In re Fry

CONCURRING/DISSENTING OPINION BY

Judge McCULLOUGH.

I agree with the Majority’s conclusion that In re Hunter, 782 A.2d 610 (Pa.Cmwlth.2001), requiring a constable to show need in order to appoint a deputy under 44 Pa.C.S. § 7122, should be overruled. I write separately to address the remaining issues decided in the Majority’s opinion.

While the Majority recognizes the absence of authority for a “needs test,” I join the reasoning in the dissenting and concurring opinion authored by Judge Leavitt and believe that the Majority’s crafting of a “suitability” test similarly imposes a burden of proof upon the constable that is not founded in the statutory language.

In addition, I disagree with the Majority’s decision to affirm the trial court’s order based on the Majority’s determination that John Fry no longer meets the residency requirement of 44 Pa.C.S. § 7122; the evidence upon which the Majority relies, i.e., the address on Fry’s driver’s license and the fact, that Ian Castaneira *1114“has neither admitted nor denied directly that Fry has moved,” falls short of conclusively demonstrating the absence of a factual dispute.

Further, I respectfully disagree with the Majority’s conclusion that the trial court’s order effectuating the District Attorney’s participation in this case was proper. In its opinion, the trial court dismissed Casta-neira’s argument that the District Attorney lacked standing as follows:

It is unclear whether [Castaneira] challenges the role of the District Attorney as counsel, or the Commonwealth as a party. [Castaneira’s] argument fails under either theory. The Commonwealth, as a party, has interest in the appointment of the deputy to an elected official, and was properly represented by the District Attorney as counsel. The District Attorney is “afforded the power to prosecute on behalf of the Commonwealth, and to decide whether and when to prosecute.” Hearn v. Myers, 699 A.2d 1265, 1267 [Pa.Super.1997]- Additionally, the District Attorney has the authority to “initiate or discontinue prosecutions.” Id.

(Trial court op. at 5) (emphasis added). The trial court did not elaborate, but it is clear that the trial court erroneously perceived this matter to be an adversarial proceeding to which the Commonwealth already was a party.

In pertinent part, 44 Pa.C.S. § 7122 states:

§ 7122. Deputy constables.
(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.

44 Pa.C.S. § 7122(a) (emphasis added).

Section 7122(b), entitled “Court approval and qualifications,” states that “no deputy shall be appointed, either by general or partial deputization, without approbation of the court of common pleas of the county....” 44 Pa.C.S. § 7122(b) (emphasis added).

Based upon its plain language, the procedure outlined in section 7122 to appoint a deputy constable is ex parte and non-adversarial in nature. As the constable, Castaneira has the “[s]ole power” to appoint Fry to the position of deputy constable, and the only limitation on this power is that the appointment is “subject to approval” of the trial court. Section 7122 does not expressly permit or otherwise suggest participation by a party-opponent contesting a constable’s petition; rather, the statutory language reflects that the trial court’s role is to consider a constable’s petition, evaluate any evidence that he may offer on his behalf, and either approve or disapprove the petition.

The statute does not expressly or implicitly contemplate participation by the district attorney, either as an opposing party or as an intervenor. Nevertheless, the trial court gave the district attorney de facto status as a party, an action that transformed this petition proceeding into an adversarial one. Because the trial court’s action was not authorized by the statute, I submit that the trial court erred in doing so.

In essence, there was no formal order granting standing or party status, no petition to intervene and no hearing on the District Attorney’s ability to participate as *1115a de facto party. Nonetheless, the trial court granted, sua sponte, de facto status to the District Attorney as a party, contrary to the statute. Over the continuing objection of the appellant, the trial court permitted the District Attorney to cross examine witnesses and call its own witnesses in the matter.

Non-adversarial, ex parte proceedings of this nature, where a single party petitions the trial court for approval, are not foreign to Pennsylvania courts. See, e.g., In re Approval of Special Counsel, 866 A.2d 1157 (Pa.Cmwlth.2005) (discussing a solicitor’s petition for court approval of special counsel); In re Jacobs, 936 A.2d 1156 (Pa.Super.2007) (discussing a party’s petition for court approval to transfer settlement payments under the Structured Settlement Protection Act, Act 2000-1, (SB 818), P.L. 1, approved February 11, 2000, eff. in 60 days, 40 P.S. §§ 4001-09).

In In re Approval of Special Counsel, a county solicitor filed a petition on behalf of the board of commissioners, seeking approval of special counsel under section 904 of the County Code1 for the purpose of obtaining legal advice in connection with litigation against the county’s retirement board over pension funds. Similar to 44 Pa.C.S. § 7122, section 904 of the County Code states that the county commissioners “may appoint one or more assistant county solicitors, and, with the approval of the court of common pleas, special counsel who shall be attorneys at law admitted to practice in the courts of this Commonwealth.” 16 P.S. § 904 (emphasis added). The county’s retirement board objected to the petition but the trial court granted it and approved the solicitor’s request for approval of special counsel.

On appeal to this Court, the retirement board argued that the trial court erred in granting the petition. We concluded that the retirement board lacked standing. Specifically, this Court noted that the solicitor’s petition for approval of special counsel “was not an adversarial proceeding ” but, instead, was “an administrative matter” and, as such, the retirement board was not entitled to notice and an opportunity to be heard. 866 A.2d at 1164 (emphasis added).

The same reasoning applies here with equal force. Akin to the proceedings in In re Approval of Special Counsel, where the solicitor sought approval from the trial court to hire special counsel, Castaneira’s petition for the trial court’s approval to hire a deputy constable is an administrative matter rather than an adversarial proceeding.

