Com. v. Stair, R. ( 2017 )

J-S39010-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD CHARLES STAIR, JR., :
:
Appellant : No. 1217 WDA 2016
Appeal from the Judgment of Sentence July 22, 2016
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014326-2015
BEFORE: BENDER, P.J.E., BOWES, and STRASSBURGER,* JJ.
CONCURRING MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 1, 2017
The Majority correctly states and applies the applicable law, and
reaches the result dictated by precedent, including that of Commonwealth
v. Hlubin, -- A.3d --, 2017 WL 2255549 (Pa. Super. May 23, 2017) (en
banc). I write separately because I believe Hlubin was wrongly decided.1,2
The Intergovernmental Cooperation Act (ICA) provides that two or
more local governments are permitted to cooperate jointly in performing
governmental functions. 55 Pa.C.S. § 2303. “A local government may enter
into intergovernmental cooperation with or delegate any functions, powers or
1
I sat on the original three-judge Hlubin panel and dissented to its decision.
My memorandum was withdrawn when en banc reconsideration was granted.
As a senior judge, pursuant to § 65.6(A) of the Superior Court Operating
Procedures, I did not sit on the en banc panel that rendered the ultimate
decision.
2
Hlubin’s petition for allowance of appeal is pending before our Supreme
Court at 246 WAL 2017.
*Retired Senior Judge assigned to the Superior Court.
J-S39010-17
responsibilities to another governmental unit or local government upon the
passage of an ordinance by its governing body.” 55 Pa.C.S. § 2305
(emphasis added). The Court in Hlubin, which also involved a DUI
checkpoint on the Steubenville Pike in Robinson Township, held that the
requirements of the ICA had not been met to validate the DUI Task Force
because the resolution proposed by Robinson Township neither was ratified
by the other participating municipalities nor met the statutory requirements
for an ordinance. Hlubin, 2017 WL 2255549 at *3.
However, according to the Hlubin decision, the following provision of
the Municipal Police Jurisdiction Act (MPJA) nonetheless validated the joint
action: “Where the officer has been requested to aid or assist any local, State
or Federal law enforcement officer or park police officer or otherwise has
probable cause to believe that the other officer is in need of aid or
assistance.” 42 Pa.C.S. § 8953(a)(3).
If the Hlubin Court is correct, then there would have been no need for
an agreement among the municipalities in the first place. Instead, those
municipalities would simply have been able to engage in an informal process
to create the DUI Task Force at issue. That cannot be the case. While the
MPJA governs police authority, the DUI Task Force was a creation of these
municipalities, not the police departments within them.
Accordingly, the correct application of the statutes leads to the
conclusion that the ICA, not the MPJA, governs the joint action at issue in
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these West Hills DUI Task Force cases. Because the agreement under the
ICA was not entered into by an ordinance, the DUI Task Force was acting
without jurisdiction.
-3-