Conviction of Dog Law Violations at Summary Appeal After District Magistrate Estops Dog Owner From Denying Liability At Subsequent Personal Injury Trial

In the case of Walsh v. Toth, No. 22-CV-96 (C. P. Lacka. Co. Oct. 6, 2023 Nealon, J.), the court addressed a Plaintiff’s Motion for Partial Summary Judgment in a dog bite case.

After reviewing the case before him, Judge Nealon granted the Plaintiff’s Motion for Partial Summary Judgment against the dog owner to the extent that the Defendant, Justin Toth, was collaterally estopped from presenting evidence challenging the adjudicative findings from a previous District Magistrate hearing and/or Summary Appeal Hearing that his unconfined and unrestrained dog entered the Plaintiff’s premises and knocked her down the basement stairs. 

On this basis, the court found that the Defendant, Justin Toth, was negligent per se based upon his conviction for violating 3 P.S. §459-305(a).

The court ruled that, with respect to this particular Defendant, the jury would only be deciding the issue of damages recoverable by the Plaintiff for her injuries from the incident.

In so ruling, the court addressed whether the findings in companion criminal case collaterally estopped the Defendant dog owner from challenging liability in the civil case.

According to the Opinion, the dog’s owner was found guilty of violating §305(a) of the Dog Law, 3 P.S. §459-305(a), by a magisterial district judge. The dog owner appealed that summary offense conviction to the Court of Common Pleas for a de novo trial.

Based upon the specific defenses raised by the owner during that trial, another judge of the court of Common Pleas of Lackawanna County held that the owner’s unconfined and unsecured dog entered the Plaintiff’s home and knocked her down the steps, and that the dog owner was, therefore, found to be guilty beyond a reasonable doubt of violating the above-referenced section of the dog law.

In this companion civil action against the dog’s owner, the Plaintiff filed a Motion for Partial Summary Judgment seeking a determination that the dog’s owner was collaterally estopped from presenting evidence contrary to the Common Pleas judge’s findings. The Plaintiff also sought a ruling that the dog owner should be considered to be negligent per se based upon his conviction for a violation of the dog law.

Judge Terrence R. Nealon
Lackawanna County

According to Judge Nealon’s review of Pennsylvania law, a summary offense conviction collaterally estops a defendant from denying his adjudicated acts in a later civil suit if the defendant appeals his conviction by a magisterial district judge, participates in a de novo trial hearing before a Common Pleas judge, is afforded a full and fair opportunity to litigate his issues, and is found guilty beyond a reasonable doubt.

As such, based upon these circumstances in this case, the court found that the dog owner in this case was estopped from denying that his unrestrained dog entered the Plaintiff’s home and knocked down a staircase or that he was guilty of violating the dog law. 

The court additionally noted that, since an established violation of this portion of the Dog Law constitutes negligence per se, the only issues to be addressed by a jury in the personal injury trial with regards to that dog owner were the damages be recovered by the Plaintiff for her alleged injuries. 

Accordingly, the Plaintiff’s Motion for Partial Summary Judgment was granted to the extent that the dog’s owner was found to be estopped from presenting any evidence that his unrestricted and unleashed dog entered the Plaintiff’s premises and knocked her down a flight of stairs.

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Leash That Puppy: Violation of Dog Law Amounts To Negligence Per Se, But Plaintiff Must Still Prove Causation

In the case of Goodell v. Stroble, No. 22-00906 (C.P. Lyc. Co. July 26, 2023 Carlucci, J.), the court granted in part and denied in part a Plaintiff’s Motion for Summary Judgment in a dog bite case.

According to the Opinion, the Defendant dog owner attended an estate sale. The subject incident occurred when the Defendant was putting her purchases in her vehicle and her dog jumped out of the vehicle and allegedly attacked the nearby Plaintiff.

The Plaintiff filed a Motion for Summary Judgment arguing that the Defendant’s failure to restrain her dog on a leash or within the vehicle violated the Dog Law, making the Defendant negligent as a matter of law on a negligence per se basis.