Additionally, although in In re Approval of Special Counsel there was pending litigation between the county commissioners and the retirement board, we concluded any advice rendered to the county commissioners by the special counsel would not interfere with the retirement board’s management of the pension fund. Accordingly, this Court held that the retirement board’s interest in the appointment of special counsel was “neither direct, substantial or immediate,” and, therefore, the retirement board did not possess standing to contest the approval of special counsel. Id. at 1164-65.

“The concept of ‘standing,’ in its accurate legal sense, is concerned only with the question of who is entitled to make a legal challenge to the matter involved. Standing may be conferred by statute or by having an interest deserving of legal protection.” Meguerian v. Office of the Attorney General, 86 A.3d 924, 928 (Pa.Cmwlth.2013) (citations omitted). This Court sum*1116marized the common law requirements for standing as follows:

[A] person who is not adversely affected in any way by the matter he seeks to challenge is not “aggrieved” thereby and has no standing to obtain a judicial resolution of his challenge. To establish an “aggrieved” status, a party must have a substantial interest, that is, there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. Also, an interest must be direct, which means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains. Further, the interest must be immediate and not a remote consequence of the judgment, a requirement addressing the nature of the causal connection.

Stilp v. Commonwealth, 927 A.2d 707, 710 (Pa.Cmwlth.2007).

Although the District Attorney has statutory authority to institute criminal proceedings and is charged with enforcing the law, these duties and general interests are not directly or substantially implicated in this matter and are too remote to confer upon the District Attorney standing to challenge Castaneira’s petition to appoint Fry as a deputy constable.

“Simply stated, a constable is a peace officer.... By statute in Pennsylvania, a constable may also serve process in some instances.” In re Act 147 of 1990, 528 Pa. 460, 598 A.2d 985, 990 (1991). However,

[cjonstables and deputy constables are not employees of any municipal subdivision as police and sheriffs are. They are not paid a salary by any municipal subdivision but rather are independent contractors whose pay is on a per job basis.... As independent contractors, they are not acting for or under the control of the Commonwealth and cannot be considered Commonwealth employees in order to receive legal representation when sued in connection with their duties. No one supervises constables in the way a police chief supervises police officers or a sheriff supervises deputies. No municipality is responsible for their actions in the way a city, borough, or township is responsible for its police or a county is responsible for its sheriff’s office.

Ward v. Commonwealth, 65 A.3d 1078, 1082-83 (Pa.Cmwlth.2013) (citations omitted).

Our Supreme Court has held that where a person is not adversely affected in any way by the matter challenged, he is not aggrieved and thus has no standing to obtain a judicial resolution of that challenge. Hospital & Healthsystem Association of Pennsylvania v. Department of Public Welfare, 585 Pa. 106, 888 A.2d 601, 607 (2005) (citing William Penn Parking Garage, Inc., v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269, 280 (1975)). In order to be aggrieved, a party must show that it has a substantial, direct and immediate interest in the matter sought to be litigated. William Penn, 346 A.2d at 280-83. A “substantial” interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law; a “direct” interest requires a showing that the matter complained of caused harm to the party’s interest; and an “immediate” interest involves the nature of the causal connection between the action complained of and the injury to the party challenging it, and is shown where the interest the party seeks to protect is within the zone of interests sought to be protected by the statute or constitutional guarantee in question. Hospital & Healthsystem Association, 888 A.2d at 607; South Whitehall Township *1117Police Service v. South Whitehall Township, 521 Pa. 82, 555 A.2d 798, 795 (1989).

Because the District Attorney does not oversee, and is not responsible for, the actions of a deputy constable, the trial court’s decision to approve or not approve Fry as a deputy constable has no adverse effect on the District Attorney’s functions or duties. Correspondingly, the Distinct Attorney does not have a substantial or direct interest in the outcome of Casta-neira’s petition.

The Majority considers the potential for harm both to the public safety and to the law enforcement community that could result from the inappropriate appointment of a person not suitable to serve as a deputy constable. However, the reasons cited by the Majority as justification for allowing the district attorney to participate as a party—that any misbehavior caused by a constable or deputy who was not “properly vetted as to his background and character” would adversely affect the office of the District Attorney; that improper arrest procedures could lead to the suppression of evidence; that the use of excessive force could lead to a serious breach of the peace—are unconvincing. Indeed, such reasoning would apply equally well to demonstrate a district attorney’s interest in the fitness of all law enforcement officers, police officers and sheriffs in particular, yet there is no question that this type of interest would be insufficient to confer standing on the District Attorney in actions involving the appointment of those' individuals.

Like the Majority, I recognize that it may be beneficial for a trial court to have a criminal background check conducted on the appointed candidate before rendering its decision. I also believe it was appropriate for the trial court to direct that the County Investigation Division of the District Attorney’s office conduct an investigation. As the Commonwealth notes in its brief, “[without the participation of the district attorney, the court would lack an independent investigation of need for the appointment.” (Commonwealth’s brief at 4) (emphasis added). However, the trial court has the inherent authority to obtain this information from a court-ordered report or witness without converting the proceedings into an adversarial contest. See Commonwealth v. DiPasquale, 424 Pa. 500, 280 A.2d 449, 450-51 (1967) (“The general judicial power itself, expressly allotted in every State constitution, implies inherently a power to investigate as auxiliary to the power to decide; and the power to investigate implies necessarily a power to summon and to question witnesses”) (citation omitted). Thus, concerns regarding the potential for harm to the public safety and to the law enforcement community can be adequately addressed.

For these reasons, I would reverse the trial court’s decision in its entirety.

. Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 904.