“[T]he timeliness of an appeal goes to the jurisdiction of the body appealed to and its competency to act[.]”
How later courts described this case
- “[T]he timeliness of an appeal goes to the jurisdiction of the body appealed to and its competency to act[.]”
- “dismissal of post-verdict motions on the basis of a procedural default in a criminal case, like a similar dismissal of a criminal appeal, improperly places the entire burden of counsel’s errors on the powerless” criminal defendant.
- “In the absence of a valid kennel license, th[ere] was not a kennel.”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania : CASES CONSOLIDATED
:
v. :
:
Diane L. Burkholder, :
Appellant : No. 1526 C.D. 2022
:
Commonwealth of Pennsylvania :
:
v. :
:
James E. Burkholder, : No. 615 C.D. 2023
Appellant : Submitted: December 9, 2024
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION BY
JUDGE COVEY FILED: February 24, 2025
Diane L. Burkholder (Wife) and James E. Burkholder (Husband)
(collectively, the Burkholders) appeal from the Lancaster County Common Pleas
Court’s (trial court) November 17, 2022 sentencing orders in which the trial court
convicted them of violating Section 206(e) of the Dog Law,1 3 P.S. § 459-206(e)
(relating to kennel closures), and Section 8(a)(1) of the Rabies Prevention and
Control in Domestic Animals and Wildlife Act (Rabies Act),2 3 P.S. § 455.8(a)(1)
(relating to rabies vaccination requirements), and also convicting Husband of
1
Act of December 7, 1982, P.L. 784, as amended, 3 P.S. §§ 459-101 - 459-1206.
2
Act of December 15, 1986, P.L. 1610, as amended, 3 P.S. §§ 455.1-455.15.
violating Sections 207(c), 220(a)(3),3 401(c), and 801 of the Dog Law, 3 P.S. §§
459-207(c) (relating to kennel records requirements), 459-220(a)(3) (refusal of entry
to kennel/hiding dogs), 459-401(c) (interference with a dog warden), and 459-801
(relating to false statements). The Burkholders present five issues for this Court’s
review: (1) whether Wife could be convicted of any offense when she did not own
or have a legal interest in the Whispering Spring Kennel, LLC (Kennel); (2) whether
sufficient evidence supported that they were operating the Kennel; (3) whether
sufficient evidence supported their convictions for the Rabies Act violations; (4)
whether sufficient evidence supported Husband’s conviction for interference; and
(5) whether sufficient evidence supported Husband’s conviction for making false
statements. After review, this Court affirms in part, and reverses and remands in
part.
Background
Since 2002, Husband operated the Kennel,4 located at 316 Good Road
in East Earl, Lancaster County, Pennsylvania (Good Road Property), pursuant to a
Class IV Kennel License No. 2470 issued by the Department of Agriculture, Bureau
of Dog Law Enforcement (Department). The Kennel’s 2019 Kennel License
(Kennel License) was valid through December 31, 2019.5 The Kennel License
3
Section 220(a)(3) of the Dog Law was added by Section 10 of the Act of October 9, 2008,
P.L. 1450.
4
Husband represented that he formed the Kennel as a limited liability company in
approximately 2008 or 2009. See Reproduced Record (R.R.) at 41a.
The Burkholders’ Reproduced Record page numbers do not comply with Pennsylvania
Rule of Appellate Procedure (Appellate Rule) 2173, which requires that “the reproduced record . . .
shall be numbered separately in Arabic figures . . . followed . . . by a small a[.]” Pa.R.A.P. 2173.
In accordance with Appellate Rule 2173, this Court references the Reproduced Record page
numbers herein with a corresponding a.
5
“All kennel licenses shall expire on December 31.” Section 206(a)(4) of the Dog Law, 3
P.S. § 459-206(a)(4). The Class IV Kennel License allowed the Kennel to have up to 250 dogs.
See R.R. at 42a; see also Section 206(a)(5)(iv) of the Dog Law, 3 P.S. § 459-206(a)(5)(vi).
2
reflected that Husband and Wife are limited liability company (LLC) members -
Husband at 100% and Wife at 0%.6 See Reproduced Record (R.R.) at 23a. In March
2020, the Burkholders moved to 440 Mohns Hill Road in Reinholds, Lancaster
County, Pennsylvania (Mohns Hill Road Property), without notifying the
Department of the move or their intention to close the Kennel and without requesting
a closing inspection.7
After the Department became aware that the Burkholders did not renew
the Kennel License for 2020, it dispatched Department Dog Law Enforcement
Warden (Warden) Christopher Seiple (Warden Seiple)8 to the Good Road Property
on March 6, 2020, to determine the Kennel’s status and conduct a closing inspection.
See also R.R. at 23a-24a. When Warden Seiple arrived at the Good Road Property,
Husband informed him that he closed the Kennel, Warden Seiple gave Husband a
closing application and, after Husband declared that he did not have time to complete
the application or undergo a closing inspection pursuant to Section 206(e) of the Dog
6
Husband was originally listed as the Kennel’s sole member on the 2019 Kennel License.
See R.R. at 23a. However, difficulties arose when the Department attempted to conduct mandatory
inspections and obtain records for the Kennel. See id. Primarily, if Husband was not present at
the Good Road Property, the Department had to postpone the inspections for weeks, months, and
even up to a year, until Husband made himself available. See id. Thereafter, the Department had
agreed to withdraw prior Dog Law citations in exchange for Husband adding Wife to the LLC, so
the Department could inspect the Kennel and request records from Wife in Husband’s absence.
See id.; see also R.R. at 42a. The Burkholders’ counsel added their membership percentages to
the Kennel License. See R.R. at 42a-43a.
7
When an owner intends to close a kennel, the owner must notify the Department which,
in turn, directs him/her to conduct a closing inspection. See R.R. at 25a-26a. During closing
inspections, the Department checks the number of dogs at the kennel, seeks information about
where the dogs will be going, and verifies rabies vaccinations and licensing records. See id.
Specifically, an owner must have a veterinarian give rabies vaccinations to each dog and issue a
certificate to that effect. See R.R. at 22a. While at a kennel, dogs need not be individually licensed;
however, when the kennel closes, each dog must have an individual license. See R.R. at 24a. The
average closing inspection takes approximately 15 to 20 minutes to complete. See id.
8
Section 102 of the Dog Law defines state dog warden as “[a]n employee of the
[D]epartment whose primary duty is to enforce th[e Dog Law] and the regulations pursuant
thereto.” 3 P.S. § 459-102.
3
Law that day, Warden Seiple instructed him to submit it to the Department as soon
as possible. See R.R. at 24a. When Warden Seiple encountered the Burkholders at
a March 13, 2020 hearing regarding other Kennel matters, he again reminded them
to submit the closing application. See id. Despite the Burkholders’ counsel’s
urging,9 Husband declined to complete the application that day. See id.
After discovering that the Burkholders had sold the Good Road
Property on March 17, 2020, and moved to the Mohns Hill Road Property, possibly
with more than 26 dogs and the Kennel’s records, the Department obtained a warrant
to search the Mohns Hill Road Property.10 See R.R. at 24a-25a. On May 27, 2020,
Warden Seiple, Warden Cory Frey, Department veterinarian Danielle Ward, D.V.M.
(Dr. Ward), Detective Resh and two police officers11 executed the search warrant for
the Mohns Hill Road Property and conducted a closing inspection. While the
Department’s team was conducting its inspection, Husband represented to the
Wardens and Dr. Ward that there were no dogs at that or any other location the
Kennel owned. The Burkholders did not provide the Wardens and Dr. Ward with
any requested Kennel documents. Upon visiting the Good Road Property
immediately thereafter, the Wardens and Dr. Ward observed nine adult dogs.12 The
9
It is not clear in the record whether Counsel was the Burkholders’ counsel at the March
13, 2020 hearing.
10
Section 218(c) of the Dog Law authorizes state dog wardens and other Department
employees to apply for search warrants issued upon probable cause, “for the purposes of inspecting
or examining any kennel or for the purpose of removing any dog under [S]ection 207 [of the Dog
Law (relating to kennel requirements)], and [Section 211 of the Dog Law, 3 P.S. § 459-211
(relating to kennel license revocations/refusals)].” 3 P.S. § 459-218(c). Probable cause exists
when a kennel refuses entry and/or when there are reasonable grounds to believe that there are
Dog Law violations. See id.
11
Neither Detective Resh’s nor the two police officers’ full names appear in the record.
12
Warden Seiple explained that, although the criminal complaint against Husband states
that 9 dogs were located at the Good Road Property, photographs confirmed that there were
actually 10 dogs. See R.R. at 31a. Because Husband’s charges relate only to nine dogs, that is the
number this Court will address herein.