While the court agreed that Pennsylvania law requires owners to control their dogs and that a deliberate violation of the Dog Law does constitute negligence per se, claims of absolute liability as a result can still be defended if a Defendant provides an appropriate defense.

In this regard, the court noted that there still remained the crucial question as to whether or not the dog owner’s negligence was the proximate cause of the Plaintiff’s injuries. The court explained that proximate cause refers to a direct link between a Defendant’s actions and a Plaintiff’s harm.

The court emphasized that the question of proximate cause generally remains a question to be decided by a jury.

As such, the court granted the Plaintiff’s Motion for Summary Judgment in part and denied it in part. More specifically, the court ruled that the Defendant’s conduct in this case was negligent per se under the Dog Law violation. However, the motion was denied in part on the question of proximate causation.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 15, 2023).

Source of image:  Photo by Blue Bird on www.pexels.com.

Allegations of Recklessness and Claims of Punitive Damages Allowed to Proceed in a Dog Bite Case

In the case of Walsh v. Toth, No. 22-CV-96 (C.P. Lacka. Co. June 28, 2022 Nealon, J.), the court addressed Preliminary Objections in the form of a demurrer asserted by dog owners in a case in which the Plaintiff alleged that she was attacked and injured by her neighbors’ dog when she [the Plaintiff] opened the side door of her home.

The Plaintiff filed a Complaint seeking compensatory damages along with punitive damages as a result of the Defendant’s alleged negligence and recklessness.

More specifically, the Plaintiff asserted that the dog owners knew of the “dangerous, aggressive, and fearsome” dog’s “dangerous propensities” prior to the incident. 

The Plaintiff also alleged that the dog owners were aware of other neighbors’ concerns regarding the dog. 

The Plaintiff additionally asserted that the owners of the dog negligently and recklessness permitted the dog to run unattended and unleashed throughout the neighborhood with reckless disregard for others. 

The Plaintiff also alleged that the Defendants violated certain provisions of the Dog Law, in part, by failing to keep the dog confined or firmly secured within the dog owner’s premises and/or by harboring a dangerous dog with a propensity to attack people without provocation. 

In this decision, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that the Plaintiff’s claims under the Dog Law were permissible. The court additionally noted that, viewing the Complaint as a whole, the Plaintiff had provided the dog owners with adequate notice of the claims against which the Defendants must defend.

Furthermore, Judge Nealon ruled, as he has on numerous previous occasions, that, since the allegations of recklessness may be averred generally under Pa. R.C.P. 1019(b), and given that the related request for punitive damages is not a “cause of action” subject to the factual specificity requirements in Pa.R.C.P. 1019(a), the Defendant dog owners were not entitled to have the recklessness allegations and the demand for punitive damages stricken.

As such, the court overruled the Defendant’s Preliminary Objections.


Anyone wishing to review a copy of this decision may click this LINK.

Summary Judgment Granted in Dog Bite Case Due To Lack of Proof of Prior Vicious Propensities

In the case of MR v. Bunting, No. 6856-CV-2019 (C.P. Monroe Co. June 8, 2021 Williamson, J.), the court granted summary judgment in favor of the Defendants on the Plaintiff’s negligence per se and negligence claims arising out of a dog bite incident. The court also granted summary judgment on the claim for punitive damages.

According to the Opinion that the minor Plaintiff was allegedly bitten by a dog at a birthday party. There was an allegation that, following the incident, the dog owner allegedly told the guardian of the minor that the dog had bitten someone before.

After the case proceeded through discovery, the dog owner filed a Motion for Summary Judgment. 

With regards to the allegations that the dog owner had violated the Pennsylvania Dangerous Dog Law and was, therefore, negligent per se, the court found no evidence in the record that the law had been violated under the facts presented. 

The court noted that the fact that the dog owner allegedly mentioned that the dog had bitten someone in the past was not sufficient in and of itself. Rather, Judge Williamson noted that the evidence had to show that the dog had previously caused severe injury without provocation and that there was no evidence of this in the record.

