Commonwealth v. Lopez

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. The majority holds that, when the operator of a kennel fails to renew a kennel license, the kennel does not become an unlicensed kennel subject to kennel laws; according to the majority, an unlicensed kennel is “not a kennel.” (Majority op. at 996.) The majority also holds that, in addition to persons who have a property right in a dog, people who care for a dog or permit a dog to remain on premises occupied by them are “owners” of the dog and, as such, are responsible for the dog’s license and rabies vaccination. (Majority op. at 995-96.) For the following reasons, I cannot agree.

The husband of Barbara Jean Lopez (Lopez) operated a licensed kennel but, when the couple separated, he failed to renew the kennel license. The Dog Warden visited Lopez to learn why her husband failed to renew the kennel license. Lopez informed the Dog Warden that she and her husband had separated, that she was taking care of the dogs and that her husband had all of the dog licenses and *997rabies vaccination certificates. Because Lopez could not produce the dog licenses and rabies vaccination certificates, the Dog Warden cited Lopez, as the owner of the dogs, for thirty-four dog license violations and twenty-nine rabies vaccination violations.1 However, the Dog Warden admitted at trial that he had no proof that Lopez was the owner of the dogs. {See R.R. at 49.)

I. “Kennel”

A kennel is not required to have a dog license for each dog kept at the kennel.2 The majority concludes that Lopez was not caring for dogs at a kennel because an unlicensed kennel is “not a kennel.” (Majority op. at 996.) I cannot agree.

A.Statutory Definition

In ascertaining the intention of the General Assembly in the enactment of a statute, technical words are to be construed according to their peculiar meaning or definition. Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a). Section 102 of the Dog Law defines “kennel” as follows:

Any establishment wherein dogs are kept for the purpose of breeding, hunting, training, renting, research or vivisection, buying, boarding, sale, show or any other similar purpose and is so constructed that dogs cannot stray therefrom.

3 P.S. § 459-102. This definition does not state that a “kennel” is an establishment with a kennel license. Thus, unlike the majority, I conclude that a “kennel” without a license is still a “kennel.”

Here, Lopez’s husband operated a licensed “kennel” until he and Lopez separated. Certainly, if it was licensed, the husband’s establishment fell within the statutory definition of “kennel.” The Dog Warden testified that, when he visited Lopez, nothing in the keeping of the dogs had changed from when the husband had the kennel license. (C.R. at 53.) Thus, there can be no question that, although it had no license, the husband’s establishment still fell under the statutory definition of “kennel.”

B.Section 206 of the Dog Law

Section 206 of the Dog Law states: “A kennel license is required to keep or operate any establishment that keeps ... 26 or more dogs of any age in any one calendar year.” 3 P.S. § 459-206. One cannot seriously argue that section 206 of the Dog Law requires a kennel license for establishments that are not “kennels.” Thus, any establishment that keeps twenty-six or more dogs must be a “kennel.” Here, Lopez’s husband was keeping more than twenty-six dogs; thus, although he did not have a kennel license, he needed one to be in compliance with section 206. Because Lopez’s husband needed a kennel license, his establishment must have been a “kennel.”

C.Abrogation of Kennel Licenses

In construing a statute, we presume that the General Assembly does not intend a result that is absurd. Section 1922(1) of *998the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(1). Suppose the Dog Warden had cited Lopez for operating a “kennel” without a license under section 206 of the Dog Law. Using the majority’s reasoning, i.e., that an unlicensed kennel is “not a kennel,” Lopez would have responded that, because she did not have a kennel license, she was not operating a “kennel.” Thus, she did not need a kennel license. I submit that such a result is absurd.3

D. Purpose of Kennel Licensure

Finally, I submit that the majority has misunderstood the purpose of a kennel license. Licenses are issued in order to regulate certain acts. Pittsburgh Milk Company v. City of Pittsburgh, 360 Pa. 360, 62 A.2d 49 (1948). A “kennel” license is issued to regulate the keeping of dogs in a “kennel.” Without a “kennel,” there is nothing to regulate and, thus, no need for a “kennel” license.

II. “Owner”

The majority concludes that, in addition to persons with a property right in the dogs, Lopez was an “owner” of the dogs because she cared for them and permitted them to remain on premises occupied by her. I cannot agree.

