In re Fry

110 A.3d 1103, 2015 Pa. Commw. LEXIS 84

• Court: Commonwealth Court of Pennsylvania
• Decided: February 27, 2015
• Status: Published

Opinions

OPINION BY

Judge LEADBETTER.

Ian Castaneira (Castaneira), Constable for the Borough of Highspire, appeals from the order of the Court of Common Pleas of Dauphin County which denied Castaneira’s petition for approval of appointment of John Fry as his Deputy Constable pursuant to 44 Pa.C.S. § 7122.¹ After argument before a three judge panel we ordered reargument en banc, sua sponte, in order to revisit this court’s holding in In re Hunter, 782 A.2d .610 (Pa.Cmwlth.2001).

Castaneira has served as the elected constable for Highspire since 2010. On January 22, 2013, he filed a petition to approve the appointment of Fry as a deputy constable for the borough. After examination and investigation by the County Investigation Division of the District Attorney’s Office, the District Attorney filed objections to the petition. At a hearing held before the trial court on March 11, 2013, Castaneira, appearing without counsel,² and County Detective Jerome Wood, testified.

Castaneira testified that he intends to appoint Fry, a retired Steelton police officer, as his deputy constable and believes him to be fully qualified for the position. Castaneira disagreed that he had to prove “need” for a deputy. He testified that he does not have back-up most of the time and has to travel into dangerous areas to serve warrants and that he needs a deputy for safety reasons. Castaneira explained that although he had served hundreds of warrants since 2010, he has been forced to work “mostly Metro” because the magistrate in his district now “refuses” to give him work and has also “opposed” him working with the Steelton and Highspire police departments serving their warrants. Hearing of March 11,2013, N.T. at 12. On cross-examination, Castaneira agreed that his primary concern was safety and that there were not any other unusual conditions which prohibited him from fulfilling his duties. He testified: “The fact is, is that I can do my duties when I wish, but a lot of times I do not because I do not feel it’s safe going on my own to [serve] a warrant.” Id. at 14.

County Detective Wood testified that he works with the Criminal Investigation Division of the Dauphin County District Attorney’s Office and was assigned to conduct a background investigation regarding Castaneira’s petition. Detective Wood stated that he first interviewed Fry, the retired Steelton police officer, and that Fry’s background check was “clean.” Detective Wood testified that Castaneira stated during an interview that he used to serve warrants with another constable, but that the other constable was forced to stop working due to health issues. Castaneira further stated that most of his work was in Harrisburg and the surrounding townships but not in his own district. Castaneira told Detective Wood that he does not get along with Magisterial District Judge Lenker (MDJ Lenker) and that for that reason, the Judge will not assign him any work. Detective Wood testified that Cas-taneira said he was busy with his main employment as a real estate developer, but did not indicate that he had a tremendous amount of warrants to serve or that he had any physical disabilities or anything else that would prevent him from carrying out his duties as a constable. Castaneira told Detective Wood that he wanted to work with a partner for safety reasons. Finally, Detective Wood testified that Castaneira told him he wanted to work with Fry in particular because of Fry’s police experience and his good relationship with other police officers and with MDJ Lenker, “hoping that the Judge would then assign work to them as a team....” Id. at 19.

The trial court determined that under the statute providing that a constable’s power to appoint a deputy constable is subject to the court’s approval, the court is vested with discretion in deciding a petition for approval of such appointment. The trial court further determined that Castaneira was required to show a reason or a necessity for the appointment of a deputy constable to receive court approval and that to satisfy his burden, he was required to demonstrate that he could not attend to his constable duties due to a large volume of business, personal disability, or some other unusual condition, citing In re Hunter. The trial court found that Castaneira’s testimony showed that he did not serve many warrants in Highspire and that the majority of his constable work was in Harrisburg, Steelton and other townships outside of Highspire. The trial court also found that Castaneira failed to identify any unusual conditions that prohibited him from performing his duties, and that he acknowledged that the inherent danger in serving warrants was not an unusual condition. Finally, the trial court found that Castaneira failed to assert an inability to attend to his duties due to illness or disability. The trial court denied the petition for approval, concluding that Castaneira had failed to demonstrate the requisite necessity for the appointment of Fry as his deputy constable; that the District Attorney had standing to appear at the hearing on the petition; and that Cas-taneira failed to properly preserve his challenge to the constitutionality of 44 Pa. C.S. § 7122 and, therefore, waived the challenge.

