IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Keith, Andrea Shatto, :

Margaret Ehmann and the :

Animal Legal Defense Fund, :

Petitioners :

: No. 394 M.D. 2014

v. :

: Argued: June 6, 2016

Commonwealth of Pennsylvania, by : 

and through, Pennsylvania Department :

of Agriculture and Secretary of : 

Agriculture George Greig, :

Respondents :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: September 9, 2016

Presently before this Court is the motion for summary judgment filed on 

behalf of Barbara Keith, Andrea Shatto, Margaret Ehmann, and the Animal Legal 

Defense Fund (collectively, Petitioners), as well as the cross-application for summary 

relief filed on behalf of the Commonwealth of Pennsylvania, by and through the 

Pennsylvania Department of Agriculture and Secretary of Agriculture George Greig 

(collectively, the Department),1in relation to an amended complaint filed by 

 

1 We note that Russel C. Redding has since replaced George Greig as Secretary of the 

Department of Agriculture.
2

Petitioners alleging that certain regulations enacted by the Department conflict with 

the mandates of the Dog Law, Act of December 7, 1982, P.L. 784, as amended, 3 

P.S. §§459-101 – 459-1205. 

Facts and Procedural History

The individual Petitioners are Pennsylvania residents who each own a 

licensed dog. The Animal Legal Defense Fund (ALDF), of which the individual 

Petitioners are members, is a non-profit organization located in Cotati, California.

ALDF seeks to protect the lives of animals and advance their interests. On October 

9, 2014, Petitioners filed an amended complaint against the Department alleging that 

sections 28a.8(5) and 28b.1 of the Department’s regulations, 7 Pa. Code §§28a.8(5), 

28b.1, were invalid and contrary to the Dog Law.2 (Amended Complaint at 2-3.) 

More specifically, Petitioners alleged that while sections 207(i)(3)(i), (4)

of the Dog Law, 3 P.S. §459-207(i)(3)(i), (i)(4), prohibit the use of metal strand 

flooring in the primary enclosure of adult dogs and require that adult dogs have 

unfettered clearance to an exercise area, sections 28a.8(5) and 28b.1 of the 

Department’s regulations “eviscerated these unambiguous statutory protections” by 

permitting the primary enclosure for nursing mothers to include 50% metal strand 

flooring and only requiring that nursing mothers be provided daily access to an 

exercise area.3 (Amended Complaint at 1-2.) Petitioners also alleged that the 

 

2

Petitioners filed their original complaint in July 2014, to which the Department filed 

preliminary objections. Shortly thereafter, Petitioners filed the amended complaint currently at 

issue. 

3

These regulations were part of the Commercial Kennel Canine Health Regulations 

promulgated by the Department in 2010. (Amended Complaint at 1.) We note that the parties 

regularly refer to section 28b.1 as a statement of policy. However, for purposes of consistency, we 

will hereafter refer to the same as a regulation. 

(Footnote continued on next page...)
3

Department, and its Secretary are responsible for overseeing implementation and 

administration of the Commonwealth’s agricultural laws.4 (Amended Complaint at 

3.) 

Further, Petitioners alleged that: the Department was not authorized to 

exempt nursing mothers from the statutory protections of sections 207(i)(3)(i) and 

(i)(4) of the Dog Law; they would be irreparably harmed if the Department is not 

prohibited from enforcing its regulations because their tax dollars would be 

irrevocably spent on unlawful agency activity; the Court has authority to act in the 

public interest to enjoin a wrong that is manifest and will continue absent injunctive 

relief; allowing the Department to continue its unlawful exemption of nursing 

mothers is greater than any injury that could result to the Department; and they have a 

right to relief as taxpayers who are interested in ensuring the lawful expenditure of 

state funds to protect animals bred in commercial kennels. (Amended Complaint at 

10-13.) 

Petitioners noted that on November 27, 2013, more than three years after 

the regulations became final, the ALDF petitioned the Department and the 

Independent Regulatory Review Commission (IRRC) for review and repeal of the 

aforementioned regulations, but these petitions were denied. (Amended Complaint at 

10-12.) Petitioners assert that these denials reflect the futility of future attempts to 

correct the regulations through the administrative process. (Amended Complaint at 

 

(continued...)

4

Section 221(g) of the Dog Law, added by the Act of October 9, 2008, P.L. 1450, 3 P.S. 