4
Burkholders did not provide rabies vaccination certifications or individual license
records for those dogs.13
That same day, Warden Seiple cited Wife for the following summary
offenses: (1) Vaccinations Required - Rabies (Section 8(a)(1) of the Rabies Act); (2)
Kennels - Closing (Section 206(e) of the Dog Law); (3) Requirements for Kennels -
Records to be Maintained (Section 207(c) of the Dog Law); and (4) Interference with
State Dog Warden (Section 401(c) of the Dog Law). Following a summary trial
before a magisterial district judge at which Wife was found guilty and ordered to
pay a fine, Wife appealed to the trial court at Docket No. CP-36-SA-318-2020. See
R.R. at 7a-10a.
On September 9, 2020, Warden Seiple/Department, through the
Commonwealth of Pennsylvania (Commonwealth or state), issued a criminal
complaint against Husband for the following misdemeanor offenses: (1) 1 count of
Kennels - Closing (Section 206(e) of the Dog Law); (2) 13 counts of Requirements
for Kennels - Records to be Maintained (Section 207(c) of the Dog Law); (3) 9
counts of Refusal of Entry - Hiding Dogs from Agents (Section 220(a)(3) of the Dog
Law); (4) 1 count of Interference with State Dog Warden (Section 401(c) of the Dog
Law); (5) 1 count of False Statements (Section 801 of the Dog Law); and (6) 9 counts
of Vaccinations Required - Rabies (Section 8(a)(1) of the Rabies Act). See R.R. at
1a-6a, 11a-15a. The trial court conducted a preliminary hearing on June 8, 2021,
after which “all charges were returned to the [trial court] and docketed at [No.] CP-
36-CR-[]2371-2021.” Commonwealth Br. at 4. The Commonwealth agreed to
prosecute Husband’s charges as summary offenses and moved to consolidate his
case with Wife’s case.
13
The Burkholders produced the requested vaccination and licensing records for the first
time at the November 17, 2022 trial court hearing, two and one-half years later.
5
After several postponements, the trial court conducted a de novo
summary hearing on November 17, 2022, at which Warden Seiple, Dr. Ward, and
the Burkholders testified and offered evidence, including rabies vaccination and dog
license records and a stipulation regarding the testimony of Glenn Zimmerman
(Zimmerman), who purchased the Good Road Property from the Burkholders in
March 2020.14 See R.R. at 16a-59a. Thereafter, the trial court convicted Wife of
violating Section 206(e) of the Dog Law (relating to kennel closings) and Section
8(a)(1) of the Rabies Act (relating to rabies vaccinations), and dismissed the
remaining charges. See R.R. at 70a. The trial court sentenced Wife to pay $800.00
in fines relative to her conviction, plus costs. See R.R. at 59a, 70a. The trial court
found Husband guilty of one count each of the six charges against him. See R.R. at
11a-15a, 67a-69a. The trial court sentenced Husband to pay $2,800.00 in fines
relative to his convictions, plus costs. See R.R. at 59a, 67a-68a.
On December 20, 2022, the parties filed separate appeals from their
sentencing orders to this Court.15 Also on that day, the trial court ordered the
14
At the trial court hearing the parties stipulated to Zimmerman’s testimony and to the
authenticity of the records, and the Commonwealth’s witnesses testified regarding the records’
contents and moved them into evidence. See R.R. at 17a, 101a-102a. However, by November 15,
2023 letter, this Court notified the Burkholders’ counsel (Counsel) that the original record the trial
court transmitted to this Court did not include the exhibits admitted at the November 17, 2022
summary hearing. See 11/15/2023 Letter. This Court reminded Counsel that it was the
Burkholders’ responsibility to review the original record to ensure that it contained all documents
necessary for adequate appellate review, and failure to do so could result in a waiver. See id. at 1.
This Court requested that Counsel take the steps necessary to have the missing exhibits transmitted
to this Court in a supplemental reproduced record within 14 days, or this Court would issue the
briefing schedule and review the matter on the existing record. See id. at 1-2. The Burkholders
did not submit a supplemental reproduced record. This Court issued the briefing schedule on
December 1, 2023. Because the Burkholders filed their Reproduced Record on February 14, 2024,
without the missing exhibits, this Court has not reviewed them.
15
Husband’s appeal was initially filed in the Pennsylvania Superior Court (Superior Court).
According to the Burkholders’ brief, despite that Husband’s appeal was to be filed in this Court,
the trial court directed it to the Superior Court. See Burkholders’ Br. at 9. On March 1, 2023, the
6
Burkholders to file a Concise Statement of Errors Complained of on Appeal pursuant
to Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) (Rule 1925(b)
Statement). On January 11, 2023, the Burkholders filed their Rule 1925(b)
Statement.16 On March 16, 2023, the trial court issued its opinion pursuant to Rule
1925(a) (Rule 1925(a) Opinion).17 By May 26, 2023 and July 28, 2023 Orders, this
Court directed the parties to address the timeliness of the Burkholders’ appeals in
their principal briefs on the merits.
Discussion
1. Timeliness
Pursuant to this Court’s May and July 2023 Orders, this Court first
addresses the timeliness of the Burkholders’ appeals. Section 5571(a) of the Judicial
Code specifies that “[t]he time for filing an appeal . . . in . . . the Commonwealth
Court shall be governed by general rules.” 42 Pa.C.S. § 5571(a). Rule 903(a)
mandates that a notice of appeal “shall be filed within 30 days after the entry of the
order from which the appeal is taken.” Pa.R.A.P. 903(a). Here, the trial court
Superior Court issued a rule to show cause why Husband’s appeal should not be transferred to this
Court. The matter was transferred to this Court on March 16, 2023.
By November 9, 2023 Order, this Court consolidated the Burkholders’ appeals and made
them the designated appellants.
“On appeal from a summary conviction, where the trial court has taken additional evidence
at a de novo hearing, [this Court’s] . . . review is limited to determining whether the trial court
abused its discretion or committed an error of law.” Commonwealth v. Redovan, 227 A.3d 453,
456 n.2 (Pa. Cmwlth. 2020). “When presented with issues of statutory interpretation, this Court’s
standard of review is de novo and our scope of review is plenary.” R.W. v. Dep’t of Educ. (Pro.
Standards & Pracs. Comm’n), 304 A.3d 79, 88 (Pa. Cmwlth. 2023), appeal granted sub nom. R.W.
v. Dep’t of Educ., 321 A.3d 862 (Pa. 2024) (quoting City of Johnstown v. Workers’ Comp. Appeal
Bd. (Sevanick), 255 A.3d 214, 221 (Pa. 2021) (italic emphasis added)).
16
On January 20, 2023, the Commonwealth filed a response to the Burkholders’ Rule
1925(b) Statement.
17
In light of the trial court’s Rule 1925(a) Opinion filing, and in the absence of Husband’s
response to the rule to show cause, the Superior Court sua sponte transferred Husband’s appeal to
this Court.
7
entered the sentencing orders convicting the Burkholders on November 17, 2022.
Therefore, the Burkholders had until December 17, 2022, to file timely appeals.
However, because December 17, 2022 was a Saturday, their appeals had to be filed
in the trial court no later than Monday, December 19, 2022.18 The Burkholders did
not file their appeals until December 20, 2022.
The Burkholders’ counsel (Counsel) admits that the Burkholders’
appeals were untimely, see Burkholders’ Br. at 25, but explains:
On Friday December 16, 2022, Counsel submitted
[a]ppeals by FedEx to be delivered on Monday[,]
December 19[,] at 8:30 A[.]M. (See attached exhibit).
Because the 30th day was a Saturday, a filing on
December 19 would be timely. As this Court is aware, it
is still not possible to file [a]ppellate [c]ourt appeals by
PACFile. As there was no bad weather, only about 40
miles to travel, and an entire weekend in between
submission and delivery, Counsel believed FedEx would
do what it had been paid to do. FedEx failed, [and] the
appeal was not delivered until December 20. FedEx did
not notify [C]ounsel that it was not going to do what it was
paid to do. Had [C]ounsel known that FedEx would fail,
he would have driven to Lancaster himself with the appeal.
Unfortunately[,] he knew nothing of this until well after
the fact.
Caselaw strongly suggests that a criminal defendant has
the right to have a timely requested direct appeal
adjudicated on the merits. See[,] e.g.[,] Commonwealth v.
Jordan, . . . 772 A.2d 1011 [(Pa. Super. 2001)].
In this case, [the Burkholders] did timely request a direct
appeal. This [C]ounsel does believe that [the Burkholders]
do[] have appeal issues that are of arguable merit.
18
Section 1908 of the Statutory Construction Act of 1972 states: “Whenever the last day
of any [statutory time] period shall fall on Saturday or Sunday, or on any day made a legal holiday
by the laws of this Commonwealth or of the United States, such day shall be omitted from the
computation.” 1 Pa.C.S. § 1908.
8
This Counsel is requesting that this appeal be permitted to
proceed.
If this appeal is not permitted to proceed, Counsel believes
that the [Burkholders] ha[ve] a meritorious claim for either
[Post Conviction Relief Act (]PCRA[)19] and/or nunc pro
tunc appeal relief. It continues to be murky as to whether
the PCRA does apply to cases in which a defendant is only
ordered to pay fines and is not ordered to serve probation
or incarceration.
