          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Deborah E. O’Shell,                    :
                 Petitioner            :
                                       :
             v.                        : No. 1200 C.D. 2015
                                       : Submitted: February 26, 2016
Pennsylvania Game Commission,          :
                Respondent             :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                       FILED: March 21, 2016


             Deborah E. O’Shell (Permittee) petitions for review from an order of
the Pennsylvania Game Commission (Game Commission) recalling her special
permits for a period of five years. For the reasons that follow, we affirm.


                                         I.
             Permittee founded the Blair County Wildlife Rehabilitation Center
(Center) over 20 years ago. In order to run the Center, Permittee was issued four
special permits by the Game Commission, namely:

                  A Wildlife Rehabilitation permit authorizing her to
             possess and to offer temporary care to injured, diseased,
             and displaced wildlife, and to release healthy wildlife to
             appropriate habitats in the wild.
                    An Educational Exhibit of Wildlife permit (Exhibit
               permit) authorizing her to conduct educational programs
               or exhibits of non-releasable wildlife.

                     A Salvage permit, authorizing her to salvage birds
               and animals protected under the Game and Wildlife Code
               (Code)1 for exhibition in public museums, scientific
               study, or educational instruction.

                     A Wildlife Menagerie permit (Menagerie permit),
               authorizing her to keep wild birds and animals in
               captivity for the purpose of exhibition, with or without
               charge. The species listed on the Menagerie permit are
               albino skunk, ape, capuchin monkey, spider monkey, two
               guenon monkeys, two ring tailed lemurs, three flying
               squirrels, two hedgehogs, kinkajou, raccoon, and fox.


               Permittee was also issued permits by the United States Department of
the Interior, Fish & Wildlife Service (Department of the Interior) pursuant to the
Migratory Bird Treaty Act,2 including a Migratory Bird Rehabilitation permit and a
Special Purpose Possession permit.


               The intent of the Game Commission’s permits is to regulate activities
relating to the possession, transfer, rehabilitation, release and care of certain
protected species. See 34 Pa. C.S. §§2167, 2307, 2164 and 2908. It is unlawful for
an individual to possess wildlife taken from a wild state within the Commonwealth
unless the individual is lawfully operating under the authority of a permit. 58 Pa.
Code §137.31. It is also unlawful for an individual to exercise any privileges

      1
          Game and Wildlife Code, 34 Pa. C.S. §§101-2965.

      2
          16 U.S.C. §§703-707.




                                              2
granted by a permit without first securing the required permit, to make false or
misleading statements on any required reports, or to fail to keep accurate reports.
34 Pa. C.S. §2908.


              In September 2012, the Game Commission received information that
Permittee had unlawfully taken possession of a bald eagle the previous month. A
Wildlife Conservation Officer (WCO) for the Game Commission, Albert Zellner
(Zellner), conducted an investigation causing the Game Commission to suspend
Permittee’s Wildlife Rehabilitation permit pending further investigation into the
alleged unlawful possession of the bald eagle. After further investigation, WCO
Zellner filed a five-count criminal complaint against Permittee for the unlawful
possession of the bald eagle, an endangered or threatened species. The Department
of the Interior also filed a violation notice against Permittee for the unlawful
possession of the bald eagle.


              During the Game Commission’s investigation into the unlawful
possession of the bald eagle, WCO William Brehun (Brehun)3 also obtained
evidence that Permittee illegally transferred possession of a one-winged barred owl
to a volunteer at the Center, David Stimer (Volunteer Stimer), for safe-keeping
after the Department of the Interior denied renewal of her migratory bird permits.




       3
         WCO Brehun’s duties involve overseeing the compliance of entities and persons issued
special permits in his assigned district, including Permittee and the Center.




                                             3
                In September 2013, Permittee came into possession of two hedgehogs
without obtaining the required documentation and without adding the hedgehogs to
her Menagerie permit.            She notified WCO Brehun that she possessed the
hedgehogs without first acquiring the appropriate permits. WCO Brehun issued
her a notice of violation but allowed her to keep the hedgehogs in her possession.
She subsequently amended the species she was allowed to keep under her
Menagerie permit to include the hedgehogs. In February 2014, Permittee took
possession of a monk parakeet without first securing the required permit. After she
notified the Commission that she had the monk parakeet, WCO Brehun filed a
citation under Section 2908(a)(1) of the Code4 against her for the unlawful
possession of the monk parakeet. On July 16, 2014, after a hearing before a
Magisterial District Judge, Permittee was convicted of the unlawful possession of
the monk parakeet. In response, Permittee has filed a summary conviction appeal
in the Blair County Court of Common Pleas which is pending.