§459-221(g), establishes the Canine Health Board and authorizes the same to issue temporary 

guidelines to be published in the Pennsylvania Bulletin. This section also authorizes the 

Department to promulgate these temporary guidelines as a regulation concurrently with publication 

in the Pennsylvania Bulletin.
4

11-12.) Ultimately, Petitioners sought injunctive relief prohibiting the Department 

from using tax dollars to enforce these regulations and declaratory relief recognizing 

the invalidity of these regulatory provisions. (Amended Complaint at 2, 13.) 

The Department filed preliminary objections asserting that Petitioners 

lacked standing and had not satisfied the prerequisites for obtaining a preliminary 

injunction. Because Petitioners had not filed an ancillary motion seeking a 

preliminary injunction, the latter objection was dismissed by order of this Court dated 

November 25, 2014. In March of 2015, this Court heard argument on the 

Department’s remaining preliminary objection relating to standing. By opinion and 

order dated May 13, 2015, we overruled the Department’s preliminary objection, 

concluding that Petitioners sufficiently established taxpayer standing to proceed with 

their action. See Keith v. Commonwealth, 116 A.3d 756 (Pa. Cmwlth. 2015). 

We noted in our opinion that since dogs and those who ultimately 

purchase them are the obvious beneficiaries of the health and safety protections 

afforded by sections 207(i)(3)(i) and (4) of the Dog Law, “Petitioners are at least as 

well inclined and situated as any other entities to challenge regulations that may be in 

conflict with those provisions.” Keith, 116 A.3d at 759. Additionally, we noted that 

Petitioners attempts at redress through other channels, i.e., requesting that the 

Department and the IRRC review the regulations, were “futile and thus that judicial 

scrutiny is required to insure that the regulations adopted by the Department conform 

to the law under which they were promulgated.” Id. at 760.

The Department thereafter filed an answer with new matter denying the 

allegations of Petitioners’ amended complaint and alleging that its actions were 

lawful, authorized, and appropriate. The Department further alleged that: Petitioners’ 

allegations were legally and factually insufficient to justify the requested relief, 

sufficient facts could not be produced as evidence in any hearing or trial, and no 
5

principles of law justify such relief; the applicable statute of limitations for any cause 

of action alleged in this proceeding had expired; the Department, including Secretary 

Greig, were immune from suit; and the principles of exhaustion of remedies, waiver, 

laches, estoppel, and unclean hands serve to bar the relief requested. Petitioners filed 

an answer to the new matter essentially denying the Department’s allegations and 

asserting that the factual averments of its amended complaint were sufficient to 

justify both injunctive and declaratory relief herein.

Petitioners’ Motion for Summary Judgment

On February 11, 2016, Petitioners filed a motion for summary judgment5

along with a statement of uncontroverted, material facts.

6

 In their motion, Petitioners 

allege that the Department’s regulations “carve out broad exemptions to key 

provisions of the Dog Law that are contrary to the plain language and purpose of the 

Dog Law.” (Motion at 2.) Regarding metal strand flooring, Petitioners point out that 

section 207(j) of the Dog Law, 3 P.S. §459-207(j), sets forth the only exception to the 

prohibition against the use of this flooring, namely, permitting a kennel owner to seek 

a waiver from the Secretary. Contrary to the plain meaning and purpose of the Dog 

Law, and in excess of statutory authority, Petitioners assert that the Department has 

created additional exceptions under sections 28a.8(5) and 28b.1 of its regulations by 

 

5 While Petitioners stylized their motion as one for summary judgment, when such a motion 

is filed in our original jurisdiction it is properly characterized as a motion for summary relief. 

Nonetheless, the standards for both are essentially the same. 

6

Summary judgment is properly granted where pleadings, depositions, answers to 

interrogatories, and admissions on file, together with affidavits and expert reports, if any, show that 

there is no genuine issue of material fact and that the moving party is entitled to judgment as a 

matter of law. Pa.R.C.P. Nos. 1035.1, 1035.2; Commonwealth v. Peoples Benefit Services, Inc., 923 

A.2d 1230, 1234 (Pa. Cmwlth. 2007). Summary judgment may be entered only in those cases in 

which the right to relief is clear and free from doubt. Id. (citation omitted). 
6

allowing commercial breeders to house nursing mothers in primary enclosures with 

up to 50% metal strand flooring and without unfettered clearance to an exercise area.