The [a]ppellate [c]ourts of Pennsylvania have repeatedly
found that criminal defendants should receive
consideration of a timely requested direct appeal on the
merits. It is therefore in the interests of [j]ustice to allow
this appeal to proceed. [The Burkholders] do not believe
that the Commonwealth would be prejudiced in any way
by allowing this appeal to proceed to a determination on
the merits.
Burkholders’ Br. at 25-26 (italics added).
The Commonwealth retorts:
Counsel claims that he waited until the last possible day to
send the appeal to the [trial court] via FedEx. Counsel then
goes on to say that there were no environmental factors
which would have prevented him or his staff at his firm to
drive the appeal down to Lancaster, which is only 40 miles
from his location. And yet despite all of that, Counsel
places blame solely on FedEx.
....
No exception should be made here, despite the blame
placed on FedEx by Counsel. Counsel was aware of the
deadline and despite this, chose to send in the appeal via
mail knowing there are dangers associated with it. And as
Counsel notes, there was nothing which prevented him, or
his staff, from driving the 40 miles to Lancaster to file said
appeal.
19
42 Pa.C.S. §§ 9541-9546.
9
Commonwealth Br. at 23-24. The Commonwealth cites Windrick v.
Commonwealth, 471 A.2d 924 (Pa. Cmwlth. 1984), as an example that parties must
be aware of the dangers of using mail in order to appeal.
The law is well settled:
“Where the legislature has fixed a time period within
which an appeal may be filed, that period is mandatory
and may not be extended as a matter of grace or
indulgence.” Olson v. Borough of Homestead, . . . 443
A.2d 875, 878 ([Pa. Cmwlth.] 1982) (emphasis added); see
also Hillanbrand v. P[a.] Bd. of Prob. & Parole, . . . 508
A.2d 375 ([Pa. Cmwlth.] 1986); Coshey v. Beal, . . . 366
A.2d 1295, 1297 ([Pa. Cmwlth.] 1976) (“[T]he timeliness
of an appeal goes to the jurisdiction of the body appealed
to and its competency to act[.]”).
Arena Beverage Corp. v. Pa. Liquor Control Bd., 97 A.3d 444, 448 (Pa. Cmwlth.
2014) (emphasis omitted). However,
“[a]n appeal nunc pro tunc is a recognized exception to the
general rule prohibiting the extension of an appeal
deadline. . . . [It] is intended as a remedy to vindicate the
right to an appeal where that right has been lost due to
certain extraordinary circumstances.”[20] Union Elec.
Corp. v. Bd. of Prop. Assessment, . . . 746 A.2d 581, 584
([Pa.] 2000) (quotation marks omitted, emphasis added).
“‘[A]n appeal nunc pro tunc may be granted . . . in order
to prevent injustice’ in unique cases, ‘upon a showing that
unusual circumstances prevented a party from timely
filing.[’]” In re Borough of Riegelsville from Bucks Cnty.
Bd. of Assessment & Revision of Taxes, 979 A.2d 399,
402-03 (Pa. Cmwlth. 2009) (emphasis added) (quoting
20
In civil matters, “a late appeal may be permitted only where the delay in the appeal was
caused by extraordinary circumstances involving fraud or some breakdown in the administrative
process, or non-negligent circumstances related to the appellant, his counsel[,] or a third party.”
R.H. v. Dep’t of Hum. Servs., 205 A.3d 410, 414 (Pa. Cmwlth. 2019). “A person seeking
permission to file an appeal nunc pro tunc has the burden of establishing[:] (1) he filed the appeal
within a short time after learning of and having an opportunity to address the untimeliness; (2) the
elapsed period of time is of short duration; and (3) the [appellee] is not prejudiced by the delay.”
Id.
10
Hanoverian, Inc. v. Lehigh Cnty. Bd. of Assessment, 701
A.2d 288, 289 (Pa. Cmwlth. 1997)).
Arena Beverage Corp., 97 A.3d at 448-49 (emphasis omitted).
In civil cases, the Pennsylvania Supreme Court has concluded that
because mailing delays are foreseeable and avoidable, a counsel’s failure to
anticipate such delays is not a non-negligent circumstance for which an appeal nunc
pro tunc may be granted. See Criss v. Wise, 781 A.2d 1156 (Pa. 2001). In criminal
matters, however, the Pennsylvania Supreme Court has declared that a court abuses
its discretion by denying leave to appeal nunc pro tunc from a summary conviction
when counsel failed to appeal within the 30-day deadline because the appellant
would otherwise lose the absolute right to a direct appeal guaranteed him by article
V, section 9 of the Pennsylvania Constitution, PA. CONST. art. V, § 9.21 See
Commonwealth v. Stock, 679 A.2d 760 (Pa. 1996).
The Stock Court explained:
Were we to decide that [the a]ppellant could not appeal
nunc pro tunc despite the fact that his state constitutional
right to appeal was denied him, [the a]ppellant would have
no other recourse. His conviction would stand and he
would be without remedy. [The a]ppellant is not able to
vindicate his right to appeal via the [PCRA] since he is not
eligible to seek relief thereunder because he is not
“incarcerated in this Commonwealth under a sentence of
death or imprisonment or on parole or probation.” 42
Pa.C.S.[] § 9543(2) (listing requirements to be eligible for
relief under the PCRA) (emphasis added). In this regard,
we find the reasoning of In the Interest of A.P.[, 617 A.2d
21
Article V, section 9 of the Pennsylvania Constitution declares:
There shall be a right of appeal in all cases to a court of record from
a court not of record; and there shall also be a right of appeal from a
court of record or from an administrative agency to a court of record
or to an appellate court, the selection of such court to be as provided
by law; and there shall be such other rights of appeal as may be
provided by law.
PA. CONST. art. V, § 9.
11
764 (Pa. Super. 1992) (en banc), aff’d per curiam, 639
A.2d 1181 (Pa. 1994)], persuasive and applicable herein.
In A.P., a juvenile was adjudicated delinquent and he
alleged that he was denied his right to appeal due to
counsel failing to timely file an appeal. In A.P., the
Superior Court reasoned[:]
A.P. has no other means of redress; a nunc pro tunc
appeal is the only means by which a juvenile can
challenge the stewardship of his trial counsel
because the [PCRA], supra, which would be the
remedy for an adult is not available to a juvenile.
See In the Interest of DelSignore, . . . 375 A.2d 803
([Pa. Super.] 1977). . . . If the constitutional right
to appellate review is to mean anything under these
circumstances, it must be protected through a nunc
pro tunc appeal.
A.P., . . . 617 A.2d at 768 . . . . Likewise here, if [the
a]ppellant’s state constitutional right to an appeal is to
have any meaning and is to be vindicated, it can only be
vindicated by granting him an appeal nunc pro tunc.
Furthermore, it would be entirely unfair in the criminal
context to permit [the a]ppellant’s state constitutional right
of an appeal to be extinguished solely on the basis of his
counsel’s failure to timely file the appeal where [the
a]ppellant had requested an appeal to be filed.
Commonwealth v. Ciotto, . . . 555 A.2d 930, 931 n.1 ([Pa.
Super.] 1989) (“dismissal of post-verdict motions on the
basis of a procedural default in a criminal case, like a
similar dismissal of a criminal appeal, improperly places
the entire burden of counsel’s errors on the powerless”
criminal defendant.)[.]
Stock, 679 A.2d at 764-65 (emphasis omitted; italics added).
Stock controls here. As in Stock, the trial court found the Burkholders
guilty of summary offenses and sentenced them to pay fines. Their retained Counsel
was to appeal from those convictions, but failed to timely do so. The Burkholders
cannot seek PCRA relief because they were not sentenced to imprisonment and they
are not on parole or probation. The only way to vindicate their constitutional rights
12
to direct appeals is to grant them leave to appeal their summary convictions nunc
pro tunc. Accordingly, this Court grants the Burkholders’ appeals nunc pro tunc.
2. Merits
Preliminarily, regarding the merits of the Burkholders’ appeals, this
Court observes that “[t]he Commonwealth has the never-shifting burden of proving
all elements of a summary offense beyond a reasonable doubt.” Commonwealth v.
Nicely, 988 A.2d 799, 803 n.3 (Pa. Cmwlth. 2010); see also Commonwealth v.
Spontarelli, 791 A.2d 1254 (Pa. Cmwlth. 2002).
[This Court] must, therefore, view all of the evidence
admitted at trial, together with all reasonable inferences
therefrom, in the light most favorable to the
Commonwealth. The test of sufficiency of evidence is
whether the trial court, as trier of fact, could have found
that each element of the offenses charged was supported
by evidence and inferences sufficient in law to prove guilt
beyond a reasonable doubt.
Spontarelli, 791 A.2d at 1258 (citation omitted). Moreover, “matters of credibility
and evidentiary weight are within the exclusive discretion of the fact-finder
below[.]” Carr v. State Bd. of Pharmacy, 409 A.2d 941, 944 (Pa. Cmwlth. 1980).
