COLBEA ENTERPRISES, LLC, v. FRAMINGHAM ZONING BOARD OF APPEALS, and PHILLIP R. OTTAVIANI, JR., SUSAN CRAIGHEAD, STEPHEN MELTZER, EDWARD COSGROVE, ROBERT SNIDER and JOSEPH NORTON, in their capacity as Members of the Framingham Zoning Board of Appeals.
The defendant members of the Framingham Zoning Board of Appeals ("Board") have moved to dismiss the first amended complaint in this matter on the dual grounds that the complaint fails to state a claim upon which relief can be granted and that the court is without subject matter jurisdiction because the initial complaint was not timely, and because the action purports to be an appeal pursuant to G. L. c. 40A, §17, which the defendants argue does not govern this action. The plaintiff concedes that G. L. c. 40A, §17 does not apply to this action, and that if it does, the complaint was not timely. The plaintiff proposes to cure the defects in the initial complaint and the first amended complaint by seeking leave to file a second complaint asserting a claim in the nature of certiorari pursuant to G. L. c. 249, §4. The Board counters that even a certiorari claim would be untimely.
may consider documents and other materials outside the pleadings when ruling on a rule 12(b)(1) motion.").
The plaintiff operates a gasoline station in Framingham that has featured an illuminated strip of neon lighting on its canopy for the past fifteen years. In 2015, an enforcement officer of the town sent the plaintiff a letter asserting that the existing signage was not in compliance with various aspects of with the town's non-zoning sign bylaw. The plaintiff applied for and received a permit to address the issues raised in the town's letter, and to renovate the strip by replacing the existing neon strip with an LED lighting strip. The new application was denied and the plaintiff appealed to the Board, seeking a variance from the provisions of the sign bylaw.
" At the end of its decision on the merits, the Board notes that, "Appeals, if any, shall be made pursuant to Sign Bylaw, §1.12.6(f) and shall be filed within sixty (60) days after the date of filing this Decision with the Town Clerk." Section 1.12.6(f) of the Sign Bylaw provides: "Any party aggrieved by a decision of the Zoning Board of Appeals may within sixty (60) days of the filing of such decision appeal the decision to a court of appropriate jurisdiction." The plaintiff filed its complaint in this court in fewer than sixty days following the filing of the decision with the town clerk, but more than sixty days after the hearing at which the Board voted to deny the plaintiff's request for a variance.
The Board argues that the first amended complaint, making a claim of appeal pursuant to G. L. c. 40A, §17, must be dismissed because: (1) the sign bylaw is a general bylaw, and therefore appeals from decisions based on the bylaw are not governed by G. L. c. 40A, which provides the exclusive avenue of appeal only for zoning decisions; and (2) even if G. L. c. 40A, §17 provided the proper avenue of appeal, such appeals, by statute, must be filed within twenty days of the date the decision is filed with the town clerk. As the plaintiff conceded at the hearing on these motions, the Board's argument in this regard is well taken. The sign bylaw, adopted as a general bylaw under the police power of the town, is not a zoning bylaw, and accordingly, appeals from decisions made under the bylaw, notwithstanding the understandable confusion created by the Board's references to chapter 40A in the conduct of its hearings, are governed by the certiorari statute, G. L. c. 240, §4, and not by G. L. c. 40A. This conclusion does not end the court's inquiry, because the plaintiff has asked for leave to file a second amended complaint re-casting its claim as one in the nature of certiorari pursuant to G. L. c. 249, §4.
A plaintiff must seek leave of court to amend a complaint after having filed a first amendment, and "leave shall be freely given when justice so requires." Rule 15(a), Mass. R. Civ. P. Although leave shall be freely granted, the decision whether to allow amendment is discretionary with the trial judge, and leave may be denied if there is good reason, which may include, among other reasons, "futility of the amendment." Ramirez v. Graham, 64 Mass. App. Ct. 573 , 579-80 (2005). The Board argues that the proposed amendment is futile, on the grounds that: (1) the complaint, even as a claim under G. L. c. 249, §4, is not timely; and (2) the Land Court does not have subject matter jurisdiction over a certiorari appeal that does not relate to right, title or interest in land, and is not an appeal under zoning or subdivision laws.
I. The Appeal Is Timely.
This action was filed more than sixty days after the hearing at which the Board denied the plaintiff's request for variances, but fewer than sixty days from the date the Board's written decision was filed with the town clerk. The Board cites Carney v. Town of Framingham, 79 Mass. App. Ct. 1129 (2011), a Rule 1:28 "unpublished" decision of the Appeals Court, in support of the proposition that an action in the nature of certiorari must be filed within sixty days after the date of the Board's "last administrative action", i.e., its vote to deny relief, and not after the date of the Board's written memorialization of its action by filing a written decision with the town clerk.
G. L. c. 249, §4 provides that actions in the nature of certiorari "shall be commenced within sixty days next after the proceeding complained of." The nature of the "proceeding complained of" will necessarily depend on the context, and in the particular context complained of in this action, the Board's "last administrative action" constituting a part of its proceedings, is a function of what is required by the sign bylaw under which the Board acted. Both the sign bylaw and the Board's decision explicitly provide that appeals of the Board's decision are to be filed within sixty days after the filing of the Board's decision with the town clerk. Thus, the bylaw dictates that the last necessary administrative action taken by the Board on a petition for a sign variance is the filing of the Board's decision with the town clerk. This is not, as is argued by the Board, an ineffective waiver by the Board of the statute of limitations contained in the statute, but rather a permissible delineation of the procedural framework under the bylaw from which a plaintiff can appeal. Unlike the situation in Carney, in the present case the filing of the Board's decision is a last necessary administrative step, and is not merely a memorialization of the Board's action at the previous hearing. Until the Board filed its decision, or the time within which the Board was allowed to file its decision had expired without a written decision having been issued, there was nothing from which the plaintiff could appeal. Accordingly, the action, having been filed within sixty days after the filing of the decision with the town clerk, was timely.
This conclusion is not only logically required by the procedure outlined in the sign bylaw, it is the only interpretation of the sign bylaw that is possible. To find otherwise would allow the Board to institutionalize in both the bylaw and its decisions an instruction (that appellants may file appeals within sixty days of the filing of the decision with the town clerk) that purposefully misleads applicants into filing an appeal after the limitations period has expired. An interpretation that allows the Board to mislead applicants into waiting until after expiration of the appeal period is not an acceptable or correct interpretation. Even if this result were construed to be a waiver by the Board of the statute of limitations, to refuse to find a waiver here, where the Board itself instructed the plaintiff to file its appeal within sixty days of the filing of the decision with the town clerk, "would frustrate the purposes and policies that (the) statute is designed to advance." Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779 , 787 (2012).