In their accompanying statement of uncontroverted, material facts, 

Petitioners state that the Dog Law was extensively amended in 2008, primarily to 

improve the conditions at commercial dog kennels, including what are generally 

referred to as “puppy mills.” Petitioners suggest that the legislative history reflects 

that the 2008 revisions to the Dog Law were specifically meant to address the issues 

of wire flooring and lack of exercise in commercial kennels. Petitioners note that all 

activities, including inspection, investigation, enforcement, and administrative 

oversight are funded, in part, through the Dog Law Restricted Account, which, in 

turn, derives revenue exclusively from the sale of dog and kennel licenses, as well as 

fines and penalties resulting from Dog Law violations. 

Petitioners also note that while section 207(i)(5) of the Dog Law 

authorizes the Canine Health Board, on a case-by-case basis, to permit “an alternative 

means of allowing clearance from a primary enclosure to the exercise area,” 3 P.S. 

§459-207(i)(5), section 207(i)(6)(i) reiterates that “the exercise area must allow for 

unfettered clearance for dogs from their primary enclosure,” 3 P.S. §459-207(i)(6)(i). 

Finally, Petitioners state that commercial kennels benefit financially from the 

regulations and that they exhausted their administrative remedies through the ALDF’s 

requests for review and repeal filed with the Department and the IRRC, both of which 

were denied.

The Department filed an answer to Petitioners’ motion for summary 

judgment admitting that it promulgated the regulations at issue, but denying that it did 

so without statutory authority or that the regulations are contrary to the Dog Law. 

Instead, the Department asserts that Dog Law already provides differing requirements 
7

for mother dogs and puppies and that the regulations reflect a reasonable 

interpretation of the statute. 

The Department also filed an answer to Petitioners’ statement of 

uncontroverted, material facts, admitting to Petitioners’ recitation of the various 

sections of the Dog Law but denying Petitioners’ characterization and/or summation 

of these provisions, including Petitioners’ reference to the regulations as “exceptions”

to the same. The Department notes that the regulations at issue were promulgated 

pursuant to the authority of section 902, which specifically provides that the 

Secretary “after due notice and a public hearing, may promulgate rules and 

regulations to carry out the provisions and intent of this act.” 3 P.S. §459-902. The 

Department also notes that the term “commercial kennel” did not exist in the Dog 

Law until 2008, that the 2008 revisions addressed more than just the conditions at 

commercial kennels, and that the prohibition against metal strand flooring in section 

207(i)(3)(i) applies only to the primary enclosure of adult dogs over twelve weeks of 

age. 

Regarding any proposed amendment and the legislative history 

regarding the same, the Department states that the amendment sought to allow metal 

strand flooring in all enclosures and only mandated an opportunity for exercise, 

which the Department suggests explains the discussion referenced by Petitioners. 

The Department avers that the legislative commentary has no bearing on the 

regulations at issue. The Department proceeds to describe Petitioners statement that 

commercial kennels benefit financially from the regulations as a “broad sweeping 

assumption” without any foundation. (Department’s Answer to Petitioners’ 

Statement of Uncontroverted, Material Facts at 11.) Finally, the Department 

describes Petitioners’ statement regarding exhaustion of administrative remedies as a 

legal conclusion to which no response was required.
8

The Department’s Cross-Application for Summary Relief

On March 28, 2016, the Department filed a cross-application for 

summary relief contending that it has promulgated reasonable regulations that 

promote the well-being of mother dogs and puppies, to which deference is required.7 

As such, the Department asserts that its right to relief is clear. At the same time, the 

Department filed its own statement of undisputed material facts. The Department 

stated therein that the parties agree that there are no genuine issues of fact in this 

matter, only pure issues of law, namely, whether its regulations are consistent with 

the Dog Law. The Department notes that there are five classes of kennels in 

Pennsylvania and that commercial kennels account for a relatively small portion of 

these kennels. For example, the Department stated that, in 2013, only sixty-two of 

the more than two thousand kennel licenses were for commercial kennels. 

