T.J. Hufnagel v. PA Game Commission ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas J. Hufnagel, :
Petitioner :
:
v. : No. 1840 C.D. 2016
: SUBMITTED: June 5, 2017
Pennsylvania Game Commission, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: June 27, 2017
Thomas J. Hufnagel petitions for review of an order of the
Pennsylvania Game Commission maintaining but reducing the revocation of his
hunting and furtaking privileges anywhere in the Commonwealth, with or without
a license, from a period of three years to a period of two years beginning July 1,
2016, and extending through June 30, 2018. We affirm.
The pertinent facts are as follows. While on patrol in December 2014,
Wildlife Conservation Officer Byron Gibbs encountered Hufnagel on his property
at 1671 Brent Road, Volant, PA, Lawrence County, and cited him with hunting
through the use of bait as an enticement for game or wildlife, a violation of Section
2308(a)(8) of the Game and Wildlife Code (Code), 34 Pa. C.S. § 2308(a)(8), and
hunting during deer firearms season from a blind without the appropriate
fluorescent orange markings, a violation of 58 Pa. Code § 141.20(a)(2). Although
Hufnagel pled guilty to these violations in January 2015, the Commission elected
not to revoke his hunting and furtaking privileges as a collateral civil consequence
of the convictions. October 17, 2016, Decision of the Commission, Finding of
Fact (F.F.) No. 14. In an April 2015 warning letter, however, it advised him that
any future baiting violation would result in the revocation of those privileges. Id.,No. 15.
In November 2015, Officer Gibbs returned to Hufnagel’s property
during archery deer season to investigate a report of ongoing baiting activities and
encountered him in a tree house/blind, with a half-full corn feeder hanging directly
below the blind. An inspection of the interior of the blind revealed a rifle, a loaded
cross bow, rattling antlers, a grunt call, urine based attract and an ozonic scent
control device. Id., Nos. 16-21. Although Hufnagel stated that he was not engaged
in hunting activities, Officer Gibbs cited him with several violations, including
hunting with the use of bait. Id., Nos. 22 and 24. Ultimately, the magisterial
district judge found Hufnagel guilty of only the baiting violation and imposed a
fine and court costs in the amount of $534.50. Id., No. 25.
In March 2016, the Commission advised Hufnagel that it was
revoking his privilege to secure a license or to hunt or take game or wildlife for a
period of three years, beginning July 1, 2016. At Hufnagel’s request, a hearing
was held in July 2016 at which time the parties, with counsel, offered testimony
and numerous exhibits in support of their respective positions. Witnesses included
Officer Gibbs and Hufnagel and his wife. The hearing officer determined that the
Commission did not abuse its discretion in deciding to revoke Hufnagel’s
privileges, concluding that it was authorized but not mandated to do so for such a
period as the Commission determined. Conclusion of Law No. 3. Accordingly,
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mindful of both mitigating and aggravating factors,1 the hearing officer
recommended that the proposed revocation be maintained but reduced to a period
of two years. The Commission adopted the recommended decision and Hufnagel’s
petition for review is now before us for disposition.
On appeal, Hufnagel presents two issues: (1) whether Section 929 of
the Code, 34 Pa. C.S. § 929, is unconstitutionally vague; and (2) whether there is
substantial evidence to support Finding of Fact No. 15, providing that he had prior
notice that his hunting/furtaking privileges would be suspended upon a future
violation of hunting with the use of bait.2
Section 929(a) and (b) of the Code, entitled “Revocation or denial of
license, permit or registration,” provides:
(a) General rule.—Except as otherwise provided in
this title, any hunting or furtaking license, special license
or permit or registration granted under the authority of
this title may be denied, revoked or suspended by the
commission when the holder of the license, permit or
registration is convicted of an offense under this title or
has acted contrary to the intent of the registration or
permit, with each offense constituting a separate
violation subject to separate revocation. The commission
may refuse to grant to that person any permit or
registration and may deny any privilege granted by these
1
Mitigating factors included Hufnagel’s background, community service, and lengthy
period of time before 2014 with no record of violations. Aggravating circumstances included,
inter alia, the fact that this constituted Hufnagel’s second offense within a twelve-month period
and that he involved his minor son in unlawful hunting activity. October 17, 2016, Decision of
the Commission at 5 and 7.
2
Substantial evidence is defined as such relevant evidence as a reasonable person might
accept as adequate to support a conclusion. Sigafoos v. Pa. Bd. of Prob. & Parole, 503 A.2d
1076, 1079 (Pa. Cmwlth. 1986). It is irrelevant whether the record contains evidence to support
findings other than those made by the fact finder; the critical inquiry is whether the record
contains evidence to support the findings actually made. Carbondale Area Sch. Dist. v. Fell
Charter Sch., 829 A.2d 400, 404 (Pa. Cmwlth. 2003).
