Judges Opinions, — May 15, 2019 10:33 — 0 Comments

Commonwealth of Pennsylvania v. Allyson N. Hefferon No. CP-38-CR-44-2018

Criminal Action-Law-Summary-Harboring a Dangerous Dog-Dog Bite-Provocation
Defendant was charged with the summary offense of Harboring a Dangerous Dog after her dog bit a neighbor who appeared at her door to confront her about cigarette butts found on the premises.
1. A person is guilty of Harboring a Dangerous Dog pursuant to Title 3 P.S. § 459-502-A if it is proven beyond a reasonable doubt that a dog owned or kept by that person inflicted severe injury on a human being without provocation on public or private property, the dog has a history of attacking human beings and/or domestic animals, dogs or cats without provocation or a propensity to attack human beings and/or domestic animals dogs of cats without provocation.
2. Section 459-502-A provides that a propensity to attack may be proven by a single incident of conduct.
3. Where the neighbor admittedly was angry when he appeared on Defendant’s property, pounded on Defendant’s door in order to initiate a confrontation over cigarette butts, waved his hands about, spoke loudly to Defendant and swore, the dog was subject to provocation such that Defendant cannot be held responsible under § 459-502-A.
L.C.C.C.P. No. CP-38-CR-44-2018, Opinion by John C. Tylwalk, President Judge, November 13, 2018.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA           :           NO. CP-38-CR-44-2018

:

  1. :

:

ALLYSON N. HEFFERON                                        :

 

ORDER OF COURT

 

And now, this 13th day of November, 2018, upon consideration of the evidence adduced at the de novo hearing conducted on August 8, 2018 and the Briefs submitted by the parties, we hereby find Defendant NOT GUILTY of the summary offense of Harboring a Dangerous Dog pursuant to 3 P.S. §459-502-A.                                                                           BY THE COURT:                                                                    

                                                                        __________________________, P.J.

                                                                        JOHN C. TYLWALK

 

JCT/jah

 

 

Cc:  Robert Harding, Esquire/Assistant District Attorney

        Harry Fenton, Esquire

        Leslie Fillak/Court Administration

        Michelle Howard/Court Administration

        Judith Huber, Esquire/Law Clerk

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA           :           NO. CP-38-CR-44-2018

:

  1. :

:

ALLYSON N. HEFFERON                                        :

 

APPEARANCES:

 

ROBERT HARDING, ESQUIRE                             FOR THE COMMONWEALTH

ASSISTANT DISTRICT ATTORNEY

 

HARRY FENTON, ESQUIRE                                  FOR ALLYSON N. HEFFERON

 

OPINION, TYLWALK, P.J., NOVEMBER 13, 2018.

 

Defendant was charged with the summary offense of Harboring a Dangerous Dog pursuant to the Dog Law, 3 P.S. §459-502-A, which provides, in part:

  • 459-502-A. Court proceedings, certificate of registration and disposition
  • Summary offense of harboring a dangerous dog.–Any person who has been attacked by one or more dogs, or anyone on behalf of the person, a person whose domestic animal, dog or cat has been killed or injured without provocation, the State dog warden or the local police officer may file a complaint before a magisterial district judge, charging the owner or keeper of the dog with harboring a dangerous dog. The owner or keeper of the dog shall be guilty of the summary offense of harboring a dangerous dog if the magisterial district judge finds beyond a reasonable doubt that the following elements of the offense have been proven:

 

  • The dog has done any of the following:

 

  • Inflicted severe injury on a human being without provocation on public or private property.

 

(ii)       Killed or inflicted severe injury on a domestic animal, dog or cat without provocation while off the owner’s property.

 

(iii)      Attacked a human being without provocation.

 

(iv)      Been used in the commission of a crime.

 

(2) The dog has either or both of the following:

 

(i)        A history of attacking human beings and/or domestic animals, dogs or cats without provocation.

 

  • A propensity to attack human beings and/or domestic animals, dogs or cats without provocation. A propensity to attack may be proven by a single incident of the conduct described in paragraph (1)(i), (ii), (iii) or (iv).

 

(3) The defendant is the owner or keeper of the dog.

 

3 P.S. §459-502-A(a)(1-3).

 

Defendant was found guilty after a hearing before Magisterial District Judge Kim Wolfe on May 16, 2018.  She appealed to this Court and a de novo summary appeal hearing was conducted on August 8, 2018.  At the conclusion of the hearing, the parties were directed to file briefs addressing the second prong of the “dangerous dog” classification test under Section 459-502-A – whether the Commonwealth had proven the Defendant’s dog’s propensity to attack from the single event of this incident.  The parties’ briefs have been filed and the matter is now before us for resolution.