The Department indicates that section 207 of the Dog Law applies to all 

kennels in this Commonwealth, with subsection 207(h), 3 P.S. §459-207(h), applying 

to all dogs, including puppies, and section 207(i) applying only to dogs over twelve 

weeks of age. The Department states that the relevant statutory provisions, namely 

sections 207(i)(3)(i) and (i)(4), only apply to the primary enclosures of adult dogs. 

The Department notes that the regulations were vetted through the IRRC regulatory 

 

7

Pa.R.A.P. 1532(b) provides that “[a]t any time after the filing of a petition for review in an 

appellate or original jurisdiction matter the court may on application enter judgment if the right of 

the applicant thereto is clear.” The standard for summary relief is similar to the relief envisioned by 

the rules of civil procedure governing summary judgment. See Pa.R.A.P. 1532 (Official Note) 

(providing that subdivision (b) of Pa.R.A.P. 1532 “authorizes immediate disposition of a petition for 

review, similar to the type of relief envisioned by the Pennsylvania Rules of Civil Procedure 

regarding judgment on the pleadings and preemptory and summary judgment”); Brittan v. Beard, 

974 A.2d 479, 484 (Pa. 2009). 
9

review process, which extensively considered the impact of the regulations on dogs, 

and were originally supported by the American Society for the Prevention of Cruelty 

to Animals (ASPCA).

8

 Finally, the Department characterizes this matter as an 

attempt by Petitioners to supplant the Department’s interpretations of the Dog Law 

with their own layperson constructions.

Petitioners filed a response to both the Department’s cross-application 

for summary relief and its statement of undisputed material facts. Petitioners 

essentially denied the contentions of the former. Regarding the latter, Petitioners 

admitted to many of the statements therein, but denied the Department’s statements 

that the regulations were not in conflict with the Dog Law, that the regulations 

constituted a proper exercise of the Secretary’s authority, and that the ASPCA 

originally agreed with the regulations as promulgated. To the contrary, Petitioners 

reiterate their previous position that the regulations were in direct conflict with, and 

in fact contrary to, the relevant provisions of the Dog Law, thereby obviating the need 

for any deference. Finally, Petitioners characterize the ASPCA’s original position as 

not supportive of the regulations, but instead a compromise in order to move forward 

with critical requirements relating to temperature, humidity, and ventilation. 

Discussion

As noted above, this matter involves a motion for summary judgment 

filed by Petitioners and an application for summary relief filed by the Department. 

Summary judgment is properly granted where pleadings, depositions, answers to 

 

8

The ASPCA has filed an amicus curiae brief in this case in support of Petitioners’ position.
10

interrogatories, and admissions on file, together with affidavits and expert reports, if 

any, show that there is no genuine issue of material fact and that the moving party is 

entitled to judgment as a matter of law. Pa.R.C.P. Nos. 1035.1, 1035.2; 

Commonwealth v. Peoples Benefit Services, Inc., 923 A.2d 1230, 1234 (Pa. Cmwlth. 

2007). Summary judgment may be entered only in those cases in which the right to 

relief is clear and free from doubt. Id. (citation omitted). A request for summary 

relief is reviewed under a similar standard and requires the right of an applicant to be 

clear. Pa.R.A.P. 1532(b).

We begin with a review of the relevant statutory and regulatory 

provisions. Section 207(i)(3)(i) of the Dog Law states as follows:

The floor of the primary enclosure shall be strong enough 

so that the floor does not sag or bend between the structural 

supports, shall not be able to be destroyed through digging 

or chewing by the dogs housed in the primary enclosure, 

shall not permit the feet of any dog housed in the primary 

enclosure to pass through any opening, shall not be metal 

strand whether or not it is coated, shall allow for moderate 

drainage of fluids and shall not be sloped more than 

0.25 inches per foot.

3 P.S. §459-207(i)(3)(i) (emphasis added). Section 28a.8(5) of the Department’s 

regulations, entitled “Nursing mothers,” provides that:

Primary enclosures, including whelping boxes, housing 

bitches with nursing litters or housing dams or foster dams 

with puppies under 12 weeks of age must be constructed so 

that at least 50% of the flooring of the primary enclosure 

complies with the standards established under section 

207(i)(3) of the act.

7 Pa. Code §28a.8(5) (emphasis added).

Section 207(i)(4) of the Dog Law states as follows:

Except as provided in paragraph (5), each primary 

enclosure shall have an entryway that will allow the dog 
11

unfettered clearance out of the enclosure to an exercise area

under paragraph (6) unless the enclosure is closed for active 

cleaning under subsection (h)(11) or by order of a 

veterinarian under paragraph (6)(xi).