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documents for a period not exceeding five years unless
otherwise provided in this title.
....
(b) Regulations.—The commission may
promulgate regulations specifying the procedures to be
followed in denying, revoking or suspending any hunting
and furtaking privileges, licenses, permits and
registrations granted under the provisions of this title.
34 Pa. C.S. § 929(a) and (b) (emphasis added).
Hufnagel maintains that Section 929 is void for vagueness because the
legislature failed to provide minimum guidance as to when the Commission should
impose a civil penalty on anyone who violates the game laws, thereby resulting in
arbitrary and discriminatory enforcement. He contends that those convicted of
violating these laws have no way of knowing whether or not a violation will result
in the loss of hunting privileges and cites cases in which courts found certain
statutory provisions to be unconstitutionally void for vagueness. See, e.g., Pa.
State Bd. of Pharmacy v. Cohen, 292 A.2d 277 (Pa. 1972) (holding that, where a
pharmacist’s license could be suspended based on a finding that he had engaged in
“grossly unprofessional conduct,” the act set forth thirteen specific prohibitions,
and his conduct did not violate any of them, the board’s interpretation that the
prohibitions were mere guidelines and that it had discretion to determine on a case
by case basis what constituted such conduct was unconstitutional); Orwell Twp.
Supervisors v. Jewett, 571 A.2d 1100, 1103-04 (Pa. Cmwlth. 1990) (holding that, a
junkyard ordinance permitting supervisors to deny a license on aesthetic
considerations alone was unconstitutionally vague such that it could not afford a
sufficient guide to assure uniform application).
In addition, Hufnagel cites the Commission’s failure to promulgate
regulations pursuant to Section 929(b) as further support for his position that the
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statute is void for vagueness. He also rejects the Commission’s argument that
Standard Operating Procedure (SOP) No. 50.24 provides support for the
proposition that its authority to revoke hunting privileges is not vague because the
document provides guidance as to when a revocation may be imposed and the
recommended duration of that revocation. The subject of SOP No. 50.24 is
“revocation gauge,” the recipients are “all game commission officers,” the sender
is the Commission’s executive director, and it indicates that a second violation for
baiting carries a recommended base license revocation period of two years. July
19, 2011, SOP No. 50.24 at 1 and 7; Reproduced Record (R.R.) at 244a and 250a.
While Hufnagel acknowledges that SOP 50.24 provides guidance, he observes that
there is no indication that it was provided to him or any other hunter and that,
therefore, it could not have constituted notice to him.
In considering Hufnagel’s arguments, we first observe that Section
929(a) provides, in relevant part, that the Commission may deny, revoke or
suspend any license granted under this title upon conviction under this title for a
period not exceeding five years. Hufnagel was convicted of hunting with the use
of bait under Section 2308(a)(8) of the Code. Accordingly, there is no statutory
ambiguity as to what behavior may result in a license revocation, a conviction
under title 34, and the maximum period of that revocation, five years.
Further, it is irrelevant that the Commission did not promulgate
regulations pursuant to Section 929(b) of the Code or distribute its revocation-
gauge guidelines for game commission officers (SOP No. 50.24) to hunters. There
is simply no constitutional requirement that penalty guidelines be published. In a
case where the Public Utility Commission used penalty guidelines to assess a fine
against a cab company, we held that “the guidelines offer no more than a
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generalized penalty schedule which affords the Commission a measure of
flexibility in assessing civil penalties against violators, in accordance with the
authority granted to the Commission by virtue of [the applicable statutory
provision entitled civil penalties for violations].” Metro Transp. Co. v. Pa. Pub.
Util. Comm’n, 525 A.2d 24, 27 (Pa. Cmwlth. 1987). Such is the situation in the
present case involving the Game Commission, the civil penalty provision in the
Game and Wildlife Code found at Section 929(a), and the recommended
revocation gauge guidelines set forth in SOP No. 50.24.
Moreover, the Commission’s practice of sending warning letters to
first-time offenders in lieu of notices of revocation does not render the statutory
provision invalid. The purpose of these letters may be to afford first-time
offenders a second chance and/or to serve as a deterrent against future violations.
In any event, the fact that the Commission exercises its discretion regarding first-
time offenders is consistent with the legislature’s language in Section 929(a),
which, in pertinent part, provides: “[A]ny hunting or furtaking license, special
license or permit or registration granted under the authority of this title may be
denied, revoked or suspended by the commission when the holder . . . is convicted
of an offense under this title[.]” 34 Pa. C.S. § 929(a) (emphasis added). Of course,
Hufnagel’s second issue concerns whether there was substantial evidence to
support a finding that he received the warning letter. We turn now to that issue.