Castaneira presents several issues for our review: 1) whether the District Attorney has standing in a petition for approval of appointment of a deputy constable pursuant to 44 Pa.C.S. § 7122; 2) whether Section 7122 is unconstitutional on its face because the power of the trial court to refuse a constable’s appointment of a deputy constable due to a lack of need or otherwise violates the separation of powers between the judicial and executive branch; 8) whether Section 7122 is unconstitutional as applied because a constable cannot prove “need” where the magisterial district judge in the constable’s elected district does not assign him any work; 4) whether the trial court erred in requiring him to demonstrate “need” when the statute does not include a “needs” test; and 5) whether Hunter should be overruled because the needs test as adopted by the court is too narrow in scope and prevents other issues from being considered as part of the petition.

We first turn to the issue upon which we ordered en banc review. Castaneira argues that the trial court erred in requiring him to demonstrate a need for the appointment of a deputy constable when this requirement is not included in Section 7122. Castaneira contends that the needs test, even if it is proper, was crafted too narrowly in Hunter, and therefore that case should be overruled. Section 7122 provides, in pertinent part, simply that:

(a) General rule.—Sole power to appoint deputy constables in a ward, borough or township is vested in the constable of the ward, borough or township, subject to approval of the court of common pleas under subsection (b). No person shall be appointed as a deputy constable unless, at the time of appointment, he is a bona fide resident of the ward, borough or township for which he is appointed and he continues to be a bona fide resident for the duration of the appointment.

(b) Court approval and qualifications.—

(1) Except as set forth in paragraph (2), no deputy shall be appointed, either by general or partial deputi-zation, without approbation of the court of common pleas of the county, except for special appointments in a civil suit or proceeding, at the request and risk of the plaintiff or his agent....

44 Pa.C.S. § 7122.

Nonetheless, our courts of common pleas have long required a showing of necessity for the appointment of a deputy constable by a constable. See, e.g., Forti Application, 24 Pa. D. & C.2d 198, 200 (1961) (The size of the township or its population is not a proper reason in the absence of incapacitation of the constable, an excessive overload or some other unusual condition); Turner Petition, 18 Pa. D. & C.2d 429, 430 (1959) (A large volume of business, personal disability of the constable or some other unusual condition must be shown to meet the burden of showing the reason and necessity for the appointment of the deputy); Preno Petition, 77 Pa. D. & C. 193, 197 (1951) (Stating that it has been uniformly held since the passage of the Act of 1820 that the court or quarter sessions has discretion in the approval of deputy constables and in each instance, the constable has been required to show necessity for the appointment before the court would approve it); Townsend’s Application, 22 Pa. D. & C. 14, 15 (1934) (The courts must exercise judicial discretion and no deputy should be appointed where the constable is able to attend to the duties of his office, and only if he is unable to do so should there be approval of such appointment). All of these cases were cited with approval by this court in Hunter.

The petitioner constable in Hunter argued that the only statutory ground for disapproval of a deputy’s appointment was that the deputy constable did not reside in the same ward as the constable seeking his appointment.³ The constable argued that absent such a finding by the trial court, it should have approved his appointment of a deputy constable as a matter of course. Finally, the constable argued that the trial court erred in applying a needs test in denying his petition, and in the alternative, that if a needs test did exist, the trial court abused its discretion in concluding that he had failed to demonstrate a need for the deputy constable. After noting that the grounds upon which a trial court may disapprove of a deputy constable’s appointment had not been addressed by any appellate court, this court reviewed “the numerous county level cases that have considered this question over the course of more than a century” and concluded that:

