Commonwealth of Pennsylvania, Department of Agriculture v. Daniel Esh

Respondent Pennsylvania Department of Agriculture's Brief in Support of 2009 Refusal of Daniel Esh's Kennel License


Petitioner omitted from his brief several essential matters as required by the Pennsylvania Rules of Appellate Procedure, most importantly the Statement of the Questions Involved. As a result, Respondent is left to guess at the issues which Petitioner raises before this Honorable Court. Petitioner’s failure to conform to the requirements of the rules of court, while unduly burdening Respondent, constitutes a waiver of those issues omitted from the statement of questions involved.

Procedural due process does not require notice and a hearing in every conceivable situation involving administrative action. Notice and a hearing are required only where administrative action is adjudicatory in nature and involves substantial property rights. Despite Petitioner’s claims, a warden’s notation of “unsatisfactory” on an kennel inspection sheet does not require the safeguards of procedural due process inasmuch as such a notation is neither an adjudication nor does it affect Petitioner’s property rights.

Petitioner claims that regulations 21.29(a) and 21.29(c) of Chapter 21, 7 Pa. Code are vague as applied to Petitioner on December 20, 2007 and April 4, 2008, respectively. Publication in the Pennsylvania Code creates a rebuttable presumption concerning the propriety of the regulation's promulgation. Moreover, properly promulgated regulations can cure vagueness problems. As such, the regulations in the case sub judice are not vague. Furthermore, when measured against the common understanding and practices of the dog kennel industry, an industry Petitioner has been a part of for approximately 20 years, the promulgated regulations 21.29(a) and 21.29(c) of 7 Pa. Code, contain reasonable standards to guide Petitioner in the maintenance of his kennel and, as such, are not vague.

In his brief, Petitioner raised for the first time an argument which he neither raised before the Department of Agriculture at the time of his appeal hearing nor in his Petition for Review.

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

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