“[T]he fact-finder is free to believe all, part or none of the evidence presented.”
Commonwealth v. Hoffman, 938 A.2d 1157, 1160 n.10 (Pa. Cmwlth. 2007).
Moreover, “[a]s a reviewing court, this Court may not reweigh the evidence and
substitute [its] judgment for that of the fact-finder.” Id.
At the de novo hearing in the instant matter, Warden Seiple testified
that when the Department’s team executed the search warrant at the Mohns Hill
Road Property on May 27, 2020, Husband declared that there were no dogs at the
13
Mohns Hill Road Property or any other property that belonged to the Kennel.22 See
R.R. at 25a, 28a, 31a-32a. Warden Seiple also indicated that he asked the
Burkholders for the Kennel’s records and was told there were none, and the
Department’s team’s search did not uncover any Kennel records at the Mohns Hill
Road Property. See R.R. at 26a, 32a-33a. However, during their search, the
Department’s team discovered an empty 10-foot by 10-foot fenced enclosure with
dog food bowls (one that contained food that was not fresh), but no dogs.23 See R.R.
at 26a. Warden Seiple’s search uncovered a February 21, 2020 bill of sale for a male
poodle signed by Wife, not the Kennel. See R.R. at 26a-27a. He also located a
Kennel deposit ticket for $585.42, a receipt from Black Horse Animal Hospital made
out to the Burkholders for “farm call/kennel,” R.R. at 27a, and the following
telephone messages: April 7, 2020, from Brenda Jones looking for puppies; April
11, 2020, discussing price range; from Tricia, asking what puppies were available;
from Tracy Smith, stating a puppy died and she wanted a replacement; and from
Jean, looking for a Cockalier puppy. See R.R. at 27a.
Warden Seiple indicated that the Department’s team left the Mohns Hill
Road Property and traveled to the Good Road Property, where they met and talked
to Zimmerman, who confirmed that he purchased the Good Road Property from
Husband. See R.R. at 27a-28a. Warden Seiple recalled Zimmerman disclosing that
after he purchased the Good Road Property he found a large, locked structure at the
back of the house (to which his son gained access by climbing over a wall and down
through the ceiling) where he discovered 13 adult dogs. See R.R. at 28a. Warden
22
The Burkholders revealed that there was an adult dog with three puppies at the Mohns
Hill Road Property that belonged to their adult daughter, who later produced the proper records
for those dogs. See R.R. at 26a-27a. Warden Seiple specified that the charges pending against the
Burkholders did not include those four dogs. See R.R. at 31a.
23
Warden Seiple also observed a large recreational vehicle, which Husband refused to
unlock and the officers were unable to break open the door. See R.R. at 26a.
14
Seiple remembered Zimmerman stating that he called Husband, who informed him
that he needed to house the dogs there for a few months while he built a new kennel
on the Mohns Hill Road Property. See id. He further recollected Zimmerman’s
repeated declarations “that he’s not taking care of these dogs, he’s not in any way
responsible for these dogs[, h]e wanted nothing to do with them[, a]nd . . . [Husband]
would come periodically to care for [them].” Id.
Warden Seiple identified the Good Road Property kennel structure as
the Kennel he had previously inspected during the Department’s biannual license
inspections.24 See R.R. at 28a. He said that, after Zimmerman attempted to but was
unsuccessful in reaching Husband by telephone, Zimmerman allowed the
Department’s team to search the Good Road Property Kennel. See id. Warden
Seiple described finding nine adult dogs in the Kennel’s facility. See R.R. at 28a,
31a. The Department’s team photographed and documented everything they found
at the Good Road Property.25 See R.R. at 28a-30a. Warden Seiple indicated that
Zimmerman contacted him approximately 7 to 10 days later, informed Warden
Seiple that he finally reached Husband and demanded that Husband remove the dogs
from the Good Road Property, which Husband eventually did. See R.R. at 30a-31a.
Warden Seiple testified that although he asked the Burkholders to
supply records, including vaccine records, pertaining to the dogs located at the Good
24
Section 218(a) of the Dog Law provides, in relevant part: “State dog wardens and
employees of the [D]epartment shall inspect all licensed kennels within the Commonwealth at
least twice per calendar year to enforce the provisions of th[e Dog Law] and regulations
promulgated by the [D]epartment under th[e Dog Law].” 3 P.S. § 459-218(a); see also R.R. at
22a.
25
Warden Seiple admitted that the Department’s team allowed the dogs to remain at the
Good Road Property on May 27, 2020, because the Department generally does not seize dogs. See
R.R. at 32a. He later learned that Husband had promised Detective Resh that he would take care
of the dogs and have them seen by a veterinarian for follow-up. See R.R. at 32a-33a. Dr. Ward
confirmed that the Dog Law does not authorize the Department to seize dogs, but police officers,
like Detective Resh, have such authority only if the dogs are in imminent danger of death. See
R.R. at 38a. The dogs they found on May 27, 2020, were not in such danger. See id.
15
Road Property, the Burkholders did not produce any records until the day of the trial
court hearing (November 17, 2022), when the Burkholders produced some vaccine
and license records, but they did not identify the individual dogs and there was no
way to match them to the dogs he uncovered at the Good Road Property. See R.R.
at 30a, 33a. Warden Seiple explained that he had checked the state database to
determine if the dogs at the Good Road Property were licensed and, while the
database showed that there were 19 dogs licensed at the Good Road Property, he had
no way to match the licenses to the dogs discovered on May 27, 2020. See R.R. at
30a. Warden Seiple also expressed that he was unable to obtain any documentation
from the Burkholders regarding where Husband had relocated the dogs. See id. The
trial court found Warden Seiple’s testimony credible. See R.R. at 57a.
Dr. Ward testified that she accompanied Warden Seiple to the Kennel
during numerous previous license inspections. See R.R. at 35a. Based on prior visits
to the Kennel, she recalled that Husband would tour the Department’s team through
the Kennel while Wife obtained and produced the records and, if Wife was not
present, Husband claimed that Wife maintained the records and he could not answer
record questions. See R.R. at 78a-80a. Dr. Ward asserted that, in the past, the
Burkholders maintained their Kennel records in a red notebook. See R.R. at 77a-
78a.
Dr. Ward stated that she was present at the March 13, 2020 hearing
where the judge and counsel encouraged the Burkholders to file the Kennel’s closing
application, and she was present during the May 27, 2020 search of the Mohns Hill
Road Property. She recalled hearing Husband declare during the search that there
were no dogs at the Mohns Hill Road Property or any other location that belonged
to the Kennel. See R.R. at 35a, 40a. Dr. Ward specifically recollected asking the
Burkholders for vaccination certificates and license information on May 27, 2020,
but both refused to produce them or help look for them, and the Department’s team
16
did not uncover the red notebook. See R.R. at 35a, 40a-41a. Dr. Ward also
confirmed meeting with Zimmerman at the Good Road Property on May 27, 2020,
and observing the Kennel and the dogs’ conditions. See R.R. at 35a-38a.
Dr. Ward acknowledged receiving some Kennel records at the trial
court hearing, but declared they were insufficient to satisfy the Rabies Act’s
statutory requirements (i.e., identification of the owner and the dog - including name,
markings, color, age, gender, microchip - vaccine date, serial number, manufacturer,
expiration, and veterinarian license, practice, and signature), the violations for which
the Burkholders have been charged. See R.R. at 38a-40a. Dr. Ward described the
records:
A. . . . [I]f you just simply look at the first two certificates
on this first page, everything is identical. It says Cavalier,
tri-color. It has under 20 pounds, both of them. It says 12
months and older, both of them. Female, both of them.
Dog, both of them. Name, none given. Any kind of
identifying characteristics, none given. Any kind of
microchip information or identification, not given.
So[,] there’s -- these are invalid in the sense that there is
absolutely no way to distinguish the first dog from the
second dog just looking at those first two.
Q. I understand. If you flip to the very last page there in
that packet.
A. The last page?
Q. Yes. I’m sorry. The fourth page, the bottom one there.
Is there sufficient information on that bottom vaccine
record?
A. No, the bottom vaccine record doesn’t even give you a
breed. It doesn’t give you age. It doesn’t give you size.
It doesn’t give you gender. The bottom one doesn’t even
say if it’s a dog or cat or other species, I can’t even tell you
whether or not this rabies certificate was even given to a
dog.
17
Q. Can you tell -- the five pages of vaccine records, can
you tell who issued these vaccines?
A. It looks like the name Willard Stoltzfus (Dr. Stoltzfus),
a veterinarian that we’ve interacted with regularly.
Q. Is there anything else about these records that would be
considered insufficient as using them as a rabies records?
A. Yes. The only thing that’s confusing to me also is
you’re supposed to give yourit -- the address of the
veterinarian that’s supposed to be given is supposed to be
the address where they practice. And for some reason it’s
-- a [post office (]P.O.[) B]ox is given as the address,
which is not sufficient. Because if -- if the dog bites
somebody and they need to go back to the vet[erinarian]
to find, ask questions or get more information, they can’t
go to a P.O. [B]ox. So[,] you have to give an actual
physical address on certificates so that the vet[erinarian]
can be tracked down.