In these judicial decisions, the courts have held that approval of a deputy constable’s appointment should not be a pro forma matter. To the contrary, the cases generally have discouraged the practice of approving deputy appointments and, thus, consistently have required a constable to show a reason or necessity for the appointment before receiving court approval. To satisfy that burden, the constable must establish an inability to attend to his duties of office because of a large volume of business, personal disability or some other unusual condition. See e.g., In re: Appointment of Deputy Constable for Jenner Township, Somerset County, 21 Som. L.J. 47 (1962); In re Application of Forti, 24 Pa. D. & C.2d 198 (1961) [sic]; In re Petition of Turner, 18 Pa. D. & C.2d 429 (1959); In re Petition of Preno, 77 Pa. D. & C. 198 (1952); In re Application of Townsend, 22 Pa. D. & C. 14 (1934); In re Application of Huber, 30 Pa. D. 759, 17 Northam. 340 (1920); In re Horivitz, 27 Pa. D. 578 (1918); Deputy Constables, 4 Pa. D. 217,16 Pa. C.C. 297 (1895).

In re Hunter, 782 A.2d 610, 615 (emphasis added, footnote omitted). After reviewing the constable’s testimony regarding his asserted need for a deputy constable, the court found that only fifteen to twenty hours of his eighty hour work week were attributed to his constable duties, and that his stress and health concerns were, by his admission, the result of his combined job responsibilities, not just his constable duties. The court also found that the constable did not have an unmanageable volume of business in his ward, and thus concluded that he had “ ‘not demonstrated the requisite necessity for the deputation of Mr. Hunter in the 19th Ward.’ ” Id. at 617 (quoting Trial Court’s opinion) (emphasis omitted).

It is apparent that the Hunter needs test was grounded in consistent historical application by the courts of common pleas rather than any compelling policy analysis, and after further review of the question, we must conclude it should be overruled. Constables and their deputies are not salaried public employees, but instead are paid “by the piece” for each warrant served or other service performed at the direction of a magisterial district judge. Thus the cost to the public for constable services is measured by the number of services to be performed, not by the number of constables available to perform them. We cannot discern, and neither the trial court nor the District Attorney has suggested, any sound policy reason to require that a constable make a showing of need before (s)he be allowed to hire a deputy.⁴

Nevertheless, we do not agree with Castaneira that common pleas must approve any candidate a constable chooses to hire as a deputy so long as he resides in the district. For one thing, mandating court approval would be nearly pointless if the court had no discretion in the matter but was required to rubber stamp any such resident candidate. Moreover, 44 Pa. C.S. § 7121 provides that when a vacancy in a constable position occurs, the court of common pleas “shall appoint a suitable person.” (Emphasis added.) Clearly, the General Assembly intended the court to exercise its sound discretion in exercising its power of approval or appointment, and for good reason. Constables’ duties can involve preserving the peace, making arrests, serving writs and warrants and transporting prisoners. They can be certified to carry firearms in the performance of their duties.⁵ The potential for harm to the public safety that could result from the appointment of a person who has a criminal past, a history of inappropriate aggressiveness or dishonesty, emotional disturbance or bad character is obvious.

In re Petition of Pender, 25 A.3d 453 (Pa.Cmwlth.2011), app. den., 614 Pa. 716,. 38 A.3d 827 (2012), which dealt with the appointment of a constable to fill a vacancy under Section 7121, is instructive. There, applicant Pender sought appointment as constable for the 2nd Ward in Allentown. The trial court determined that Pender was not a suitable person within the meaning of the statute and denied the petition. As the trial court explained in that case: “[Pender’s] background is checkered. Civil rights actions and arrests for serious offenses are dotted throughout his career ... This Court is not satisfied that [Pen-der] will act in a manner that is required of its constables. The prior history of arrests, civil rights actions, and lack of any positive recommendations reflect negatively on [his] request for appointment.” Id. at 456-57. This court affirmed the trial court’s exercise of discretion.

It is for these reasons that we must reject Castaneira’s objection to the participation of District Attorney in this matter. Castaneira admits that Section 206(a) of the Commonwealth Attorneys Act⁶ provides that the Attorney General “shall be the chief law enforcement officer of the Commonwealth” and the District Attorney “shall be the chief law enforcement officer for the county in which he is elected,” but argues that his power is limited to conducting criminal and other prosecutions. According to Castaneira, the statute does not give the District Attorney the power to conduct background investigations into his proposed appointee nor does it confer standing for the District Attorney to object to his petition for approval of his appointment of a deputy constable. He asserts that the District Attorney’s access to investigators and criminal databases which allegedly allow him to more efficiently and effectively vet such appointment petitions is not legally sufficient to confer standing.⁷ We disagree.