At the hearing, the victim, Richard Boyer, explained that he and Defendant live in adjoining units in a townhouse development in Jonestown.  On March 9, 2018, he went to Defendant’s front door to complain about cigarette butts which he had found on his property.  Boyer acknowledged that he was angry as he had complained about the cigarette butts on previous occasions.  He knocked on Defendant’s door three times and then backed away.  When Defendant answered the door, he waved his hands and asked her “what is up with the fucking cigarettes?”   At that point, Defendant’s dog, an Akita, ran out the door toward him.  The dog jumped up and bit him on the cheek, then latched onto his right forearm and would not let go.  Boyer used his left thumb in the dog’s mouth to get it to release his arm.  Once the dog released his right arm, it latched onto his left hand.  When Boyer brushed the dog off him, it took hold of his right hand.  At the hearing, the Commonwealth introduced a series of photographs showing Boyer’s injuries (Exhibits “1” through “12”) and a bill indicating he had needed multiple sutures on both hands and a course of antibiotics.  (Exhibit “13”).  Boyer admitted that he is pursuing a civil suit to recover damages for the incident.

Next, Helene Alexander, State Dog Law Warden, testified that she had investigated a report of the March 9, 2018 incident.  On April 2, 2018, she took statements from Boyer and Defendant.  Her investigation indicated that the dog had no history of prior attacks.

Defendant testified that she had owned her male dog, Blaze, since March 2017.  He was never off a leash and she never saw him attack another human or animal.  She explained that on March 9, 2018, she had responded to Boyer’s aggressive, hard knocking on her front door.  She described Boyer’s loud knocking as sounding like “someone breaking in.”  When Boyer started knocking, Blaze went to the window.  Boyer was also swearing loudly.  When she opened the door to peek out, Boyer was on her porch and started “freaking out” about the cigarettes.  She acknowledged that Boyer was “pretty cut up” and that she had offered to pay for his expenses.

Sean Hefferon, Defendant’s son, testified that he was upstairs in the townhouse when he heard Boyer banging loudly on the door.  He went down the stairs due to the banging and Blaze’s barking.   He physically removed Blaze from Boyer.  He noted that Blaze had never attacked a person or dog before this incident and that he had no problems when he had taken the dog for walks in the park.

At issue here is whether Blaze’s actions constitutes “inflicting serious injury on a human being without provocation on public or private property” which renders Defendant guilty of this offense and whether the Commonwealth proved Blaze’s propensity to attack without provocation.    We do agree that Boyer did sustain severe injury, which is statutorily defined as “any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery.”  3 P.S. §459-102.  As a result of the attack, Boyer sustained multiple lacerations and required medical treatment at a cost of $605.00 which included eight sutures and a prescription for antibiotics. (Exhibit “13”) The photographs presented by the Commonwealth at the hearing show Boyer with extensive cuts and bleeding on his arms, face, and hands.  (Exhibit “1” through “12”)

Both parties refer to Commonwealth v. Baldwin, 767 A.2d 644 (Pa. Super. 2001) and Commonwealth v. Seyler, 929 A.2d 262 (Pa. Commw. 2009), which noted the 1996 amendment to the Dog Law.  That amendment added the language which provides that a dog’s propensity to attack may be proven by a single incident of infliction of severe injury or attack on a human, even if it is the dog’s first attack.  Defendant points out, however, that the infliction of the severe injury must still be “without provocation” and that, while a single incident may suffice to establish a propensity to attack, the absence of provocation must still be proven.

The statute does not provide a definition of “provocation.”  Defendant cites two cases dealing with dog attacks which were both determined to be without provocation.  In Commonwealth v. Eritano, 690 A.2d 705 (Pa. 1997),[1] which prompted the 1996 amendment to the statute, a dog attacked a young girl who was eating a piece of chicken at her neighbor’s home.  The trial court held that there was no provocation in that the dog was merely responding to its natural instinct.  The Commonwealth Court affirmed, holding that the injuries were accidental.  In rejecting this decision, the Pennsylvania Supreme Court noted as follows:

The statute also requires that the dog acted without provocation. Although the Dog Act does not define the term “provocation,” “to provoke” has been defined by Webster’s Ninth New Collegiate Dictionary 948 (1986), as to “arouse to a feeling or action; to incite to anger; to call forth; to stir up purposely.” A child attempting to eat a piece of chicken clearly does not fall within such definition.

 

Id. at 709.

