Aaron Burkholder v. Pennsylvania Department of Agriculture]

Commonwealth Court Opinion regarding Aaron Burkholder's 2009 kennel license refusal

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Section 903 of the Dog Law is clear and unambiguous. Its provisions allow for the Department to seek either civil or criminal penalties for violations of the Dog Law or its regulations. Separate and apart from Section 903 is Section 211(a) which provides the Department with its administrative powers, specifically, its authority to refuse or revoke a kennel license.

Pursuant to Section 903(a), prior to issuing a kennel operator a civil penalty for a violation of the Dog Law or its regulations, the Department must, in the first instance of violation, give the operator a Notice of Violation (NOV). The Notice of Violation provides the operator notice of the violation and a reasonable time to come into compliance, i.e. fix the problem. If the Department does not seek a civil penalty it need not issue a NOV.

In his brief, Petitioner raised for the first time an argument which he failed to raise before the Department of Agriculture at the time of his appeal hearing. Petitioner asserts that section 903 of the Dog Law is vague becausethe Department did not issue him a NOV subsequent to any kennel inspection. While Respondent asserts that 1) the Department not issuing a NOV to Petitioner does not thereby make section 903 vague and 2) Section 903 requires a NOV be issued only if civil penalties are sought and the Department did not seek such penalties, Petitioner nevertheless has waived that argument. In accordance with 2 Pa.C.S.A. 703 Petitioner has failed to preserve the aforementioned issue.

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Published In: Administrative Agency Updates, Civil Procedure Updates, Civil Remedies Updates, Constitutional Law Updates

Reference Info:Decision | State, 3rd Circuit, Pennsylvania | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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