               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael J. Murnin, III,                      :
                  Petitioner                 :
                                             :
               v.                            :
                                             :
Pennsylvania Game Commission,                :       No. 1646 C.D. 2018
                Respondent                   :       Argued: December 10, 2019


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                          FILED: February 6, 2020

               Michael J. Murnin, III (Murnin) appeals from the Commonwealth of
Pennsylvania, Pennsylvania Game Commission’s (Commission) November 16, 2018
Final Order upholding the Commission’s August 3, 2018 one-year revocation of his
hunting/furtaking privileges. Murnin presents one issue for this Court’s review:
whether the Commission abused its discretion because the Final Order was not
supported by substantial evidence. After review, we vacate and remand.


                                                 Facts1
               On December 22, 2017, Murnin was coyote hunting with four hunting
dogs. One or all of the dogs were equipped with monitoring devices and began to
track a coyote. After several hours, one or several of the dogs tracked, then pinned,
an injured coyote on a guardrail adjacent to State Highway Route 170 in Clinton


      1
          The following facts are as found by the Hearing Officer.
Township, Wayne County. When Murnin and his dogs caught up with the coyote,
the coyote was immobile along the side of the highway, within a safety zone of at
least one residence. Murnin euthanized the injured coyote with a lawfully possessed,
pistol-type firearm while he was standing on the roadway.
                Thereafter, State Game Warden Frank J. Dooley cited Murnin for the
following violations: Unlawful Shooting On or Across a Highway,2 Citation No.
819089 (Shooting On or Across a Highway); and hunting by Use of Vehicle or
Conveyance Propelled by Other than Manpower,3 Citation No. 819086 (Use of a
Vehicle). On July 23, 2018, a Magisterial District Judge found Murnin guilty of
Shooting On or Across a Highway and not guilty of hunting by Use of a Vehicle, and
fined Murnin a total of $300.00, plus court costs. By August 3, 2018 letter, the
Commission notified Murnin of the one-year revocation of his privilege to secure a
license or to hunt or take game or wildlife anywhere in the Commonwealth with or
without a license for a period of one year beginning July 1, 2019.




       2
           Section 2504(a) of the Game and Wildlife Code provides:
                It is unlawful for any person to shoot at any game or wildlife while it
                is on a public highway or on a highway open to use or used by the
                public or to shoot across a public highway or a highway or roadway
                open to use or used by the public unless the line of fire is high enough
                above the elevation of the highway to preclude any danger to the
                users of the highway. It shall be unlawful for any person, after
                alighting from a motor vehicle being driven on or stopped on or along
                a public highway or road open to public travel, to shoot at any wild
                bird or wild animal while the person doing the shooting is within 25
                yards of the traveled portion of the public highway or road open to
                public travel.
34 Pa.C.S § 2504(a).
        3
          Section 2308(a)(7) of the Game and Wildlife Code prohibits the hunting of game or
wildlife through the use of “[a] vehicle or conveyance of any kind or its attachment propelled by
other than manpower.” 34 Pa.C.S § 2308(a)(7).


                                                   2
              Murnin timely requested a hearing concerning his license revocation. A
Hearing Officer held a hearing on November 8, 2018. On November 9, 2018, the
Hearing Officer recommended that the Commission’s revocation of Murnin’s hunting
and furtaking privileges be rescinded. On November 16, 2018, the Commission
notified Murnin that it did not concur with the Hearing Officer’s recommendation and
its August 3, 2018 revocation remained as ordered. Murnin appealed to this Court.4
On January 29, 2019, the Commission filed its opinion in support of its Final Order.


                                          Discussion
              Murnin argues that the Final Order is not supported by substantial
evidence because the Commission’s reasons for departing from the Hearing Officer’s
recommendation are not supported by the record. Specifically, Murnin contends that
the following Commission findings are not supported by the record facts: (1) Murnin
fired a gun in a safety zone which resulted in the creation of a danger; (2) Murnin’s
admission to releasing three additional dogs onto the coyote when he came upon it
injured on the side of the road; and (3) Murnin used his vehicle to pursue the coyote
and presented a poor image of hunting to the general public.5 The Commission
rejoins that the record adequately establishes that Murnin was convicted of a
significant safety violation for unlawfully Shooting On or Across a Highway when he
shot an injured coyote on an active public roadway and within the safety zone of at
least one residence.



       4
          “Our scope of review is limited to determining whether an error of law was committed,
whether constitutional rights were violated or whether necessary findings of fact are supported by
substantial evidence.” Buoncuore v. Pa. Game Comm’n, 777 A.2d 1222, 1224 n.7 (Pa. Cmwlth.
2001).
       5
          These findings are included in the Prosecution Report which was admitted into evidence
over Murnin’s hearsay objection at the November 8, 2018 hearing. See Reproduced Record at 23a-
25a, 84a.
                                                3
             Initially, Section 929(a) of the Game and Wildlife Code (Code)
provides, in relevant part:

             [A]ny hunting or furtaking license . . . granted under the
             authority of [the Code] may be denied, revoked or
             suspended by the [C]ommission when the holder of the
             license . . . is convicted of an offense under [the Code] or
             has acted contrary to the intent of the registration or
             permit[.]