                Regarding the state charges for unlawful possession of a bald eagle, in
May 2014, the Blair County Court of Common Pleas placed Permittee in the



       4
           Section 2908(a)(1) of the Code provides:

                (a) General rule.--Except as provided for in subsection (a.1), it is
                unlawful to:

                        (1) Exercise any of the privileges granted by a permit
                issued under this title without first securing the required permit.

34 Pa. C.S. §2908(a)(1).




                                                 4
Accelerated Rehabilitation Disposition (ARD) program to serve a probationary
period of 12 months.


                In July 2014, an officer in a local police department informed WCO
Brehun that Permittee was publically exhibiting birds at a Wal-Mart in Altoona.
WCO Brehun went to the Wal-Mart and, after speaking with Permittee and others,
determined that Permittee violated the Code because she could not produce a copy
of her permits and was issued a warning.


                As a result of those incidents, in August 2014, the Game Commission
filed a petition to recall and/or deny renewal of Permittee’s four special permits
under Section 929 of the Code5 because of Permittee’s multiple violations and acts

      5
          Section 929 of the Code states, in pertinent part:

                (a) General rule.--Except as otherwise provided in this title, any
                hunting or furtaking license, special license or permit or
                registration granted under the authority of this title may be denied,
                revoked or suspended by the commission when the holder of the
                license, permit or registration is convicted of an offense under this
                title or has acted contrary to the intent of the registration or permit,
                with each offense constituting a separate violation subject to
                separate revocation. The commission may refuse to grant to that
                person any permit or registration and may deny any privilege
                granted by these documents for a period not exceeding five years
                unless otherwise provided in this title.

                                                 ***

                (b) Regulations.--The commission may promulgate regulations
                specifying the procedures to be followed in denying, revoking or
                suspending any hunting and furtaking privileges, licenses, permits
                and registrations granted under the provisions of this title.

(Footnote continued on next page…)

                                                   5
of noncompliance which jeopardized the health and safety of the wildlife in her
possession.


                While that petition was pending, in October 2014, WCO Brehun
scheduled a required, annual inspection of the Center with Permittee, and they
mutually agreed that the inspection would occur on a specific day the following
week.6      However, when he went to the Center for the scheduled inspection,
Permittee claimed to have forgotten about it.7 WCO Brehun went ahead with the
inspection and found the Center to be noncompliant and “filthy” and recommended
disapproval for renewal or continuation of the permit.8 He then issued Permittee a

(continued…)

34 Pa. C.S. §929.

       6
          WCO Brehun testified that some permits require annual inspections while others require
annual reports, and that depending on the type of facilities and permits, he visits facilities for
annual inspections in making compliance determinations. He stated that the Wildlife Menagerie
Permit and the Wildlife Rehabilitation permit require annual inspections, which are either
announced, scheduled visits or surprise visits. He explained that during the inspection, the
inspector assesses the health and welfare of the animals by inspecting, among other things, cage
sizes, food, water and the environment.

       7
          WCO Brehun stated that in performing an inspection, the officer looks to see whether
the permittee has a copy of the permit available, that the cage sizes are adequate to the animal
species, that food and water are present, that the enclosures and living quarters are kept in a clean
and healthy condition, that the food is kept in sanitary conditions, and whether there is protection
and shelter, among other considerations.

       8
           In the report, WCO Brehun specifically noted:

                This inspection that occurred on 10/21/14 @ 1320 was scheduled a
                week prior to the inspection date. Cadet Edwards and myself
                showed up and caught Ms. O’Shell off guard as she forgot about
                the scheduled inspection. While doing our walk through we found
(Footnote continued on next page…)

                                                 6
notice of violation for the unsanitary conditions of the enclosures as well as
Permittee’s failure to post required signage.