Q. You said that you’re aware of [Dr.] Stoltzfus?
A. Yeah, it’s unusual he would have done that. I don’t
know why -- every single one of these has a P[.]O[.] [B]ox
in Parkesburg. It’s unusual. I don’t know why they were
filled out that way but unfortunately it invalidates them.
R.R. at 39a-40a. The trial court found Dr. Ward’s testimony credible. See R.R. at
57a.
Husband testified that when he decided to sell the Good Road Property
and signed the agreement in mid-December 2019, he knew that he needed to move
the Kennel, but he had nowhere to move it before he obtained the Mohns Hill Road
Property in mid-March 2020.26 See R.R. at 41a-42a. Husband described that he
decided not to renew the Kennel License for 2020, discussed the process of closing
26
Husband remarked that although the small, fenced-in area at the Mohns Hill Road
Property could contain dogs, it was not suitable for them. See R.R. at 46a-48a.
18
the Kennel with the dog warden, and was aware that closing the Kennel required a
closing inspection. See R.R. 42a, 45a.
Husband declared that he personally owned the nine dogs found at the
Good Road Property, and claimed that he had a verbal agreement with Zimmerman
to rent the Kennel portion for the dogs until he could arrange another place to house
them. See R.R. at 43a-44a, 46a, 49a. Husband maintained that he licensed each of
those dogs by name in Lancaster County before the end of 2019 and had them
vaccinated on December 27, 2019. See R.R. at 42a, 44a, 46a, 49a. He pronounced
that he witnessed Dr. Stoltzfus vaccinate the dogs, and believed Dr. Stoltzfus would
comply with the Rabies Act in completing the vaccination certificates. See R.R. at
42a. Husband admitted that although he named the dogs when he licensed them, he
did not provide the dogs’ names to Dr. Stoltzfus when they were vaccinated. See
R.R. at 49a-50a. He further declared that his dogs’ licenses only had to match their
names while he operated the Kennel. See R.R. at 46a.
Husband recounted Warden Seiple visiting the Good Road Property in
March 2020, and referencing a closing inspection, but Husband declined to have one
done that day on the basis that he did not renew the Kennel License, and he owned
fewer than 26 dogs, so he was no longer operating the Kennel subject to the Dog
Law. See R.R. at 44a-45a. Regarding the May 27, 2020 search, Husband stated that
he opened the door for the Department’s team and allowed it to conduct the search
pursuant to the warrant. See R.R. at 44a, 46a. He further claimed that he exercised
his right under United States Constitution Amendment V, U.S. CONST. amend. V.,
to remain silent and not incriminate himself; thus, he did not tell anyone that he had
no dogs. See R.R. at 43a-44a, 46a. He also asserted that the Department’s team did
not ask about vaccination certifications, ownership, or transaction records for the
dogs. See R.R. at 44a. In addition, Husband revealed that he had vaccination records
for the dogs at the Good Hill Road Property in March and May 2020, but did not
19
know why he did not produce them in advance of the trial court hearing. See R.R.
at 49a.
Husband also recollected a conversation with Detective Resh after the
May 27, 2020 search, during which she asked Husband to relinquish the dogs at the
Good Road Property to unburden himself, but he declined, and the dogs remained
there. See R.R. at 44a, 46a. He recalled Detective Resh visiting the Mohns Hill
Road Property approximately 7 to 10 days later, but not whether there were dogs in
the 10-foot by 10-foot enclosure at that time. See R.R. at 48a-49a. He testified that,
at some point, Detective Resh told him if he produced proof of veterinary care for
his nine dogs, she would not press charges. See R.R. at 44a. He attested that he
thereafter arranged for Dr. Stoltzfus to check the dogs. See id. The trial court found
Husband’s testimony conflicting and evasive.27 See R.R. at 57a.
Wife admitted that she maintained and updated the Kennel’s records,
but claimed that, despite her presence at the March 13, 2020 hearing and the May
27, 2020 search, she had not been asked to produce any records before the trial court
hearing. See R.R. at 51a-52a. She also insisted that she was never asked to produce
records regarding the transfer of the Kennel’s numerous dogs before the end of 2019.
See R.R. at 51a. Wife acknowledged that the Department’s team presented the
search warrant to her at the door on May 27, 2020, but did not read it to her, and she
was not in the downstairs office when the team conducted the Kennel records search.
See id. She declared that once Husband transferred the nine dogs at the Good Road
Property to his individual ownership and had them vaccinated in December 2019,
she no longer maintained the Kennel’s records. See R.R. at 51a-52a. The trial court
27
The trial court pronounced: “I find the testimony of [Husband] to be conflicting --
internally conflicting, evasive, lacking in credibility, self-serving[,] and crafted to his own
convenience of the way in which he believes or would like to believe things should run for him as
the laws and statutes apply.” R.R. at 52a.
20
also found Wife’s testimony “evasive” and lacking “any real credibility[.]” R.R. at
57a.
a. Wife’s Legal Interest
The Burkholders argue that Wife could not be convicted of any
violations because she did not own or have a legal interest in the Kennel.
However, the Kennel License itself reflected that Wife was an LLC
member and co-owned the Kennel with Husband. In addition, Warden Seiple
explained that, although the Burkholders’ counsel represented thereon that Wife was
0% owner, the intention of both the Burkholders and the Department was for Wife
to have a sufficient ownership interest for her to represent the Kennel if Husband
was not available for Department inspections and record requests. The evidence also
established that Wife maintained the Kennel’s records at least until December 2019.
Based on the evidence, the trial court concluded that Wife’s “conviction
of offenses for her role and participation in the Kennel was proper.” Trial Ct. Rule
1925(a) Op. at 6 (R.R. at 94a). The trial court explained:
[Wife] frequently maintained the records for [the Kennel];
thus, the percentage of ownership assigned to [her] on the
[K]ennel[’s] application form does not protect [her] from
her criminal involvement because [her] conviction of
offenses for her role and participation with the [K]ennel
was proper.
Dr. [] Ward . . . testified that it was [Wife] who worked on
the [K]ennel’s records and brought the records “[]down
for us to review once the inspection at the [K]ennel
finished,” at every inspection Dr. Ward attended at the
[K]ennel. [R.R. at 35a]. Dr. Ward also testified that
[Wife] was the record keeper and maintained the records
for [the K]ennel. Further, Dr. Ward testified that if [Wife]
was not present during an inspection, [Husband] would
state he did could [sic] not answer any questions pertaining
to the records because [] [W]ife handles the records.
21
[Warden Seiple] testified that although the 2019 [K]ennel
[License] application submitted by [the] Kennel listed
[Husband] as 100% owner and [Wife] as 0% owner, those
percentages do not mean anything to the Department . . .
because when there is more than one person listed on the
[K]ennel [License] application as an owner the
Department . . . will conduct an inspection as long as at
least one of the owners listed on the application is present.
[Warden] Seiple further testified that prior to 2019,
[Husband] was the only owner listed for the [K]ennel;
however, [Husband] was commonly unavailable when the
Department . . . would arrive for [K]ennel inspections and
as a result [Wife] was added as an owner in order for the
Department . . . to conduct its inspections. The [trial] court
was satisfied, based on the evidence and testimony, that
the addition of [Wife] to the [K]ennel [License]
application effectively made [her] an owner and operator
of the [K]ennel. Thus, [Wife] had the same
responsibilities and obligations as [Husband] in respect to
compliance with the statute and providing information to
the Dog Law enforcement officers.
Id. at 4-5 (R.R. at 92a-93a) (internal record citations omitted). The trial court found
Wife’s testimony “evasive” and lacking “any real credibility[.]” R.R. at 57a.
Viewing the evidence the trial court admitted into the record and all
reasonable inferences therefrom in a light most favorable to the Commonwealth, as
this Court must, see Spontarelli, this Court concludes that the trial court did not err
by concluding that Wife owned and had a legal interest in the Kennel.
b. Kennel Violations
The Burkholders next assert that because there was insufficient
evidence that they were operating the Kennel in 2020 - i.e., they did not renew their
Kennel License and did not have the number of dogs necessary to qualify as a kennel
- the trial court could not convict them of violating Sections 206(e), 207(c), and
220(a)(3) of the Dog Law, and Section 8(a)(1) of the Rabies Act, all of which are
limited to kennel operations.
22
Section 206(e) of the Dog Law mandates that any person who closes a
kennel he/she keeps or operates “shall file an application with the [Department]
notifying the [Department] of the . . . closure,” and the Department “shall conduct a
post[-]closure inspection.” 3 P.S. § 459-206(e). Section 207(c) of the Dog Law
provides:
Records to be maintained.--Every keeper of a kennel
shall keep, for two years, a record of each dog at any time
kept in the kennel. Such record shall show:
(1) The breed, color, markings, sex[,] and age of each dog.
