In Re: R. Truss

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Roy Truss : No. 779 C.D. 2017
: Submitted: December 8, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. WESLEY OLER, Jr., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 18, 2018
Roy Truss appeals the order of the Northampton County Court of
Common Pleas (trial court) removing him as Constable for Moore Township,
Northampton County, pursuant to Section 7172 of Title 44 of the Pennsylvania
Consolidated Statutes.1 We transfer the appeal.
Truss was elected in November 2015, and installed as Constable for
Moore Township in 2016. On January 31, 2017, the Deputy Court Administrator
for Northampton County received a complaint from Truss seeking to remove Deputy
Constable Matthew Toso for insubordination, and a complaint from Toso seeking
Truss’s removal based on Truss’s failure to maintain residency within his elected
municipality and harassment. On February 10, 2017, Constable Douglas Fulmer
1
44 Pa. C.S. §7172. Section 7172(a)(2) states, in relevant part, “A court of common pleas
with competent jurisdiction may inquire into the official conduct of the constable if any of the
following apply: . . . Any person files a verified petition alleging that the constable is incompetent
to discharge official duties for a reason other than intemperance or neglect of duty.” 44 Pa. C.S.
§7172(a)(2). In turn, Section 7172(b)(1)(ii) provides, in pertinent part, “If the court determines
that the constable is incompetent to discharge official duties, the following apply: . . . The court
may: . . . remove the constable from office.” 44 Pa. C.S. §7172(b)(1)(ii).
also filed a complaint seeking Truss’s removal based on his failure to reside within
the municipality. On March 21, 2017, the Constable Review Board (Board)
conducted a hearing at which both Truss and Toso testified and presented evidence.
On April 17, 2017, the Board ultimately issued Findings and Recommendations,
determining that Truss should be removed as Constable because he failed to maintain
residency in Moore Township and he engaged in a pattern of harassment against
Toso. The Board determined that the complaint filed by Truss against Toso should
be dismissed because Truss failed to sustain his burden of proof. Truss appealed the
Board’s Findings and Recommendations to the trial court, which, upon reviewing
the record, entered an order on May 17, 2017, accepting the Board’s Findings and
Recommendations and directing that Truss be removed as Constable for Moore
Township for failing to maintain residency in Moore Township and for
incompetence and malfeasance in the discharge of his duties. Truss filed the instant
appeal from the trial court’s order.
As a preliminary matter, Truss has filed a motion asking this Court to
transfer2 the instant matter to the Pennsylvania Supreme Court because it is within
that Court’s exclusive appellate jurisdiction under Section 722(2) of the Judicial
Code, 42 Pa. C.S. §722(2). Specifically, Section 722(2) provides that “[t]he
Supreme Court shall have exclusive jurisdiction of appeals from final orders of the
courts of common pleas” in cases involving “[t]he right to public office.” Id.
2
See Section 5103(a) of the Judicial Code, 42 Pa. C.S. §5103(a) (“If an appeal . . . is taken
to or brought in a court . . . which does not have jurisdiction of the appeal . . . the court . . . shall
not quash such appeal . . . , but shall transfer the record thereof to the proper tribunal . . . where
the appeal . . . shall be treated as if originally filed in the transferee tribunal . . . .”); Pa. R.A.P.
751(a) (same); Pa. R.A.P. 751(b) (“An appeal . . . may be transferred from a court to another court
under this rule by order of court or by order of the prothonotary of any appellate court affected.”).
2
However, with respect to its exclusive appellate jurisdiction under
Section 722(2), the Supreme Court has explained:
In Appeal of Bowers[, 269 A.2d 712, 716-17 (Pa. 1970)],
the court defined “public office” as an elective or
appointive position in which the incumbent is exercising a
governmental function which involves a measure of policy
making and which is of general public importance. []
Because this case does not fall within the scope of a case
involving the “right to public office,” we need not decide
whether a constable is a public officer under [Section
722(2)]. We note, however, that the parties point to
nothing in the record to suggest that [the elected borough
constable] himself exercised any policy-making authority.
Commonwealth v. Spano, 701 A.2d 566, 567 n.4 (Pa. 1997) (emphasis added).
As a result, the Supreme Court concluded that jurisdiction over an
appeal from a trial court’s removal order is vested in the Superior Court:
While Appeal of Bowers left open the possibility
that an exception might exist to the general rule that
appeals challenging the regularity of a discharge
proceeding should be taken to the Superior Court, the
parties have offered no reason why one should exist in this
case. Therefore, this case is remanded to the Superior
Court for a decision on the merits of Appellant's discharge
from his position of borough constable.
Spano, 701 A.2d at 568 (footnote omitted).
Likewise, in the instant matter, there is nothing in the record to suggest
that the office of constable relates to the exercise of any policy-making authority
such that an appeal from the trial court’s removal of Truss from that position would
fall within the Supreme Court’s exclusive appellate jurisdiction. As the Supreme
Court explained, “Unless otherwise excepted, exclusive original jurisdiction over
appeals from orders of the courts of common pleas lies with the Superior Court. 42
3
Pa. C.S. §742.[3]” Spano, 701 A.2d at 566. Moreover, the Superior Court has
routinely exercised jurisdiction over appeals involving such removal actions. See,
e.g., In re Petition to Remove Constable Visoski, 852 A.2d 345 (Pa. Super. 2004); In
re Removal of Deputy Constable Page, 205 A.2d 637 (Pa. Super. 1964). As a result,
we deny Truss’s request to transfer this appeal to the Supreme Court, but transfer
the matter to the Superior Court.4 See, e.g., Collier v. Marshall, Dennehey, Warner,
Coleman & Goggin, 592 A.2d 331 (Pa. 1990) (“[T]he Petition for Allowance of
Appeal is granted. The order of the Commonwealth Court is vacated and the case is
remanded to the Commonwealth Court with instructions to transfer the matter to the
Superior Court for disposition.”).
Accordingly, we transfer this appeal and the accompanying record to
the Superior Court for disposition.
MICHAEL H. WOJCIK, Judge
3
Section 742 of the Judicial Code states:
The Superior Court shall have exclusive appellate jurisdiction of
all appeals from final orders of the courts of common pleas,
regardless of the nature of the controversy or the amount involved,
except such classes of appeals as are by any provision of this chapter
within the exclusive jurisdiction of the Supreme Court or the
Commonwealth Court.
42 Pa. C.S. §742.
4
See Spirit of the Avenger Ministries v. Commonwealth, 767 A.2d 1130, 1131 n.4 (Pa.
Cmwlth. 2001) (this Court has the obligation to sua sponte raise the issue of our jurisdiction).
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Roy Truss : No. 779 C.D. 2017
ORDER
AND NOW, this 18th day of April, 2018, the above-captioned appeal is
TRANSFERRED to the Pennsylvania Superior Court for disposition. The Chief
Clerk is directed to certify a photocopy of the docket entries of the above matter and
the record to the Superior Court Prothonotary.
Jurisdiction is RELINQUISHED.
__________________________________
MICHAEL H. WOJCIK, Judge