II. The Land Court Does Not Have Subject Matter Jurisdiction Over This Action.
The Board argues that even if the plaintiff asserted an action in the nature of certiorari in a timely manner, the Land Court lacks subject matter jurisdiction to hear such an action, as it is not an action involving a right, title or interest in land, and it does not arise under the subdivision control law, the zoning act, or municipal zoning or subdivision bylaws. The Board's argument requires an examination of: (1) whether the statutory framework grants the Land Court jurisdiction to hear certiorari actions arising under land use ordinances, bylaws or regulations other than those relating to zoning and subdivision control; and; (2) whether the sign bylaw at issue here is a "land use" bylaw within the meaning of G. L. c. 185, §1(r).
a. The Question Whether The Land Court Has Jurisdiction Over Actions In The Nature Of Certiorari Involving Land Use Other Than Zoning And Subdivision Appeals Need Not Be Reached In This Action.
Actions brought pursuant to sections 4 or 5 of chapter 249 where any right, title or interest in land is involved, or which arise under or involve the subdivision control law, the zoning act, or municipal zoning, subdivision, or land-use ordinances, by-laws or regulations.
A civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought in the supreme judicial or superior court or, if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act or municipal zoning, or subdivision ordinances, bylaws or regulations, in the land court.
Thus, each of the statutes was amended to explicitly grant the Land Court concurrent jurisdiction over certiorari appeals arising under the subdivision control law, the zoning act, and local zoning or subdivision ordinances, bylaws or regulations. However, one glaring difference between the two statutes added or amended by the Act is the inclusion of jurisdiction over appeals involving "land-use ordinances, by-laws or regulations" in G. L. c. 185, §1(r), and the absence of the words "land-use" in the corresponding grant of jurisdiction in G. L. c. 249, §4 (and §5, governing actions in the nature of mandamus). This raises the question whether the Land Court has jurisdiction over certiorari actions involving "land-use" ordinances, bylaws or regulations other than those arising in the context of zoning or subdivision control.
"All the statutes must be construed, where capable, so as to constitute a harmonious whole consistent with the legislative purpose disclosed in the new act. Such purpose is to be gleaned from the reasons, where ascertainable, leading to the legislation, from the nature of the subject matter, from the supposed evil to be corrected, and from the objective sought to be attained." Chief Justice for Admin. & Mgmt. of Trial Court v. Office & Prof'l Employees Int'l Union, Local, AFL-CIO, 441 Mass. 620 , 627 (2004), quoting Chief of Police of Dracut v. Dracut, 357 Mass. 492 , 499 (1970). Here, to read G. L. c. 249 §4 and G. L. c. 185 §1(r) harmoniously, these statutes must be interpreted as either both granting jurisdiction over "land-use ordinances, by-laws or regulations," or as both denying such jurisdiction. Two decisions of the Land Court have found that the Land Court has no jurisdiction over such cases. In Janes Properties Ltd. Partnership v. Town of Groton, 23 LCR 1 (2014) (Piper, J.) and Sayle v. Town of Nantucket Conservation Comm'n, 12 LCR 438 (2004) (Lombardi, J.), judges of this court found no jurisdiction over certiorari appeals involving, respectively, an order of a board of health that a property owner connect to a town sewer, and a non-zoning wetlands bylaw. Sayle was based largely on legislative history demonstrating that wetlands bylaws were explicitly deleted from the coverage of the bill prior to passage. Both decisions were based at least partly on a conclusion that the deletion of the words "land-use" from the amendment to G. L. c. 249, §4, while leaving those words in the amendment to G. L. c. 185, §1(r), was probably an oversight. Another interpretation, explored below, need not be pursued to a conclusion here because the court concludes that whether or not the court has jurisdiction over "land-use" appeals in the nature of certiorari that do not involve zoning or subdivision bylaws, the sign bylaw at issue here, as applied, is not a bylaw involving land use.
land-use ordinances, by-laws or regulations", and which are "brought pursuant to sections 4 or 5 of chapter 249", are within the jurisdiction of the Land Court. The additional phrase in G. L. c. 185 §1(r) need not be construed as impliedly amending G. L. c. 249, §4, because it is an explicit grant of jurisdiction with an explicit incorporation by reference of G. L. c. 249, §4. Rather than reading the words "land use" into G. L. c. 249, §4, the court simply recognizes and gives effect to their presence in G. L. c. 185, §1(r), and thus does not run afoul of the principle that, "where the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present." Commonwealth v. Galvin, 388 Mass. 326 , 330 (1983), quoting Beeler v. Downey, 387 Mass. 609 , 616 (1982).
This result is not changed by acknowledging that the phrase "land-use" (as well as the word "wetlands") does not appear in the amended version of G. L. c. 249 §4, as a result of the Massachusetts Senate's decision to remove it during the legislative process. See Massachusetts Senate Journal, July 29, 2002. It is true that typically "where the Legislature has deleted such language, apparently purposefully, the current version of the statute cannot be interpreted to include the rejected requirement." Abrahamson v. Estate of LeBold, 89 Mass. App. Ct. 223 , 227, (2016), review denied, 475 Mass. 1102 (Sept. 16, 2016). However, the grant of jurisdiction over "land-use ordinances" may not truly be a rejected requirement, as it nonetheless remained in the Act through the adoption of G. L. c. 185 §1(r), and its presence in G. L. c. 185 §1(r) can be read harmoniously with its absence in G. L. c. 249, §4. Where the Legislature thus chose to enact legislation that included the grant of jurisdiction over "land-use" matters, the inclusion of the words "land-use" is not such as would constitute "obvious clerical error" so as to allow the court to ignore the literal language of the statute, as it is certainly possible to read the statutes clearly and harmoniously despite the omission of the words in G. L. c. 249, §4. See Burke v. Bd. of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. Ct. 203 , 207 (2016).
Notwithstanding this analysis, recognizing the departure this conclusion would represent from Sayle and Jaynes, the court finds it unnecessary to finally determine whether the Land Court generally has jurisdiction over actions in the nature of certiorari involving "land-use ordinances, by-laws or regulations" other than zoning and subdivision laws. This is so because, as is discussed below, the sign bylaw, as applied here, does not implicate "land-use" within the meaning of G. L. c. 185, §1(r).
b. This Action Does Not Involve A "Land-Use" Bylaw Within The Meaning Of The Act.
The court concludes that this action does not involve a "land-use" bylaw within the meaning of G. L. c. 185, §1(r). According to the allegations of the plaintiff's first amended complaint, the plaintiff applied to the Board for a variance from the sign bylaw to install a canopy sign consisting of an illuminated lighting strip, as well as a "third canopy logo sign." It is the denial of the requested variances for these signs that is the subject of the plaintiff's appeal. The Supreme Judicial Court has observed that not all ordinances or bylaws that regulate land use are zoning laws. Lovequist v. Conservation Comm'n of Town of Dennis, 379 Mass. 7 , 12 (1979). The question then, is whether the sign bylaw appeal presently before the court arises under such a non-zoning regulation of land use.