(2) The date on which each dog entered the kennel.
(3) The full name and physical address at the time the dogs
were received of the previous owner or kennel from whom
the dog was received. This paragraph shall not apply to a
boarding kennel.
(4) The full name and physical address of the person or
kennel to whom the dog belongs.
(5) For what purpose each dog is kept in the kennel.
(6) The date on which each dog leaves the kennel.
(7) How the dog is dispensed. If the dog was transferred
to another person or kennel, the record must state the full
name and physical address of the person or kennel to
whom the dog was dispensed.
(8) The name, address[,] and telephone number of the
licensed doctor of veterinary medicine used by the kennel.
Such record shall be legible and shall be open to inspection
and may be copied by any employee of the [D]epartment,
[s]tate dog warden[,] or police officer as defined by th[e
Dog Law].
3 P.S. § 459-207(c). Section 220(a) of the Dog Law specifies that “[i]t shall be a
violation of th[e Dog Law] if a kennel refuses entry to an agent of the
Commonwealth acting to enforce th[e Dog Law].” 3 P.S. § 459-220(a). The term
23
refusal of entry shall include “[h]iding a dog from an agent.” 3 P.S. § 459-220(a)(3).
Section 8(a)(1) of the Rabies Act states: “A person owning or keeping a dog . . . in
this Commonwealth shall have the dog . . . vaccinated against rabies within [4] weeks
after the date the dog . . . attains 12 weeks of age.” 3 P.S. § 455.8(a)(1).
The trial court held:
[Husband] failed to renew the [K]ennel [L]icense, [and] he
also failed to conduct the required closing inspection with
the Department . . . . Thus, . . . [the Burkholders’ K]ennel
had not been deemed closed and was still operational at
the time of the offenses. As the undersigned stated at the
summary appeal hearing[:] “Just because a license lapses
doesn’t excuse compliance with the [Dog L]aw in the
convenient way that [Husband] would have it do. He
knows that there’s a requirement for a closure application
and a closure inspection. He’s just choosing not to do it.”
[R.R. at 56a.] Thus, [the Burkholders’ K]ennel was not
deemed closed and was still operational at the time of the
offenses.
Trial Ct. Rule 1925(a) Op. at 4 (R.R. at 92a) (footnote omitted). Thus, the trial court
extended the Burkholders’ 2019 Kennel License to conclude that Sections 206(e),
207(c), and 220(a)(3) of the Dog Law, and Section 8(a)(1) of the Rabies Act applied
to the Burkholders when they were charged.
However, the Dog Law makes clear that “[a] kennel license is required
to keep or operate any kennel.” 3 P.S. § 459-206(a)(4). Section 102 of the Dog Law
defines a kennel as “[a]ny establishment in or through which at least 26 dogs are
kept or transferred in a calendar year[.]” 3 P.S. § 459-102. In this case, the
Burkholders did not renew the Kennel License for 2020 and, although the
Burkholders housed more than 100 dogs at the Kennel prior to December 31, 2019,
the record evidence reflected that there were only 9 dogs in the Kennel at the Good
Road Property on May 27, 2020. There was no other credible evidence offered to
24
support that the Burkholders continued to operate the Kennel after December 31,
2019, or that they housed at least 26 dogs.28
Nevertheless, regardless of whether the Burkholders needed to apply
for a 2020 kennel license, Husband’s and Wife’s convictions under Section 206(e)
of the Dog Law were for failing to inform the Department and undergo a closing
inspection related back to their obligations under their 2019 Kennel License. The
record evidence supports that, despite Husband’s awareness that Section 206(e) of
the Dog Law required a closing inspection and Warden Seiple’s offer twice in March
2020 to conduct a closing inspection, the Burkholders declined to comply with that
statutory requirement, instead relying on Commonwealth v. Lopez, 908 A.2d 991
(Pa. Cmwlth. 2006), to claim that Section 206(e) of the Dog Law did not apply to
them after the Kennel License expired on December 31, 2019.
The Lopez Court held that although the owner still cared for 34 dogs on
the premises previously licensed as a kennel, the kennel no longer existed after the
license expired. See id. at 996 (“In the absence of a valid kennel license, th[ere] was
not a kennel.”). However, because only dog licensing and vaccination violations -
not Section 206(e) of the Dog Law’s kennel closing requirements - were at issue in
Lopez, it is inapposite here on that point.
Moreover, because kennel closing requirements must be determined by
interpreting and applying Section 206(e) of the Dog Law, this Court looks to the
Statutory Construction Act of 1972 (SCA),29 the objective of which is to ascertain
and effectuate the General Assembly’s intent when enacting it. See Section 1921(a)
of the SCA, 1 Pa.C.S. § 1921(a); see also Commonwealth v. Rensel, 315 A.3d 238
28
The receipts and telephone messages the Department’s team discovered at the Mohns
Hill Road Property are not sufficient to establish that the Burkholders continued to operate the
Kennel after the Kennel License expired because it could easily be related to pre-December 31,
2019 activity.
29
1 Pa.C.S. §§ 1501-1991.
25
(Pa. Cmwlth. 2024). “[W]hen the words of a statute have a plain and unambiguous
meaning, it is th[at] meaning which is the paramount indicator of legislative intent.”
Snyder Bros., Inc. v. Pa. Pub. Util. Comm’n, 198 A.3d 1056, 1071 (Pa. 2018), order
amended on reconsideration, 203 A.3d 964 (Pa. 2019). Section 206(e) of the Dog
Law declares:
If a person that keeps or operates a kennel closes,
changes its name[,] or moves to another location, the
person shall file an application with the [Department]
notifying the [Department] of the move, closure,
transfer[,] or change of name. Upon approval by the
[Department], . . . the kennel license may be allowed to
remain in effect until the end of the calendar year at
which time it shall be renewed in accordance with th[e
Dog Law]. If a kennel is closing, the [Department] shall
conduct a post[-]closure inspection.
3 P.S. § 459-206(e) (emphasis added).
The General Assembly did not specify in Section 206(e) of the Dog
Law that the closing notice filing or the inspection had to occur before a kennel
license expires. Rather, the clear and unambiguous statutory language declares that
the Department shall conduct a post-closure inspection and, since it authorized the
Department to allow a kennel to continue operating until its license expires on
December 31, regardless of when it receives notice, the General Assembly clearly
anticipated Section 206(e) of the Dog Law to extend beyond a kennel license’s
expiration. Further, neither the General Assembly nor the Lopez Court could have
intended, as the Burkholders suggest, to reward licensees who postpone or ignore
kennel closing requirements until after their licenses expired by thereafter making
them immune to Dog Law violations committed while they were licensed. In
addition, Section 218(a) of the Dog Law declares, in pertinent part: “It shall be
unlawful for any person to refuse admittance to such [s]tate dog wardens and
employees of the [D]epartment for the purpose of making inspections and enforcing
26
the provisions of th[e Dog Law].” 3 P.S. § 459-218(a). Section 102 of the Dog Law
defines persons to include individuals and other corporate forms, like LLCs. See 3
P.S. § 459-102 (persons are defined as “individuals, corporations, co[-
]partnerships[,] and associations.”). Accordingly, the fact that the Burkholders’
Kennel License expired on December 31, 2019, did not preclude the trial court from
thereafter convicting them of violating Section 206(e) of the Dog Law related to
their 2019 Kennel License.
Similarly, Section 207(c) of the Dog Law required the Burkholders to
“keep, for two years, a [detailed] record of each dog at any time kept in the
kennel[,]” 3 P.S. § 459-207(c) (emphasis added), including transfer records for each
dog removed therefrom, and such records “shall be legible and shall be open to
inspection . . . by any employee of the [D]epartment, [s]tate dog warden[,] or police
officer[.]” 3 P.S. § 459-207(c)(8). By its unambiguous language, the General
Assembly clearly anticipated Section 207(c) of the Dog Law to extend two years
beyond a kennel license’s expiration. In addition, Section 218(b) of the Dog Law
relating to Department inspections authorizes Department dog wardens “to inspect
the records required under th[e Dog Law] of all licensed and unlicensed kennels.”
3 P.S. § 459-218(b) (emphasis added). Accordingly, the fact that the Burkholders’
Kennel License expired on December 31, 2019, did not preclude the trial court from
thereafter convicting Husband for violations of Section 207(c) of the Dog Law
stemming from the Kennel’s operation under the 2019 Kennel License.