For the reasons discussed above, any misbehavior caused by a constable or deputy constable who was not properly vetted as to his background and character would adversely affect the office of the District Attorney. For instance, improper procedures during an arrest could lead to the' suppression of evidence. The use of excessive force in dealing with the public in any of the Constable’s duties could lead to a serious breach of the peace. It simply cannot be said that the District Attorney does not have a significant interest in the fitness of persons charged with the duties of constable, particularly those carrying firearms. In addition, the District Attorney is the most appropriate, if not the only, entity capable of conducting a background check on the proposed candidate and presenting evidence of the results to the trial court. Certainly if any of the facts disclosed were disputed, evidentiary presentation with an opportunity to rebut would be necessary. Accordingly, we hold that the District Attorney has sufficient interest in the court’s discretionary appointment of a deputy constable to have standing in petitions for approval of appointment of a deputy constable under 44 Pa.C.S. § 7122.

With respect to Castaneira’s constitutional challenge to 44 Pa.C.S. § 7122, the trial court held that Castaneira had waived his constitutional challenge because he failed to notify the Attorney General as required by Rule 235 of the Rules of Civil Procedure, Pa. R.C.P. No. 235. Although we note that the rules of civil procedure are not applicable to these types of proceedings, in his statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b), Castaneira did not argue that the trial court erred in concluding that he had waived his constitutional challenge. Because Castaneira failed to include this issue in his 1925(b) statement, he has waived the issue on appeal. In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998), our Supreme Court interpreted Rule 1925(b) as establishing a clear rule for waiver and stated that any issue not raised by an appellant in a court-ordered Rule 1925(b) statement will be deemed waived on appeal.⁸

In light of the fact that the trial court relied on the Hunter needs mandate in denying Castaneira’s application, we would ordinarily vacate that order and remand for further consideration in light of this opinion. However, during the pendency of this appeal, the District Attorney has filed an application to dismiss the appeal as moot, based on documentary evidence that Fry has moved out of the borough in which Castaneira serves, which would disqualify Fry from appointment. Castaneira, in a somewhat disingenuous answer, has neither admitted nor denied directly that Fry has moved, but has effectively admitted it by arguing that the term “resident of the ... borough” in Section 7122 is unclear and that Fry still owns a house in the borough and “will consider” moving back if Castaneira succeeds in this appeal. Appellant’s Answer to Appellee’s Motion [to Dismiss the Appeal for Mootness], at 2. He also argues that, even if moot, the issue is capable of repetition but will evade review. As to the latter point, we agree that the question at the heart of this appeal is capable of repetition, particularly since Castaneira avers that Fry’s change of residence may be temporary, and therefore we have decided the issue for which we granted en banc consideration, overruling Hunter. However, as to Castaneira’s first point, regarding Fry’s residency status,⁹ we disagree. Castaneira’s response makes clear that Fry no longer resides in the borough, and self-serving declarations of possible future intent will not overcome this fact. See, e.g., In re: Hanssens, 821 A.2d 1247, 1252 (Pa.Cmwlth.2003) [citing In re Dorrance’s Estote, 309 Pa. 151, 163 A. 303 (1932) ]. Accordingly, Fry is now not eligible under 44 Pa.C.S. § 7122 to be appointed or to serve as Castaneira’s deputy, and on this basis we will affirm the trial court’s order.¹⁰ If, at any time, Fry returns to reside in the borough, Castaneira may reapply and the court of common pleas shall evaluate the application based upon the standards announced herein.

ORDER

AND NOW, this 27th day of February, 2015, the order of the Court of Common Pleas of Dauphin County in the above-captioned matter is hereby AFFIRMED. Appellee’s motion to dismiss on the ground of mootness is DENIED.

