J-A24015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ADAM JAMES MOORE                           :
                                               :
                       Appellant               :   No. 472 EDA 2019

        Appeal from the Judgment of Sentence Entered January 8, 2019
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-SA-0000431-2018


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED FEBRUARY 05, 2020

        Appellant, Adam James Moore, appeals from the judgment of sentence

of a $200 fine and $452.48 in restitution, which was imposed after he was

found guilty, following a summary appeal, of a violation of the Dog Law, 3 P.S.

§§ 459-101 - 459-1205. After review, we conclude that this appeal is within

the jurisdiction of the Commonwealth Court and, thus, we order that the

appeal be transferred.

        The facts underlying this case are not pertinent to our disposition. We

only note that, according to Appellant, on March 25, 2018, he was issued a

citation by the Chester County Animal Control authorities for violating 3 P.S.

§ 459-502(a) (Dog bites; detention and isolation of dogs). See Appellant’s

Brief at 6. Following a summary trial before the magisterial district court,

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A24015-19



Appellant was acquitted of that offense. However, the district court convicted

him of violating 3 P.S. § 459-305(a)(1) (Confinement and housing of dogs not

part of a kennel), which the court deemed to be a ‘lesser-included offense’ of

the charged section 459-502(a) violation.

      Appellant filed a timely summary appeal to the Court of Common Pleas

of Chester County.    Prior to his trial de novo, he filed a “Motion to Quash

Conviction of 3 P.S. § 459-305(a)(1) as Void Ab Initio,” which the court

denied. Following Appellant’s trial de novo, the court upheld his conviction

under section 459-305(a)(1).      Appellant was thereafter sentenced to the

above-stated fine and restitution.

      Appellant filed a timely notice of appeal and complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court filed a Rule 1925(a) opinion on April

18, 2019. Herein, Appellant states three issues for our review:

      I. Did the magisterial district court err by finding Appellant guilty
      of 3 P.S. § 459-305(a)(1), incorrectly classifying it as a “lesser[-]
      included offense” of that which was originally charged?

      II. Did the [trial] court … err by denying Appellant’s Motion to
      Quash Conviction of 3 P.S. § 459-305(a)(1) as Void Ab Initio?

      III. Did the [trial] court … lack the authority to conduct a trial de
      novo on the offense of 3 P.S. § 459-305(a)(1) since that offense
      was neither originally charged nor a lesser[-]included offense of
      the originally charged offense?

Appellant’s Brief at 5.




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      Before we consider any of Appellant’s issues, we must determine

whether this case should be transferred to the 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 declared that it has exclusive jurisdiction over appeals

under the Dog Law, because that statute “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).” Id.


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J-A24015-19



at 47 n.3. Nevertheless, we recognize that, because the Commonwealth has

not raised any issue with this Court’s jurisdiction over the present appeal, “it

is within our discretion to transfer the matter to the Commonwealth Court or

retain jurisdiction.”   Lara, Inc., v. Dorney Park Coaster Co., Inc., 534

A.2d 1062, 1066 (Pa. Super. 1987); see also 42 Pa.C.S. § 704 (providing for

an exception to exclusive jurisdiction of the Commonwealth Court if the

appellee does not object to the exercise of jurisdiction by the Superior Court).

In Lara, Inc., we explained that,

      [i]n exercising this discretion, we must examine the question on
      a case by case basis. This [C]ourt may retain jurisdiction over
      cases that should have been appealed to the Commonwealth
      Court in the interest of judicial economy. However, … the interest
      of judicial economy must be weighed against other interests, one
      of which is the possibility of establishing conflicting lines of
      authority.

Lara, Inc., 534 A.2d at 1066. Notably, we cautioned in Lara, Inc., that “we

should be most cautious in assuming jurisdiction over matters that properly

belong before the Commonwealth Court.” Id. (footnote omitted).

      Here, we conclude that the preferable course is to transfer this appeal

to the Commonwealth Court.       Jurisdiction of issues under the Dog Law is

properly vested in the Commonwealth Court, see Hake, 738 A.2d at 47 n.3,

and the Court’s experience in this area is evident from the appeals it has

entertained involving claims under that statute. We also seek to avoid the

risk of establishing conflicting lines of authority. Therefore, we transfer this

case to Commonwealth Court.

      Case transferred to Commonwealth Court. Jurisdiction relinquished.

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J-A24015-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/20




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