A. Statutory Definition

Section 102 of the Dog Law defines “owner” as follows:

When applied to the proprietorship of a dog, [the word “owner”] includes [1] every person having a right of property in such dog, and [the word “owner” includes] [2] every person who keeps or harbors such dog or has it in his care, and [the word “owner” includes] [3] every person who permits such dog to remain on or about any premises occupied by him.

3 P.S. § 459-102 (emphasis added). The majority interprets this definition to mean that, at any given time, a dog may have multiple, unrelated “owners” with different interests. Thus, the majority states that “if one having the property interest in a dog does not [obtain a dog license], then the statute requires one harboring or caring for the dog to [obtain] it.” (Majority op. at 996.)

In my view, the definition simply presents three scenarios that would result in sole “ownership” of a dog. First, if an individual has a right of property in a dog, the individual is “owner” of the dog. Second, if an individual encounters a stray dog and decides to keep and care for the dog, the individual is “owner” of the dog. Third, if a stray dog wanders onto property occupied by an individual who decides not to keep or care for the dog but to allow the dog to remain on the premises, the individual is “owner” of the dog. The definition does not suggest to me that, if an individual with a property right in a dog occasionally asks the neighbor’s ten-year-old son to care for the dog, the boy is an “owner” of the dog.4

*999Here, there is no evidence that Lopez had a property right in any of the dogs kept at her husband’s unlicensed kennel. Absent such evidence, I would conclude that the Dog Warden failed to prove that Lopez was the “owner” of the dogs.

B. Bailment

Our supreme court has indicated that a dog owner may bring a breach of bailment action against a kennel for failure to return a dog. Price v. Brown, 545 Pa. 216, 680 A.2d 1149 (1996). This means that, when a dog owner takes a dog to a kennel, the dog owner enters into a bailment agreement with the kennel for care of the dog. “Bailment” has been defined as the “rightful possession of goods by one who is not the owner.” Black’s Law Dictionary 152 (8th ed. 2004) (quoting 4 Samuel Willi-ston, Law of Contracts 2888 (rev. ed. 1938)) (emphasis added). Thus, although the majority holds otherwise, when a person with a property right in a dog takes the dog to a kennel, the fact that the kennel cares for the dog and permits it to remain on its premises does not make the kennel or its employees “owners” of the dog.

C. Abandonment by Owner

Section 601(c)(2) of the Dog Law states that when a dog is placed in a kennel for care and is abandoned by its “owner,” the dog may be turned over to the humane society ten days after proper notice is given to the “owner.” 3 P.S. § 459-601(c)(2). If a kennel must give notice to the “owner” of an abandoned dog, then a kennel-worker cannot be the “owner” of the dog.

Because I conclude that Lopez simply was working at her husband’s unlicensed “kennel” and was not the “owner” of the dogs, I would reverse.

. Section 201(a) of the Dog Law, Act of December 7, 1982, P.L. 784, as amended, 3 P.S. § 459-201(a), requires that the owner of any dog three months of age or older apply for a license for such dog. Section 8(a) of the Rabies Prevention and Control in Domestic Animals and Wildlife Act, Act of December 15, 1986, P.L. 1610, as amended, 3 P.S. § 455.8(a), requires that persons “owning or keeping” a dog over three months of age cause that dog to be vaccinated against rabies.

. The Dog Warden conceded in his testimony that dogs kept in a kennel are not required to have dog licenses. (R.R. at 46-47).

. Moreover, if the majority is correct that an unlicensed kennel is "not a kennel,” a Dog Warden can never cite an unlicensed establishment that falls within the statutory definition of "kennel" for failure to obtain a kennel license.

. My interpretation of the definition avoids any confusion regarding the "ownership” of a dog. Suppose a hypothetical person named Maty purchases a pure bred puppy for $2,000, spends thousands of dollars to prepare it for showing, wins dog shows and succeeds in making her dog extremely valuable for breeding purposes. Because Mary has a right of property in the dog, I consider Mary to be the sole "owner” of the dog. If Mary takes her dog to an elite kennel for special care or breeding, I do not consider the kennel-workers who keep or breed the dog and permit it to remain on the premises occupied by them to be "owners” of Mary's dog. *999If a kennel-worker takes Mary’s dog, I consider it a theft. If I were to adopt the majority's position, however, there could not be a theft because the kennel-worker was a statutory "owner” of the dog. See section 601(a) of the Dog Law, 3 P.S. § 459-601(a) (stating that dogs are personal property and subjects of theft).