                                              II.
                                               A.
              At the hearing on the Commission’s petition to recall and/or deny
renewal of Permittee’s special permits on the basis that she was convicted of an
offense under the Code and/or has acted contrary to the intent of any of the permits
she had been issued, WCO Brehun testified that in July 2008, Permittee was cited
by the Department of the Interior for failing to comply with the record-keeping
requirements of her federal permits under 50 C.F.R. §21.27, for which she was
found guilty by the United States District Court for the Western District of
Pennsylvania.     As a result, in 2011, the Department of the Interior denied
Permittee’s renewal applications for her federal Special Purpose Possession permit
and Migratory Bird Rehabilitation permit.




(continued…)

              the facility to be filthy. Most of the cages specifically the monkies
              [sic] were covered in feces in the amount that they appeared not to
              have been cleaned in an extended period of time. The food that
              was inside of the pens were [sic] laying within the feces. Half of
              the cages did not have species identification on and there was [sic]
              no signs present prohibiting the public from feeding the wildlife.
              Ms. O’Shell was given one week to be in compliance. An
              inspection is scheduled for 10/28/2014 @ 1700. [sic].

(Reproduced Record (R.R.) at 535a.)




                                               7
                With respect to the bald eagle, WCO Brehun testified that he received
a call from two individuals alerting him that they found an injured bald eagle and
dropped it off at the Center. WCO Brehun testified that WCO Zellner and the
Department of the Interior’s Special Agent Randy Cottrell (SA Cottrell) initiated
this investigation, which he later joined. He stated that Permittee initially denied
possessing the bald eagle, but, in a subsequent interview, admitted that the bald
eagle was in the Center.


                WCO Brehun further testified that he spoke with Volunteer Stimer
and James Singler (Ex-husband Singler), Permittee’s former husband, and that they
provided written statements confirming that Permittee possessed the bald eagle.


                WCO Brehun explained that Permittee was charged with possessing a
bald eagle because at the time of the violation, the bald eagle was classified as a
threatened and endangered species but is no longer classified as such in
Pennsylvania because of its currently self-sustaining population.


                Volunteer Stimer testified that he initially lied to investigators when
he reported not observing a bald eagle in Permittee’s possession. He stated that he
then told investigators that he had seen a live bald eagle in a cage inside the
Center.9 Ex-husband Singler testified that in September 2012, Permittee informed

      9
          Volunteer Stimer submitted a sworn affidavit, in which he attested:

                I was present at the facility on September 8, 2012, when
                Conservation Officers interviewed [Permittee] about the eagle.
                When asked whether I had seen the eagle at the facility I lied and
                stated I had not. At some point after the Officer’s visit [Permittee]
(Footnote continued on next page…)

                                                 8
him of her possession of the bald eagle and admitted to misleading investigators by
denying that she possessed it.10 SA Cottrell testified that Permittee initially denied
taking possession of the bald eagle but later admitted to possessing the bird.




(continued…)

                 told me to say I never saw an eagle at her facility if asked. Over a
                 year ago [Permittee] gave me a live barred owl to hold for her after
                 she lost her permit. I continued to hold it until this date
                 anticipating I would return it to [Permittee] when she got her
                 permit back.

(R.R. at 521a) (emphasis added).

       10
            Ex-husband Singler’s signed, sworn affidavit stated in pertinent part:

                 On an unknown date in September, 2012, I received a phone call
                 from my ex-wife [Permittee]. During that call she told me that she
                 had been visited by Conservation Officers within the past few days
                 regarding a bald eagle she took in. [Permittee] told me two males
                 had brought the injured eagle to her. She said she put it in a
                 building on her property away from where her main facility was
                 located…. [Permittee] told me she had lied to the officers when
                 she was questioned about the eagle. She told them she didn’t take
                 in the eagle when it was brought to her by the two males and they
                 just left it at the end of her driveway. [Permittee] told me that she
                 told the officers that she was intoxicated and on pills when this
                 event took place, which was not true….

                 Stimer told me he was at [Permittee’s] facility when the eagle was
                 brought in. Stimer told me he saw the eagle and [Permittee] took it
                 from the two men who found it. Stimer also told me he currently
                 has a barred owl caged in his trailer that [Permittee] gave him
                 when she lost her permits. Stimer said he’s had it for a long time.

(Id. at 518a-519a) (emphasis added).




