Commonwealth v. Raban

• Citation: 85 A.3d 467
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Simon RABAN, Appellant.
• Decision Date: 12 February 2014
• Court: United States State Supreme Court of Pennsylvania

85 A.3d 467

COMMONWEALTH of Pennsylvania, Appellee

v.Simon RABAN, Appellant.

Supreme Court of Pennsylvania.

Argued March 5, 2013.

Decided Feb. 12, 2014.

No. 77 MAP 2012, Appeal from the Order of Superior Court dated October 5, 2011 at No. 3132 EDA 2010, affirming the Judgment of Sentence of the Chester County Court of Common Pleas, Criminal Division, dated October 11, 2010 at No. CP–15–CR–845–2010.

James Cunilio, Esq., Cunilio & Cunilio, Richard Jacob Frumer, Esq., Bryn Mawr, for Simon Raban.

Gerald P. Morano, Esq., Chester County District Attorney's Office, Nicholas J. Casenta Jr., Esq., Thomas P. Hogan Esq., West Chester, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY, and ORIE MELVIN, JJ.

ORDER

PER CURIAM.

AND NOW, this 12th day of February, 2014, the Court being evenly divided, the Order of the Superior Court is AFFIRMED.

Former Justice ORIE MELVIN did not participate in the consideration or decision of this case.

Justice EAKIN files a lead Opinion in Support of Affirmance in which Chief Justice CASTILLE joins.

Chief Justice CASTILLE files an Opinion in Support of Affirmance in which Justice BAER joins.

Justice TODD files an Opinion in Support of Reversal in which Justices SAYLOR and McCAFFERY join.

OPINION IN SUPPORT OF AFFIRMANCE

Justice EAKIN.

In this appeal, we are asked to consider whether a second violation within one year of § 305(a)(1) of the Pennsylvania Dog Law, 3 P.S. § 459–305(a)(1), is an absolute liability offense. For the following reasons, we would find it is an absolute liability offense and would affirm the Superior Court.

The underlying facts are undisputed. On the evening of July 9, 2009, appellant's Giant Schnauzer, Muncy, left appellant's premises, crossed the street, and attacked another dog that was being walked by its owner. Approximately 10 to 15 minutes after the incident, a neighbor observed appellant place an electric fence collar on Muncy's neck. The local police were called concerning the incident, and issued appellant a citation pursuant to § 305(a)(1). Following a bench trial, the trial court found appellant guilty of a second violation of § 305(a)(1) within one year,¹ a misdemeanor of the third degree; ² he was sentenced to six months of non-reporting probation and ordered to pay a $500 fine. Based on its determination that a second violation of § 305(a)(1) is an absolute liability offense, the court did not require the Commonwealth to present evidence of appellant's intent or knowledge regarding Muncy's non-confinement.

Appellant appealed, claiming the trial court's interpretation of § 305(a)(1) as an absolute liability offense was erroneous. The Superior Court affirmed, finding scienter was not an element of the offense. Commonwealth v. Raban, 31 A.3d 699, 702 (Pa.Super.2011). Specifically, the court agreed with the rationale of prior decisions interpreting § 305(a)(1) and its predecessor as an absolute liability offense given the clear legislative intent to further public safety by prohibiting roaming dogs. Id., at 702–03 (quoting Commonwealth v. Glumac, 717 A.2d 572, 574 (Pa.Super.1998)) (“ ‘In enacting [§ 305(a)(1) ], the legislature intended to require dog owners to prevent their dogs from running at large.... The protection of the public's health and safety are attained when dogs are safely secured or accompanied when not so confined.’ ”); accord Baehr v. Commonwealth ex rel. Lower Merion Township, 51 Pa.Cmwlth. 241, 414 A.2d 415, 417 (1980) (interpreting identical language in § 305(a)(1)'s predecessor and concluding it “unmistakably speaks in terms of strict liability for its violation, and a moment's reflection on the purpose of the statute buttresses [this] conclusion”). The court noted:

The mandate to confine a dog is ... stated absolutely and not in terms of reasonable care, which standard ... would involve difficulties in ascertaining culpability and thus frustrate the legislative intent behind [§] 305(a)(1). Had the legislature intended [§] 305(a)(1) to condition culpability on the failure to make reasonable efforts at confinement, it could have easily stated so. As written, however, [§] 305(a) unequivocally proscribes the failure to confine one's dog to one's premises, period.

Raban, at 703.