By extension, in order to conduct a post-closing inspection pursuant to
Section 206(e) of the Dog Law, and to determine whether proper Kennel records
were kept in accordance with Section 207(c) of the Dog Law, the Department would
need to observe how many dogs the Kennel possessed at closing. Section 218(a) of
the Dog Law authorizes the Department to enforce the Dog Law’s provisions,
including “inspect[ing] . . . all dogs within the Commonwealth” and determining
27
whether “unlicensed establishments[30] . . . are operating as a kennel . . . .” 3 P.S. §
459-218(a). Thus, it reasonably follows that, in Section 220(a)(3) of the Dog Law,
the General Assembly intended to prohibit Husband from hiding dogs from the
Department’s team both before and after the Kennel License expired. Accordingly,
the fact that the Burkholders’ Kennel License expired on December 31, 2019, did
not preclude the trial court from thereafter convicting Husband of violations of
Section 220(a)(3) of the Dog Law stemming from the Kennel’s operation under the
2019 Kennel License.
Finally, Section 8(a)(1) of the Rabies Act applies to persons “owning
or keeping a dog[.]” 3 P.S. § 455.8(a)(1). Section 102 of the Dog Law similarly
states:
When applied to the proprietorship of a dog, [the term
owner] includes every person having a right of property in
such dog, and every person who keeps or harbors such dog
30
In relevant part, Section 102 of the Dog Law defines establishment as:
(1) The premises on, in[,] or through which a dog is kept, bred,
harbored, boarded, sheltered, maintained, sold, given away,
exchanged[,] or in any way transferred.
(2) The term shall encompass all of the following on, in[,] or through
which any of the activities under paragraph (1) take place:
(i) The home, homestead, place of business[,] or operation
of a person, including a dealer, which includes all of the
land, property, housing facilities or any combination of
land, property[,] or housing facilities of the individual or
person.
(ii) All of the persons residing in or on the establishment.
(iii) A person, organization, business[,] or operation which
utilizes offsite or rescue network kennel homes to keep,
maintain, breed, train, harbor, board, shelter, sell, give
away, adopt, exchange[,] or in any way transfer dogs.
3 P.S. § 459-102 (emphasis added).
28
or has it in his care, and every person who permits such
dog to remain on or about any premises occupied by him.
3 P.S. § 459-102. Thus, Section 8(a)(1) of the Dog Law imposes a duty on all dog
owners/keepers, not just licensed kennels,31 to vaccinate their dogs against rabies.
Accordingly, regardless of whether the Burkholders ever held a kennel license, the
trial court could convict them for violations of Section 8(a)(1) of the Rabies Act if
their dogs are not properly vaccinated.32
This Court disagrees with the trial court’s conclusion that the Kennel
remained operational simply because the Burkholders did not fulfill the Dog Law’s
closing protocols. The trial court did not cite to any fact or law to support that
conclusion, and the Commonwealth did not produce any evidence that the
Burkholders kept or transferred at least 26 dogs after their Kennel License expired
on December 31, 2019, see 3 P.S. § 459-102, nor did the Commonwealth charge the
Burkholders for operating the Kennel in 2020 without a valid license.
Notwithstanding, viewing the evidence the trial court admitted into the record and
all reasonable inferences therefrom in a light most favorable to the Commonwealth,
as this Court must, see Spontarelli, sufficient record evidence supported the trial
court’s convictions of the Burkholders for violating Sections 206(e), 207(c), and
220(a)(3) of the Dog Law, and Section 8(a)(1) of the Rabies Act, despite that their
2019 Kennel License had expired.33
31
“Although dogs in a licensed kennel need not have individual licenses under Sections
206 and 207 of the Dog Law, all dogs must be vaccinated for rabies[.]” Lopez, 908 A.2d at 995
n.5.
32
The Commonwealth did not charge the Burkholders with violating Section 8(a)(2) of the
Rabies Act, which states, in pertinent part: “A person owning or keeping a dog . . . that is required
to be vaccinated against rabies shall produce either proof of vaccination, or exemption status under
subsection (f), within 48 hours after a police officer, [s]tate dog warden, [D]epartment official or
designated municipal animal control officer requests the proof.” 3 P.S. § 455.8(a)(2).
33
“This Court may affirm a trial court’s order on any basis appearing in the record.”
Washington v. Dep’t of Transp., Bureau of Driver Licensing, 301 A.3d 982, 985 (Pa. Cmwlth.
2023).
29
c. Rabies Act Convictions
The Burkholders further contend that there was insufficient evidence
for the trial court to convict them of Rabies Act violations after they provided
evidence that the dogs discovered at the Good Road Property on May 27, 2020, had
been vaccinated against rabies and, further, that Wife did not own those dogs.
The trial court concluded that the Burkholders’ Rabies Act violations
were properly asserted against them as owners of the Kennel. See Trial Ct. 1925(a)
Op. at 7. The trial court found Dr. Ward’s testimony credible and found Husband’s
testimony conflicting and evasive,34 see R.R. at 57a, and explained:
[T]he [trial] court found that [the Burkholders’ K]ennel
had not been deemed closed and was still operational at
the time of the offenses and that both [Husband and Wife]
were owners and operators of the [K]ennel with the same
responsibilities and obligations in respect to compliance
with the statute and providing information to the Dog Law
enforcement officers. Dr. Ward testified that the nine
rabies vaccine certificates, which [the Burkholders]
provided the day of the hearing on November 17, 2022,
were insufficiently completed and Dr. Ward considered
the certificates invalid. Specifically, Dr. Ward testified
that the certificates . . . failed to provide the proper
information in which to distinguish the dogs from each
other by failing to identify breed information, age, gender
or size. Further, Dr. Ward testified that one vaccine record
failed to even identify whether the animal was a dog or cat
or other species; thus, Dr. Ward stated, “[] I can’t even tell
you whether or not this rabies certificate was even given
to a dog.” [R.R. at 39a]. Dr. Ward also testified that the
address of the veterinarian who issued the vaccines listed
a P.O. Box rather than the address of the veterinarian’s
practice as required. The [trial] court’s review of the
vaccine certificates, which [the Burkholders] did not
provide until the day of the hearing, coupled with the
34
As previously stated, the trial court pronounced: “I find the testimony of [Husband] to
be conflicting -- internally conflicting, evasive, lacking in credibility, self-serving[,] and crafted to
his own convenience of the way in which he believes or would like to believe things should run
for him as the laws and statutes apply.” R.R. at 52a.
30
testimony of Dr. Ward[,] sufficiently support the [trial]
court’s determination that the rabies vaccine certificates
were invalid because the [trial] court found that [the
Burkholders] failed to provide the vaccine certificates in a
timely or compliant manner and that the accuracy of the
certificates were questionable[.35]
Id. at 6-7 (R.R. at 94a36) (internal record citations omitted); see also R.R. at 57a.
Because the Rabies Act violation is supported by sufficient record
evidence, this Court finds no error in the trial court’s conclusion as to Husband.
However, as stated above, Section 8(a)(1) of the Rabies Act requires owners/keepers
to have dogs vaccinated against rabies, regardless of whether they hold kennel
licenses. In this case, the Burkholders were specifically convicted for not
vaccinating the nine dogs the Department’s team discovered at the Good Road
Property on May 27, 2020. Based on this Court’s review of Warden Seiple’s, Dr.
Ward’s, and Zimmerman’s credited testimony, Husband individually owned those
35
At the trial court hearing, the trial court declared:
One of the things that sticks out to me very broadly is [sic] the rabies
vaccination certificates for nine dogs. And the 18 dogs listed on the
registration to [Husband], all of those dogs have names. None of
the rabies vaccination certificates have names. And I find that to be
a gap in credibility that is almost impossible to cross.
I also find based on Dr. Ward’s testimony that a licensed
veterinarian such as [Dr.] . . . Stoltzfus would put a P.O. [B]ox down
as his address when he would know as a licensed veterinarian that it
is his physical office address that needs to go in that spot. The fact
that there are no names, as I said earlier, on the rabies vaccination
certificates that match up with any of the dogs that were registered
to [Husband] is suspicious in my estimation. And he has been doing
this long enough to know that there’s a procedure to do things and a
way to do things. And simply stating he didn’t ask for it or I didn’t
think to give it to him isn’t good enough when you’ve been in
business for as long as [Husband] has.
R.R. at 57a.
36
Although page 7 of the Trial Court’s Rule 1925(a) Opinion was included in the trial
court’s original record, it was missing from the Reproduced Record.
31
dogs as of December 2019, the Burkholders moved to the Mohns Hill Road Property
in mid-March 2020, and Husband alone cared for the dogs at the Good Road
Property thereafter. The Commonwealth did not present any evidence that those
dogs were unvaccinated under the 2019 Kennel License, that Wife thereafter had a
property right in those dogs, that she kept, harbored, or had them in her care, or that
she occupied the Good Road Property with them on May 27, 2020. See 3 P.S. § 459-
102. In the absence of evidence that Wife owned or kept the nine dogs at the Good
Road Property on May 27, 2020, with a corresponding duty to have them vaccinated
against rabies pursuant to Section 8(a)(1) of the Rabies Act, the trial court erred by
convicting Wife for violating Section 8(a)(1) of the Rabies Act on that basis.
Accordingly, viewing the evidence the trial court admitted into the
record and all reasonable inferences therefrom in a light most favorable to the
Commonwealth, as this Court must, see Spontarelli, this Court concludes that there
was sufficient evidence for the trial court to convict Husband, but not Wife, of
violating the Rabies Act.
d. Husband’s Interference Conviction
The Burkholders further maintain that there was insufficient evidence
for the trial court to convict Husband of interference when the definition of
interference is unclear/vague and there was no proof of intentional acts of
interference.