                                                  9
                Permittee then testified that she was contacted by an individual
claiming to be in possession of an injured bald eagle and that she advised the caller
not to touch the bird and to call the Game Commission. She testified that she
observed the bald eagle outside the Center but never touched or possessed it and
denied that the bald eagle was ever inside the Center.


                                                B.
                WCO Brehun testified that in September 2013, as a result of the bald
eagle investigation, he became aware that Permittee possessed a barred owl.11 He


        11
          WCO Brehun clarified that while gathering written statements from Ex-husband
Singler and Volunteer Stimer with respect to the bald eagle investigation, it was revealed that
Volunteer Stimer was in possession of a barred owl that he had received from Permittee. WCO
Brehun testified as to the nature of his conversation with Ex-husband Singler:

                                                  ***

                A. …Mr. Singler wanted to contact me because he had
                information regarding the bald eagle that was in question of being
                at Ms. O’Shell’s facility. And he had discussed with a friend that
                was a worker, David Stimer, the next statement here, that he did
                see the bald eagle in the facility.

                Q. Okay. And although we’re going to get to that point a little bit
                later, his statement actually involves another migratory bird, as
                well, in question. Is that not accurate?

                A. That is accurate.

                Q. And what is the other animal in question?

                A. It’s a barred owl.

(Id. at 87a.)




                                                10
explained that Volunteer Stimer reported receiving the barred owl from Permittee
after she had lost her federal possession of migratory bird permits until she could
receive her permits back.


              Referring to photographs he took of the barred owl at Volunteer
Stimer’s residence, WCO Brehun stated that one picture “shows the very poor and
sickening conditions of the talons as they began to twist and curl, which would
have prohibited the animal to appropriate[ly] perch or feed, as it is,” while another
showed its overgrown beak, with respect to which licensed veterinarians opined
that “this growth of the talons takes about a year at least, at minimum, to grow to
that length.” (R.R. at 95a.). He further testified that once she lost her federal
permits, Permittee was to transfer the migratory bird species to properly licensed
individuals outside of her possession and facility. He testified that it was also a
violation under state law for her to be in possession or constructive possession of a
bald eagle.


              WCO Brehun testified that when the Game Commission learned of
the barred owl, it relocated it to a properly licensed rehabilitator. He stated that
veterinary results showed that, in addition to the problems with the barred owl’s
talons and beak, the owl was in chronic pain from prior amputation of one wing
and the bird’s breastbone was in poor nutritional state from not receiving proper
food in the proper amount.12 He testified that charges have not yet been filed


       12
          WCO Brehun added that the barred owl is now healthy and is being used as an exhibit
animal. It has received proper care and food and is on daily pain medicine.




                                             11
against Permittee regarding her possession of the barred owl but that the
investigation is ongoing.


              Volunteer Stimer testified that Permittee gave him possession of the
barred owl and told him to release the owl into the wild but he instead kept the bird
captive, knowing that it was illegal.          SA Cottrell also testified that Permittee
violated the Migratory Bird Treaty Act by giving the barred owl to Volunteer
Stimer.


                                              C.
              Regarding the permit violation for unlawfully possessing a monk
parakeet,13 WCO Brehun stated that Permittee acquired the monk parakeet prior to
adding it to the list of animals that she was allowed to keep.


              Robyn Adachi (Volunteer Adachi), a Center volunteer and benefactor
who was present when Permittee took possession of the monk parakeet, testified
that Permittee was contacted in order to take custody of a number of birds from an
elderly woman who was unable to care for them.                  She testified that she and
Permittee took possession of several caged birds and transported them to the



       13
          WCO Brehun explained that the monk parakeet species is of special concern “because
it is unlawful for just anyone in this [C]ommonwealth to possess. Because if mis-cared for,
mishandled and released, they could live and overtake native nesting grounds and populations of
native species of birds in Pennsylvania.” (R.R. at 104a.) He stated, however, that had Permittee
applied for a permit prior to possessing the bird, she would have been legally allowed to keep
and possess the bird because of her status as a Menagerie permit holder.




                                              12
Center. Volunteer Adachi stated that she was unaware that a special permit was
required to possess a monk parakeet.


            Permittee also testified that she failed to identify all of the birds she
recovered and was unaware of the special permit requirements for the monk
parakeet. She stated that after having taken possession of the monk parakeet, she
contacted the Game Commission and was issued a citation for her failure to obtain
the required permits before taking possession.


