Opinion
No. 661 C.D. 2013
11-22-2013
Commonwealth of Pennsylvania v. Margaret Graf, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Margaret Graf appeals from the March 27, 2013, judgment of sentence imposed by the Court of Common Pleas of Cumberland County (trial court) following Graf's convictions for violating West Pennsboro Township Ordinance No. 2011-03 (Ordinance), which prohibits unreasonable dog barking. The trial court sentenced Graf to pay the costs of prosecution and fines totaling $1,500. We affirm.
On December 15, 2003, the West Pennsboro Township Board of Supervisors (Board) issued Graf a conditional use permit (Permit) to operate a commercial kennel with a capacity of 21 animals on her property. In January 2004, Graf's neighbors filed a petition with West Pennsboro Township (Township) complaining about excessive barking on Graf's property, which resulted in the Township issuing Graf a warning.
In September 2009, Graf's neighbors filed a second petition with the Township complaining about excessive barking. By letter dated September 16, 2009, Darrell Shears, the Township Assistant Zoning and Code Enforcement Officer, notified Graf that she was in violation of West Pennsboro Township Ordinance No. 2006-02 (the prior dog-barking ordinance) and that her continued violation would result in legal action. The Township later issued Graf a citation, to which Graf pled guilty in October 2009.
On August 22, 2011, the Board enacted the Ordinance at issue. On September 2, 2011, Graf's neighbors filed a third petition with the Township complaining about excessive barking. Shears investigated the neighbors' complaint by visiting Graf's property, as well as the neighbors' properties, numerous times during day and evening hours. Shears testified regarding the dates and times that he heard Graf's German Shepherds barking loudly and continuously, noting that the lulls in barking "weren't long enough to even record." (N.T., 3/27/13, at 64.) Shears sent Graf a letter notifying her of the Ordinance violation and demanding that she immediately cease the violation. When Graf failed to comply, the Township issued her two citations, one on November 4, 2011, and one on April 5, 2012.
The Ordinance provides in relevant part:
3. It shall be unlawful for the owner of any dog(s) to cause or permit such dog(s) to bark or otherwise make any noise or disturbance which results in a nuisance as defined herein.(Ordinance ¶¶ 3-5.) This ordinance repealed and replaced the 2006 ordinance.
4. The nuisance as contemplated by this ordinance shall be the unreasonable barking or making of noise by a dog(s), which noise interferes with or deprives any person of the peace, quiet, rest, sleep, or legitimate enjoyment of their property.
5. Any unreasonable barking or other noise making by a dog(s) shall be presumed by the proof of the barking or making of such noise for two periods, each of which is in excess of fifteen (15) minutes, and both of which periods occur within twenty-four (24) hours of each other.
When asked whether he was sure that the barking he heard came from Graf's property, Shears testified, "I'm looking at them. I see their mouths yapping and you hear them. I mean, they're right there." (N.T., 3/27/13, at 45.)
A magisterial district justice convicted Graf of violating the Ordinance. Graf timely appealed to the trial court, which held a trial de novo on March 27, 2013. The trial court found Graf guilty under both citations. Graf now appeals to this court.
Our scope of review of a judgment following a non-jury trial is limited to determining whether the trial court's factual findings are supported by competent evidence and whether the trial court committed an error of law. Commonwealth v. Hoffman, 938 A.2d 1157, 1160 n.10 (Pa. Cmwlth. 2007).
Graf raises two issues on appeal: (1) whether, under the doctrine of collateral estoppel, the trial court was bound by the Board's previous finding that Graf's kennel would not adversely affect the public welfare; and (2) whether the Ordinance is unconstitutional as applied. We conclude that Graf's first claim is waived and her second claim lacks merit.
With regard to collateral estoppel, Graf failed to raise this issue in her Pa. R.A.P. 1925(b) statement of errors complained of on appeal, and the trial court did not address it. Therefore, this claim is waived. See Pa. R.A.P. 1925(b)(4)(vii) (stating that issues not included in the appellant's concise statement of errors complained of on appeal are waived).
