the foregoing discussion, it is clear that we are satisfied that the evidence was more than sufficient to convict the Defendant and that the Ordinance is constitutional. Accordingly, Defendant’s appeal should be denied. By the Court, Albert H. Masland, J. Hubert X. Gilroy, Esquire For West Pennsboro Township Christopher S. Lucas, Esquire For Defendant District Attorney’s Office :sal 36 Not only is Defendant capable of understanding the requirements of the Ordinance, but she is also capable of taking reasonable steps to accommodate her neighbors’ reasonable requests instead of dismissing them with “I’m a busy woman.” (N.T. at 96). -16-