The court also noted that liability only existed under theory of negligence per se if the owner knew or had reason to know of the animal’s dangerous propensities. Judge Williamson stated that there was no evidence in the record regarding the nature and circumstances of any alleged prior bite.

Although there was evidence that the dog would growl in the past, the record revealed that this behavior was more consistent with play growling, rather than aggressive growling. The court found that the Plaintiff did not provide any evidence that the dog had vicious tendencies.

As such, summary judgment was granted.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 27, 2021).

Source of image (not of the dog in question):  Photo by Karsten Winegeart on unsplash.com.

Negligence Per Se and Punitive Damages Claims Allowed to Proceed in Dog Bite Case Based on Violation of The Rabies Act

In the case of Philips v. Horvath, No. 536-CV-2021 (C.P. Monroe Co. May 14, 2021 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas address Preliminary Objections filed by a Defendant against a Plaintiff dog bite Complaint on the issues of punitive damages.

The Plaintiff alleged that he was attacked by the Defendant’s dog, as a result of which the Plaintiff had to seek out treatment, including receiving six (6) rabies injections.

The Defendants filed Preliminary Objections, in part, against the Plaintiff’s claims of negligence per se based upon an allegation that the facts confirmed a violation of the Pennsylvania Rabies Control Act. The Defendant filed a Preliminary Objection stating that this claims should be dismissed on the basis that the Plaintiffs failed to allege an injury that was proximately related to that alleged violation of that Act.

The Defendants claimed that the Plaintiff has failed to show that the failure on the part of the Plaintiff to vaccinate their dog from rabies resulted in injuries to the Plaintiff. The Plaintiff countered with the argument that part of the alleged injuries sustained involving the Plaintiff having received rabies shots as a result of the bite, which resulted in thousands of dollars’ worth of medical records as well as emotional distress related to the fear of contracting rabies.

Judge Williamson sided with the Plaintiff. The court found that the Plaintiff was not arguing that the dog bite itself was negligence per se but rather the failure to the Defendants to vaccinate the dog and with respect to the separate injuries that resulted to the Plaintiff in addition to the dog bite itself. 

More specifically, the Plaintiff not only alleged that he sustained a laceration from the bite by the Defendants’ dog, but also had to receive a total of six (6) injections in order to be sure that he would not contract rabies. The Plaintiff additionally claims a monetary loss due to the medical bills required to be paid for those injections. The court also reiterated the Plaintiff alleged emotional damages due to the fear that he might contract rabies.

Judge Williamson noted that the Plaintiff was not arguing that ‘but for the Defendants’ failure to follow the act he would not have been bitten,’ but rather, the Plaintiff was arguing that 'but for the Act not be followed by the Defendants, the Plaintiff would not have had to receive six (6) injections to prevent a possible rabies exposure, sustain a monetary loss associated with those injections, and would not have sustained emotional distress from having to worry about contracting rabies.'

As such, the court denied Defendants’ Preliminary Objections.

Notably, the court also found that the facts alleged were sufficient to support the Plaintiff’s claims for punitive damages. The court found facts in the Complaint that supported claims of an outrageous act and/or recklessness.

In particular, the court noted that the Plaintiff alleged that the incident occurred due to the Defendants’ failure to restrain their pit bull or to close him in another room in order to guarantee the safety of the Plaintiff. The court also noted that the Defendants had failed throughout the dog’s entire life to get it vaccinated for rabies. Judge Williamson additionally noted that the record revealed that the Defendants had direct knowledge that the dog was not vaccinated as they had secured the dog as a puppy and was informed at that time that the dog needed to be vaccinated but the Defendants failed to do so.

The court found that the nature of these alleged acts or omissions could be construed as a reckless disregard for the safety of others and could be considered outrageous in the context of a claim for punitive damages.

As such, the Defendants’ demurrer asserted against the punitive damages claim was overruled.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Thomas J. Newell of Newell Law for bringing this case to my attention.

