In Re: JohnCarlo Oren Approbriation of Appointment of Deputy Constable for the Borough of Delaware Water Gap ~ Appeal of: M. Rodriguez , 2017 Pa. Commw. LEXIS 104 ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
:
JohnCarlo Oren :
:
Approbriation of :
Appointment of Deputy :
Constable for the :
Borough of Delaware :
Water Gap : No. 32 C.D. 2016
: SUBMITTED: September 16, 2016
Appeal of: Manuel Rodriguez :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION BY JUDGE COSGROVE FILED: April 10, 2017
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
1
Section 7122(a), in relevant part, states:
(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.
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).
44 Pa.C.S. § 7122(a).
2
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 Vacate the Order denying the petition?
(Appellant’s Brief at 4-5.)
2
Appellant’s issues preserved on appeal are issues of law and, as such, are subject to this
Court’s plenary review. Hough v. Workers’ Compensation Appeal Board (AC&T Companies),
928 A.2d 1173, 1181 (Pa. Cmwlth. 2007).
3
Initially we note the trial court held that Appellant waived all of his
issues on appeal, because he raised them for the first time in his Pa.R.A.P. 1925(b)
statement. (T.C.O. at 8-10.) In his motion to vacate, Appellant alleged the District
Attorney did not raise any objections to Appellant’s appointment of Oren prior to
the petition hearing despite the trial court’s November 5, 2015 order. Appellant
further argued the trial court improperly denied Appellant’s motion to vacate
because it relied, in part, on the District Attorney’s untimely objections.
(Reproduced Record at 52-53.)
We construe these arguments to have adequately raised Appellant’s
second, third, and fourth issues complained of on appeal. Accordingly, we decline
to find waiver on these three issues. However, Appellant indeed raises his first
issue for the first time in his Rule 1925(b) statement. As such, Appellant waived
his first issue, and we cannot address it. Pa.R.A.P. 302(a).
In his second issue, Appellant alleges the trial court erred as a matter
of law by improperly relying upon the participation of the District Attorney’s
Office and the evidence it presented. Appellant argues Section 7122(b) governs
the hearing process and requires a non-adversarial proceeding. (Appellant’s Brief
at 16-17.) Relying on a dissenting opinion in In re: Fry, 110 A.3d 1103 (Pa.
Cmwlth.), appeal denied, 123 A.3d 332 (Pa. 2015), Appellant asserts the District
Attorney participated in the petition hearing without standing to do so.3
In Fry, this Court granted en banc review to consider whether the trial
court erred in requiring a constable to demonstrate need for appointment of a
deputy constable, a requirement not included in Section 7122. In considering this
issue, the Fry Court addressed its decision in In re Hunter, 782 A.2d 610 (Pa.
3
We note Appellant also cites In re Approval of Special Counsel, 866 A.2d 1157 (Pa.
Cmwlth. 2005) to support this argument. However, In re Approval of Special Counsel is
inapplicable because it addressed whether a retirement board had standing to challenge a petition
for approval of special counsel filed by a county solicitor.
4
Cmwlth. 2001) which required a constable to show need for appointment of a
deputy constable. The Fry Court ultimately overturned this needs test. Fry, 110
A.3d at 1108. In doing so, this Court determined that, instead of a needs test,
courts should exercise their discretion in offering their approval of only “suitable”
candidates. Id. at 1109. The Fry Court concluded the District Attorney is “chief
law enforcement officer for the county in which he is elected.” Id. at 1110. As
such, the District Attorney has standing in any petition for approbation of
appointment of a deputy constable under Section 7122 to present evidence of the
candidate’s suitability to the trial court.
Although Fry is a plurality opinion, it nonetheless guides our decision
herein. Further, the Fry Court’s holding has not been extinguished nor diminished
in the years since it was issued. Accordingly, we must hold that the District
Attorney did have standing to participate in the approbation hearing of Oren. As
such, Appellant is not entitled to relief on this issue.
Furthermore, Section 7122(b) establishes that, except in certain
circumstances not applicable here, “no deputy shall be appointed, either by general
or partial deputization, without approbation of the court of common pleas of the
county . . . at the request and risk of the plaintiff or his agent.” 44 Pa.C.S.
§ 7122(a). Approbation is defined as “an act of approving formally or officially.”4
As such, the trial court must have a basis for such approval, and is certainly
entitled to inquire about the quality of the nominee for appointment in order to
have a fair assessment of whether to offer its approval.
In his third issue, Appellant argues that, even if the participation of the
District Attorney were proper, the trial court erred by allowing the District
Attorney to testify when it did not provide advance notice of objection to Oren’s
4
Approbation, Merriam-Webster Online Dictionary, 2017, https://www.merriam-
webster.com (last visited February 28, 2017).
5
appointment. (Appellant’s Brief at 19.) Appellant claims the trial court “should
have required the District Attorney to follow the Order of [the] [trial c]ourt, which
was to file an objection within five days of the hearing.” (Appellant’s Brief at 20.)
Appellant asserts the District Attorney was required to file objections prior to
Appellant’s hearing, because Appellant had a statutory right to seek approbation of
his deputy constable. (Appellant’s Brief at 20-21.) Appellant, however, fails to
cite any authority in support of this issue and, consequently, Appellant has not
appropriately developed it for our review. Pa.R.A.P. 2119(a). This failure
constitutes waiver of the issue. In re Tax Claim Bureau of Lehigh County 2012
Judicial Tax Sale, 107 A.3d 853, 857 n.5 (Pa. Cmwlth. 2015).
To the extent Appellant intended to argue he did not have sufficient
notice of the District Attorney’s findings, this argument fails. The trial court
ordered the District Attorney to perform a background investigation of Oren more
than 30 days prior to the petition hearing. This order was likewise served on
Appellant more than thirty days before the petition hearing. Appellant therefore
had advanced notice that the District Attorney would conduct a background check.
As mentioned, a PA Clearance Certificate indicating Oren did not have a criminal
record was attached to Appellant’s petition. That Oren failed to disclose his prior
legal name with the accompanying PA Clearance Certificate to enable Appellant to
conduct a complete background check is not the fault of the District Attorney.
Lastly, Appellant argues the trial court abused its discretion in
denying his motion to vacate. Appellant rests this issue on his statement that “for
all of the reasons set forth above, the court should have permitted [Appellant] a
new hearing” so that he could “meaningfully create a record,” “to clarify” who the
proper participants were, and to “provide evidence to contest the District
Attorney’s evidence regarding ‘suitability’.” (Appellant’s Brief at 21.) Appellant
fails to cite any authority in support of this issue. Pa.R.A.P. 2119(b). Appellant’s
6
failure precludes meaningful review of this issue, and we will not make
Appellant’s arguments for him. Accordingly, Appellant’s last issue on appeal is
also waived. Browne v. Commonwealth, 843 A.2d 429, 435 (Pa. Cmwlth. 2004)
(At the appellate level, a party’s failure to include relevant authority results in
waiver.).
As Appellant is not entitled to relief on any of his issues raised on
appeal, the order of the trial court is affirmed.
__________________________
JOSEPH M. COSGROVE, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
:
JohnCarlo Oren :
:
Approbriation of :
Appointment of Deputy :
Constable for the :
Borough of Delaware :
Water Gap : No. 32 C.D. 2016
:
Appeal of: Manuel Rodriguez :
ORDER
AND NOW, this 10th day of April, 2017, we affirm the December 8,
2015 order of the Court of Common Pleas of Monroe County.
___________________________
JOSEPH M. COSGROVE, Judge