Duff v. Northampton Tp.

• Decision Date: 15 October 1987
• Citation: 532 A.2d 500,110 Pa.Cmwlth. 277
• Parties: William A. DUFF and Dr. Richard W. Janssen and Richard B. Springer, individually and as members of the Langhorne Rod and Gun Club, Inc., Langhorne Rod and Gun Club, Inc., itself and as member club of the Pennsylvania Federation of Sportsmen's Clubs, Inc. and the Pennsylvania Federation of Sportsmen's Clubs, Inc., Appellants, v. TOWNSHIP OF NORTHAMPTON et al., Appellees.
• Court: Pennsylvania Commonwealth Court

Page 500

532 A.2d 500

110 Pa.Cmwlth. 277

William A. DUFF and Dr. Richard W. Janssen and Richard B Springer, individually and as members of the Langhorne Rod and Gun Club, Inc., Langhorne Rod and Gun Club, Inc., itself and as member club of the Pennsylvania Federation of Sportsmen's Clubs, Inc. and the Pennsylvania Federation of Sportsmen's Clubs, Inc., Appellants, v. TOWNSHIP OF NORTHAMPTON et al., Appellees.

Commonwealth Court of Pennsylvania.

Argued June 9, 1987.

Decided Oct. 15, 1987.

Robert C. Whitley, III, Doylestown, Steven J. Schiffman, Harrisburg, for appellants.

Jeremiah J. Cardamone, Ambler, for appellees.

Stuart M. Bliwas, Harrisburg, for Com. of Pa., Pa. Game Com'n as amicus curiae.

Before CRUMLISH, Jr., President Judge, COLINS, J., and NARICK, Senior Judge.

NARICK, Senior Judge.

This case involves the question of whether a state statute prohibiting hunting with firearms within 150 yards (450 feet) of any occupied dwelling precludes a municipal ordinance operating in the same area. The Court of Common Pleas of Bucks County (trial court) issued a final decision and order on September 12, 1986 dismissing Petitioners' exceptions to its decision and order of June 17, 1986 which concluded that the Northampton Township (Township) Ordinance No. 204 (Ordinance), as amended, is valid and not preempted by The Game Law (Game Law), Act of June 3, 1937, P.L. 1225, as amended, 34 P.S. §§ 1311.1-1311.1502. ¹ The trial court further held that the Township, a second class township, had the power to enact the Ordinance as a reasonable exercise of its police powers. The trial court, in rejecting the preemption argument, concluded that the right to hunt is only a qualified privilege and that the Game Law's "safety zone" does not provide as much protection as that provided in the Ordinance and, therefore, the state's "safety zone" must be treated as only a minimum "safety zone". The trial court, concurring with the New Jersey Court in Township of Chester v. Panicucci, 62 N.J. 94, 299 A.2d 385 (1973), held that the Game Law is incomplete and that the Township could and did adopt complementary regulations. The trial court further opined that the Game Law seeks primarily to protect the hunter and the hunted and not the non-hunter. For the reasons set forth below, we respectfully reverse.

Petitioners, in their appeal of the trial court's decision, supported by the Attorney General ² and the Pennsylvania Game Commission (Game Commission), as amici curiae, contend that the Game Law, administered by the Game Commission made up of eight commissioners appointed by the Governor and confirmed by a two-third vote of the Senate, has preempted the field and that the Ordinance is invalid as an unreasonable exercise of the Township's police power. Our scope of review is limited to a determination of whether the trial court abused its discretion or committed an error of law. Kasavage v. City of Philadelphia, --- Pa.Commonwealth Ct. ---, 524 A.2d 1089 (1987); Pidstawski v. South Whitehall Township, 33 Pa.Commonwealth Ct. 162, 380 A.2d 1322 (1977).

The Petitioners commenced this action by filing a complaint seeking a declaratory judgment that the Ordinance is invalid. The Petitioners are made up of residents of: (1) the Township and licensed by the Game Commission to hunt; (2) residents who are seeking to obtain a license to hunt, having taken the Game Commission hunter's safety education course required for any first time hunter; (3) the rod and gun club, which owns 53 acres in the Township and has approximately 500 members who are hunters and licensed to hunt by the Game Commission; and (4) the Pennsylvania Federation of Sportsmen's Clubs, with approximately 580 clubs in 62 counties of Pennsylvania and 83,000 members, including residents of the Township who are licensed to hunt.