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Various Claims in Dog Bite Case Allowed to Run Free

In the case of O’Mara-Conley v. Boudaher, No. CV-2019-11232 (C.P. North. Co. March 24, 2020 Morganelli, J.), the court overruled in part and sustained in part the Defendant’s Preliminary Objections filed in a dog bite case.

More specifically, the court overruled the Defendant’s Preliminary Objections to the Plaintiff’s claims for punitive damages but sustained the Defendant’s Preliminary Objections with respect to the Plaintiff’s claim of negligence per se based upon the Lease Law, 3 P.S§459-305.

However, the court also overruled the Defendant’s Preliminary Objections with respect to the Plaintiffs’ claim of negligence per se with respect to “The Dangerous Dog Law,” 3 P.S. §459-502A.

The court also overruled the Defendants’ Preliminary Objections to the Plaintiff’s claim for medical expenses/strict liability.

According to the Opinion, the minor Plaintiff was attacked by the Defendant’s pit bull or pit bull mix. 

On the issue of punitive damages, the Plaintiff relied upon claims that the Defendants harbored a dangerous dog and, therefore, violated the Dangerous Dog Law.

The Plaintiff additionally alleged indifference, along with allegations of willful, and/or reckless intentional conduct on the part of the Defendants.

In allowing the punitive damages claims to proceed based upon the allegations of willfulness, wantonness, or recklessness, this court fell in line with those other trial courts that have followed the Pennsylvania Superior Court case of Archbald v. Kimble, 971 A.2d 513, 519 (Pa. Super. 2009) appeal denied 989 A.2d 914 (Pa. 2010) in which that court held that, under Rule 1019(b) “[a]n example of a condition of the mind that may be averred generally is ‘wanton conduct’ and that [b]ecause recklessness is also known as ‘wanton and willful misconduct,’ ‘recklessness’ is a condition of the mind that may be averred generally.”

In addition to finding that the Plaintiff’s Complaint generally averred the necessary conditions of the mind required for an award of punitive damages, the court also pointed to the alleged facts that the Defendants owned a large pit bull/pit bull mix dog with an unknown temperament, that the dog had previously bitten another child, and that the dog routinely jumped at/on visitors to the Defendant’s property, all of which the Defendants were allegedly aware of.

The court noted that, accepting all of the allegations of the Plaintiff as set forth in the Complaint as required by the standard of review, the court could not conclude that it was free and clear from any doubt that the Plaintiff would be unable to prove their case for punitive damages. As such, this claim was allowed to proceed.

The court’s Opinion is also notable for its other analysis of the Lease Law in dog bite cases.

The court also notably allowed a claim for strict liability for medical expenses to proceed, which claim was based upon Article V-Offenses of Dogs, 3 P.S. §459-502(B). Under that section, it is provided that any cost to a victim for medical treatment resulted from a dog bite must be paid fully by the owner or keeper of the dog.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Neil O’Donnell of the Kingston, PA law firm of O’Donnell Law Offices for bringing this case to my attention.

Court Upholds Dogs' Right to Bark or Growl

In the case of Grau v. Carroll, No. C-48-CV-2017-09424 (C.P. Northampton Co. March 28, 2019 Roscioli, J.), the court granted the Defendant’s Motion for Summary Judgment in a case where the Plaintiff alleges that she was caused to fall when she was startled by the Defendants’ dog, a golden retriever.  The Plaintiff alleged that the dog ran up to the edge of an invisible/electric fence which caused the Plaintiff to back away from the dog, step off a sidewalk, fall, and allegedly sustain physical injuries.

The Defendants filed a Motion for Summary Judgment on the grounds that the Plaintiff failed to produce sufficient evidence to support claims of negligence. In response, the Plaintiff cited a local ordinance pertaining to the confinement of dogs, a violation of the dog law, regarding confinement of dogs and harboring dangerous dogs, and under ordinary common law negligence principles.