3 P.S. §459-207(i)(4) (emphasis added). Section 28b.1 of the Department’s 

regulations, entitled “Requirement for commercial kennels,” states that:

The Bureau of Dog Law Enforcement will consider a 

kennel owner to be compliant with the requirements of 

section 207(i)(6)(viii) of the Dog Law (3 P.S. §459-

207(i)(6)(viii) if the nursing mother is provided daily access 

to an exercise area meeting all of the requirements of 

section 207(i)(6)(ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix) 

of the Dog Law. 

7 Pa. Code §28b.1 (emphasis added). 

Generally, “[t]he interpretation of a statute by those charged with its 

execution is entitled to great deference, and will not be overturned unless such 

construction is clearly erroneous.” Caso v. Workers’ Compensation Appeal Board

(School District of Philadelphia), 839 A.2d 219, 221 (Pa. 2003). However, “such 

deference will exist only where the reviewing court is satisfied that the regulation 

tracks the meaning of the statute, as narrowly construed, and does not violate the 

intent of the legislation. . . .” Commonwealth v. Gilmour Manufacturing Co., 822 

A.2d 676, 679 (Pa. 2003). Indeed, our Supreme Court has recognized that:

An interpretative rule . . . depends for its validity . . . upon 

the willingness of a reviewing court to say that it in fact 

tracks the meaning of the statute it interprets. While courts 

traditionally accord the interpretation of the agency charged 

with administration of the act some deference, the meaning 

of a statute is essentially a question of law for the court, 

and, when convinced that the interpretative regulation 

adopted by an administrative agency is unwise or violative 

of legislative intent, courts disregard the regulation. 
12

Philadelphia Suburban Corp. v. Board of Finance and Revenue, 635 A.2d 116, 118 

(Pa. 1993) (quoting Girard School District v. Pittenger, 392 A.2d 261, 263 (Pa. 

1978) (further citation omitted)). 

I. Metal Strand Flooring

A. Authority to Regulate

Petitioners argue that the Department lacked the authority to promulgate 

a regulation, namely section 28a.8(5), that essentially creates an exemption to the 

prohibition of the use of metal strand flooring in section 207(i)(3)(i) of the Dog Law. 

We agree. 

The Department correctly notes in its brief that section 902 of the Dog 

Law specifically authorizes the Secretary of the Department, “after due notice and a 

public hearing,” to “promulgate rules and regulations to carry out the provisions and 

intent of this act.” 3 P.S §459-902. Additionally, section 207(b) of the Dog Law, 

relating to maintenance of kennels, further provides that “[a]ll kennels shall be 

maintained in a sanitary and humane condition in accordance with standards and 

sanitary codes promulgated by the secretary through regulations.” 3 P.S. §459-

207(b). However, section 28a.8(5) of the Department’s regulations, permitting the 

primary enclosure for nursing mothers to include 50% metal strand flooring, directly 

contradicts with section 207(i)(3)(i) of the Dog Law, which strictly prohibits the use 

of metal strand flooring in the primary enclosures of any dogs over twelve weeks of 

age. There is no dispute that nursing mother dogs meet this age requirement. In 

addition, the fact that nursing mothers and puppies must be housed separately from 

adult dogs does not affect this prohibition.

In Commonwealth v. Beam, 788 A.2d 357, 359 (Pa. 2002), our Supreme 

Court recognized the long-adhered to precept that “the power and authority exercised 
13

by administrative agencies must be conferred by legislative language that is clear and 

unmistakable.” The Court in Beam also advised that “the rule requiring express 

legislative delegation is tempered by the recognition that an administrative agency is 

invested with the implied authority necessary to the effectuation of its express 

mandates.” Id. at 360 (citations omitted.) The Department has not identified any 

express legislative language granting it the authority to create categorical exemptions 

to the provisions of the Dog Law. Again, section 207(i)(3)(i) of the Dog Law clearly 

and expressly prohibits the use of metal strand flooring in the primary enclosures of 

adult dogs.

9

 Section 28a.8(5) of the Department’s regulations runs contrary to this 

express mandate.