Section 808 of the Game Law, 34 P.S. § 1311.808, prescribes a "safety zone", which prohibits hunting or discharging firearms within 150 yards "... of any occupied dwelling house, residence or other building or camp occupied by human beings, or any barn, stable or other building unit in connection therewith " without permission of the owner or the tenant thereof (emphasis added). ³ Thus, under the Game Law, hunting may take place throughout the Commonwealth so long as the hunter is not within 150 yards of any dwelling structure referred to above. The moving radius established by the Game Law or "safety zone" translates into 14.6 acres which are controlled by any dwelling place. The 14.6 acres is calculated by drawing a circle with the dwelling place as defined in the above statute in the center and the 150 yards as the radius. Therefore, the "safety zone", restricts hunting within 14.6 acres. There is no provision in the Game Law which limits hunting in areas as large as 20 acres as provided in the Ordinance.

The Township, a second class township in Bucks County, has a population of approximately 31,000 people and an area of approximately 26.6 square miles. The Township, pursuant to complaints by a number of Township residents regarding the dangers of hunting in the more heavily populated parts of the Township, and relying on the authority granted in Section 702 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65747, ⁴ enacted the Ordinance in October, 1983. This Ordinance, as amended in 1986, makes it unlawful for any person "to hunt for or kill game of any kind through the use of a bow and arrow or any firearm or weapon from which a shot or other object is discharged" within an area designated as the Township "safety zone", except that the Township Chief of Police shall grant the owner or person in control of 20 or more contiguous acres of property within the "safety zone" a permit to hunt on that property. ⁵

The "safety zone" created by the Ordinance divides the Township into two districts, the boundary between them being Second Street Pike, a major road which runs through the Township. The "safety zone" south of Second Street Pike, encompasses the more densely populated portion of the Township. In the northern, less densely populated portion of the Township, there are no restrictions upon hunting or the use of firearms and bows and arrows. Thus, while the Ordinance is broader in scope than the Game Law, it is, in substance, duplicative insofar as the possession of firearms for the purpose of hunting is concerned. The Ordinance permits hunting in the designated "safety zone" only in areas consisting of 20 or more acres and only with the approval of the Chief of Police. No provision in the Game Law requires a hunter to apply to the chief of police of a second class township for permission to hunt. There is a difference in the penalty provisions of the two enactments. The Game Law violators of the "safety zone" are subject, upon conviction, to a sentence of paying a fine of $25 and costs of prosecution. Violators of the Ordinance are punishable upon conviction, to be sentenced to paying a fine not to exceed $300 plus costs of prosecution and/or imprisonment not to exceed 30 days.

The trial court concurred with the New Jersey Court in Panicucci that upheld a local ordinance prohibiting the discharge of firearms for the purpose of hunting within 300 feet of a dwelling or within 400 feet of a school playground. The New Jersey Court concluded that the New Jersey Game Law must be treated as only a minimum safety zone, is incomplete and that the township, therefore, could adopt complementary regulations. The New Jersey case is distinguishable and not controlling in our case. The New Jersey Court found that the New Jersey constitution and statute did not preclude a local municipality from passing complementary regulations to the Game Law. It stated that "municipalities have been granted broad police power over matters of local concern and interest." This general principle is contrary to the Pennsylvania law where there is no "intent on the part of the legislature to delegate to second class townships vast and extensive police powers". Commonwealth v. Ashenfelder, 413 Pa. 517, 522, 198 A.2d 514, 516 (1964). In our case, the township ordinance in question does not merely add to the Game Law, but directly conflicts with it. The Game Law is designed not only to protect potential victims of gun accidents, but also provides an all-encompassing policy by designing a balanced safety zone for the entire state. Balancing the need for uniform regulations with the need for hunting and the need to control the wild animal population, the state has protected against harms that would result from either a smaller "safety zone" or a larger "safety zone". A municipality, accordingly, is not more empowered to reduce the size of the zone than to increase it.

The matter of preemption, is a judicially created principle, based on the proposition that a municipality, as an agent of the state, cannot act contrary to the state. This principle has previously been thoroughly considered by our courts. Leading cases are: Council of Middletown Township v. Benham, 514 Pa. 176, 523 A.2d 311 (1987) (a township ordinance dealing with sewage and sewers was not invalid based on the Sewage Act which did not intend to preempt by giving municipalities specific authority to issue permits, inspect facilities, and collect fees; and that the legislature intended to combine state and local powers to regulate sewage disposal); City of Pittsburgh v. Allegheny Valley Bank, 488 Pa. 544, 412 A.2d 1366 (1980) (the legislature preempted the banking field based on commercial necessity and need for uniformity); Harris-Walsh, Inc. v. Dickson City Borough, 420 Pa. 259, 216 A.2d 329 (1966) (the legislature expressly preempted the field of anthracite strip mining, because historically, local governments were unable to regulate surface mining activities); Ashenfelder (a municipal ordinance enacted for the safety of the public made it an offense to use firearms...