Commonwealth v. Figley , 1995 Pa. Commw. LEXIS 383 ( 1995 )

SILVESTRI, Senior Judge.

Joseph and Pamela Eritano (Eritanos) appeal from an order of the Court of Common Pleas of Allegheny County (trial court) vacating a District Justice’s order declaring Brad and Marlene Figleys’ (Figleys) dog to be dangerous.

The facts, which are not in dispute, are as follows. On September 2, 1991, Eritanos’ two children, Lauren, age 5, and Joshua, age 15, were visiting Figleys’ home. While there, Lauren went into the kitchen with Figleys’ daughter, Nicole, who gave Lauren a piece of chicken to eat. As Lauren attempted to eat the chicken, the Figleys’ dog, Sama, an Akita, lunged for the chicken, and while doing so, inadvertently bit Lauren’s face and neck causing her severe, disfiguring injuries. There is no evidence that the dog has ever exhibited a propensity for vicious or aggressive behavior, nor has she attacked anyone prior to or subsequent to the incident in question.

Pursuant to Article V-A, the Dangerous Dog section of the Dog Law (the Law),¹ the Eritanos filed a complaint with the District Justice, alleging that the dog, Sama, should be declared dangerous. At the hearing, the District Justice found Sama to be dangerous under the Law. The Figleys appealed to the trial court which found that Sama was not a dangerous dog because her actions were merely an instinctual response to the chicken that was close to Lauren’s face. The Eritanos then took this appeal.²

Eritanos argue that the clear language of the Law requires a finding that Sama is a dangerous dog. Specifically, they assert that under the clear language of Section 459-502-A of the Law, 3 P.S. § 459-502-A, Sama should be declared to be a dangerous dog, specifically pursuant to subsection (1) which states that a determination of whether a dog is dangerous may be based upon evidence that the dog, “[i]nflieted severe injury on a human being without provocation on public or private property,” and subsection (3) which provides such a determination may be based upon the fact that a dog “[ajttacked a human being without provocation.” Eritanos maintain that because Lauren’s injuries were unquestionably severe, Sama is per se dangerous pursuant to subsection 1, and that Sama’s actions fit the definition of “attack” set forth in the Law.³

The full text of Section 459-502-A of the Law provides as follows:

(a) Determination. — Any person who has been attacked by a dog, or anyone on behalf of such person, a person whose domestic animal has been killed or injured without provocation, the State dog warden or the local police officer may make a complaint before a district justice, charging the owner or keeper of such a dog with harboring a dangerous dog. The determination of a dog as a dangerous dog shall be made by the district justice upon evidence of a dog’s history or propensity to attack without provocation based upon an incident in which the dog has done one or more of the following:

(1) Inflicted severe injury on a human being without provocation on public or private property.

(2) Killed or inflicted severe injury on a domestic animal without provocation while off the owner’s property.

(3) Attacked a human being without provocation.

(4) Been used in the commission of a crime.

The foregoing language specifically requires that, “the determination of a dog as dangerous shall be made ... based upon evidence of a dog’s history or propensity to attack based upon an incident in which the dog has done me or more of the following; ” the Law then lists the four types of conduct upon which a dog may be considered dangerous, including, subsection (1), i.e., [ijnflicted severe injury on a human being without provocation on public or private property, and subsection (3), i.e., [ajttacked a human being without provocation. However, pursuant to the clear language of the Law, before an analysis of whether the dog alleged to be dangerous is made, evidence of the dog’s “history or propensity to attack” must be demonstrated.

Here, a review of the record reveals that no such showing was made, and, in fact, the record reveals, as the trial court so found, that Sama never exhibited a propensity for vicious or aggressive behavior, nor had she attacked Lauren, but that, her actions were merely an instinctual response to the chicken which was close to Lauren’s face and, thus, Lauren’s bites merely resulted by way of an accident.

Accordingly, based on the foregoing analysis, we affirm the trial court’s decision and order.

ORDER

AND NOW, this 16th day of August, 1995, the order of the Court of Common Pleas of Allegheny County dated February 22,1994 is affirmed.

1 . The Dangerous Dog section of the Pennsylvania Dog Law, Act of May 31, 1990, P.L. 213 No. 46, § 2, as amended, 3 P.S. §§ 459-501-A-459-505-A.

2 . Our scope of review of a statutory appeal where, as here, the matter has been heard by the trial court de novo is limited to a determination of whether the trial court based its findings of fact on substantial competent evidence or committed an error of law. Department of Transportation, Bureau of Traffic Safety v. Uebelacker, 98 Pa.Commonwealth Ct. 436, 511 A.2d 929 (1986).

3 . Section 459-501-A of the Law, 3 P.S. § 459-501-A, defines “attack” as, [t]he deliberate action of a dog, whether or not in response to a command by its owner, to bite, to seize with its teeth or to pursue any human, animate or inanimate object, with the obvious intent to destroy, kill, wound, injure or otherwise harm the object of its action. Because of our subsequent disposition herein, we do not address the issue of whether Sama's actions constituted an "attack” as defined by the Law.