                                        D.
            Regarding the public exhibition of birds at the local Wal-Mart, WCO
Brehun testified that when he arrived on the scene, animals were still out on
display. He further testified that Permittee was unable to produce a copy of her
Exhibit permit when requested.


            Kylie Magargi (Volunteer Magargi), an individual who assisted
Permittee with the display on the date in question, testified to displaying the
permits that day. She stated that by the time WCO Brehun arrived on the scene,
the exhibition was over and she returned to the Center with various donated
supplies and other materials, including copies of the permits. She further testified
that prior to WCO Brehun’s arrival, the local Police Chief approached their tables
and they were unable to produce the required permit.


            Permittee testified that she possessed and displayed the required
permits while exhibiting her wildlife at Wal-Mart. She testified that by the time



                                        13
WCO Brehun arrived on the scene, the exhibit was already over, and that she and
Volunteer Magargi were in the process of loading the vehicles to return to the
Center. She explained that she had to go to her vehicle to retrieve her permits but
that WCO Brehun refused to inspect them.


                                              E.
              With regard to the conditions of the Center, WCO Brehun testified
that Permittee was issued a notice of violation in February 2002 for unsanitary
conditions at the Center under 58 Pa. Code §147.312.14 He stated that on the date
of his October 2014 inspection of the Center, not only did Permittee forget about
the inspection, the Center was not in compliance:

                                             ***

              A. …After stating that she had forgotten about the
              scheduled inspection, we still completed the inspection.
              And at that time, it was very upsetting at the same time to
              see the conditions in the areas that these animals were
              living in. Not only did some of them not have water, the
              ones that did have water, the bowls and containers had
              like a green scum or fecal contamination, which to a
              certain level is understandable, being that these animals
              would clean themselves or bathe themselves with it. But
              whenever you get green scum on the containers, that’s
              from buildup over time.

              The fecal contamination, just from experience as a field
              officer not only with, you know, wildlife, but animals
              kept in these facilities, you can tell by the fecal
              contamination inside the pens laying amongst the food
       14
         See 58 Pa. Code §147.312 (“It is unlawful for a person to accept, possess, transport or
display wildlife contrary to this subchapter or the act.”).




                                              14
            that was provided in some of the enclosures that there
            was some fresh, there was some old and there was some
            stuff in the enclosures that’s been there for a really long
            time, because it was extremely dried out…

            Q. Okay. And before we get to that, you had actually
            issued a notice of violation or, again, a warning to
            [Permittee] relative to that inspection. Is that accurate?

            A. That is accurate.

                                      ***

            Q. Okay. And you’ve already identified, in general, that
            there was [sic] some unsanitary conditions, fecal
            contaminations. But there was [sic] other items other
            than the water as well that were out of compliance
            relative to the inspection. Can you recall what they
            were?

            A. Yes. There are to be the signs on the outside of the
            premises before you’d enter any facility where the
            animals were located prohibiting any general public or
            anybody that’s not to be in that area from feeding the
            wildlife. There were no signs depicting that. As well as
            each pen enclosure of any species needs to be identified
            with a depicted height[] of a letter depicting in English,
            what the identification of that species is.

            Q. Okay. And did that occur in this particular instance,
            for either of those posting or signage requirements?

            A. At the time of the original inspection, neither of those
            were [sic] present, prohibiting the public from feeding.
            Some of the enclosures did have the identification labels
            on, but not all of them did.


(R.R. at 116a-118a.)




                                        15
              WCO Brehun opined that Permittee’s broad range of violations
persisting over several years, including the illegal possession/transfer of various
wildlife, the Center’s deficient sanitation, the unlawful importation of species, and
inadequate signage/record-keeping was sufficient to revoke Permittee’s special
permits.


              Permittee testified that the animals’ enclosures are cleaned daily and
that proper signage is always posted as required. However, when shown certain
photographs, she admitted that the fecal matter depicted had been present for
longer than a day.        She explained, however, that this fecal matter was not
detrimental to the animals’ health. She explained that the Center wrote protocols
for the feeding, cleaning and caring for the animals.                She further stated that
because the primates, in particular, are sensitive to the noise generated by pressure
washers and leaf blowers, those items were used sparingly. Permittee testified that
she did not recall being issued a notice of violation for unsanitary conditions in
2002. She also denied that her advancing age or persistent health problems were a
factor in her ability to manage the Center.


