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In re Fry

Commonwealth Court of Pennsylvania

February 27, 2015

In Re: John Fry. Appeal of: Ian Castaneira

Argued December 10, 2014

Page 1104

Editorial Note:

An unreported opinion of the Commonwealth Court may be cited and relied upon when it is relevant under the doctrine of law of the case, res judicata or collateral estoppel. Decision after January 15, 2008 may can be cited for its persuasive value, but not as blinding precedent. A single-judge opinion of the Commonwealth Court, even if reported, shall be cited only for its persuasive value, not as a binding precedent. This opinion appears in the table format in the Atlantic Reporter.

Appealed from No. CP-22-MD-107-2013. Common Pleas Court of the County of Dauphin. Hoover, President Judge.

Ronald L. Clever, Allentown, for appellants.

Francis T. Chardo, III, First Assistant District Attorney, Harrisburg, for appellee.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge. OPINION BY JUDGE LEADBETTER. President Judge Pellegrini concurs in the result only. CONCURRING AND DISSENTING OPINION BY JUDGE LEAVITT. CONCURRING/DISSENTING OPINION BY JUDGE McCULLOUGH.

OPINION

Page 1105

BONNIE BRIGANCE LEADBETTER, Judge

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

Page 1106

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 Castaneira 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 Castaneira 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

Page 1107

between the judicial and executive branch; 3) 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 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 . . . .

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 (1960) (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, 76 Mont. County L. Rep. 157 (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, 15 Wash. County Rep. 1 (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

Page 1108

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. 45 (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, 76 Mont. County L. Rep. 157 (1959); In re Petition of Preno, 77 Pa. D. & C. 193 (1952); In re Application of Townsend, 22 Pa. D. & C. 14, 15 Wash. County Rep. 1 (1934); In re Application of Huber, 30 Pa. D. 759, 17 North. Cty. Rep. 340 (1920); In re Horivitz, 27 Pa. D. 578 (1918); Deputy Constables, 4 Pa. D. 217, 16 Pa. Co. Ct. Rep. 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 ...


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