The Commonwealth framed Husband’s interference charge as follows:
[Husband] did interfere with [s]tate [d]og [w]ardens in the
performance of their duties. To wit: At the inspection on
May 27, 2020, [Husband] did hide nine dogs from [d]og
[w]ardens. [Husband] also hid kennel records showing 13
dogs in the kennel. [Husband] also interfered with
[Warden Seiple’s] attempt to complete a closing kennel
inspection.
32
R.R. at 3a. Based on the evidence presented before it, the trial court concluded that
there was sufficient evidence to support Husband’s conviction for interference. See
Trial Ct. 1925(a) Op. at 9 (R.R. at 96a).
Section 401(c) of the Dog Law provides: “It shall be unlawful for any
person to interfere with any officer or employee of the [D]epartment in the
enforcement of this [Dog L]aw.” 3 P.S. § 459-401(c). Section 102 of the Dog Law
defines persons to include individuals and LLCs. See 3 P.S. § 459-102. This Court
acknowledges that the Dog Law does not define the term interfere. However,
pursuant to Section 1903 of the SCA, undefined words in a statute “shall be
construed according to rules of grammar and according to their common and
approved usage[.]” 1 Pa.C.S. § 1903(a). “We generally use dictionaries as source
material for determining the common and approved usage of a term.” R.W. v. Dep’t
of Educ. (Pro. Standards & Pracs. Comm’n), 304 A.3d 79, 88 (Pa. Cmwlth. 2023),
appeal granted sub nom. R.W. v. Dep’t of Educ., 321 A.3d 862 (Pa. 2024). Merriam-
Webster’s online dictionary defines interfere as “to interpose in a way that hinders
or impedes[;] come into collision or be in opposition[.]”37 Such definition is not so
unclear/vague in this context as to be unenforceable.
The credible record evidence established that Warden Seiple attempted
to conduct closing inspections for the Kennel on March 6 and May 27, 2020. During
the March 6, 2020 visit, Husband declined the closing inspection and refused to
complete the Kennel’s closing application. Husband again refused to complete the
closing application at Warden Seiple’s request on March 13, 2020. Husband and
Wife did not produce, when requested at the May 27, 2020 inspection, any Kennel
records whatsoever - let alone records for the 13 dogs Zimmerman declared he
discovered at the Good Road Property in March 2020, or the vaccination certificates
37
www.merriam-webster.com/dictionary/interfere (last visited Feb. 21, 2025).
33
and/or licenses for the 9 dogs remaining at the Good Road Property on May 27,
2020, the latter of which Husband later admitted he possessed all along. Moreover,
the trial court accepted as credible Warden Seiple’s and Dr. Ward’s testimony that
at the May 27, 2020 inspection, Husband represented to the Department’s team that
he did not have any dogs at the Mohns Hill Road Property or the Good Road
Property. Husband’s actions/inactions clearly “hinder[ed] or impede[d]” “came into
collision” with or “oppos[ed]” the Department’s statutory responsibilities.
Viewing the evidence the trial court admitted into the record and all
reasonable inferences therefrom in a light most favorable to the Commonwealth, as
this Court must, see Spontarelli, this Court concludes that the trial court did not err
by concluding that there was sufficient evidence to support Husband’s conviction
for interference.
e. Husband’s False Statement Conviction
Lastly, the Burkholders pronounce that there was insufficient evidence
for the trial court to convict Husband of false statements in the absence of evidence
that he made any intentionally false statements.38
38
In the portion of their brief addressing Husband’s false statement conviction, citing
Commonwealth v. Mach Transport, LLC, 305 A.3d 22 (Pa. Super. 2023), the Burkholders also
assert that the Commonwealth ignored that the Kennel was a separate legal entity that could have
been the defendant in these criminal charges. See Burkholders’ Br. at 22-23. This Court
acknowledges that Section 8818(a) of the Pennsylvania Uniform Limited Liability Company Act
of 2016 (PULLCA) states: “A limited liability company is an entity distinct from its member or
members.” 15 Pa.C.S. § 8818(a); see also Section 8811(c) of the PULLCA, 15 Pa.C.S. § 8811(c)
(The PULCCA governs all limited liability companies as of April 1, 2017, regardless of when they
were established.). However, equity allows a court to look beyond an LLC’s form
“whenever justice or public policy demand[,]” Ashley v.
Ashley, . . . 393 A.2d 637, 641 ([Pa.] 1978), such as when the
corporate form has been used to “defeat public convenience,
justify wrong, protect fraud, or defend crime.” Mosaica Educ.,
34
Section 801 of the Dog Law declares: “It is unlawful for any person
knowingly to make any false statement or to conceal any fact required to be disclosed
under any of the provisions of th[e Dog Law].” 3 P.S. § 459-801. Section 102 of
the Dog Law defines person to include individuals and LLCs. See 3 P.S. § 459-102.
The record evidence supports, and the trial court found credible, Warden Seiple’s
and Dr. Ward’s testimony that Husband represented to the Department’s team on
May 27, 2020, that there were no dogs at the Mohns Hill Road Property or any other
location that belonged to the Kennel, when he maintained nine dogs previously
owned by the Kennel at the Good Road Property. See R.R. at 57a-58a.
Based on the evidence, the trial court concluded that it properly
convicted Husband of making false statements. See Trial Ct. 1925(a) Op. at 10 (R.R.
at 97a). The trial court reasoned:
As previously discussed, [the Burkholders] did not comply
with closing the [K]ennel pursuant to the rules and
regulations required by the Department . . . . Thus, on May
27, 2020, [Husband] made intentionally false statements
to [Warden] Seiple when he told [Warden] Seiple that he
did not own any dogs at any location at that time when, in
fact, there were dogs under his care being kept at his
previous [K]ennel property. A [sic] such, the evidence and
credible testimony supports the [trial] court’s
determination that [Husband’s] failure to produce records
showing dogs in his possession as opposed to [the]
Kennel’s possession coupled with [Husband’s] statement
that [the] Kennel did not own any dogs al [sic] any location
evident of [Husband] making false statements to [Warden]
Seiple[.]
Inc. [v. Pa. Prevailing Wage Appeals Bd.], 925 A.2d [176,] 184 [(Pa.
Cmwlth. 2007)].
Commonwealth by Shapiro v. Golden Gate Nat’l Senior Care LLC, 194 A.3d 1010, 1035 (Pa.
2018) (emphasis added). Accordingly, the mere fact that the Kennel was an LLC did not prohibit
the Commonwealth from individually charging the Burkholders under the circumstances presented
in this particular case.
35
Id. at 9-10 (R.R. at 96a-97a).
Viewing the evidence the trial court admitted into the record and all
reasonable inferences therefrom in a light most favorable to the Commonwealth, as
this Court must, see Spontarelli, this Court concludes that the trial court properly
convicted Husband of making false statements.
Conclusion
Because the trial court properly held that the Commonwealth proved by
sufficient evidence beyond a reasonable doubt that Husband violated Sections
206(e), 207(c), 220(a)(3), 401(c), and 801 of the Dog Law, and Section 8(a)(1) of
the Rabies Act, this Court affirms Husband’s sentencing order.
Because the trial court properly held that the Commonwealth proved by
sufficient evidence beyond a reasonable doubt that Wife violated Section 206(e) of
the Dog Law, this Court also affirms Wife’s sentencing order relative to that
conviction. However, because the trial court erred by ruling that the Commonwealth
proved by sufficient evidence beyond a reasonable doubt that Wife violated Section
8(a)(1) of the Rabies Act, this Court reverses that portion of Wife’s sentencing order
and remands this matter for the trial court to modify Wife’s sentence accordingly.
_________________________________
ANNE E. COVEY, Judge
36
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania : CASES CONSOLIDATED
:
v. :
:
Diane L. Burkholder, :
Appellant : No. 1526 C.D. 2022
:
Commonwealth of Pennsylvania :
:
v. :
:
James E. Burkholder, : No. 615 C.D. 2023
Appellant :
ORDER
AND NOW, this 24th day of February, 2025, the Lancaster County
Common Pleas Court’s (trial court) November 17, 2022 sentencing order for James
E. Burkholder is AFFIRMED.
The portion of the trial court’s November 17, 2022 sentencing order
convicting Diane L. Burkholder (Wife) of violating Section 206(e) of the Dog Law,
Act of December 7, 1982, P.L. 784, as amended, 3 P.S. § 459-206(e), is
AFFIRMED. The portion of the trial court’s order convicting Wife of violating
Section 8(a)(1) of the Rabies Prevention and Control in Domestic Animals and
Wildlife Act, Act of December 15, 1986, P.L. 1610, as amended, 3 P.S. §
455.8(a)(1), is REVERSED, and this matter is REMANDED for the trial court to
modify Wife’s sentence accordingly.
Jurisdiction is relinquished.
_________________________________
ANNE E. COVEY, Judge