The opinion of the court was delivered by: P. Kevin Brobson, Judge
Submitted: August 26, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
Petitioner John Galante (Galante) petitions for review of an order of the Executive Deputy Secretary of Banking, dated April 14, 2011, which permanently prohibits Galante from working in any capacity for any credit union under the supervision of the Department of Banking (Department) pursuant to Section 503 of the Credit Union Code (Code), 17 Pa. C.S. § 503.*fn1 For the reasons that follow, we affirm the Executive Deputy Secretary's order.
This matter was initiated on January 26, 2009, when the Department issued an order suspending Galante as Chief Executive Officer (CEO) of Boeing Helicopters Credit Union (BHCU), effective immediately, pending a hearing to determine whether Galante should be permanently removed from his position at BHCU and whether Galante should be prohibited from working in any capacity for any credit union under the Department's supervision in the future. (Reproduced Record (R.R.) at 5a-13a.)*fn2 Importantly, BHCU terminated Galante on January 21, 2009. (R.R. at 31a.)
On May 28, 2009, Galante filed a Motion to Dismiss Action for Lack of Jurisdiction with the Department (first motion to dismiss). Noting that the Department's regulatory authority is limited under Section 503(a.1) of the Code to "any director, officer, committee member, employee, volunteer or agent of a credit union," Galante argued that the Department lacked jurisdiction because BHCU terminated him prior to the Department's issuance of the January 26, 2009 order. In other words, Galante maintained that the Department lacked jurisdiction to issue any orders against him because he no longer held a position with a credit union under the Department's supervision.
On September 14, 2009, the hearing officer certified the jurisdictional question to the Executive Deputy Secretary for consideration and disposition pursuant to 1 Pa. Code § 35.187(8).*fn3 (R.R. at 32a-39a.) The Executive Deputy Secretary did not immediately respond to the hearing officer's certified question, prompting the Department to file a motion to schedule a hearing on December 7, 2009. The Department argued that the Executive Deputy Secretary's failure to rule on the certified question constituted a denial of Galante's first motion to dismiss. (Original Record (O.R.), Item 44.) By order dated December 24, 2009, the hearing officer scheduled a hearing for January 27, 2010. (O.R., Item 45.) In response, Galante filed a Second Motion to Dismiss Action for Lack of Jurisdiction (second motion to dismiss) on January 7, 2010, arguing that even if the Executive Deputy Secretary's failure to rule on the certified question constituted a denial of his first motion to dismiss, it could not provide the Department with jurisdiction.*fn4 (R.R. at 40a-41a.) Thereafter, on January 13, 2009, the Executive Deputy Secretary responded to the certified question, denying Galante's first motion to dismiss and directing the hearing officer to schedule a hearing on the merits. (R.R. at 45a-56a.) The Executive Deputy Secretary determined that the Department did not have authority to suspend and remove Galante under Sections 503(a.1)(2) and (3) of the Code, respectively, due to the fact that BHCU had already terminated Galante, but that the Department had authority to prohibit Galante from working in any capacity for any credit union under the Department's supervision pursuant to Section 503(a.1)(4) of the Code. (R.R. at 52a-56a.)
On January 19, 2010, Galante filed an Emergency Application Pursuant to Pa. R.A.P. 1702(b) for Stay of Hearing Ancillary to Petition for Review (emergency application for stay) with this Court. (R.R. at 173a.) By order dated January 26, 2010, Senior Judge Rochelle S. Friedman denied Galante's emergency application for stay. (R.R. at 118a.) Galante then filed a motion with the Department, formally requesting that the Department certify the jurisdictional question to this Court. (R.R. at 57a.) By order issued February 1, 2010, the Executive Deputy Secretary denied Galante's request. (R.R. at 59a-62a.) Finally, Galante filed a Petition for Permission to Appeal Interlocutory Decision Regarding Jurisdiction (petition for permission to appeal) with this Court. (R.R. at 63a-69a.) By order dated March 25, 2010, Senior Judge Barry F. Feudale denied Galante's petition for permission to appeal. (R.R. at 124a.)
Thereafter, the hearing officer held a hearing on May 3, 2010, at which Galante failed to appear. By order issued May 5, 2010, the hearing officer entered default judgment against Galante for his failure to appear at the May 3, 2010 hearing and deemed admitted for purposes of final adjudication the Department's factual allegations. (R.R. at 125a.) The hearing officer issued a proposed report on July 12, 2010. (R.R. at 127a-59a.) On August 9, 2010, Galante filed exceptions to the hearing officer's proposed report, again challenging the Department's jurisdiction. (R.R. at 162a-67a.) Galante took exception to "every proposed Finding of Fact and Conclusion of Law made by [the hearing examiner] in her Proposed Report on the grounds that she had no lawful authority to make any of them." (R.R. at 164.) By order dated April 14, 2011, the Executive Deputy Secretary denied Galante's exceptions and adopted the hearing officer's proposed report, "permanently prohibit[ing] [Galante] from working in any capacity in any credit unions under the jurisdiction of the [Department] pursuant to [Section] 503(a.1)(4) [of the Code]." (R.R. at 178a.) In so ruling, the Executive Deputy Secretary determined that the issue of the Department's jurisdiction had already been decided and that Galante waived his right to challenge the hearing officer's proposed report by failing to attend the May 3, 2010 hearing. (R.R. at 177a.) This petition for review followed.
The only issue Galante raises on appeal is whether the Department has jurisdiction under Section 503(a.1)(4) of the Code to prohibit him from working in any capacity for any credit union under the Department's supervision. Galante argues that the Department lacks jurisdiction because he is no longer a "director, officer, committee member, employee, volunteer or agent of a credit union." Section 503(a.1)(4) of the Code. We disagree.
Senior Judge Friedman previously addressed Galante's jurisdictional argument in response to Galante's January 19, 2010 emergency application for stay. Determining that Galante was not entitled to a stay because Galante failed to make a substantial case on the merits, Senior Judge Friedman reasoned:
In Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 467 A.2d 805 (1983), our supreme court held that appellate courts have discretion to grant a stay pending appeal if: (1) the petitioner makes a substantial case on the merits; (2) the petitioner has shown that without the requested relief, he will suffer irreparable injury; (3) the issuance of a stay will not substantially harm other interested parties in the proceedings; and (4) the issuance of a stay will not adversely affect the public interest.
As to Galante's case on the merits, Galante argues that the [Department] lacks jurisdiction to prohibit him from working in any capacity in any and all credit unions under [S]section 503(a.1)(4) of the [Code] . . . because he is no longer the CEO of BHCU. In considering this issue, we are guided by In re Melograne, 571 Pa. 490, 812 A.2d 1164 (2002).
In Melograne, our supreme court considered whether the Court of Judicial Discipline could discipline a former justice of the peace pursuant to a constitutional provision that authorizes that court to discipline a "justice, judge or justice of the peace." Our supreme court stated that the question as to whether the Court of Judicial Discipline may discipline a judicial officer following his resignation from office challenges the tribunal's power, not the tribunal's jurisdiction. The court then noted that it would be in ...