"A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result." Sullivan v. Brookline, 435 Mass. 353 , 360 (2001). A bylaw that does not implicate the use of land may not be a "land-use" bylaw, notwithstanding that it may be administered by the building inspector and that the activity it regulates takes place on the plaintiff's property. Thus, it is necessary to establish whether the sign bylaw as applied in the present case, actually implicates the use of land. Though a term as general as "land use" defies easy definition, the test for evaluating changes to nonconforming uses supplies a readily applicable rubric for determining when an action implicates the use of land. To determine whether there has been a change in a nonconforming use, the court looks to alterations to the nature, purpose, quality, character, and degree of the activity taking place on the land. See Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 653 (1973). The essential goal of the so-called Powers test is to evaluate if an owner's actions on his or her land impact the nature and character of the use of the land. The issue presented in the present case  determining whether a bylaw will impact the actual use of the land  revolves around the same central question of what actually effects a change in the use of the land. Accordingly, just as a change to the actual use of land stems from the nature, purpose, quality, character, and degree of an activity, a bylaw regulating the actual use of land would do the same. A land use bylaw may thus be defined as one that regulates these intrinsic features of the activity taking place on the land.
This test is consistent with the courts' prior consideration of what constitutes a regulation of use. In CHR General v. City of Newton, 387 Mass. 351 (1982), the Supreme Judicial Court struck down a zoning ordinance purporting to regulate by special permit the conversion of multi- family rental apartments to condominiums. The Court pointed out that a "fundamental principle of zoning [is that] it deals basically with the use, without regard to the ownership, of the property involved or who may be the operator of the use." Id. at 356, quoting 1 A. Rathkopf, Zoning and Planning § 1.04, at 1-21 (4th ed. 1982). The invalid zoning ordinance in CHR General did not regulate the use of land, as it did not regulate the underlying nature, purpose, quality, character, or degree of use; whether the ordinance prevented or allowed a particular type of ownership, the residential use of the land would remain fundamentally unaffected. Similarly, the sign bylaw as applied here has no impact on the underlying use of the property. Plaintiff's property is used as a gasoline station. The decorative lighting on the canopy and the addition of a third logo sign have no effect on the nature or purpose of this use, as the property will continue to be used as a gasoline station with no change in the manner, nature, or intensity of the operation as a result of the changed lighting and signage. The quality, character, and degree of the use is unaffected, as the manner in which it may be operated and the extent of its operation are unrelated to the proposed changes in lighting and signage. Either by allowing or denying the requested illuminated lighting strip or a third logo sign, the Board would not have been purporting to affect in any manner the use or operation of the plaintiff's property as a gasoline station, which may continue regardless of the denial of relief by the Board, and which would have continued in the same manner had the relief been granted. At least as applied here, the sign bylaw is not a land use ordinance within the meaning of G. L. c. 185 §1(r), and the Land Court accordingly lacks jurisdiction over plaintiff's action.
For the reasons stated above, the plaintiff's motion to amend is ALLOWED, and the plaintiff is given leave to file a second amended complaint basing its action on G. L. c. 249, §4, within thirty (30) days of the date of this Order; and the Board's motion to dismiss is DENIED, provided that if plaintiff fails to file a second amended complaint as provided in this Order, the action will be DISMISSED. Furthermore, based on the court's determination that it lacks subject matter jurisdiction over this action, upon plaintiff's filing of a second amended complaint within thirty (30) days of this Order, this action shall be TRANSFERRED to the Superior Court for Middlesex County, pursuant to G. L. c. 185, §15, second paragraph.
[Note 1] A related case involving the same parties, and the same issues, but a different property owned by the plaintiff, is also decided this day. The case, Colbea Enterprises, LLC v. Framingham Board of Appeals, et al., 16 MISC 000346, was heard together with the present action, although the two cases have not been consolidated.


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In a recent tax court case, Holy Trinity Baptist Church v. City of Trenton (Docket No. 015909-2014, February 2, 2017), the court overturned the findings of the County Board of Taxation and upheld the tax exemption for religious/charitable use of properties pursuant to N.J.S.A. 54:4-6.3. This statute exempts properties from taxation where “buildings [are] actually used in the work of associations and corporations organized exclusively for religious purposes, including religious worship, or charitable purposes.” The Holy Trinity decision comes at a time when municipalities are aggressively attempting to challenge exemptions and return previously exempt properties to their ratable tax rolls.
Commencing with the tax court’s decision in the AHS Hospital Corp. v. Town of Morristown, 28 N.J. Tax 456 (Tax 2015), involving the Morristown Memorial Hospital, it appears that the level of scrutiny being applied to previously well-established categories of exempt users has been elevated thereby placing the exempt status of many non-profit organizations in limbo. In Morristown Memorial, the tax court found that the hospital’s entanglement with and in for-profit activities undermined the hospital’s ability to satisfy the well-recognized three prong exemption test. This test requires an organization to establish that: 1) The organization is a New Jersey non-profit entity; 2) The non-profit entity is acting consistent with its charter in the performance of religious/charitable functions; and 3) The activities performed on the property are not conducted for profit. Paper Mill Playhouse v. Millburn Township, 95 N.J. 503 (1984). In reaching its conclusion the Morristown Memorial court focused on the hospital’s failure to satisfy the third prong of the test. In part, the court concluded that the activities conducted and services provided by the many private, for-profit physicians, utilizing the facilities on a daily basis, dictated a finding that these hospital facilities were in fact being used for profit. The court there also concluded that it was unable to distinguish and segregate those portions of the hospital facilities where the involvement of for-profit activities did not apply. Consequently, other than in the most distinct and limited areas (e.g., the hospital parking garage, auditorium and in-house fitness center), the Morristown Memorial hospital facilities were deemed to be taxable.
More recently, the tax court was asked to focus on the exemption afforded non-profit universities. In Fields v. Trustees of Princeton University, a group of third-party taxpayers challenged the exemption afforded Princeton University. Although that matter was resolved without a trial, it appears the settlement may have been precipitated by the University’s concerns with what has been widely perceived to be an increasingly unfriendly environment for the exempt treatment of non-profits in the aftermath of the Morristown Memorial decision. No doubt, the fact that the very same tax court judge who penned Morristown Memorial was also assigned to the Princeton University case may have further influenced the University’s decision to settle the matter. The settlement, which only temporarily resolves the ultimate exemption question, requires the University to pay over $18 million dollars in payments to third-parties and contributions to the municipality (in the form of payments in lieu of taxes) through the year 2022 when the University’s settlement obligations expire.
With this recent history and the presence of numerous pending cases specifically attacking the exemptions afforded non-profit hospitals throughout the state, the tax court’s decision in Holy Trinity may offer non-profits, at least religious organizations, some solace from what appears to be a concerted effort on the part of municipalities to challenge the efficacy of real property tax exemptions in all areas. Importantly, the Holy Trinity court concluded that despite evidence indicating that religious activities on the subject church property had diminished (as the church purchased a new property for its operations and had already commenced the process of shifting its activities to this new location), the church continued to make actual use of the property in furtherance of its religious purposes. In particular, the Holy Trinity court found that the church continued its schedule of weekly meetings, made the space in question available for future meetings and gatherings, conducted receptions, and stored books at the location in connection with its religious/charitable functions. As a result, the continued application of the tax exemption was determined to be appropriate in Holy Trinity.
The Holy Trinity court made clear that the intention to sell the property and diminished use thereof would not in of itself destroy the tax exemption. This most recent decision is in accord with City of Hackensack v. Bergen County, where the listing of the property for sale and removal of certain items to increase the marketability of the property were found to be insufficient to undermine the exemption. Id. 405 N.J. Super. 35 (App. Div. 2009). In addition, the Holy Trinity court also recognized that, even where a property’s use is limited to the occasional use for storage of goods used in furtherance of religious and charitable purposes, the property would still qualify for tax exempt status. Borough of Hamburg v. Trustee of Presbyty of Newton, 28 N.J. Tax 311, 319-320 (Tax 2015).
Consequently, in the current ratable hungry environment, non-profit organizations must now be more vigilant in ensuring that their properties continue to be used for the organization’s exempt or charitable purposes. Only by regularly reviewing the entity’s activities and documenting continued property usage for its non-profit purposes, can these organizations improve the prospect of preserving the significant benefits that flow from the continued application of the statutory exemption.

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The angels of Shabbat were working overtime yesterday.
I came home from services to a message on my answering machine from Tom, V.'s son. "Alto," he said, "today would be a good day to visit. Come by anytime." Just a handful of people call me "alto" in real life; it was strange to hear that name from someone I didn't know. I met V. in the mid-90s on an online bulletin board, a group of random people once numbering in the thousands but now down to about a hundred die-hards. We're like regulars at the corner bar, reliable, crotchety, and--although we tend to recycle the same arguments over and over again--never boring, even after all these years. Most of us check in a few times a day, more than we speak to our own families (except for those who married each other, with a combined total of about a dozen kids). We meet occasionally at the real corner bar, an old-fashioned kind of community created from a very new medium.
V. is a retired teacher in her 70s. Her husband died of a long illness whose every battle we followed online. I never really got to know know V. much beyond the facts--European-born and bred, speaker of many languages, lover of literature, brilliant player of Trivial Pursuit, direct, funny, honest--although I could have; the door was always open. But I didn't know how to be friends with someone so much older than I, and who maybe reminded me a little of my own mother. V. had no such issues. She called to check up when I was sick, was a tireless cheerleader for my adventures in chanting, and once gave me the kindest, most generous gift I've ever received in my entire life. She demurred when I tried to return it: "It's a mitzvah to give, so you can't deny me that opportunity."
V. was diagnosed with ovarian cancer a few years ago. She fought back with the tenacity of a lioness protecting her young, enduring experimental treatments, pain and exhaustion in order to remain on earth for as long as possible. But eventually there were no more avenues to pursue. She resigned herself to round-the-clock nurses--"But I'm not going anywhere any time soon," she announced when I visited earlier this summer. It was starting to rain when I left; she insisted I borrow her favorite umbrella, bright green and emblazoned with the name of her alma mater. "Now you have to come back, in order to return it," she added.
I kept meaning to call. But I was afraid, because I didn't want to see what would surely come next. The umbrella sat on a shelf by my front door, chastising me whenever I went in or out. Next week, I promised myself at the end of each day.
Now I imagine that V. understood my silence and, ever the friend and teacher, again offered a generous gift. She must have given Tom a list of people who would want to say goodbye when the time was right. Yesterday afternoon V. lie in a fitful sleep, her breathing labored, but didn't seem to be in pain. I wanted my thoughts to be full of love and warmth, in case she could sense their presence, but felt instead like I was shouting across a chasm that couldn't be navigated, in a language I didn't speak. I thought of Moses on the mountain, unable to look at the face of God, and was grateful I couldn't see more of this awesome place. I thanked V. for giving me a glimpse, and for the gift her of herself all these years, and carefully placed the green umbrella on the table by the door before I left.
Oh, dear a.a. How beautifully you express the feeling of standing at the edge of this chasm, so apparently unbridgeable.
Thinking of you, and of her.
Somehow, this makes me feel sad but grateful at the same time... that we are always given second chances. V. sounds like a wonderful person- blessings for her and you, aa.

matches: V. V. V. V. V. V. V. V. V.


Complainant is World Wrestling Entertainment Inc. of Stamford, Connecticut, United States of America, represented by the law firm Gill Jennings & Every LLP, United Kingdom of Great Britain and Northern Ireland.
Respondent is Israel Joffe of Lawrence, New York, United States of America.
The disputed domain names <wrestlemania26.com>, <wrestlemania27.com> and <wrestlemania28.com> are registered with Dotster, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 27, 2010. On May 27, 2010, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the disputed domain names. On May 27, 2010, Dotster, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 28, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 17, 2010. After a request from Respondent, the Center extended the due date for the Response to June 21, 2010. The Response was filed with the Center on June 22, 2010.
The Center appointed Richard G. Lyon as the sole panelist in this matter on June 29, 2010. The Panel finds that it was properly constituted and has jurisdiction over this proceeding. The Panel has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant is a media and sports entertainment company whose principal focus is professional wrestling. Among its activities are matches presented live and by television, the Internet, and other media. Its most successful wrestling event is entitled “WrestleMania.” Complainant holds many trademarks for WRESTLEMANIA that are registered with the appropriate governmental authorities around the world, including the United States Patent and Trademark Office. Registered marks date back to the 1990s, claiming use in commerce as early as 1985. Complainant spends substantial sums to promote its WrestleMania events and related branded products, such as clothing, using that mark designed to take advantage of the events.
Respondent registered the disputed domain names in March 2004. All three are currently inactive and return a “The requested URL could not be retrieved” error message. Nothing in the record, including the Response, suggests any use ever of the disputed domain names. On its own examination using the Wayback machine, “www.achive.org”, the Panel found no record of use at any time.
The dominant feature of the disputed domain names is identical to Complainant's WRESTLEMANIA marks. Complainant has never authorized Respondent to use its marks, indeed Complainant has never had a relationship of any kind with Respondent. Respondent has never used the disputed domain names for any purpose, bona fide or otherwise. Given the longtime renown of Complainant and the WrestleMania events it sponsors, as reflected in its registered marks, Complainant claims that Respondent plainly selected the disputed domain names to take advantage of the recognition attached to Complainant's marks to attract Internet users to Respondent's websites, as proscribed by paragraph 4(b)(iv) of the Policy.
“Cybersquatting (also known as domain squatting), according to the United States federal law known as the Anticybersquatting Consumer Protection Act, is registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price. However if the person does not attempt to sell the name to the company, then no laws have been violated since intent to sell in bad faith has not been proven.
In Virtual Works, Inc. v. Volkswagen of America, Inc. (a dispute over the domain vw.net), the [United States] Fourth Circuit Court of Appeals created a common law requirement that the cybersquatter exhibit a bad faith intent in order to confer liability. This means that domain names bearing close resemblance to trademarked names are not per se impermissible. Rather, the domain name must have been registered with the bad faith intent to later sell it to the trademark holder. This “bad faith” concept is reiterated in 15 U.S.C. § 1125 and U.S.C. § 1129.
This first Policy element requires proof of two matters. Complainant must first show ownership of a trademark or service mark, and then establish that the disputed domain names are identical or confusingly similar to its mark. Complainant's proof plainly establishes the first of these matters; WRESTLEMANIA is Complainant's registered trademark in many countries of the world. A quick comparison of the disputed domain names to those marks establishes the second element. WrestleMania is the dominant feature of all three disputed domain names and the addition of numerals following that word does not obviate confusing similarity to Complainant's marks.
Under longstanding precedent (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview”), paragraph 2.1), Complainant proves the negative required by paragraph 4(a)(ii) of the Policy by first making a prima facie case that Respondent lacks rights or a legitimate interest in the disputed domain names. Complainant has done so here. Complainant has not licensed Respondent to use its marks, and nothing in the record suggests that Respondent has been known, commonly or otherwise, by anything including the word WrestleMania. The burden of production thus shifts to Respondent to counter Complainant's prima facie case. Respondent has provided nothing in this regard, so this Policy element has been satisfied.
Respondent's entire defense to the Complaint is a single contention, that the Policy requires evidence of a sale or attempted sale of a disputed domain name to the mark owner. That contention is defeated by the language of paragraph 4(b) of the Policy itself, which provides several non-exclusive examples of bad faith in registration and use that do not involve any attempt to sell domain names. As Complainant argues, Respondent's conduct in this case falls squarely within the example given in paragraph 4(b)(iv).
As in Telstra, supra, given the renown of Complainant's trademark, there can be little doubt that Respondent selected the disputed domain names for its association with Complainant's mark. Respondent does not bother to deny this. Complainant has carried its burden of proof under this Policy element.
D. Extension of Time to File Response.
While not pertinent to the merits of this dispute, the Panel considers it appropriate to add this note about Respondent's request for an extension of time in which to file his Response.
Respondent first made this request on June 11, 2010, two weeks after his receipt of the Complaint. In that communication to the Center Respondent gave no reason for the requested extension. After filing his response, Respondent did say that his “lawyer's wife [was] having a baby.” Complainant, by letter to the Center, opposed Respondent's request for an extension, citing primarily paragraph 5(d) of the Rules, which authorizes the provider to extend the period of time for filing of a response “in exceptional cases”. Complainant saw nothing “exceptional” about this case.
Nor does this Panel. Particularly given the nature of the Response actually filed, the twenty days provided by the Rules constituted ample time to address the merits of the Complaint. Rather than an extension based upon legitimate need, this appears to be yet another attempt by a respondent to keep its domain names a bit longer, for whatever reason.1 This Panel and other panels have condemned this respondent tactic in the past, see Union Square Partnership, Inc., Union Square Partnership District Management Association, Inc. v. unionsquarepartnership.com Private Registrant and unionsquarepartnership.org Private Registrant, WIPO Case No. D2008-1234 (“The Policy and the Rules are intended to facilitate expeditious consideration of a limited class of cases, and strict adherence to their deadlines is a necessary corollary of this objective.”); The Knot, Inc. v. Julia Bitton, The Nest, WIPO Case No. D2006-0377; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304.
This Panel condemns Respondent's attempt here. 2 Any extension not based upon legitimate and appropriately supported need cannot, in this Panel's opinion, constitute the “exceptional” circumstances called for by paragraph 5 of the Rules. The circumstances belatedly cited by Respondent change nothing in this regard and furnish no excuse. Birth dates are ordinarily predictable and ordinarily do not incapacitate the parents for three full weeks. Of greater importance, Respondent has offered no explanation for waiting two weeks to request an extension or why he or his counsel could not have attended to this proceeding before his June 11, 2010 enquiry.
The Rules expressly include an easy and practical means for a respondent with a real need to obtain a brief extension. Paragraph 5(d) provides: “The period [for filing the Response] may also be extended by written stipulation between the Parties, provided the stipulation is approved by the Provider.” Respondent offers no explanation why he didn't request a brief extension from Complainant's counsel. As it turned out, the Center did seek Complainant counsel's comments on the Respondent's request for an extension, and it was not agreed to. However it is generally desirable for any respondent seeking an extension first to apply to the complainant or its representative before approaching the Center for an extension.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <wrestlemania26.com>, <wrestlemania27.com> and <wrestlemania28.com> be transferred to Complainant.
1 Often the reason is obvious too, a few more days' or weeks' worth of click-through revenues.
2 The Panel notes the email communication sent by the Center to the parties indicating the Respondent had provided no evidence of exceptional circumstances, and granted the Respondent a brief interim period of four days in which to supply such evidence, if any. None was forthcoming from the Respondent, and the Center did not extend the response date beyond the interim four day period mentioned.


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PURDUE UNIVERSITY, et al., Defendants-Appellees.
William E. Marsh, Indiana University School of Law, Indianapolis, Ind., for plaintiff-appellant.
John C. Duffey, Stuart & Branigin, LaFayette, Ind., for defendants-appellees.
Before BAUER, Chief Judge, WOOD, Circuit Judge, and ESCHBACH, Senior Circuit Judge.
Hamid R. Kashani sued Purdue University and various of its officials under 42 U.S.C. Sec. 1983, alleging that he was terminated from a doctoral program at Purdue University on the basis of national origin. The trial court held his claims both for damages and for reinstatement barred by the Eleventh Amendment. In this appeal we uphold the conclusion that Purdue University shares in the sovereign immunity of the State of Indiana under the Eleventh Amendment. We hold further, however, that the Eleventh Amendment does not bar suit against the officials for the injunctive relief of reinstatement into the doctoral program.
* Hamid R. Kashani, an Iranian, was terminated from the doctoral program in electrical engineering at Purdue University in Indiana during the "Hostage Crisis." He filed a section 1983 action, alleging discrimination on the basis of national origin contrary to the Equal Protection Clause. The suit named as defendants Purdue University; the trustees and president of the university, in their official capacities; various graduate school officials and members of the Ph.D. Review committee, in both their official and individual capacities. Kashani sought both monetary damages and reinstatement from all defendants, except for the claims against the officials in their individual capacities, which sought only monetary damages.
The district court dismissed for lack of subject matter jurisdiction the claims for monetary relief against the University and against the various officials in their official capacity on the basis that Purdue was entitled to the protection of the Eleventh Amendment. The court subsequently dismissed all claims for injunctive relief, on the basis of the Eleventh Amendment. To enable appeal, the parties stipulated to dismissal of the remaining claims for monetary relief against officials in their individual capacities. Kashani does not appeal these stipulated dismissals. Kashani thus appeals only the claims against the university and against its officials in their official capacity. Against both, Kashani seeks monetary and injunctive relief. For the reasons stated below, we hold that Purdue is an arm of the state entitled to the protection of the Eleventh Amendment. We thus affirm the dismissal of all claims against the university and all claims against the officials for monetary relief. We hold, however, that the injunctive relief of reinstatement is not barred by the Eleventh Amendment and thus reverse the dismissal of the claims for injunctive relief against the officials in their official capacity.
The jurisdictional bar of the Eleventh Amendment protects the state and its agencies; it does not shield political subdivisions. The question here, then, is whether Purdue "is more like a county or city than it is like an arm of the State." Mount Healthy School District v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 573, 50 L.Ed.2d 471 (1977) (local school board not entitled to immunity). The question of sovereign immunity for a state university is not unexplored territory. The vast majority of cases considering the issue have found state universities to be forfended by the Eleventh Amendment. E.g., Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985); Cannon v. University of Health Sciences/The Chicago Medical School, 710 F.2d 351 (7th Cir.1983) (Southern Illinois University and University of Illinois); Jackson v. Hayakawa, 682 F.2d 1344 (9th Cir.1982) (San Francisco State College); United Carolina Bank v. Board of Regents, 665 F.2d 553, 558 (5th Cir.1982) (Stephen F. Austin State University); Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981) (University of Arizona); Perez v. Rodriguez Bou, 575 F.2d 21 (1st Cir.1978) (University of Puerto Rico); Brennan v. University of Kansas, 451 F.2d 1287 (10th Cir.1971). In fact, the parties' briefs and our own research have failed to reveal a single circuit court opinion holding a state university not entitled to Eleventh Amendment immunity. There are district court opinions to the contrary. E.g., Samuel v. University of Pittsburgh, 375 F.Supp. 1119 (W.D.Pa.1974), rev'd on other grounds, 538 F.2d 991 (3rd Cir.1976).
Although state universities have consistently been found to be entitled to immunity, courts reexamine the issue with regard to the facts of each case "because the states have adopted different schemes, both intra and interstate, in constituting their institutions of higher learning." United Carolina Bank v. Board of Regents, 665 F.2d 553, 557 (5th Cir.1982). However, given the great number of cases holding state universities to be instrumentalities of the state for Eleventh Amendment purposes, it would be an unusual state university that would not receive immunity. The analyses in these cases support our holding that Purdue is an instrumentality of the State of Indiana, enjoying its sovereign immunity.
* Courts have looked to a number of criteria in deciding this issue. The most important factor is the extent of the entity's financial autonomy from the state. "[A] crucial question in determining whether the suit should be regarded as one against the state is whether the named defendant has such independent status that a judgment against the defendant would not impact the state treasury." Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981); accord Cannon v. University of Health Sciences/The Chicago Medical School, 710 F.2d 351, 357 (7th Cir.1983). Courts consider the extent of state funding, the state's oversight and control of the university's fiscal affairs, the university's ability independently to raise funds, whether the state taxes the university, and whether a judgment against the university would result in the state increasing its appropriations to the university.
Purdue receives approximately one third of its income directly from the state. For example, in the academic year 1982-83, the university received slightly over 36% of its income from state appropriations. Other sources, with approximate percentages, were auxiliary enterprises (17%); student fees (16%); gifts, grants, and contracts (13%); sales and services (7%); student aid (4%); federal appropriations (3%); organized activities (2%); endowment income (.1%).
Indiana examines Purdue's finances carefully in deciding on the amount of appropriations. Indiana's Budget Agency Act, Ind.Code Secs. 4-12-1-1 et seq., expressly includes Purdue in the definition of "state agency." The definition expressly excludes "cities, towns, townships, school cities, school towns, school townships, school districts, [and] other municipal corporations or political subdivisions of the state." As a "state agency," Purdue is required to prepare and file a detailed statement of all expenditures it made in the last budgetary period or expects to find necessary in the next budgetary period. The statement must show reasons for all expenditures, "showing particularly the reason for any requested increase or decrease over former appropriations." The Budget Agency is empowered to require the submission of additional information and to hold hearings. The Budget Agency analyzes the statement and submits its recommendations to the legislature. Thus, Purdue would have to report the payment of a judgment to the legislature as part of its financial report. Cf. Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 530, 88 L.Ed.2d 462 (1985) ("Where the budget of an entity [Troy State University] is submitted to the state for approval, this suggests that the entity is an agency of the state."). The state exercises further supervision of Purdue's finances through the Commission for Higher Education, which is empowered under Ind.Code Sec. 20-12-0.5-8 to review appropriation requests and make recommendations to the governor, budget agency, and legislature.
Purdue has no power to levy taxes. So although Purdue has sources of revenue other than appropriations from the legislature, it lacks the ability that cities and counties typically have to require payments in the form of taxation. It can raise money only by entering into one of various markets: the market for bonds, for higher education, for services, and so forth. Paying a judgment in a case like the present is also not one of the purposes for which Purdue is authorized to issue bonds. The absence of the power to tax is a strong indication that an entity is more like an arm of the state than like a county or city, because that enablement gives an entity an important kind of independence. The absence of that authority, for an entity like Purdue, ensures ultimate fiscal reliance upon the state. Cf. Mackey v. Stanton, 586 F.2d 1126, 1131 (7th Cir.1978), cert. denied, 444 U.S. 882, 100 S.Ct. 172, 62 L.Ed.2d 112 (1979) ("More important, both have the power to raise their own funds by tax levy and by bond issuance."); United Carolina Bank v. Board of Regents, 665 F.2d 553, 558 (5th Cir.1982) ("Most telling is the power of junior colleges to levy ad valorem taxes.... Under Texas law, political subdivisions are sometimes defined as entities authorized to levy taxes."); Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 304 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985) ("[N]one of the state universities or colleges ... have power to levy taxes to service such bond issues or otherwise provide revenue independent of state appropriations.").
Indiana has exempted Purdue from taxation, a relief that some courts find indicative that an entity is an arm of the state rather than a subdivision. Indiana, however, extends that relief also to political subdivisions, so the factor has less force in this case.
If a judgment were awarded against Purdue, the state treasury would not write out a check to Kashani. But in view of the fact that Purdue is by design dependent on state appropriations, which are evidently carefully geared through close oversight to meet the changing financial needs of the university, it is apparent that the payment would directly affect the state treasury. Indiana has not created an entity with a separate financial basis; it has created one that is dependent upon and functionally integrated with the state treasury. Our examination of the extent of Purdue's fiscal autonomy, then, strongly indicates that Purdue is entitled to Eleventh Amendment immunity.
In determining whether Purdue is independent of the state, we must consider, beside Indiana's financial constraints on the university, the general legal status of the university. "The answer depends, at least in part, upon the nature of the entity created by state law." Mount Healthy School District v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977).
The issue cannot be resolved by simple reference to Indiana statutory definitions. Indiana statutory law relating to Purdue sometimes defines Purdue as a state agency, sometimes as a political subdivision. The Budget Agency Act, as noted above, expressly includes Purdue in the definition of "state agency," while expressly excluding from that definition municipalities, counties, and school districts. The Tort Claims statute, on the other hand, includes a "State college or university" in the definition of "Political subdivision" and excludes a "political subdivision" from the definition of "state agency." The Act, however, expressly provides "Nothing contained in this chapter shall be construed as a waiver of the eleventh amendment...." Other statutory definitions and references point in both directions, depending on the particular statutory purpose and framework. We must look to substance rather than form.
Very significant in considering whether Purdue has sufficient autonomy from the State of Indiana to be considered more like a county or city than like an arm of the state is the fact that the majority of the members of Purdue's governing council, the Board of Trustees, are selected by the Governor of Indiana. Indiana Statutes Ann. 20-12-37-2 (Burns 1985). Cf. United Carolina Bank v. Board of Regents, 665 F.2d 553, 558 (5th Cir.1982) ("Their governing bodies are elected by local voters rather than being appointed by the Governor with the advice and consent of the Senate."); Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 530, 88 L.Ed.2d 462 (1985) ("Troy State University is subject to substantial state control; its Board of Trustees ... is composed in part of state officials and in part of gubernatorial appointees."). The Governor has the right to select seven of the ten Trustees; the Purdue Alumni Association selects the other three.1 The Governor officially appoints all ten. The Trustees serve terms ranging from one to three years.
The Board has the right to regulate the use of university property and the conduct of persons on that property, to set fees and tuition, to discipline students and faculty, to prescribe admission standards, to establish curricula, to set academic standards, and to award financial aid. Ind.Code Sec. 20-12-1-2. It would seem that the delegation of such powers is necessary to enable the university to function. The Trustees are also authorized to enter into contracts; to sue, be sued, settle lawsuits, and pay judgments; to exercise eminent domain; to engage in construction projects and own land. The various powers granted are an indication of independence. But that is undercut by the fact that the majority of the members of the Board itself are selected by the chief executive officer of the state and serve for a maximum of three years. Thus the independence is circumscribed. Moreover, the legislature expressly retained the power to amend or repeal the duties and powers of the Trustees. Ind.Code Sec. 20-12-36-6. From that perspective, the functions granted the board appear less like the independent powers of a city or county than like the authority delegated to an instrumentality of the state to spare the legislature the need to ratify its every action. Also these powers are granted the university only so that it is able to carry out its primary purpose of education, in contrast to a city or county, whose exercise of such powers, in far more extensive form, is its very raison d'etre.
The Court in Mount Healthy looked not just to whether the entity was formed with independent powers from the state but also to whether it served the state as a whole or only a region. Mount Healthy School District v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977) ("Petitioner is but one of many local school boards within the State of Ohio."); See also Mackey v. Stanton, 586 F.2d 1126, 1131 (7th Cir.1978), cert. denied, 444 U.S. 882, 100 S.Ct. 172, 62 L.Ed.2d 112 (1979) (County departments of welfare "perform their duties on a local level."). Purdue educates students from all parts of the state. The local powers that it has are granted it to enable it to perform that function. Thus, we conclude as did the district court that the Eleventh Amendment shields Purdue.
Although the Eleventh Amendment bars all claims against Purdue and the damages claims against its officials in their official capacities, it does not thwart the claims against the officials in their official capacities for the injunctive relief of reinstatement. Under the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a suit for prospective injunctive relief is not deemed a suit against the state and thus is not barred by the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974); Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979). We recently held that an injunction ordering reinstatement of a pharmacist "is clearly prospective in effect and thus falls outside the prohibitions of the Eleventh Amendment." Elliott v. Hinds, 786 F.2d 298, 302 (7th Cir.1986). The same result has been reached by the Sixth Circuit regarding reinstatement of a medical student, Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 307 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985), and by the Second Circuit regarding reinstatement of an employee to the payroll, Dwyer v. Regan, 777 F.2d 825, 836 (2nd Cir.1985). We must thus remand for consideration of the reinstatement claim based on Kashani's allegation that the defendant officials intentionally discriminated against him on the basis of his national origin.
For the foregoing reasons, the dismissal of Kashani's claims against Purdue University and the dismissal of the claims for damages against the defendant officials are AFFIRMED. The dismissal of the claims for injunctive relief against the officials in their official capacity is REVERSED and REMANDED for further proceedings consistent with this opinion.
Of the seven Trustees selected by the Governor, under Ind.Stat. 20-12-37-4, one must be a woman, two must be "men of prominence and character in agricultural pursuits; two shall be men chiefly engaged in manufacturing industries; and two shall be citizens of character and distinction; one must be a full time student of Purdue."

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“Abandon.” To forsake entirely or to neglect or refuse to provide or perform the legal obligations for the care and support of an animal by its owner or his agent.
“Abandonment.” Relinquishment of all rights and claims to an animal by its owner.
“Agent.” A person defined in section 200 who is authorized by this act to process applications for dog license certificates and issue dog license certificates and tags.
“Animal control officer.” Any person appointed to carry out the duties of dog control.
“Attack.” The deliberate action of a dog, whether or not in response to a command by its owner, to bite, to seize with its teeth or to pursue any human, domestic animal, dog or cat.
“Boarding kennel.” Any establishment available to the general public where a dog or dogs are housed for compensation by the day, week or a specified or unspecified time. The term shall not include a kennel where the practice of veterinary medicine is performed if the kennel is covered by the provisions of the act of December 27, 1974 (P.L. 995, No. 326),1 known as the “Veterinary Medicine Practice Act.” The term shall include any boarding facility operated by a licensed doctor of veterinary medicine whether or not this facility is on the same premises as a building or structure subject to the provisions of the “Veterinary Medicine Practice Act.” The term shall include any establishment available to the general public that, for consideration, takes control of a dog from the owner for a portion of a day for the purposes of exercise, day care or entertainment of the dog. For the purpose of this term, each time a dog enters the kennel it shall be counted as one dog. This term does not include an establishment engaged only in dog grooming or dog training.
(2) sells or transfers more than 60 dogs per calendar year.
“Confiscate.” To appropriate property to the use of the government or to adjudge property to be forfeited to the public, without compensation to the owner of the property.
“County treasurer.” The elected officer for any county or any county employee assigned to the office of the county treasurer charged with the receipt, custody and disbursements of its moneys or funds. The term county treasurer shall include those officials in home rule charter counties responsible for county treasurer's duties.
“Coyote.” The genus and species known as Canis latrans.
(3) offers or maintains dogs at wholesale for resale to another.
(3) offers or maintains dogs at wholesale for resale to another. The term does not include a pound, shelter or common carrier or a kennel defined elsewhere in this section.
“Department.” The Pennsylvania Department of Agriculture.
“Detection dog.” A dog which is trained and used for accelerant detection, bomb or explosives detection, narcotics detection or other scent detection.
“Dog control.” The apprehending, holding and disposing of stray or unwanted dogs. Dog control may be performed by humane society police officers, police officers, State dog wardens or animal control officers.
“Domestic animal.” Any equine animal or bovine animal, sheep, goat, pig, poultry, bird, fowl, confined hares, rabbits and mink, or any wild or semiwild animal maintained in captivity.
(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.
(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) The term shall not include a gathering of dog owners where dogs remain in the custody and care of their owners, such as a hotel or campground, a place for grooming or training or an event such as a field trial, performance event, hunting event or dog show.
“Housing facility.” A structure that provides animals with shelter, protection from the elements and protection from temperature extremes.
“Humanely killed.” A method of destruction in accordance with the act of December 22, 1983 (P.L. 303, No. 83),4 referred to as the Animal Destruction Method Authorization Law.
“Humane society or association for the prevention of cruelty to animals.” A nonprofit society or association duly incorporated pursuant to 15 Pa.C.S. Ch. 53 Subch. A (relating to incorporation generally) for the purpose of the prevention of cruelty to animals.
“Humane society police officer.” Any person duly appointed pursuant to 22 Pa.C.S. § 501 (relating to appointment by nonprofit corporations) to act as a police officer for a humane society or association for the prevention of cruelty to animals. The term shall include any person who is an agent of a humane society or association for the prevention of cruelty to animals as agent is used in 18 Pa.C.S. § 5511 (relating to cruelty to animals).
“Kennel.” Any establishment in or through which at least 26 dogs are kept or transferred in a calendar year, or a boarding kennel as defined in this act.
“Muzzle.” A device, in any arrangement of straps or wires, placed over an animal's mouth to prevent the animal from biting or eating.
“Nonprofit kennel.” A kennel registered under the laws of this Commonwealth as a nonprofit entity or a nonprofit animal control kennel under sections 901 and 1002. 5 The term shall include kennels operated by approved medical and veterinary schools and nonprofit institutions conducting medical and scientific research, which shall be required to register, but shall not be required to pay any of the license fees set by this act, and which may use their own identification tags for dogs within their kennels without being required to attach tags hereinafter prescribed while dogs are within such kennels, if approved by the secretary.
(2) transfers a dog in this Commonwealth for resale to another for any type of consideration, fee, commission or percentage of the sales price.
“Owner.” When applied to the proprietorship of a dog, includes every person having a right of property in such dog, and every person who keeps or harbors such dog or has it in his care, and every person who permits such dog to remain on or about any premises occupied by him.
“Permanent identification” or “permanently identified.” Any long-lasting identification designed to be nonremovable, such as a tattoo or microchip, determined by the Department of Agriculture through regulation. Any dog permanently identified shall be required to bear a license tag in accordance with the provisions of this act.
“Person with a disability.” A person who receives disability insurance or supplemental security income for the aged, blind or disabled under the Social Security Act (49 Stat. 620, 42 U.S.C. § 301 et seq.); who receives a rent or property tax rebate under the act of March 11, 1971 (P.L. 104, No. 3),6 known as the “Senior Citizens Rebate and Assistance Act,” on account of disability; who has a disability certificate issued by the United States Veterans' Administration; or who has a special registration plate under 75 Pa.C.S. § 1338 (relating to person with disability plate and placard).
“Persons.” Includes State and local officers, or employees, individuals, corporations, copartnerships and associations. Singular words shall include the plural. Masculine words shall include the feminine and neuter.
“Pet shop-kennel.” Any kennel or person that acquires and sells dogs for the purpose of resale, whether as owner, agent or consignee, and sells or offers to sell such dogs on a retail basis.
“Police officer.” Any person employed or elected by this Commonwealth, or by any municipality and whose duty it is to preserve peace or to make arrests or to enforce the law. The term includes constables and dog, game, fish and forest wardens.
“Private kennel.” A kennel not meeting the definition of “commercial kennel” where dogs are kept or bred by their owner, for the purpose of hunting, tracking and exhibiting in dog shows, performance events or field and obedience trials.
“Proper enclosure of a dangerous dog.” The secure confinement of a dangerous dog either indoors or in a securely enclosed and locked pen or structure, suitable to prevent the entry of young children and domestic animals and designed to prevent the dangerous dog from escaping. The pen or structure shall have secure sides and a secure top and shall also provide protection from the elements for the dog. If the pen or structure has no bottom secured to the sides, the sides must be embedded at least two feet into the ground.
“Public place.” A place in this Commonwealth to which the general public has a right to resort. A public place need not be a place devoted solely to use by the public, but may be a place which is visited by many persons on a regular basis and is usually accessible to the neighboring public. A public place shall also include television and radio media.
“Rescue network kennel.” A kennel that utilizes rescue network kennel homes with the goal of ultimately transferring the dog to a permanent owner or keeper through any means of transfer.
“Rescue network kennel home.” An establishment to which a rescue network kennel assigns a dog until the dog is ultimately transferred to a permanent home.
“Research.” Investigation or experimentation aimed at the discovery and interpretation of facts or procedures, revision of accepted theories or laws in the light of new facts or practical application of such new or revised theories or laws as related to the advancement of medical science and technological treatment of disease or surgical operations, medical procedures, transplants, functions and any form of medical or pharmacological actions on dogs when applied and personally supervised by a qualified scientist with degrees approved by the secretary.
“Research kennel.” Any Federal research kennel or other research kennel duly registered with and inspected by the Federal Government under the provisions of the Animal Welfare Act (Public Law 89-544, 7 U.S.C. § 2131 et seq.) and its attendant regulations.
“Secretary.” The Secretary of Agriculture or any person to whom authority has been delegated by the Secretary of Agriculture.
“Seizure.” The act of taking possession of property for a violation of law or the taking or removal from the possession of another. The term shall not include the taking of ownership of property.
“Severe injury.” Any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery.
“State dog warden.” An employee of the department whose primary duty is to enforce this act and the regulations pursuant thereto.
“Vivisection.” The cutting of or operation on a living animal for physical or pathological investigation or animal experimentation.
“Wild” or “semiwild animal.” A domestic animal which is now or historically has been found in the wild, including, but not limited to, bison, deer, elk, llamas or any species of foreign or domestic cattle, such as ankole, gayal and yak.
1982, Dec. 7, P.L. 784, No. 225, art. I, § 102, effective Jan. 1, 1983. Amended 1996, Dec. 11, P.L. 943, No. 151, § 1, imd. effective; 2008, Oct. 9, P.L. 1450, No. 119, § 1, effective in 60 days [Dec. 8, 2008].
63 P.S. § 485.1 et seq.
3 P.S. § 328.1 et seq.
3 P.S. §§ 459-901, 459-1002.
72 P.S. § 4751-1 et seq. (repealed); see now, 53 P.S. § 6926.1301 et seq.