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In re Oren

Commonwealth Court of Pennsylvania

April 10, 2017

In Re: JohnCarlo Oren Approbriation of Appointment of Deputy Constable for the Borough of Delaware Water Gap Appeal of: Manuel Rodriguez

          SUBMITTED: September 16, 2016

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JOSEPH M. COSGROVE, Judge

          OPINION

          JOSEPH M. COSGROVE, Judge

         Constable Manuel Rodriguez (Appellant) appeals from the December 8, 2015 order of the Court of Common Pleas of Monroe County (trial court) denying his petition for appointment of JohnCarlo Oren (Oren) as his deputy constable. Upon review, we affirm.

         Appellant petitioned the trial court to approve his appointment of Oren as his deputy pursuant to Section 7122(a) of Title 44 of the Pennsylvania Consolidated Statutes.[1] The trial court scheduled a petition hearing and directed the District Attorney of Monroe County to perform a background investigation of Oren. The trial court directed the District Attorney to file any objections to the petition at least five days prior to the petition hearing.

         Appellant and Oren both appeared and testified at the petition hearing. The District Attorney appeared through an Assistant District Attorney and the Chief County Detective, the person who conducted Oren's background investigation. The District Attorney contested Appellant's petition for the following reasons: Appellant attached a Pennsylvania State Police Records Check Certificate (PA Clearance Certificate) to his petition indicating Oren did not have a criminal record, yet Oren had a criminal history consisting of three Driving Under the Influence (DUI) or DUI-related convictions amassed in other jurisdictions, some of which occurred when he was using a prior name; Oren did not list his prior name when requesting the PA Clearance Certificate; Oren was the subject of a criminal investigation for fraud and forgery based on withdrawals made from a bank account into which he had deposited checks that were not honored; and the Court of Common Pleas of Pike County previously suspended Oren's appointment as Constable for Lehman Township, Pike County because Oren left the jurisdiction without informing the court he moved. (Trial Court Opinion (T.C.O.), 1/22/16, at 2-3.)

         The trial court denied Appellant's petition based on the results of the criminal background check, the dishonest and evasive nature Oren exhibited while explaining his previous convictions, and the ongoing investigation. (T.C.O. at 3-5, 13-14.) Further, the trial court noted neither Appellant nor Oren submitted a lease Appellant referenced (but did not attach to the petition) as proof he met the residency requirement of Section 7122(a). 44 Pa.C.S. § 7122(a); (T.C.O. at 6, 15).

         Appellant asserted Oren "blindsided" him because he was not aware of Oren's criminal history, or the ongoing criminal investigation, because Oren gave Appellant the PA Clearance Certificate only under his current name. (T.C.O. at 5.) Oren admitted he applied for a PA Clearance Certificate solely under the name he currently uses.

         Appellant raises four issues for our review, [2] reproduced below verbatim.

1) Did the Court of Common Pleas err as a matter of law by applying a "suitability" test to the approbation of an appointment of a deputy constable where the language of 44 Pa.C.S. Section 7122 is unambiguous and where such application would violate the separation of powers?
2) Did the Court of Common Pleas err as a matter of law where it improperly relied upon participation by and evidence provided by the District Court Attorney's Office when the statute contemplates an ex parte non-adversarial hearing and the District Attorney's Office is not directly and substantially implicated in the matter?
3) Even if its participation were proper, did the Court err by allowing the District Attorney's Office to be heard where the District Attorney did not provide advance notice of objection to the Petitioner as required in the Court's Order, therefore depriving petition [sic] of the ability to rebut the facts that the Office of the District Attorney was disputing, including Mr. Oren's alleged criminal history, in violation of the Court's Order and the Petitioner's rights to Procedural Due Process in the exercise of his statutory right to appoint a deputy constable?
4) Given the lack of notice of the objection of the District Attorney, did the Court commit an abuse of discretion in denying Petitioner's Motion to ...

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