Further, while the Department correctly notes that section 207(i)(3)(iii) 

of the Dog Law, 3 P.S. §459-207(i)(3)(iii), authorizes the Department’s Canine 

Health Board to approve additional flooring options, this section still requires such 

options to “meet the provisions of subparagraph (i),” where the metal strand flooring 

prohibition is found. Moreover, a review of other provisions of the Dog Law reveals 

that where the General Assembly intended to delegate authority to the Department for 

the promulgation of regulations, it plainly did so. For example, with respect to the 

lighting and ventilation requirements, the General Assembly declined to specify 

appropriate ranges for commercial kennels, but rather expressly delegated that 

authority to the Department’s Canine Health Board. See Sections 207(h)(7) and (8) 

of the Dog Law, 3 P.S. §459-207(h)(7),(8).

 

9

Indeed, as Petitioners note, a review of the relevant legislative history of the Dog Law 

reveals the discussion and rejection of an amendment which would have permitted metal strand 

flooring in all primary enclosures. See House Legislative Journal, September 15, 2008, pp. 1965-

67. 
14

B. Reasonableness

Our Supreme Court has held that in evaluating the reasonableness of any 

discretionary agency action, appellate courts should “accord deference to agencies 

and reverse agency determinations only if they were made in bad faith or if they 

constitute a manifest or flagrant abuse of discretion or a purely arbitrary execution of 

the agency’s duties or functions.” Rohrbaugh v. Pennsylvania Public Utility 

Commission, 727 A.2d 1080, 1085 (Pa. 1999). Petitioners argue that the Department 

acted in bad faith by enacting section 28a.8(5), a regulation which accommodated the 

commercial kennel industry “to the detriment of fulfilling legislative intent.” 

(Petitioners’ Brief at 9.) Petitioners reiterate that section 28a.8(5) is in direct conflict 

with the Dog Law. The Department contends that section 28a.8(5) reflects a 

reasonable interpretation of the Dog Law and that it should be accorded deference as 

the administrative agency with expertise on the subject. For the same reasons stated 

above, i.e., the express prohibition against the use of metal strand flooring in section 

207(i)(3)(i) of the Dog Law, the contradictory language of section 28a.8(5) of the 

Department’s regulations, and the lack of any delegated authority, we conclude that 

the Department’s regulation was not reasonable.

II. Unfettered Clearance to Exercise Area

Petitioners argue that section 28b.1 of the Department’s regulations 

constitutes an invalid agency rule masquerading as an interpretive rule that 

“unequivocally binds the agency and the regulated community to a standard for 

compliance that conflicts with the enabling statute.” (Petitioners’ Brief at 11.) The 

Department contends that section 28b.1 constitutes a valid interpretive rule. Again, 

we agree with Petitioners. 
15

An agency regulation can be characterized as either a legislative rule or 

an interpretive rule. Our Supreme Court has explained the difference between these 

rules as follows:

Where an agency, acting pursuant to delegated legislative 

authority, seeks to establish a substantive rule creating a 

controlling standard of conduct, it must comply with the 

provisions of the Commonwealth Documents Law.[10] The 

Commonwealth Documents Law sets forth formal 

procedures for notice, comment and ultimate promulgation 

in connection with the making of rules that establish new 

law, rights or duties. Such substantive regulations, 

sometimes known as legislative rules, when properly 

enacted under the Commonwealth Documents Law, have 

the force of law, and enjoy a general presumption of 

reasonableness. 

Agencies also devise rules and regulations that do not in 

themselves establish binding standards of conduct. Such 

pronouncements are valid as ‘interpretive rules’ and need 

not be promulgated in accordance with the Commonwealth 

Documents Law to the extent that they merely construe a 

statute and do not improperly expand upon its terms. To be 

viable, an interpretive rule must genuinely track the 

meaning of the underlying statute, rather than establish an 

extrinsic substantive standard.

