J-S84014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JENNIFER L. BUCHER                         :
                                               :
                      Appellant                :   No. 1288 MDA 2017

              Appeal from the Judgment of Sentence July 24, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-SA-0000148-2016


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 27, 2018

        Appellant, Jennifer L. Bucher, appeals from the judgment of sentence

that was reinstated following the trial court’s decision to dismiss her

summary appeal from the conviction of the offense of harboring a dangerous

dog.1    Because the appeal is within the jurisdiction of our sister appellate

court, we order that the appeal be transferred to the Commonwealth Court.

        The trial court set forth the relevant underlying facts of this case as

follows:

        [Appellant] and her husband currently reside in a home in which
        a side yard affronts a public street. When they first moved into
        that home, which is located in Paxtang Borough (“the Borough”)
        in Dauphin County, Pennsylvania, they applied to the Borough
        for permission to build a six (6) foot high fence on the side yard

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1   3 P.S. § 459-502-A.
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     of the home because they intended to adopt a family of shelter
     dogs, primarily of the pit bull family of terriers. Obviously,
     [Appellant] believed that a six (6) foot high fence was necessary
     to keep her dogs safely contained within her yard and, inter alia,
     the need to keep these dogs from having access to other
     persons.     Because their side yard affronts a public street,
     however, Borough codes would not permit [Appellant] and her
     husband to build a fence of this height (six feet); although
     [Appellant] and her husband engaged in various efforts to obtain
     a variance for a six (6)-foot fence and partook in various appeals
     pertaining thereto, all of those appeal endeavors proved
     unsuccessful. Notwithstanding their unsuccessful attempts to
     secure a variance for a six (6)-foot fence, [Appellant] and her
     husband nevertheless chose to adopt six dogs of the pit bull
     terrier variety1 and proceeded to erect a fence of approximately
     three-and-a-half (3.5) feet in height around the side yard of
     their home.

          1 It should not be lost on anyone that the pit bull
          variety of terrier is not a usual domestic breed of
          dog. The pit bull terrier was raised and developed in
          England and other European countries, and
          thereafter in the United States, specifically for the
          blood sport of dog fighting, an event in which
          spectators gathered to observe dogs that are placed
          in a “fighting pit” and then viciously tear each other’s
          bodies (particularly faces) to shreds, many times to
          the death. As such, pit bull terriers have long been
          born, bred, and trained instinctively to be an attack
          breed of animal.

            On May 19, 2016, two of [Appellant’s] pit bull terriers,
     “Maui” and “Dozer,” became engaged in a vicious attack on one
     another which prompted [Appellant] to attempt to undertake
     efforts to calm and separate the two dogs.             As soon as
     [Appellant] attempted to undertake that task, she ([Appellant])
     was attacked viciously by the dogs and sustained severe injuries
     to her arms. According to various eyewitness accounts, she bled
     from her elbows down to her hands, her flesh was torn to
     shreds, and her fatty tissue under her skin was exposed at some
     of her open wounds. Patrick Corkle (“Officer Corkle”), a Swatara
     Township Police Officer who responded to the scene of the
     incident, believed that it would be advisable to call an ambulance
     for [Appellant], but [Appellant] resisted the dispatch of an

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      ambulance for fear that her dogs would be taken away from
      her.2    According to [Appellant], her husband and father
      ultimately drove her to Hershey Medical Center where she
      treated for the dog attack and received twenty-seven (27)
      stitches on her arm.

            2 According to Officer Corkle, [Appellant] remarked
            to him, “You’re gonna take my dogs away. I know
            you’re gonna take my dogs away.” (Transcript of
            Summary Appeal Hearing, 11/28/16, at 38:9-10)

Trial Court Opinion, 7/24/17, at 1-2.

      On May 27, 2016, Appellant was cited for committing the offense of

harboring a dangerous dog.      On July 18, 2016, after a hearing before a

magisterial district judge, Appellant was found guilty of the offense and

sentenced to pay a fine.     She then took a timely summary appeal to the

court of common pleas.      On November 28, 2016, the trial court held a

summary trial, and at the close of the proceedings, the trial court directed

the parties to file briefs with the court. In an order filed on July 24, 2017,

the trial court determined that Appellant was guilty of harboring a dangerous

dog, dismissed her summary appeal, and affirmed and reinstated the

judgment of sentence entered by the magisterial district judge.        Appellant

then filed this timely appeal. The trial court did not direct Appellant to file a

statement pursuant to Pa.R.A.P. 1925(b).       On August 18, 2017, the trial

court filed a statement in lieu of opinion pursuant to Pa.R.A.P. 1925(a).

      Before we consider any of the issues raised by Appellant in her brief,

we must determine whether we have jurisdiction over this matter.