              Regarding the notice of violation for the alleged failure to post the
required signage, Lisa Mobley (Volunteer Mobley),15 a Center volunteer, testified
that she removed the signs in order to clean and forgot to replace them. She stated
that she and another volunteer were in the process of cleaning when WCO Brehun


       15
          Volunteer Mobley testified that her duties included caring for the animals and cleaning
inside and around their enclosures.




                                               16
arrived for the scheduled inspection. She also testified that primates produce the
amount of feces WCO Brehun witnessed in one day’s time.


                 Dr. Devonna Shoemaker, Professor of Biology at St. Francis
University, testified generally about her efforts to create a Zoological Sciences
program at the University, the program’s affiliation with the Center, and
Permittee’s assistance.16 She testified that she occasionally visited the Center and
found the animals to be in clean conditions and that she was not concerned about
the Center’s conditions.


                                             III.
                 Finding that the Game Commission showed by a preponderance of the
evidence that Permittee acted in a manner contrary to the intent of the special
permits, the Hearing Officer recommended that the Game Commission recall
and/or deny renewal of the Permittee’s four special permits for a period of five
years.        In making this recommendation, the Hearing Officer found that the
overwhelming evidence showed that Permittee unlawfully took possession of a
bald eagle, two hedgehogs and a monk parakeet without first acquiring the
appropriate permits.


                 Moreover, the Hearing Officer noted that Permittee’s noncompliance
extended to the unsanitary conditions at the Center, which was a problem since


         16
          The Center’s affiliation with the St. Francis University Zoological Sciences program
began in 2011.




                                             17
2002. He found that Permittee’s conduct “ranged from inattentive and negligent,
to willfully non-compliant and deceitful,” and concluded that:

             [Permittee’s] multiple, repeated violations over the
             course of several years seem to support the
             Commonwealth’s contention that [Permittee], in many
             instances, consciously disregarded her responsibilities
             under the special permits. The evidence shows a clear
             and historic pattern of non-compliance. [Permittee’s]
             conduct not only imperiled the health, safety, and welfare
             of the animals with which she was entrusted, but also
             infringed upon the public’s expectation that wild animals
             held in captivity are housed and cared-for appropriately.
             Furthermore, [Permittee’s] insolence towards the
             regulatory authorities, coupled with her unwillingness to
             accept responsibility for even one of a multitude of
             violations, casts serious doubt on the likelihood of
             material improvements occurring at the Center.


(Id. at 618a-619a.)


             The Game Commission concurred with the Hearing Officer’s
recommendations and notified Permittee on June 18, 2015, that her four special
permits were recalled for five years until June 17, 2020, after which she may
reapply. This appeal followed.




                                        18
                                              IV.
                                              A.
              On appeal,17 Permittee argues that the Game Commission erred in
finding that she violated Section 929(a) of the Code, 34 Pa. C.S. §929(a), because
the Commission failed to show that she was convicted of an offense under the
Code or acted contrary to the intent of any of the permits that were recalled.


              Permittee contends that because she was not convicted on the charges
filed against her regarding the bald eagle since that charge was disposed of through
the ARD program, those charges cannot be used to support the recall of her
permits. While that may be so, there is substantial evidence to show that Permittee
unlawfully took possession of a bald eagle, a threatened species at the time,
without the required federal permit to possess migratory species.                    Although
Permittee denied having possession of the bird, Volunteer Stimer testified to
observing it inside the Center. SA Cottrell and Ex-husband Singler testified that
Permittee admitted to possessing the bald eagle and to misleading investigators by
denying that she had possession of the bald eagle.


              There is also substantial evidence that Permittee unlawfully
transferred possession of the one-winged barred owl to Volunteer Stimer after she
lost her federal permit to possess migratory species. Volunteer Stimer testified that


       17
         Our scope of review of the Game Commission’s adjudication is limited to determining
whether constitutional rights were violated, an error of law was committed, or whether necessary
findings of fact are supported by substantial evidence. Section 704 of the Administrative
Agency Law, 2 Pa. C.S. §704; Pfingstl v. Pennsylvania Game Commission, 531 A.2d 821 (Pa.
Cmwlth. 1987), petition for allowance of appeal denied, 542 A.2d 1373 (Pa. 1988).