34 Pa.C.S. § 929(a) (emphasis added).          Further, Section 2741(b) of the Code
specifies:

             In addition to any penalty and costs imposed by [the Code],
             the [C]ommission may revoke any hunting or furtaking
             license and deny any person the privilege to secure a license
             or to hunt or take furbearers anywhere in this
             Commonwealth, with or without a license, . . . if the
             licensee or person:
             (1) Has [] been convicted . . . of violating any of the
             provisions of [the Code] for such periods as are specified in
             this subchapter.

34 Pa.C.S. § 2741(b)(1) (emphasis added). Finally, Section 2742(a) of the Code
prescribes a revocation period:

             [F]or the first offense any person convicted . . . of violating
             any of the provisions of [the Code] may be denied the
             privilege to hunt or take wildlife anywhere in this
             Commonwealth, with or without a license, for a period not
             to exceed three years as the [C]ommission determines.
34 Pa.C.S. § 2742(a) (emphasis added).

             Here, Murnin was convicted of Unlawful Shooting On or Across a
Highway. Although the Hearing Officer recommended rescinding Murnin’s one-year
license revocation based on mitigating circumstances, he opined: “In consideration of
the evidence presented and arguments made by the parties, this [H]earing [O]fficer
agrees that the underlying violation is serious in nature, involves a serious safety

                                           4
violation and a revocation is authorized and typically warranted.” Hearing Officer
Recommendation at 5.
            With respect to the above-quoted statement, the Commission’s
Executive Director (Executive Director) declared in the opinion supporting the
Commission’s Final Order (Opinion):

            I am in full concurrence with [the] Hearing Officer . . . in
            this regard. However, I do not agree that a weighing of the
            mitigating evidence presented in this case sufficiently
            outweighs the gravity of [] Murnin’s poor choices and
            significant risks that he created to the general public to
            warrant a rescission of the Commission’s August 3, 2018
            revocation of his hunting/furtaking privileges.

Commission Op. at 1-2.
            This Court acknowledges that Murnin’s conviction alone constitutes
substantial evidence to support the Commission’s Final Order. However, in the
Opinion, the Executive Director expressly opined:

            Further, and clearly illustrating further poor judgement, []
            Murnin admitted to releasing three additional hunting
            dogs onto the coyote when he arrived on scene and
            observed the animal pinned against the guardrail, injured,
            and unable to move. I find this blatant disrespect for the
            wildlife he was hunting, the dangerous situation he placed
            himself, the public and his dogs into, the manner in which
            he used his vehicle to pursue the coyote and the
            unfortunate way in which he approached the homeowner
            paints an extremely poor image of hunting to the general
            public.

Commission Op. at 2 (emphasis added).         These above-quoted points were not
testified to at the hearing but, rather, were contained in the Prosecution Report,
admitted into the record over Murnin’s hearsay objection. The law is well established
that “[h]earsay evidence, [p]roperly objected to, is not competent evidence to support
a finding of the [Commission].” Walker v. Unemployment Comp. Bd. of Review, 367


                                          5
A.2d 366, 370 (Pa. Cmwlth. 1976). Accordingly, the Prosecution Report cannot
alone form the basis for the Executive Director’s findings.6 Moreover, there was no
other evidence to corroborate the Prosecution Report. Because the penalty imposed
is discretionary and it is unclear from the Opinion whether the Executive Director
departed from the Hearing Officer’s recommendation based on this hearsay, this
Court remands the matter to the Commission to clarify the basis for Murnin’s license
revocation.


                                       Conclusion
              For all of the above reasons, the Commission’s Final Order is vacated
and the matter is remanded to the Commission.



                                        ___________________________
                                        ANNE E. COVEY, Judge




      6
        The Concurrence references this hearsay as “a non-existent conviction and hearsay.”
Concurring Op. at 1 (emphasis added). The Majority does not draw such a conclusion.
                                            6
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael J. Murnin, III,                   :
                  Petitioner              :
                                          :
             v.                           :
                                          :
Pennsylvania Game Commission,             :    No. 1646 C.D. 2018
                Respondent                :


                                      ORDER

             AND NOW, this 6th day of February, 2020, the Commonwealth of
Pennsylvania, Pennsylvania Game Commission’s (Commission) November 16, 2018
Final Order is VACATED, and the matter is REMANDED to the Commission for
clarification in accordance with this Opinion.
             Jurisdiction relinquished.