President Judge PELLEGRINI concurs in the result only.

1 . Section 7122 provides that, as a general rule, "[s]ole power to appoint deputy constables in a ward, borough or township is vested in the constable of the ward, borough or township, subject to approval of the court of common pleas under subsection (b)." 44 Pa. C.S. § 7122(a) (emphasis added).

2 . Castaneira objected to the trial court's denial of his request for a continuance, explaining that his attorney was unable to attend the hearing due to a conflict and that his attorney had faxed his continuance request to the court. The trial court overruled the objection, stating that "[w]e don’t accept fax as pleadings under the law.” Hearing of March 11, 2013, Notes of Testimony (N.T.) at 5. The trial court also noted for the record Casta-neira’s objections to: the participation of the District Attorney on the ground that there was no legal authority which conferred standing to him; the constitutionality of 44 Pa.C.S. § 7122; and the requirement that he demonstrate "need” for a deputy in order to get court approval of his deputy appointment. Id. at 5-10.

3 . 13 P.S. § 21 governed the appointment and eligibility of deputy constables. Sections 21 to 23 were repealed by the Act of October 9, 2009, P.L. 494, No. 49, § 4(2), effective in 60 days [December 8, 2009]. This section is similar to the current law at 44 Pa.C.S. § 7122(b)(1), Court approval and qualifications, which states:

Except as set forth in paragraph (2), no deputy shall be appointed, either by general or partial deputization, without approbation of the court of common pleas of the county, except for special appointments in a civil suit or proceeding, at the request and risk of the plaintiff or his agent. If a deputy no longer resides in, or ceases to be a qualified elector of, the ward in which he was appointed to serve, the court of common pleas may revoke the appointment of the deputy upon petition of five duly qualified electors of the ward and proof of facts requiring revocation.

4 .We do not suggest that need may never be considered as a factor, particularly in an otherwise close case. However, it is a minor factor, and certainly not a dispositive one.

5 . 44 Pa.C.S. § 7148.

6 . Act of October 15, 1980, P.L. 950, as amended, 71 P.S. § 732-206(a).

7 . The concept of "standing,” in its accurate legal sense, is concerned only with the question of who is entitled to make a legal challenge to the matter involved. Maguerian v. Office of the Attorney Gen., 86 A.3d 924, 928 (Pa.Cmwlth.2013). Standing may be conferred by statute or by having an interest deemed deserving of legal protection. Id. As a general matter, "the core of the concept of standing is that a person who is not adversely affected in any way by the matter he seeks to challenge is not aggrieved thereby and has no right to obtain a judicial resolution of his challenge.” Pa. Game Comm'n v. Dep’t of Envtl. Res., 521 Pa. 121, 555 A.2d 812, 815 (1989) (citations omitted).

8 . Even were we to address this issue, we would find it devoid of merit. "[A] legislative enactment ‘is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution.’ " Commonwealth v. Mockaitis, 575 Pa. 5, 834 A.2d 488, 497 (2003) (citations omitted). Further, "[u]nder the principle of separation of the powers of government ... no branch should exercise the functions exclusively committed to another branch.” Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698, 705 (1977) (citations omitted). In fulfilling its statutory mandate under Sections 7121 and 7122, the judicial branch is neither exercising functions exclusively committed to the executive branch nor supervising the operations of the office of Constable. Cf. In re Act 147 of 1990, 528 Pa. 460, 598 A.2d 985 (1991). Cross branch powers of appointment, and approvals thereof, are common throughout the Commonwealth governmental structure, as well as that of our federal government.

9 . Section 7122(a) provides in pertinent part that, "[n]o person shall be appointed as a deputy constable unless, at the time of appointment, he is a bona fide resident of the ... borough ... for which he is appointed and he continues to be a bona fide resident for the duration of the appointment.” 44 Pa.C.S. § 7122(a).

10 . As our Supreme Court has noted, "[i]t is well settled that this Court may affirm for any reason and is not limited to grounds raised by the parties.” McAdoo Borough v. Com., Pa. Labor Rel. Bd., 506 Pa. 422, 485 A.2d 761, 764 n. 5 (1984) (citations omitted).