Borough of Pottstown v. Pennsylvania Municipal Retirement Board, 712 A.2d 741, 

743 (Pa. 1988) (citations omitted). Because interpretive rules do not rest on 

legislatively-conferred rulemaking powers, they may be accorded “a lesser quantum 

of deference.” Northwestern Youth Services, Inc. v. Department of Public Welfare, 

66 A.3d 301, 311 (Pa. 2013).

 

10 Act of July 31, 1968, P.L. 769, 45 P.S. §§1102-1208, and d 45 Pa. C.S. §§501-907. While 

the short title of the law was eliminated by subsequent amendment, it continues to be used for sake 

of reference.
16

In the present case, section 28b.1 of the Department’s regulations, by 

effectively holding that a kennel owner need only provide daily access to an exercise 

area for nursing mothers to be compliant with section 207(i)(6)(viii) of the Dog 

Law,

11 unequivocally binds the Department and the regulated community to a 

standard of compliance that directly conflicts with the enabling statute, namely, 

section 207(i)(4) of the Dog Law. Section 28b.1 further requires the Department to 

refrain from enforcing the mandatory requirement of unfettered access contained 

therein. Similar to section 207(i)(3)(iii), section 207(i)(5) authorizes the Canine 

Health Board, on a case-by-case basis, to permit “an alternative means of allowing 

clearance from a primary enclosure to the exercise area,” but only “if the kennel 

owner presents the board with a plan that the board determines is verifiable, 

enforceable and provides for exercise equal to or greater than that which the dogs 

would receive under paragraphs (4) and (6)(i).” 3 P.S. §459-207(i)(5). Section 

207(i)(6)(i) reiterates that “[e]xcept as provided in paragraph (5), the exercise area 

must allow for unfettered clearance for dogs from their primary enclosure.” 3 P.S. 

§459-207(i)(6)(i). Thus, we agree with Petitioners that section 28b.1 of the 

Department’s regulations constituted an agency/legislative rule that was promulgated 

without notice and comment rulemaking and, hence, must be struck down. 

Even if section 28b.1 was considered to be an interpretive rule, we 

would reach a similar conclusion. An agency’s interpretive rule is invalid if it is 

“unwise or violative of legislative intent.” Northwestern Youth Services 66 A.3d at 

312 (quoting Uniontown Area School District v. Pennsylvania Human Relations 

 

11 Section 207(i)(6)(viii) merely provides that “[n]ursing bitches and their puppies shall be 

exercised separately from other dogs.” This section makes no mention of the degree of access 

required for nursing mothers. Rather, the degree of access is controlled by sections 207(i)(4) and 

(i)(6)(i) of the Dog Law. 
17

Commission, 313 A.2d 156, 169 (Pa. 1973)). As noted above, the legislative intent 

on this issue is clear. The General Assembly evidenced its intent that dogs in 

commercial kennels have unfettered access to an exercise area in not one, but two, 

express provisions of the Dog Law, i.e., sections 207(i)(4) and (i)(6)(i). The 

Department’s pronouncement in section 28b.1 of its regulations directly contradicts 

this legislative intent.12

Conclusion

Section 207(i)(3)(i) of the Dog Law contains an express prohibition 

against the use of metal strand flooring. Similarly, sections 207(i)(4) and (i)(6)(i) 

expressly require that dogs in commercial kennels be afforded unfettered access to an 

exercise area. Sections 28a.8(5) and 28b.1 of the Department’s regulations directly

contradict these express statutory provisions and violate the legislative intent. Hence, 

these regulations are invalid and must be stricken.

Accordingly, because Petitioners’ right to relief is clear and free from 

doubt and the Department’s right to relief is not, we grant Petitioners’ motion for 

summary judgment and deny the Department’s cross-application for summary relief. 

________________________________

PATRICIA A. McCULLOUGH, Judge

 

12 Petitioners again cite the legislative history discussing and rejecting an amendment which 

would have exempted nursing mothers and puppies from outdoor access and allowed commercial 

kennels to develop their own exercise plan. See House Legislative Journal, September 15, 2008, pp. 

1965-67.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Keith, Andrea Shatto, :

Margaret Ehmann and the :

Animal Legal Defense Fund, :

Petitioners :

: No. 394 M.D. 2014

v. :

:

Commonwealth of Pennsylvania, by : 

and through, Pennsylvania Department :

of Agriculture and Secretary of : 

Agriculture George Greig, :

Respondents :

ORDER

AND NOW, this 9

th day of September, 2016, the motion for summary 

judgment filed on behalf of Barbara Keith, Andrea Shatto, Margaret Ehmann and 

the Animal Legal Defense Fund is hereby granted. The cross-application for 

summary relief filed on behalf of the Commonwealth is denied.

________________________________

PATRICIA A. McCULLOUGH, Judge