                                          ___________________________
                                          ANNE E. COVEY, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael J. Murnin, III,                      :
                  Petitioner                 :
                                             :
             v.                              :
                                             :
Pennsylvania Game Commission,                :      No. 1646 C.D. 2018
                Respondent                   :      Argued: December 10, 2019


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

CONCURRING OPINION
BY JUDGE McCULLOUGH                                      FILED: February 6, 2020

             I agree with the majority that the Pennsylvania Game Commission’s
(Commission) November 16, 2018 order must be vacated because the Commission
erroneously relied on a nonexistent conviction and hearsay to uphold the one-year
revocation of Michael Murnin’s hunting/furtaking privileges.
             I write separately because I question whether Murnin’s conduct in this
instance falls reasonably within the type of conduct envisioned by section 2504 of
the Game and Wildlife Code (Code), 34 Pa.C.S. §2504. Although I am fully aware
that any attempt by Murnin to raise the argument here would amount to an
unauthorized collateral attack on his underlying conviction, see Levan v.
Pennsylvania Game Commission, 429 A.2d 1241 (Pa. Cmwlth. 1981), I nevertheless
offer my view, lest this case be consulted in the future, that, consistent with prior
precedent, Murnin was not engaged in the conduct that section 2504 of the Code was
designed to prohibit.
             Section 2504 of the Code, makes it unlawful for any person, to (1)
“shoot at” any animal while it is on a public highway or after alighting from a motor
vehicle driven along a public highway or road and (2) “shoot at” any wild bird or
wild animal within 25 yards of the traveled portion of the public highway or road.
It provides, in pertinent part:

             (a) General rule.--It is unlawful for any person to shoot at
             any game or wildlife while it is on a public highway or on
             a highway open to use or used by the public or to shoot
             across a public highway or a highway or roadway open to
             use or used by the public unless the line of fire is high
             enough above the elevation of the highway to preclude any
             danger to the users of the highway. It shall be unlawful for
             any person, after alighting from a motor vehicle being
             driven on or stopped on or along a public highway or road
             open to public travel, to shoot at any wild bird or wild
             animal while the person doing the shooting is within 25
             yards of the traveled portion of the public highway or road
             open to public travel.
34 Pa.C.S. §2504(a).
              Section 2504 of the Code was designed to protect against dangers of
hunting wildlife while the wildlife is on a public road, and “road hunting,” a method
of hunting whereby hunters who are driving or riding in a vehicle on a public
highway spot wildlife or game, alight from their vehicle, and shoot at game.
Commonwealth v. Payne, 995 A.2d 1239 (Pa. Super. 2010).
             Here, Murnin had been hunting earlier, but he lost track of his dogs. He
was in the process of collecting his dogs when he encountered the injured coyote on
the side of the road. Murnin did not shoot “at” the coyote, which is the conduct


                                      PAM - 2
targeted by the Code, and there is nothing in the record to suggest that he was “road
hunting” when he killed the coyote. “Shooting at” suggests an act of pursuing or
hunting, i.e., attempting to kill an animal which is at large. Here, Murnin shot and
euthanized a gravely injured animal that was immobilized on the side of the road.
(Reproduced Record (R.R.) at 42a-43a.) He was not hunting the coyote while it was
on a public road.
             Moreover, even if this conduct could be found to constitute a violation
of section 2504 of the Code, courts have overlooked technical violations of the Code
in similar circumstances where, as here, a hunter euthanizes a mortally wounded
animal. In these cases, courts have been inclined to reduce the period of revocation
for technical violations of the Code when the violation was precipitated by an act of
mercy.
             For example, in Commonwealth v. Learn, 2 Pa. D. & C. 397 (1922), the
common pleas court held that a hunter’s violation of “bag limits” was excused when
the hunter euthanized an elk which had been maimed by a train, holding that killing
the animal (which exceeded bag limits) was an act of mercy that did not violate the
act of June 7, 1917, P.L. 572.1
             In Appeal of Bruce, 41 Pa. D. & C.2d 195 (1966), a hunter fired one
shot that inadvertently, but seriously, injured two deer. The hunter then euthanized
both deer to alleviate their misery. The Commission revoked the hunter’s license
for two years for killing two deer in one season in violation of section 705 of the


      1
         The Act of 1917 was repealed by the Act of May 24, 1923, P.L. 359, known as “The
Game Law of 1923.” The Game Law of 1923 was reenacted into the Game Law of 1937, Act of
June 3, 1937, P.L. 1225, 34 P.S. §§1311.1-1311.1502. The Game Law of 1937 was subsequently
repealed and reenacted in the Code, Act of July 8, 1986, P.L. 442, 34 Pa.C.S. §§101-2965.



                                        PAM - 3
Game Law of 1937.2 On appeal, the trial court reversed. The trial court found that
the hunter acted in a normal and reasonable manner in shooting both deer, and that
he did not willfully and intentionally kill two deer as contemplated under section
705 of the Game Law of 1937. Id. at 198. The trial court noted that the hunter could
have left the area without first killing the second deer, which was seriously injured
and threshing about in the agony of a slow death. Id. at 199. The trial court held
“[t]hat [the hunter] performed a humane act, which under the circumstances was
justified, should not now expose him to the penalty of a revocation.” Id. Therefore,
the trial court concluded that the Commission erred in revoking the hunter’s license.
               I submit that these cases compel the careful consideration of
circumstances to determine if they reflect an intent to prevent seriously injured
animals from the “agony of slow death.” Here, the Commission should consider on
remand the circumstances of this underlying offense.
               For these reasons, I concur.




                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge




      2
          Formerly 34 P.S. §1311.705.
                                        PAM - 4