This Court granted allocatur to determine whether § 305(a)(1) is an absolute liability offense. Commonwealth v. Raban, 616 Pa. 590, 52 A.3d 222 (2012) ( per curiam ). As this issue presents a pure question of law, our standard of review is de novo and scope of review is plenary. Delaware County v. First Union Corporation, 605 Pa. 547, 992 A.2d 112, 118 (2010) (citation omitted). Appellant urges this Court to reverse the Superior Court's decision, arguing it has the potential to lead to absurd results, ³ improperly elevates prosecution convenience to a primary concern, and ignores the requirement that the legislative intent to impose absolute liability plainly appear.⁴ The Commonwealth counters that legislative intent to do away with a mens rea element is evident from the plain statutory language “shall be unlawful” and the omission of any express scienter requirement. To the extent this Court finds § 305(a)(1) unclear, the Commonwealth asserts the following considerations weigh heavily in favor of finding legislative intent to impose absolute liability: (1) “the mischief to be remedied is roving dogs which is in the public interest” and (2) § 305(a)(1)'s predecessor contained identical language and was interpreted as an absolute liability offense. Commonwealth's Brief, at 14–15 (citation omitted); see1 Pa.C.S. § 1921(c)(3), (5) (delineating considerations to be applied in determining legislative intent). In response to appellant's examples of “absurd” results stemming from interpreting § 305(a)(1) as an absolute liability offense, the Commonwealth notes defenses focusing on third-party action are still available for absolute liability offenses and contends appellant's argument is based on a misapplication of the absurdity doctrine. The Commonwealth contends “[t]he absurdity doctrine allows that a provision may be either disregarded or judicially corrected as an error I if failing to do so would result in a disposition that no reasonable person could approve” and only applies “to correct obviously unintended dispositions[.]” Commonwealth's Brief, at 17, 19. Section 305(a), the Commonwealth argues, was specifically written as a strict liability offense to “promote[ ] the public welfare by enforcing compliance through the regulation and confinement of dogs”; therefore, the absurdity doctrine does not apply. Id., at 19 (citations omitted).

We begin our analysis keeping in mind that absolute liability criminal offenses are “generally disfavored,” and an offense will not be considered to impose absolute liability absent some indication of a legislative directive to dispense with mens rea. Commonwealth v. Mayfield, 574 Pa. 460, 832 A.2d 418, 426 (2003) (citation omitted). The question of whether a culpability requirement applies to a given offense is a matter of construction to be determined by the language of the statute, in light of its manifest purpose and design. Commonwealth v. Ludwig, 583 Pa. 6, 874 A.2d 623, 630 (2005). Accordingly, we turn to the Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq., which dictates that our primary goal is to effectuate the intent of the General Assembly. Id., § 1921(a). The best indication of such intent is the plain language of the statute; if such language is clear and unambiguous, it must be applied. Id., § 1921(b). However, where the statutory language is not explicit, we may apply several considerations to ascertain the legislative intent, including “[t]he mischief to be remedied[,]” “[t]he former law,” and “[t]he consequences of a particular interpretation.” Id., § 1921(c)(3), (5)-(6). Moreover, we are to assume the legislature did not intend a result that is unreasonable, absurd, or impossible of execution. Id., § 1922(1). Lastly, since § 305(a) is a penal statute, it must be strictly construed. Id., § 1928(b)(1).

With these principles in mind, we turn to the relevant statutory language. Section 305(a)(1) states, in pertinent part: “It shall be unlawful for the owner or keeper of any dog to fail to keep at all times the dog I confined within the premises of the owner[.]” 3 P.S. § 459–305(a)(1). While a first violation is a summary offense, a second violation within a year of sentencing for the first violation is a third degree misdemeanor expressly punishable by a fine between $500 and $1,000 and/or up to one year imprisonment. Id., § 459–903(b)(1)–(2). Importantly for purposes of this appeal, the language proscribing the non-confinement of dogs is identical for first and second offenses.

Since § 305(a)(1) does not expressly denote a culpability element, further inquiry is required to discern whether the General Assembly intended it to be an absolute liability offense. Section 302 of the Crimes Code provides default culpability standards to be applied where such is not otherwise prescribed, 18 Pa.C.S. § 302(c); however, this default provision is inapplicable to summary offenses and offenses wherein the legislature's intent to impose absolute liability “plainly appears.” Id., § 305(a). As noted previously, while a first violation of § 305(a)(1) is a summary offense, to which the default culpability provision is expressly inapplicable, a second violation is a third degree misdemeanor. Accordingly, we must determine whether it “plainly appears” the legislature intended § 305(a)(1) to be an absolute liability offense.

We find the statute's language denotes a purpose of imposing absolute liability, a purpose that “plainly appears,” see id., § 305(a)(2), given the choice of the word “fail,” a word that is unambiguous, and is utilized without mention or consideration of intent or excuse. See3 P.S. § 459–305(a). Section 305(a)(1) speaks in clearly obligatory terms—“It ...