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Commonwealth v. Liberty Bail Bonds

November 23, 2010

COMMONWEALTH OF PENNSYLVANIA
v.
LIBERTY BAIL BONDS, APPELLANT



The opinion of the court was delivered by: Senior Judge Flaherty

Submitted: October 12, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Liberty Bail Bonds (Liberty) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) which denied, without prejudice, Liberty's application to act as a surety in Montgomery County, as Liberty's Montgomery County Surety agent, Robert Allan Stockett (Stockett), fails to comply with Montgomery County Local Rule of Criminal Procedure (Local Rule) 531(A)(10)(a), as he does not maintain an office in Montgomery County. We reverse and remand.

On May 26, 2009, Liberty filed an application to act as a surety in Montgomery County, seeking to enroll Stockett as a surety agent in Montgomery County. Montgomery County did not file a formal response, but refused to grant approval to act as a surety in Montgomery County due to Liberty's failure to establish an office in Montgomery County pursuant to Local Rule 531(A)(10)(a).

Liberty sought to have the trial court compel the clerk of courts to issue said license. On November 24, 2009, a hearing was held before the trial court. Liberty contended that there is a distinction between a bondsman and a surety company/agent and that as a surety agent Stockett was exempt from Local Rule 531(A)(10)(a). A surety agent (a licensed casualty agent) must be licensed by the Pennsylvania Department of Insurance (Department), pass annual tests, and must act under power of attorney with a qualified insurance carrier. The licensure that a surety receives is a statewide license, same as any other insurance agent. Surety agents are explicitly excluded from the statutory definition of bondsmen. 42 Pa. C.S. §5741. Moreover, bondsmen do not have to be licensed by the Department and are subject to local rules and applicable statutes. Surety agents, however, are regulated, tested, and policed by a state agency. Thus, Stockett, a licensed surety agent, was exempt from Local Rule 531(A)(10)(a), because he is a registered surety agent, not a professional bondsman as defined by 42 Pa. C.S. §5741. Stockett admitted he did not have an office in Montgomery County.

On November 30, 2009, the trial court issued an order denying the application, without prejudice, for failure to comply with Local Rule 531(A)(10)(a). Liberty filed a timely notice of appeal to the Superior Court. On January 7, 2010, the trial court issued an order directing Liberty to file a concise statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925(b). At the time, due to clerical error, no statement was filed. On February 23, 2010, the trial court filed it opinion in the matter, rejecting Liberty's appeal, due to Liberty's failure to file a timely 1925(b) statement.

On March 24, 2010, Liberty filed a request to allow the filing of a concise statement of matters complained of on appeal nunc pro tunc pursuant to Pa. R.A.P. 1925(c). On March 4, 2010, the trial court rejected Liberty's 1925(c) claim, without prejudice, and affirmed the dismissal of Liberty's appeal.

On March 17, 2010, the Superior Court, upon consent and advisement of Liberty, transferred jurisdiction over this matter to this court. On May 13, 2010, this court quashed Liberty's appeal for lack of a timely filed 1925(b) statement. On May 20, 2010, Liberty filed a motion for reconsideration of this court's order quashing Liberty's appeal. On June 15, 2010, this court entered an order remanding the matter to the trial court and allowing Liberty to file a 1925(b) statement nunc pro tunc.

On June 21, 2010, Liberty filed said 1925(b) statement. On June 23, 2010, the trial court issued an opinion that rejected Liberty's claim. Liberty now appeals to this court.*fn1

Initially, Liberty contends that the trial court erred in denying Liberty's application to have Stockett act as a surety in Montgomery County where Stockett is a licensed surety, not a bondsman and therefore, exempt from the local rules requiring an office within the county.

The Legislature has defined a "Professional bondsman" in 42 Pa. C.S. §5741 as:

Any person, other than a fidelity or surety company or any of its officers, agents, attorneys, or employees, authorized to execute bail bonds or to solicit business on its behalf, who:

(1) engages in the business of giving bail, giving or soliciting undertakings, or giving or soliciting indemnity or ...


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