Case v. Commonwealth

574 A.2d 1179, 133 Pa. Commw. 63, 1990 Pa. Commw. LEXIS 269
CourtCommonwealth Court of Pennsylvania
DecidedMay 4, 1990
DocketNo. 1617 C.D. 1989
StatusPublished

This text of 574 A.2d 1179 (Case v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Case v. Commonwealth, 574 A.2d 1179, 133 Pa. Commw. 63, 1990 Pa. Commw. LEXIS 269 (Pa. Ct. App. 1990).

Opinion

PALLADINO, Judge.

Allan R. Case and Emma Case t/d/b/a Case Farm Hatchery (Appellants) appeal from an order of the Secretary of Agriculture (Secretary), which denied Appellants’ claim for compensation for a poultry flock, which was destroyed because it was infected with pullorum disease (pullorum). We affirm.

Appellants were notified by the Bureau of Animal Industry of the Department (Bureau) of its suspicion that Appellants’ flock was infected with pullorum. On May 1, 1986, Bureau issued an order of special quarantine1 to contain the flock pending the outcome of tests for pullorum. On May 6, 1986, Dr. Max A. Van Buskirk, Jr., Bureau Director (Director) met with Appellants and advised them that their flock tested positive for pullorum. After failing [66]*66in an attempt to sell the flock to a private slaughtering facility in New Jersey, Appellants destroyed and buried the flock.

Thereafter, Bureau lifted the quarantine, after which, Appellants sought compensation for the destroyed flock from the Department pursuant to Section 2 of the Act of June 22, 1931 (Act), P.L. 682, as amended, 3 P.S. § 399, which provides, in pertinent part, “The Commonwealth hereby agrees to compensate owners of domestic animals condemned to prevent the spread of disease.” (Emphasis added.) The Department, in a letter dated December 22, 1986, stated that because Director had not ordered the destruction of the flock, the flock had not been condemned and Appellants were not entitled to compensation. Appellant thereafter applied for compensation which the Department denied.

Appellants filed an action in this court praying for mandamus relief, or alternatively, as an appeal of a decision of the Department.2 We held that Appellants’ action was properly an appeal, and that the Department file, which was submitted as the record, was insufficient for appellate review. Accordingly, the case was remanded to the Department.3

Following remand, a hearing was conducted before an examiner, who issued a proposed conclusion that Appellants were entitled to compensation. Secretary issued a final adjudication, making the following pertinent findings of fact and conclusions of law:

FINDINGS OF FACT
7. On May 6, 1986[,] [Director] and [Appellants] met again. At this meeting, [Appellants] were given options to remove the quarantine. These included (1) destroy the flock by June 1, 1986 and receive an indemnity payment [67]*67from the Department equal to one-third of the appraised value of the flock; (2) transport the birds for slaughter upon the issuance of permits by the Department; and (3) test the flock and remove birds that tested positive for pullorum disease on two successive occasions at least 21 days apart.
8. Prior to June 1, 1986, the flocks infected with pullorum were destroyed by gassing, because permits could not be obtained from the state of New Jersey to ship the flocks for slaughter to a New Jersey processing plant.
CONCLUSIONS OF LAW
2. There was no “condemnation” within the meaning of [Section 398 of the Act.]
3. The Department is not estopped from denying compensation to [Appellants] as [Appellants] were not justified in believing that the Department had ordered the slaughter of their flocks.

Secretary issued an order denying Appellants’ claim for compensation.

On appeal to this court,4 Appellants raise two issues: (1) whether Appellants’ flock was subject to a compensable de facto taking; and (2) whether the Department is es-topped from denying the claim for compensation because Appellants destroyed their flock in reliance on Director’s offer of compensation.

As to the first issue, Appellants contend that because section 399 of the Act does not provide a procedure for securing compensation, the general rules for condemnation under the Eminent Domain Code5 control the present case. [68]*68Appellants argue that they were not informed prior to the destruction of their flock that the quarantine could be lifted by continued testing and removal of infected birds. Appellants assert further that their application for a permit to transport the flock to New Jersey for slaughter was denied because of New Jersey’s refusal to authorize the transportation and destruction of the flock in that state. Appellants contend that because their flock was quarantined and could not be disinfected or slaughtered, the quarantine substantially deprived them of the beneficial use and enjoyment of the flock. Appellants argue that because the Director issued the quarantine for a public purpose, their flock had been subject to a de facto taking, which is compensable under the Eminent Domain Code.

Appellants assert that the de facto taking occurred contrary to the Director’s statement in a letter to them dated May 15, 1986, that the flock was not condemned and that they were not eligible for compensation. The last paragraph of this letter advises Appellants as follows:

If you plan to continue breeding poultry and you plan to resume sale of live poultry and fertile eggs to other poultrymen, it appears imperative that you depopulate your infected flock as soon as possible. Depopulation may be accomplished by slaughtering these flocks for meat purposes or by euthanatizing and disposal by burial, rendering or incineration.

The Department argues that the issuance of an order of quarantine is not a de facto taking. The Department contends that on May 6, 1986 and in the letter of May 15, 1986, ■ Director advised Appellants of their possible options but that ultimately Appellants would have to choose which option to pursue. The Department contends that because Director never ordered Appellants to destroy the flock, Appellants are not entitled to compensation.

Under section 345 of the Act, the Department may establish a special quarantine “whenever it is deemed necessary or advisable by [a Department] officer or agent, to examine or test or treat or control or kill any animal.” This [69]*69section provides the Department with the discretion to determine when it is necessary to destroy animals to prevent the spread of disease. While the public interest may be served by an order to specially quarantine infected animals, it does not automatically follow that an order to destroy the infected animals is necessary to prevent the spread of disease.

Chapter 8 of Title 7 of the Pa.Code6 provides the procedure for appraisal and indemnification for the destruction of poultry infected with pullorum. Consistent with section 399, the procedure stated in chapter 8 requires that “Indemnity shall be available ... for poultry flocks specifically adjudged and ordered condemned by the Director only as absolutely necessary to promote the eradication of pullorum disease.”7 The procedure provided in chapter 8 and section 399 clearly require that the flock be condemned for its destruction to be compensable.

The word “condemned” as used in chapter 8 and the Act, means that a domestic animal has been adjudged, by an authorized officer or agent of the [Department], to be diseased and ordered to be slaughtered to prevent the spread of disease.

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Related

Case v. Commonwealth
535 A.2d 284 (Commonwealth Court of Pennsylvania, 1987)

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Bluebook (online)
574 A.2d 1179, 133 Pa. Commw. 63, 1990 Pa. Commw. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/case-v-commonwealth-pacommwct-1990.