The court noted that the evidence presented in the record confirmed that the dog was confined to the premises of the owner by way of an electric fence. The court noted that the evidence also confirmed that the dog remained within the Defendants’ yard at all times even when the Defendants’ dog was barking at the Plaintiff’s dog. 

With regards to the Plaintiff’s allegation that the Defendants were harboring a dangerous dog, no evidence was produced that the dog had ever bitten any other human or animal. The court noted that, the fact that the Defendants’ dog would run up to the electric fence lien and bark at people walking by was not sufficient to support a finding that the Defendants harbored an aggressive dog. 

The court also rejected the Plaintiff’s arguments under common law negligence principles for many of the same reasons. More specifically, the court noted that the evidence confirmed that the dog remained confined to the Defendants’ premises. The court additionally noted that there was no duty under the law for a dog owner to prevent his dog from barking or growling or from running along a fence inside the owner’s yard so as to prevent the dog from allegedly startling others. 

In defense of dogs, the court noted that “[t]he simple reality is that dogs bark, and sometimes growl. It is their means of communication, as they lack the capacity for speech that humans possess. To impose upon dog owners a duty to prevent their dogs from barking or growling would be to impose an impossible burden.” 

Anyone wishing to review a copy of this decision may click this LINK.

If you need any assistance bringing any dog bite case you may have to a close by way of a settlement, please do not hesitate to contact me to arrange for a mediation through Cummins Mediation Services. Curriculum Vitae and Fee Schedule available upon request.

Dog Bite Complaint Cleaned Up by Judge Williamson of Monroe County

Proving that a judge’s bite is sometimes worse than a dog’s bite, the court granted several Preliminary Objections to a Plaintiff’s dog bite Complaint in the case of MR v. Bunting, No. 6856-Civil-2019 (C.P. Monroe Co. Nov. 22, 2019 Williamson, J.).

Judge David J. Williamson of the Monroe County Court of Common Pleas granted a demurrer to a paragraph in the Plaintiff’s Complaint that mentioned a duty to maintain insurance. The court granted that demurrer and struck that allegation after finding that there is no requirement to provide insurance or any duty to do so under Pennsylvania law. 

The court also rejected a claim by the Plaintiff that the Defendants owed a duty not to own, harbor and/or keep a dog with violent and aggressive past behavior and tendency. The court noted that there was no basis in Pennsylvania law to support such a claim as Defendants cannot be negligent merely for owning a dog with past violent or aggressive behavior. As such, this allegation of the Complaint was dismissed. 

Judge Williamson also struck allegations of negligence per se stated in the Complaint which were based upon certain sections of the Pennsylvania dog law. The court noted that the sections cited by the Plaintiff dealt with registration and responsibility for a dog found to be a dangerous animal within the meaning of the dog law. However, the court found that the Plaintiffs did not allege that the Defendants’ dog was a dangerous animal within the meaning of the particular provisions of the statute. As such, there could be no negligence per se claim under the dog law under the particular Complaint. 

The court also struck the Plaintiff’s allegations for premises liability since the allegations of the Complaint confirmed that the Plaintiff was claiming that the injury arose from a dog bite and not from any claimed defeat in the condition of the land possessed by the Defendants. 

Judge Williamson also struck various references in the Complaint in which the Plaintiff had claimed certain types of liability with “including but not limited” language. The court found that the use of this phrase violated the law set forth in Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). 

The court also struck the Plaintiff’s claim for attorney’s fees as there was no statutory authority or contractual language to support the same. 

Judge Williamson struck the Plaintiff’s request for damages for interest. The court noted that, under Pennsylvania law, such a claim is not allowed in tort actions in which damages sought are unliquidated as they were in this particular case. 

The court did overrule an objection to the Plaintiff’s claim for punitive damages and allowed that case to proceed into discovery in order to afford the Plaintiff an opportunity to gather facts to support such claims. 

Although the courts struck many allegations from the Plaintiff’s Complaint, the case was allowed to proceed on certain other claims. 

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 7, 2020).