 

The issue of provocation relative to a dog attack was also addressed in a different context in Skotnicki v. Insurance Dept., 146 A.3d 271 (Pa. Commw. 2016).  In that case, the plaintiff’s homeowner’s insurance provider had cancelled his policy due to his dog having bitten a neighbor.  The insurer claimed that the incident constituted a substantial change or increase in hazard, thereby increasing the insurer’s risk under the policy.  The homeowner challenged the cancellation of the policy, claiming that the attack was provoked.

The homeowner and his wife had been returning from walking the dog when the neighbor, whom they had never met, called to them from the middle of the street.  The man, who was wearing sunglasses and a hat, turned and approached them at a rapid pace.  He ended up very close to them, with his leg right in front of the dog.  The homeowner claimed that this startled himself, his wife, and the dog, and the dog bit the man’s leg.  However, the homeowner’s wife acknowledged that she did not feel threatened.

In deciding Skotnicki, the Commonwealth Court followed the directive of a similar case, Aegis Security Insurance Company v. Pennsylvania Insurance Dept., 798 A.2d 330 (Pa. Commw. 2002), which held that “the standard to apply in determining whether an incident involving a particular dog represents a substantial increase in hazard is whether or not that dog was provoked.  If a dog is provoked, no increase in hazard exists.”  Id. at 334.  The Skotnicki Court looked to the same definition for “provoke” as the court referred to in Eritano and also to the Dog Law’s utilization of provocation as a criterion in determining whether a dog is a dangerous dog.  The Court ultimately upheld the cancellation of the policy:

After a thorough review of the record, we conclude that substantial evidence supports the Commissioner’s findings that the Skotnickis’ dog suddenly and without warning bit the neighbor who approached on a public street in a non-threatening manner, and that those findings support the Commissioner’s conclusion that the Skotnickis’ dog attacked the neighbor without provocation. Accordingly, PIC properly cancelled the New Policy due to a substantial change in PIC’s assumed risk.

 

Skotnicki, 146 A.3d at 281.

 

The Aegis case also involved a challenge to the cancellation of a homeowners’ insurance policy due to an attack of a state trooper by the homeowner’s dog.  The Insurance Commissioner had found that the attack was provoked and the Commonwealth Court found substantial evidence to uphold that decision:

[The State Trooper] had previously approached the Broschart house from the driveway without incident when [the dog] was present, that he approached the property on the day he was bitten in a way that [the dog] was not accustomed to seeing strange adults approach, and that he waved a hard leather portfolio in her direction when she got close to him…. [T]he record reflects that [the dog] was provoked when the trooper passed a ‘No Trespassing’ sign, appeared to [the dog] to be someone who did not belong, and made what [the dog] interpreted as a threatening gesture.

 

Aegis, 798 A.2d at 334.

 

We believe that the case before us presents similar indicia of “provocation.”  Here, Boyer was admittedly angry and pounded on Defendant’s front door.  He was on Defendant’s property and knew that Defendant had a dog. His mission was obviously to initiate a confrontation over the cigarette butts.  Boyer acknowledged he was waving his hands about.  We believe that the loud banging alarmed the dog, and compounded by Boyer’s gestures and loud swearing, constituted threats and aggressive physical gestures directed toward Defendant and/or Blaze which “incited” the attack.  The testimony of both Boyer and Defendant indicated that Blaze bolted out of the door immediately upon Defendant cracking it to respond to Boyer’s knocks and that he attacked without hesitation.  Under these circumstances, we find the dog was subject to provocation and that Defendant cannot be held responsible under the statute.

In Footnote 1 of her Brief, Defendant raises an additional defense pursuant to Subsection (b) of Section 459-507A which reads:

  • Abusive or unlawful conduct of victim.–This article shall not apply if the threat, injury or damage was sustained by a person who, at the time, was committing a willful trespass or other tort upon the premises occupied by the owner of the dog, or was tormenting, abusing or assaulting the dog or has, in the past, been observed or reported to have tormented, abused or assaulted the dog, or was committing or attempting to commit a crime.

 

3 P.S. §459-707A(b).    Defendant claims that Boyer was a trespasser upon her property and that she is therefore entitled to the immunity provided by this provision.  Because we find that Defendant is not guilty of this offense due to Boyer’s provocation of the dog, we do not address this issue and will enter an Order finding Defendant not guilty of the charge of Harboring a Dangerous Dog.

[1] In Eritano v. Commonwealth, 690 A.2d 705 (Pa. 1997), our Supreme Court held that a single incident alone could not establish a dog’s propensity to attack a human being.  Section 502-A of the Dog Law has been amended  to provide that a single incident is sufficient to establish a propensity to attack.  See, Commonwealth v. Baldwin, supra at n. 5.

 

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