Specifically, it appears that jurisdiction should be transferred to the

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Commonwealth Court under 42 Pa.C.S. § 762.         That statute provides, in

pertinent part, as follows:

      § 762. Appeals from courts of common pleas

      (a) General rule.--Except as provided in subsection (b), the
      Commonwealth Court shall have exclusive jurisdiction of appeals
      from final orders of the courts of common pleas in the following
      cases:

                                   ***

            (2)    Governmental         and      Commonwealth
            regulatory criminal cases.--All criminal actions or
            proceedings for the violation of any:

                  (i) Rule, regulation or order of any
                  Commonwealth agency.

                  (ii) Regulatory statute administered by
                  any Commonwealth agency subject to
                  Subchapter A of Chapter 5 of Title 2
                  (relating to practice and procedure of
                  Commonwealth agencies).         The term
                  “regulatory statute” as used in this
                  subparagraph does not include any
                  provision of Title 18 (relating to crimes
                  and offenses).

42 Pa.C.S. § 762(a)(2).

      In Commonwealth v. Hake, 738 A.2d 46 (Pa. Cmwlth. 1999), the

Commonwealth Court made the following determination pertaining to cases

involving the “Dangerous Dog Law”:

      Jurisdiction lies in the Commonwealth Court, as opposed to the
      Superior Court, because the Dangerous Dog Law at 3 P.S. §
      459–502–A is not a penal statute under the Crimes Code (Title
      18), but is a regulatory statute, administered and enforced by
      the Department of Agriculture (Title 7, Chapter 27 of the
      Pa.Code). Therefore, in accordance with 42 Pa.C.S. § 762

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        [(a)](2)(ii), this Commonwealth Court has exclusive jurisdiction
        of appeals from final orders of the courts of common pleas in
        Commonwealth regulatory criminal cases for criminal actions or
        proceedings for the violation of any regulatory statute
        administered by a Commonwealth agency not included in Title
        18 relating to crimes and offenses.

Hake, 738 A.2d at 47 n.3.

        We are mindful this Court has explained that where neither party has

objected to our jurisdiction of an appeal, we may exercise jurisdiction

pursuant to 42 Pa.C.S. § 704(a)2 and Pa.R.A.P. 741(a).3 However, we also

____________________________________________


2   Section 704 of the Judicial Code provides, in relevant part, as follows:

        § 704. Waiver of objections to jurisdiction.

        (a) General rule. — The failure of an appellee to file an
        objection to the jurisdiction of an appellate court within such
        time as may be specified by general rule, shall, unless the
        appellate court otherwise orders, operate to perfect the appellate
        jurisdiction of such appellate court, notwithstanding any
        provision of this title, or of any general rule adopted pursuant to
        section 503 (relating to reassignment of matters), vesting
        jurisdiction of such appeal in another appellate court.

42 Pa.C.S. § 704(a).

3   Rule 741 is based on 42 Pa.C.S. § 704, and states, in part, as follows:

        Rule 741. Waiver of Objections to Jurisdiction.

        (a) General rule. The failure of an appellee to file an objection
        to the jurisdiction of an appellate court on or prior to the last day
        under these rules for the filing of the record shall, unless the
        appellate court shall otherwise order, operate to perfect the
        appellate jurisdiction of such appellate court, notwithstanding
        any provision of law vesting jurisdiction of such appeal in
        another appellate court.
(Footnote Continued Next Page)


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J-S84014-17


“retain the power and, indeed, the responsibility to determine whether

retention of jurisdiction in this case is appropriate or, alternatively, whether

the matter should be transferred to the Commonwealth Court.” Wilson v.

School District of Philadelphia, 600 A.2d 210, 211 (Pa. Super. 1991)

(citations omitted). Furthermore, once we have:

      concluded that this matter is within the Commonwealth Court’s
      jurisdiction, it is within our discretion to determine whether
      transfer to that court is appropriate.         In making this
      determination, we conduct a case-by-case analysis. We may
      retain jurisdiction if such action would serve the interests of
      judicial economy, but should transfer the matter if to do so
      would serve other interests, such as avoiding the establishment
      of possibly conflicting lines of authority.

Id. at 213 (citations omitted). As we have long stated, “we should be most

cautious in assuming jurisdiction over matters that properly belong before

the Commonwealth Court.” Lara, Inc., v. Dorney Park Coaster Co., Inc.,

534 A.2d 1062, 1066 (Pa. Super. 1987).

      Here, our review reflects that jurisdiction is properly vested in the

Commonwealth Court pursuant to 42 Pa.C.S. § 762(a)(2)(ii).          Hake, 738

A.2d at 47 n.3. Our further analysis indicates the preferable course in this

matter is to transfer the appeal to the Commonwealth Court. Indeed, the

Commonwealth Court’s expertise in this area is apparent because the

relevant case      law   reveals the      Commonwealth Court has    historically

(Footnote Continued) _______________________


Pa.R.A.P. 741(a).



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J-S84014-17


entertained appeals from and analyzed issues regarding 3 P.S. § 459-502-A.

Accordingly, we transfer this appeal.

      Appeal transferred to Commonwealth Court.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




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