                                              19
Permittee transferred the owl to him, instructing him to release it into the wild. In
so doing, not only did Permittee violate Section 2908(a)(1) of the Code, but she
also put the disabled bird in the hands of an individual who did not have the proper
permit to handle it.


               Similarly, with regard to the monk parakeet and the hedgehogs,
Permittee possessed the species without first acquiring the required permits. She
claims she was not aware of the restricted status of the monk parakeet, but rather,
asserts that she did not identify the monk parakeet as such when she took
possession of it. Nonetheless, she was found guilty by a Magisterial District Judge
for her unlawful possession of the monk parakeet, thereby violating Section 929(a)
of the Code.


                                          B.
               Permittee next contends that the Game Commission erred in finding
that she acted contrary to the intent of her permits by failing to possess her Exhibit
permit while publicly exhibiting wildlife. Pursuant to Section 2908(a)(2) of the
Code, it is unlawful for a permittee to fail to carry, show or display the required
permit to an officer while exercising any privilege granted by the permit. 34 Pa.
C.S. §2908(a)(2).


               It is undisputed that Permittee was engaged in the public exhibition of
wildlife at a Wal-Mart in Altoona in July 2014. Although Permittee claims that
she had the Exhibit permit on hand and that WCO Brehun refused to inspect it,
WCO Brehun testified that Permittee could not produce the permit when requested.



                                          20
Her testimony was further contradicted by Volunteer Magargi who testified that
she had already taken the permits back to the Center by the time WCO Brehun
arrived on the scene because the exhibition was finished. Moreover, Volunteer
Magargi testified that they could not produce the permit for the local Police Chief
when he stopped by earlier. Despite Permittee’s contentions that her permits were
in her vehicle and that the exhibition was finished by the time WCO Brehun
arrived on the scene, the record indicates otherwise. Permittee’s failure to possess
her Exhibit permit when she was engaged in public exhibition in front of the Wal-
Mart violated Section 2908(a)(2) of the Code.


                                         C.
             Finally, Permittee argues that the Game Commission erred in
determining that she acted contrary to the intent of her permits by failing to
maintain sanitary conditions and failing to display appropriate signs at the Center.


             The Game Commission’s regulations mandate that fecal and food
waste must be removed from cages and dens daily and is required to be disposed of
or stored in a manner so as to prevent noxious odors or attraction of insects or
vermin. 58 Pa. Code §147.283. Moreover, signs must be conspicuously posted on
cages or enclosures identifying the wildlife confined and prohibiting the public
from feeding or annoying the wildlife. Id. §147.284. Failure to comply with one
or more conditions of a permit may be cause for suspension, denial or recall of the
permit. Id. §147.309.




                                         21
            During WCO Brehun’s prearranged, annual inspection of the Center,
he noted several deficiencies, including the Center’s failure to provide clean and
fresh water to the animals, failure to maintain sanitary conditions, and failure to
display signs restricting public feeding. The issue of sanitation was not new and
the Center had been issued notice of violations for its unsanitary conditions dating
back to 2002. Permittee claims that the animals’ enclosures were cleaned daily but
contradictorily, she also admits to certain fecal matter being present longer than a
day. Moreover, Volunteer Mobley acknowledged that she forgot to replace the
signs after removing them for cleaning.


            Accordingly, given Permittee’s violations of numerous laws and
regulations relating to her special permits, we affirm the Game Commission’s
decision to recall the special permits for a period of five years, as supported by
substantial evidence.



                                      ___________________________________
                                      DAN PELLEGRINI, Senior Judge




                                          22
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Deborah E. O’Shell,                :
                 Petitioner        :
                                   :
             v.                    : No. 1200 C.D. 2015
                                   :
Pennsylvania Game Commission,      :
                Respondent         :




                                ORDER


             AND NOW, this 21st day of March, 2016, the final order of the
Pennsylvania Game Commission dated June 18, 2015, at No. S.C. 14-69, is
affirmed.



                                   ___________________________________
                                   DAN PELLEGRINI, Senior Judge
