Com. v. P.J. Macolino
1292 C.D. 2016
| Pa. Commw. Ct. | Jan 23, 2017Background
- On May 6, 2015 a neighbor complained that a large dog entered her patio and came within inches of her; the dog was not leashed. Police cited Paul Macolino under 3 P.S. § 459-305(a)(2) for failing to keep a dog "firmly secured…so that it cannot stray beyond the premises."
- Neighbor testified the dog frequently visited Macolino’s property and was never leashed; she identified the dog as associated with Macolino’s household.
- Macolino (pro se) testified the dog was his son‑in‑law’s, that he accepted responsibility when it was on his property, that he called the dog back immediately when asked, and that the dog is friendly.
- The trial court found Macolino guilty and imposed a $300 fine. Macolino appealed, filing a 1925(b) statement asserting only that the Commonwealth failed to prove he acted intentionally, knowingly, or recklessly.
- The Commonwealth argued broader claims were waived for failure to include them in the 1925(b) statement; the trial court and this Court addressed only the preserved scienter issue.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Macolino) | Held |
|---|---|---|---|
| Whether scienter (intent/knowledge/recklessness) is required under § 305(a)(2) | § 305(a)(2) need not require scienter; statute imposes absolute liability for owners/keepers | Macolino: Commonwealth must prove he acted intentionally, knowingly, or recklessly because he is not the dog’s owner/keeper | Held: § 305(a)(2) imposes absolute liability; scienter is not required |
| Whether § 305(a)(2) applies to non‑owners/keepers | N/A (not argued below) | Macolino: he is not owner/keeper so absolute liability shouldn’t apply to him | Held: issue waived on appeal; Court notes evidence could support finding he was an owner/keeper anyway |
| Whether the three subsections of § 305(a) are conjunctive or alternative | N/A | Macolino: subsections are elements of a single offense and all must be met; he relied on (a)(3) (reasonable control) | Held: subsections are alternatives (connected by "or"); only (a)(2) need be proven here; claim waived in part |
| Waiver under Pa. R.A.P. 1925(b) of unraised issues | Commonwealth: broader challenges waived if not in 1925(b) statement | Macolino: sought to raise multiple issues on appeal | Held: Court enforces waiver; only scienter claim preserved and addressed |
Key Cases Cited
- Baehr v. Commonwealth, 414 A.2d 415 (Pa. Cmwlth.) (Dog Law construed to impose strict/absolute liability; scienter not required)
- Commonwealth v. Raban, 31 A.3d 699 (Pa. Super. 2011) (Section 305(a)(1) phrasing supports absolute liability)
- Commonwealth v. Raban, 85 A.3d 467 (Pa. 2014) (per curiam affirmance by equally divided Court; Opinion in Support of Affirmance noted statutory language denotes absolute liability)
- Commonwealth v. Seyler, 929 A.2d 262 (Pa. Cmwlth. 2007) (Dog Law "owner" definition is broad and may include keeper/harborer)
- Commonwealth v. Williamson, 616 A.2d 980 (Pa. 1992) (standard for sufficiency of evidence review)