City of Lancaster v. Germer

5 Pa. D. & C.4th 126, 1989 Pa. Dist. & Cnty. Dec. LEXIS 50
Pennsylvania Court of Common Pleas, Lancaster County·Decided October 25, 1989·No. no. 1102 of 1989·Published

Opinion

FARINA, J.,

Before the court are defendant’s exceptions to a June 9, 1989 adjudication and decree nisi which ordered the humane destruction of defendant’s dog.*

At trial the Chancellor found the following facts. Defendant is the owner of an American pit bull terrier registered under the name “Red and White Macke Attack,” which defendant kept at his residence in the City of Lancaster. The dog escaped or was permitted to run loose on a number of occasions. Five written warnings concerning the dog running loose were issued by Lancaster’s Dog Law enforcement officer to defendant or a member of his residence. These warnings were dated September 29, 1987, January 29, 1988, August 31, 1988, February 7, 1989 and February 13, 1989. Neither defendant nor any member of his household ever responded to the warnings.

On March 10, 1989, defendant’s dog attacked Kathleen Antol as she and her husband were walking. The attack was unprovoked and came without warning. Mrs. Antol escaped injury because defendant’s dog had bitten her gloved hand, and she was able to free her hand from the glove and flee. Following the attack on Mrs. Antol, defendant’s dog attacked a leashed dog as it was being walked by its [128] owners, the Hermans. The attack on the Herman dog stopped only after defendant’s dog was repeatedly kicked and stabbed several times with a pocket knife. In addition to the March 10, 1989 attacks, defendant’s pit bull has, on various occasions, attacked several other dogs and killed two cats and a squirrel.

Following the attack on Kathleen Antol, the City of Lancaster, plaintiff, filed a complaint in equity against defendant, seeking a preliminary injunction to seize defendant’s dog and. a final injunction ordering its humane destruction. By order dated March 17, 1989, an ex parte injunction was entered directing seizure of defendant’s dog and its confinement at the Humane League of Lancaster. A preliminary injunction confirming the earlier order followed. A final hearing was held on May 19, 1989 and May 23, 1989. On June 9, 1989 the Chancellor issued his adjudication and decree nisi with findings of fact and conclusions of law and ordered humane destruction of defendant’s dog. The cost of maintenance of the dog at the Humane League during the pendency of the proceeding was imposed. on defendant, as were the costs of the proceedings. In addition, the Chancellor fined defendant for past violations of city ordinances regulating the ownership and maintenance of dogs. On June 19, 1989, defendant filed exceptions to the Chancellor’s adjudication and decree nisi. Briefs were submitted by the parties, and oral argument was held on August 16, 1989. For the following reasons defendant’s exceptions, which we have considered as a motion for post-trial relief, are dismissed.

Defendant’s first allegation of error is that the Chancellor abused his discretion in permitting Thomas Watts, Dog Law enforcement officer for the City of Lancaster, to testify as an expert witness in [129] regard to the characteristics of the breed of dogs known as American pit bull terriers. The testimony at trial established that Watts has been employed as Dog Law enforcement officer for over six years and as part of his job he has handled over 1,100 dogs per year. Although Watts has no formal degrees he is well read in his field, and through his job, has come into contact with thousands of dogs including pit bull terriers. Defendant argues that Watts’ personal experience falls short of what is required of an expert. We disagree. In Pennsylvania the standard of qualification for an expert witness is quite liberal: “A witness will be qualified as an expert if he or she has any reasonable pretension to specialized knowledge on the subject under investigation.” Yoho v. Stack, 373 Pa. Super. 77, 83, 540 A.2d 307, 310 (1988). We do not believe that Watts’ lack of formal education or training is sufficient to render him unqualified as an expert. There was no error in our finding that Watts’ on-the-job acquired knowledge and experience was sufficient to qualify him as an expert.

Defendant has next alleged that a number of the Chancellor’s findings of fact are not supported of record by substantial evidence. In support of this contention, defendant cites the testimony of defense witnesses which conflicts with the Chancellor’s factual findings. Most of this testimony was at odds with the .testimony of plaintiffs witnesses, however, and the Chancellor simply made a determination that the testimony of plaintiff’s witnesses was, in these instances, more credible than the testimony presented by defendant’s witnesses. “It is well established that the finder of fact is free to believe all, part, or none of the evidence,” Commonwealth v. Carter, 377 Pa. Super. 93, 112, 546 A.2d 1173, 1182 (1988). Even where defense testimony was not contradicted by plaintiff, the credibility of [130] defendant’s witnesses was still at issue. Hill v. Reynolds, 384 Pa. Super. 34, 557 A.2d 759 (1989). The Chancellor as fact finder was therefore free to make findings of fact which contradicted the testimony of defense witnesses.

Defendant’s third contention is that plaintiff does not have standing to bring the instant action since the dog has been removed from the City of Lancaster and allegedly will not return. Defendant has moved outside the city and has proposed that his father, who resides in Conestoga, take over ownership of the dog. It is well established that in order to have standing, “one must plead facts which establish a direct, immediate and substantial injury.” Paratransit Assoc. of Delaware Valley Inc. v. Yerusalim, 114 Pa. Commw. 279, 538 A.2d 651 (1988). The instant action was commenced while defendant resided within the city and defendant still resided within the city when the special injunction was granted. These facts, together with the possibility that the dog might someday be brought to the City of Lancaster, establish standing because the pit bull's attacks are capable of repetition yet evade review. See Reichly v. North Penn School District, 113 Pa. Commw. 528, 537 A.2d 391 (1988).

Defendant next claims that conclusions of law numbers (3), (6), (7) and (9) are not supported by substantial evidence. Conclusions of law (3) and (6) find that defendant’s dog has a vicious disposition and is capable of seriously injuring or killing humans. Defendant asserts that the single incident where the dog bit Mrs. Antol does not indicate the dog has a vicious disposition. Defendant claims that the Chancellor’s findings are based on the testimony of Dog Law enforcement officer Watts who demonstrated obvious prejudice against the breed of dogs known as pit bulls. We disagree.

Free access — add to your briefcase to read the full text and ask questions with AI

City of Lancaster v. Germer, 5 Pa. D. & C.4th 126, 1989 Pa. Dist. & Cnty. Dec. LEXIS 50 (Pa. Super. Ct. 1989).

5 Pa. D. & C.4th 126 (City of Lancaster v. Germer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Northeast Women's Center, Inc. v. McMonagle
665 F. Supp. 1147 (E.D. Pennsylvania, 1987)
Reichley v. North Penn School District
537 A.2d 391 (Commonwealth Court of Pennsylvania, 1988)
King v. Township of Leacock
552 A.2d 741 (Commonwealth Court of Pennsylvania, 1989)
Yoho v. Stack
540 A.2d 307 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Carter
546 A.2d 1173 (Supreme Court of Pennsylvania, 1988)
Hill v. Reynolds
557 A.2d 759 (Supreme Court of Pennsylvania, 1989)
Baehr v. Commonwealth ex rel. Lower Merion Township
414 A.2d 415 (Commonwealth Court of Pennsylvania, 1980)
Paratransit Ass'n of Delaware Valley, Inc. v. Yerusalim
538 A.2d 651 (Commonwealth Court of Pennsylvania, 1988)