Gannon v. Upper Merion Township

*636Dissenting Opinion by

Judge Blatt

I must respectfully dissent.

Restrictive dog ordinances are clearly within the municipal police power and are promulgated to protect the public from personal injury, property damages and other hazards created by roving dogs. It is well understood and recognized that statutes and ordinances, such as the Dog Ordinance of Upper Merion Township,1

“. . . are in the nature of police regulations, . . . [and] impose criminal penalties, irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.” (Citations omitted.) Clem’s Cafe Liquor License Case, 425 Pa. 94, 99, 227 A.2d 491, 493 (1967).

Of course, “[w]hether criminal intent or guilty knowledge is a necessary ingredient of a statutory offense is a matter of construction, to be determined from the language of statute [here the ordinance] in the light of its manifest purpose and design.” (Citations omitted.) Commonwealth v. Morakis, 208 Pa. Superior Ct. 180, 184, 220 A.2d 900, 903 (1966).

As I read the Dog Ordinance of Upper Merion Township in its entirety, I see a clearly manifested purpose and design to prohibit dogs from running freely within the Township at any time and under any circumstances.

The ordinance begins as “An ordinance prohibiting the running at large of dogs . . .” Section 3 provides that the owner of every dog shall keep such dog at all times (a) confined so it cannot escape, or (b) firmly secured by chain or leash, or (c) under the reasonable control of some person. Sections 4 and 5 provide respectively that it shall be unlawful for the owner to permit the dog to run at large, or to attack a human being.

The appellant here is accused of violating Section 4 in permitting his dog to run at large. The majority con*637strues that section so as to impose liability upon an owner only where that owner is at least guilty of passive negligence in failing to prevent the escape of his dog. In light of the clear intent of the ordinance read as a whole, however, I believe this construction to be incorrect. Concepts of negligence are in no way expressed in this ordinance, and it seems to me that we have no right to introduce them.

Just as in those cases where the holders of liquor licenses have been held absolutely liable for permitting prohibited conduct upon the licensed premises notwithstanding the fact that they were unaware such conduct was taking place, see Clem’s Cafe Liquor License Case, supra; Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959); Sobel Liquor License Case, 211 Pa. Superior Ct. 129, 235 A.2d 623 (1967); Glass Door Liquor License Case, 193 Pa. Superior Ct. 416, 165 A.2d 139 (1960), so, too, under this ordinance a dog owner should be held absolutely liable whenever his dog is found at large on the street. Inasmuch as the intent of the statute is clear, the public is entitled to the complete application of its protective provisions.

I believe, therefore, that the,lower court should be affirmed.

Judge Wilkinson joins in this dissent.

. Upper Merion Township Ordinance No. 67-201.