As an initial matter, we conclude that there is no requirement that a
hunter be warned of any consequences. Section 929 of the Code provides that the
collateral civil consequence of a maximum revocation of five years may occur
upon conviction of a specific offense such as baiting and contains no language
requiring a warning letter as a prerequisite to the imposition of such consequences.
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Further, there is no support for any argument that a failure to warn a hunter of the
statutory collateral civil consequences of a guilty plea should result in the
invalidation of a revocation. Courts when considering somewhat analogous driver
licensing laws have held that a failure to advise a defendant that a guilty plea may
result in the collateral civil consequence of suspension or revocation of his
operating privileges does not invalidate a guilty plea or preclude the imposition of
the collateral civil consequence. E.g., Spagnoletti v. Dep’t of Transp., Bureau of
Driver Licensing, 90 A.3d 759, 769 (Pa. Cmwlth. 2013). Accordingly, it is
irrelevant whether the April 2015 warning letter was sent or received, because such
a warning is not necessary. In any event, Hufnagel’s argument that the disputed
fact-finding lacks substantial evidence is without merit.
Hufnagel contends that there is no substantial evidence to support
Finding of Fact No. 15, which provides that the Commission advised him “in
writing, by letter dated April 3, 2015, that any future violation of hunting while
using artificial or natural bait ‘will result in the revocation of your hunting and
furtaking privileges within the Commonwealth of Pennsylvania.’” In support of
his argument, Hufnagel references his testimony that he never received the
warning letter, the absence of a certificate of mailing, and Officer Gibb’s testimony
that he lacked personal knowledge as to whether it was sent. Hufnagel asserts that,
had he received the warning letter, he would have appealed the citation for his first
baiting violation instead of paying the fine.
In considering this issue, we note that the April 2015 letter was part of
the packet that comprised Commonwealth Exhibit #1 and also included, inter alia,
past and present citations and the Commission’s March 2016 notice advising
Hufnagel of the pending revocation. Following counsel for Hufnagel’s
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contemporaneous and sole objection “to the stuff that’s obviously not pertinent to
the one citation that brings us here today[,]” 3 the hearing officer accepted
Commonwealth Exhibit #1 into evidence. Later in the hearing, Hufnagel’s counsel
pursued a line of questioning whereby Officer Gibbs testified that a warning letter
“should have been sent” pursuant to the Commission’s procedures for a first-time
baiting violation but that he lacked personal knowledge as to whether it was
actually sent. July 26, 2016, Hearing, Notes of Testimony (N.T.) at 26; R.R. at
108a.
In rejecting Hufnagel’s substantial evidence argument, we note that
the evidence reflects that the warning letter bears the same address as other letters,
none of which he denied receiving, and two of which he acted upon.4 In addition,
Commonwealth Exhibit # 1 is analogous to the packet of documents that PennDOT
attorneys present, certified and under seal, as their C-1 exhibits in driver licensing
appeals. See Thorne v. Dep’t of Transp., Bureau of Driver Licensing, 727 A.2d
1205, 1207 (Pa. Cmwlth. 1999) (holding that, the legislative purpose behind the
enactment of Section 6103 of the Judicial Code, 42 Pa. C.S. § 6103, is to allow a
method by which official records may be introduced into evidence without the
need to bring in the records custodian to court to authenticate the records). Here,
the exhibit was certified and under the seal of the Chief of the Administrative
Division for the Bureau of Wildlife Protection of the Pennsylvania Game
Commission.
3
July 26, 2016, Hearing, Notes of Testimony (N.T.) at 14; R.R. at 96a.
4
Id., Commonwealth Exhibit # 1: April 3, 2015, warning letter and March 4, 2016, notice
of revocation; R.R. at 214a and 217a and October 17, 2016, Order of the Commission; R.R at
271a.
8
Moreover, even though Hufnagel construes Officer Gibb’s testimony
as indicative that the letter was never sent, it also could be interpreted as
establishing the Commission’s procedure in situations involving first-time baiting
violations. In that regard, the hearing officer considered the testimony and
documentary evidence and rejected Hufnagel’s assertion that he did not receive the
April 2015 warning letter. See F.F. No. 30 (“Hufnagel . . . was on notice that a
subsequent violation of 34 Pa. C.S. § 2308(a)(8) . . . could result in a revocation of
his privilege to hunt or take game or wildlife . . . .”). It is not the role of this Court
to substitute our judgment for that of the fact finder and to reweigh the evidence.
Accordingly, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas J. Hufnagel, :
Petitioner :
:
v. : No. 1840 C.D. 2016
:
Pennsylvania Game Commission, :
Respondent :
ORDER
AND NOW, this 27th day of June, 2017, the order of the Pennsylvania
Game Commission maintaining but reducing the revocation of the hunting and
furtaking privileges of Thomas J. Hufnagel anywhere in the Commonwealth, with
or without a license, from a period of three years to a period of two years is hereby
AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge