Summary
In Malishaucki, petitioner had similarly signed an Acknowledgment of Guilt form and paid a fine by mail for violations of the Game Code. On appeal from his subsequent hunting license suspension, Malishaucki argued that the particular provision of the Game Code he was cited for was unconstitutionally vague because it "fail[ed] to provide for a method of measurement of a deer's antler."
Summary of this case from Marich v. Pennsylvania Game Com'nOpinion
Argued February 5, 1981
April 8, 1981.
Pennsylvania Game Commission — Revocation of hunting and trapping privileges — Violation of The Game Law, Act of June 3, 1937, P.L. 1225 — Collateral attack — Advising of effect of guilty plea.
1. Neither the constitutionality of The Game Law, Act of June 3, 1937, P.L. 1225, nor the possible undue influence exerted in connection with a plea of guilty to its violation can be raised collaterally in a proceeding challenging administrative action revoking hunting and trapping privileges as a result of such violation. [356]
2. A failure to advise a hunter of the effect of a guilty plea to a violation of The Game Law, Act of June 3, 1937, P.L. 1225, cannot be successfully raised during a challenge to the subsequent revocation of hunting and trapping privileges when the receipt issued by the officer clearly set forth the possible consequences of the acknowledgement of guilt and payment of fine. [357]
Argued February 5, 1981, before Judges MENCER, ROGERS and CRAIG, sitting as a panel of three.
Appeal, No. 1071 C.D. 1980, from the Order of the Pennsylvania Game Commission in case of Pennsylvania Game Commission v. Thomas John Malishaucki, entered April 4, 1980.
Hunting and trapping privileges revoked by Pennsylvania Game Commission. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John Younglove, with him William B. Eagan, for petitioner.
Stuart M. Bliwas, Assistant Attorney General, with him Harvey Bartle, III, Attorney General, for respondent.
The hunting and trapping privileges of Thomas John Malishaucki (Malishaucki) were revoked for the period of September 1, 1980 through August 31, 1982 by administrative order of the Pennsylvania Game Commission following a signed acknowledgement of guilt by Malishaucki for violating Section 701 of The Game Law (Game Law), Act of June 3, 1937, P.L. 1225, as amended, 34 Pa.C.S.A. § 1311.701.
Section 701 makes it unlawful for any person to possess or transport any game unlawfully killed, which, except during a declared open season, would include an "anterless deer." Section 501 (c) of the Game Law, 34 Pa.C.S.A. § 1311.501(c), defines an "anterless deer" to mean a deer without an antler or a deer with antlers both of which are less than three inches long. The term "antler" is defined to mean the bony growth on the head of a deer regardless of its size or development. Malishaucki was in possession of a buck deer, killed by a friend, whose antlers, measured from their highest point to the deer's skull, were three inches in length but, when measured to the "button," a tiny piece of bony structure which lies above a deer's skull and surrounds the base of the antler, were only two and one-quarter inches long.
Malishaucki raises two issues in his appeal. First, he questions whether or not the provision of the Game Law which he acknowledged violating, when he signed the field receipt and paid the sum of $200 to the game protector, is unconstitutionally vague in that it fails to provide for a method of measurement of a deer's antler. Although we can readily understand his desire to advance this contention, under the facts of this case, we must conclude that he may not collaterally attack his violation of the Game Law in an administrative proceeding relative to a revocation of his hunting privileges. The challenge which he wishes to mount here should have been made directly against the charge of a Game Law violation as to which he acknowledged his guilt. We can only review the administrative action of the revocation of Malishaucki's hunting privileges and not whether he violated the Game Law as charged by game protector Bond. Department of Transportation, Bureau of Traffic Safety v. Grobes, 45 Pa. Commw. 151, 405 A.2d 588 (1979). At this point in time, we may not consider whether Malishaucki should have acknowledged violating the Game Law or whether the provision of the Game Law in question may be unconstitutionally vague. See Department of Transportation, Bureau of Traffic Safety v. Lea, 34 Pa. Commw. 310, 384 A.2d 269 (1978).
The second question advanced by Malishaucki here is whether or not the Pennsylvania Game Commission abused its discretion in revoking his hunting and trapping privileges when he was never advised of the possibility of a revocation, never given a hearing relative to the revocation, and was allegedly advised that a guilty plea would end the matter.
We must conclude that Malishaucki was not misled in this regard since the last paragraph of the field receipt immediately above his signature reads: "The cash penalty paid may not be full satisfaction for the offense committed. The Game Commission, without a hearing, may revoke your hunter's license and deny you the privilege of hunting or trapping anywhere in the Commonwealth as provided under Section 315(a) [ sic] of the Game Law."
The reference should be to Section 315 (1) of the Game Law, 34 Pa.C.S.A. § 1311.315(1).
Malishaucki's attempt to attack his revocation on the ground that he was not advised of the possible revocation of his license must fail, in view of the express notice to that effect which was set out in the field receipt. Moreover, even if Malishaucki was unfairly influenced to sign the field receipt, this would be in the nature of a defect in the determination of guilt relative to a violation of the Game Law, a criminal proceeding, and could not subsequently be attacked relative to a revocation of license privileges, which is civil in nature. Department of Transportation, Bureau of Traffic Safety v. Lea, supra.
Accordingly, we make the following
ORDER
AND NOW, this 8th day of April, 1981, the Pennsylvania Game Commission's April 4, 1980 revocation of the hunting and trapping privileges of Thomas John Malishaucki from September 1, 1980 through August 31, 1982 is hereby affirmed.
This decision was reached prior to the resignation of Judge WILKINSON, JR.