In her Pa. R.A.P. 1925(b) statement, Graf raised the following issues: (1) whether the Commonwealth proved beyond a reasonable doubt that the barking was unreasonable; (2) whether the Ordinance is unconstitutionally vague on its face; and (3) whether the Ordinance is unconstitutional as applied. The trial court treated Graf's first issue as a challenge to both the sufficiency and the weight of the evidence presented at trial. We note, however, that even if Graf had properly raised the collateral estoppel issue, she would not prevail.
Next, Graf argues that the Ordinance is unconstitutional as applied because it is impossible to operate a commercial kennel without violating the Ordinance and, thus, the trial court applied the Ordinance arbitrarily. We disagree.
A municipal ordinance is presumed to be constitutional; thus, the party seeking to challenge the constitutionality of an ordinance bears "a heavy burden." Commonwealth v. Ebaugh, 783 A.2d 846, 849 (Pa. Cmwlth. 2001). --------
First, the evidence established that two other commercial kennels are located near Graf's kennel, one in the Township and one bordering the Township. Shears credibly testified that the Township has never received complaints about barking emanating from either of those kennels. (N.T., 3/27/13, at 33-34.) Therefore, Graf's claim that a commercial kennel cannot operate without violating the Ordinance is unsupported by the record.
Second, the evidence established that Graf violated the conditions of the Permit. The Permit allows Graf to operate "a commercial kennel with a capacity of 21 animals," (Permit at 1), yet Graf admitted that she has housed as many as 31 animals on the property, including cats, sheep, and horses, (N.T., 3/27/13, at 142-44). The Permit also requires Graf to keep the animals "within a completely enclosed building." (Permit at 2.) However, Graf's neighbors credibly testified that the dogs were kept in cages outside at night and barked for more than 15 minutes straight on a regular basis. (N.T., 3/27/13, at 77-79, 92, 97-98, 106.) Shears also testified that he personally observed dogs barking outside on his multiple visits to Graf's and the neighbors' properties. (Id. at 37, 41-43.)
Moreover, the trial court specifically discredited Graf's testimony that she brought the dogs inside every night by 11:00 p.m. and did not take them outside again until 8:30 a.m. (Trial Ct. Op. at 11.) The trial court also discredited the testimony of Graf's expert witnesses, who attempted to attribute the barking to other neighborhood dogs:
We were liberal in permitting [Graf's] witnesses to offer expert opinions in spite of the basis for and relevance of those opinions. With no disrespect intended, we found their opinions to be useless in our determination of the facts. One need not be a scientist or audiologist to determine whether the barking noise you hear is coming from the chorus of German Shepherds across the street or the Shih Tzu down the lane. We prefer to place our trust in both the common sense and the senses of the neighbors.(Id. at 10.) As the fact-finder, the trial court was free to believe all, part, or none of the evidence, and we may not re-weigh the evidence or substitute our judgment for that of the trial court. Commonwealth v. Hoffman, 938 A.2d 1157, 1160 n.10 (Pa. Cmwlth. 2007).
With regard to the Ordinance's application, the trial court cogently explained:
What [Graf] misses is that the Ordinance applies to all citizens in the Township, whether they house a Shih Tzu, a Beagle, a German Shepherd, or a pack of poodles. All dog owners must take steps to ensure [that] they comply with the Ordinance, which is not on its face or as applied directed towards any given owner of dogs. The mere fact that dogs will bark and dogs in kennels may bark more does not mean that a kennel, ipso facto, is unable to comply with the provisions of the Ordinance. . . . Kennel operators, by the very nature of their business[,] should be more aware of the noise created and their obligation to ensure [that] a nuisance situation is avoided. A kennel owner, like any other dog owner[] in the Township[,] can and should take steps to comply with the Ordinance.(Trial Ct. Op. at 15-16.) We agree.
Had Graf complied with the conditions of the Permit and heeded the Township's multiple warnings, it is likely that the barking problem would have been resolved. We conclude that the trial court properly determined that the Ordinance is constitutional as applied.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 22nd day of November, 2013, we hereby affirm the March 27, 2013, judgment of sentence imposed by the Court of Common Pleas of Cumberland County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge