In Re: Lehigh County Constables ~ Appeal of: D.C. Huber and F. Bainhauer, III , 172 A.3d 712 ( 2017 )


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  •             IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    In Re: Lehigh County Constables                   :
    :   No. 774 C.D. 2017
    Appeal of: Dennis C. Huber                        :   Submitted: September 22, 2017
    and Frederick Bainhauer, III                      :
    BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE MICHAEL H. WOJCIK, Judge
    HONORABLE J. WESLEY OLER, Jr., Senior Judge
    OPINION
    BY JUDGE WOJCIK                                                       FILED: October 6, 2017
    Dennis C. Huber and Frederick Bainhauer III (collectively, Constables)
    appeal the orders of the Lehigh County Court of Common Pleas (trial court) denying
    their three petitions for the appointment of deputy constables, and approving two
    other petitions for the appointment of deputy constables, pursuant to Section 7122
    of Title 44 of the Pennsylvania Consolidated Statutes (Act 49).1 We vacate and
    remand in part, and affirm in part.
    1
    44 Pa. C.S. §7122. Section 7122 states, in relevant part:
    (a) General rule.—Sole power to appoint deputy constables in a
    ward . . . or township is vested in the constable of the ward . . . or
    township subject to approval of the court of common pleas under
    subsection (b).
    (b) Court approval and qualifications.—
    (1) Except as set forth in paragraph (2), no deputy shall be
    appointed, . . . without approbation of the court of common pleas of
    the county, except for special appointments in a civil suit or
    proceeding, at the request and risk of the plaintiff or his agent.
    In light of the duty imposed by Section 7122, on October 4, 2016, the
    trial court issued Amended Administrative Order No. AD-6-2016 (2016
    Administrative Order), establishing the procedure for the approval of appointments
    of deputy constables to work at the polls on primary and general election days.2 See
    Trial Court 8/28/17 Opinion at Exhibit A. The 2016 Administrative Order directed
    that such requests be by petition to the trial court in substantially the same form as
    provided in the order. 
    Id. The 2016
    Administrative Order specifically required that
    the petition include: the name and signature of the constable seeking to make the
    appointment; the name and address of the proposed deputy constable; a signed
    certification from the Chief Clerk to the Lehigh County Election Board (Chief Clerk)
    that the proposed deputy constable is a qualified elector in the ward for which the
    appointment is sought; the recommendation and signature of the magisterial district
    judge (MDJ) having jurisdiction over the relevant ward, borough, or township that
    (2) In the event of a deputy’s death or inability or refusal to act, the
    constable of a township may, with approbation of the court of
    common pleas of the county where the deputy served, appoint
    another deputy who shall have full authority to act until the next
    regular session of court.
    2
    Section 7152 of Act 49 states, in pertinent part:
    The constable of a . . . township or ward, or his deputy, shall do all
    of the following:
    (1) Be present at the polling place in each election district of the
    . . . township or ward at each election during the continuance of each
    election and while the votes are being counted, for the purpose of
    preserving the peace.
    (2) Serve at all elections.
    44 Pa. C.S. §7152.
    2
    the petition be approved, denied, or expressing no opinion on its disposition; and the
    recommendation and signature of the Lehigh County District Attorney (District
    Attorney) that the petition be approved, denied, or expressing no opinion on its
    disposition. 
    Id. On April
    17, 2017, Constable Huber submitted petitions to the trial
    court in the form provided in the 2016 Administrative Order that he had signed
    seeking the appointment of Judith Kern and Marianna Andrea Colon-Ortiz as deputy
    constables for the 19th Ward in the City of Allentown (City) for the 2017 Municipal
    Primary and General Elections (Elections). Reproduced Record (R.R.) at 30a, 32a.
    Although the Chief Clerk, or his designee, signed the petitions certifying that Kern
    and Colon-Ortiz are qualified electors in that Ward, neither the relevant MDJ nor the
    District Attorney indicated a recommendation or signed the petitions. 
    Id. On May
    11, 2017, the trial court denied the petition. 
    Id. On April
    25, 2017, Constable Bainhauer submitted a petition to the trial
    court in the form provided in the 2016 Administrative Order that he had signed
    seeking the appointment of Joseph Cocco as a deputy constable for the City’s 11th
    Ward for the Elections. R.R. at 34a. Although the Chief Clerk signed the petition
    certifying that Cocco is a qualified elector in that Ward, neither the relevant MDJ
    nor the District Attorney indicated a recommendation or signed the petition. 
    Id. On May
    11, 2017, the trial court denied the petition. 
    Id. On April
    18, 2017, a petition in the form provided in the 2016
    Administrative Order was submitted seeking the appointment of Scott Koenig as a
    deputy constable for Lynn Township (Township) for the 2017 Municipal Primary
    and General Elections. R.R. at 35a. Although the Chief Clerk signed the petition
    certifying that Koenig is a qualified elector in the Township, and both the relevant
    3
    MDJ and the District Attorney signed and recommended approval of the petition, no
    name or signature of a constable appeared on the petition because there is “[n]o
    constable in [the Township].” Id.3 Nevertheless, on May 12, 2017, the trial court
    approved the petition. 
    Id. On April
    18, 2017, a petition in the form provided in the 2016
    Administrative Order was submitted seeking the appointment of Sterling Ritter as a
    deputy constable for the Township for the Elections. R.R. at 36a. Although the
    Chief Clerk signed the petition certifying that Ritter is a qualified elector in the
    Township, and both the relevant MDJ and the District Attorney signed and
    recommended approval of the petition, no name or signature of a constable appeared
    on the petition because there is “[n]o constable in [the Township].” Nevertheless,
    on May 12, 2017, the trial court approved the petition. 
    Id. Following the
    denial of the petitions filed by the Constables, counsel
    for the Constables asked the trial court to conduct a hearing so “there could be a
    record made of what the reasons were” for the trial court’s action. R.R. at 39a. At
    the May 12, 2017 hearing, Constable Huber testified that he did not seek the
    recommendation or signature of the relevant MDJ because he did not know who the
    MDJ was for the election district or where the MDJ’s office is located. 
    Id. at 51a,
    3
    Section 7121 of Act 49 provides the procedure by which the vacancy in the office of
    constable for Lynn Township may be filled:
    When a vacancy occurs in the office of constable, regardless of the
    reason for the vacancy, the court of common pleas of the county of
    the vacancy, upon petition of not less than ten qualified electors
    residing in the . . . township of the vacancy, shall appoint a suitable
    person, who, upon being qualified as required by law, shall serve as
    the constable for the unexpired term of the vacancy.
    44 Pa. C.S. §7121.
    4
    53a-54a. Constable Bainhauer testified that he did not seek the recommendation or
    signature of the relevant MDJ because constables are independently elected officials
    and do not answer to other elected officials. 
    Id. at 58a.
    The Constables and their
    counsel characterized the trial court’s requirement of their obtaining the
    recommendation and signature of the relevant MDJs on the petition form prior to its
    submission as an “unfunded mandate.”                  See 
    id. at 45a,
    46a, 59a, 60a, 63a.4
    4
    At the hearing, Counsel summarized the Constables’ position as follows:
    Constables get paid absolutely nothing for going through this
    whole process. Adding an unfunded mandate may be something
    that Your Honor sees as a pathway towards helping to exercise Your
    Honor’s own due diligence. Very, very respectfully suggest to Your
    Honor it’s just as easy, if not more easy, for Your Honor’s court
    administration office – Court Administration Office to accomplish
    that result either by sending them individually, or by converting
    them into a list as . . . the Chief Deputy downstairs at the Clerk’s
    Office already does, and getting that information.
    If it’s Your Honor’s own due diligence Your Honor is concerned
    with, then with tremendous respect, I do suggest that that’s
    something for the Court to engage in, rather than to order the
    constable to run around doing extra work he already gets paid zero
    for.
    Constables are elected officials, and do not report to any other
    elected official. They do indeed need to submit this petition for this
    approval, but that’s done by dropping it off at the Clerk’s Office,
    and that’s – or by mailing it, and running the trip over to the
    magistrate’s office, especially when as in these two cases, these two
    gentlemen don’t even know where their magistrate office is.
    While one might say for something such as, well, perhaps they
    should find out, that’s completely irrelevant. There is no reason why
    they need, or ought to find out since the magistrate does, in fact, and
    by law, have zero role in the election.
    R.R. at 63a-64a
    5
    Nevertheless, the Constables conceded that the trial court itself may obtain the
    recommendations and signatures of the relevant MDJs and the District Attorney as
    part of its due diligence in exercising its duty under Section 1722(b) of Act 49. See
    
    id. at 53a,
    57a. On May 15, 2017, following the hearing, the trial court issued orders
    again denying the three petitions. The Constables subsequently filed these appeals
    of all of the trial court’s orders both denying5 and approving the petitions.6
    However, on August 28, 2017, the trial court amended Administrative
    Order No. AD-6-2016 (2017 Administrative Order), establishing a new procedure
    for the approval of appointments of deputy constables to work at the polls on primary
    and general election days. See Trial Court 8/28/17 Opinion at Exhibit B. The 2017
    Administrative Order directs that such requests be by petition to the trial court in
    substantially the same form as provided in the order. 
    Id. However, the
    2017
    Administrative Order merely requires the petitioning constable to complete Section
    1 of the petition, including the name and signature of the constable seeking to make
    the appointment and the name and address of the proposed deputy constable, prior
    to its submission to the trial court’s Clerk of Judicial Records. 
    Id. The 2017
    Administrative Order requires the court’s Clerk of Judicial Records to arrange for
    the completion of Section 2 of the form, including the recommendation and signature
    of the MDJ having jurisdiction over the relevant ward, borough, or township that the
    petition be approved, denied, or expressing no opinion on its disposition; a signed
    certification from the Chief Clerk that the proposed deputy constable is a qualified
    5
    “Our scope of review of a decision by a trial court is limited to a determination of whether
    the trial court abused its discretion, [and] committed an error of law or whether constitutional rights
    were violated. Azzarrelli v. City of Scranton, 
    655 A.2d 648
    (Pa. Cmwlth. 1995).” In re
    Appointment of Deputy Constable, 6th Ward, George Charles, (Pa. Cmwlth., No. 1073 C.D. 1998,
    filed January 8, 1999), slip op. at 2 n.1.
    6
    We granted leave for the trial court to file an amicus appellate brief.
    6
    elector in the ward for which the appointment is sought; and the recommendation
    and signature of the District Attorney that the petition be approved, denied, or
    expressing no opinion on its disposition. 
    Id. In essence,
    the trial court subsequently
    granted the Constables’ requested relief while the instant appeals were pending.
    As a preliminary matter, the Constables have filed a motion asking this
    Court to transfer7 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. 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).
    Likewise, in the instant matter, there is nothing in the record to suggest
    that the Constables’ submission of the petitions for the appointment of deputy
    7
    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 . . . .”).
    7
    constables relates to the exercise of any policy-making authority such that an appeal
    from the trial court’s approval or denial of such petitions would fall within the
    Supreme Court’s exclusive appellate jurisdiction.               As a result, we deny the
    Constables’ request to transfer the instant appeal to the Supreme Court.8
    Next, on the merits, the Constables argue that the trial court erred in
    determining that Section 1722 of Act 49 required them to obtain the approval of the
    relevant MDJ prior to their submission of the petitions for the appointment of deputy
    constables to that court. While the instant appeal was pending, the trial court
    apparently saw the merit in the Constables’ argument and issued the 2017
    Administrative Order thereby amending the requirements for petitions for the
    appointment of deputy constables. As a result, we will vacate the trial court’s orders
    denying the petitions seeking the appointment of Kern, Colon-Ortiz, and Cocco as
    deputy constables for the 19th and 11th Wards in the City for the Elections and remand
    the matter to that court to reconsider these petitions under the provisions of the new
    2017 Administrative Order. See, e.g., Section 706 of the Judicial Code, 42 Pa. C.S.
    § 706 (“An appellate court may . . . vacate . . . any order brought before it for review,
    and may remand the matter and . . . require such further proceedings to be had as
    may be just under the circumstances.”); Eaddy v. Hamaty, 
    694 A.2d 639
    , 644 (Pa.
    Super. 1997) (“We concede that the trial court may have reached the same result had
    it applied the new rules. That fact does not alter the conclusion that the trial court
    failed to apply the correct rules to the motion before it. By failing to apply the new
    8
    Moreover, this Court has routinely exercised jurisdiction over appeals involving the
    denial of such petitions. See, e.g., In re Oren, 
    159 A.3d 1023
    (Pa. Cmwlth. 2017); In re Fry, 
    110 A.3d 1103
    (Pa. Cmwlth.), appeal denied, 
    123 A.3d 332
    (Pa. 2015); In re Appointment of Deputy
    Constable, 6th Ward, George Charles.
    8
    rules governing summary judgment motions and to follow proper legal procedures,
    the trial court committed an abuse of discretion.”).
    Finally, the Constables argue that the trial court erred in approving the
    petitions appointing Koenig and Ritter as deputy constables for the Township for the
    Elections because a constable did not submit the petitions. However, because the
    Constables never appeared in the trial court with respect to these petitions nor sought
    any relief in that court in this regard,9 nor preserved any issues in that court for our
    review, this issue will not be addressed for the first time in this appeal. See
    Pa. R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be
    raised for the first time on appeal.”); Siegfried v. Borough of Wilson, 
    695 A.2d 892
    ,
    894 (Pa. Cmwlth. 1997) (“Rule 302(a) clearly states that issues not raised in the trial
    court are waived and cannot be raised for the first time on appeal. Pennsylvania
    courts have consistently applied this rule. Commonwealth v. Piper, [
    328 A.2d 845
    (Pa. 1974)]. The appellate court may sua sponte refuse to address an issue raised on
    appeal that was not raised and preserved below[.] Tarter v. Linn, [
    578 A.2d 453
    (Pa.
    Super. 1990), appeal denied, 
    600 A.2d 538
    (Pa. 1991)].”) (footnote omitted). As a
    result, the trial court’s orders approving these petitions are affirmed.
    Accordingly, the trial court’s orders denying the Constables’ petitions
    seeking the appointment of Kern, Colon-Ortiz, and Cocco as deputy constables for
    the 19th and 11th Wards in the City for the Elections are vacated, and the matter is
    9
    See, e.g., Appeal of Reed, 
    164 A. 610
    (Pa. 1933) (“[A]t the time the appointment of [Reed]
    was approved [as deputy constable] by the court . . . the question of his residence within the ward
    was not then at issue. Subsequently, . . . on petition alleging [that Reed] was not, at the time of his
    appointment a bona fide resident of the ward wherein he was appointed, a rule was granted upon
    the constable of the Fifth ward and [Reed] to show cause why the appointment should not be
    revoked. The matter came on for hearing[, t]estimony was taken as to the residence of [Reed] and
    thereafter . . . the court in an order and opinion disapproved the appointment and vacated its
    previous order.”).
    9
    remanded to the trial court to reconsider these petitions under the provisions of the
    2017 Administrative Order. The trial court’s orders approving of the petitions
    appointing Koenig and Ritter as deputy constables for the Township for the Elections
    are affirmed. The motion to transfer the appeal is denied.
    MICHAEL H. WOJCIK, Judge
    10
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    In Re: Lehigh County Constables          :
    :   No. 774 C.D. 2017
    Appeal of: Dennis C. Huber               :
    and Frederick Bainhauer, III             :
    ORDER
    AND NOW, this 6th day of October, 2017, the May 15, 2017 orders of
    the Lehigh County Court of Common Pleas (trial court) denying the petitions of
    Dennis C. Huber and Frederick Bainhauer III for the appointment of Judith Kern and
    Marianna Andrea Colon-Ortiz as deputy constables for the 19th Ward in the City of
    Allentown for the 2017 Municipal Primary and General Elections, and Joseph Cocco
    as a deputy constable for the City’s 11th Ward for those Elections, are VACATED
    and the matter is REMANDED to the trial court for reconsideration of those petitions
    under the provisions of the court’s August 28, 2017 Administrative Order on or
    before fourteen (14) days of the date of this order. The trial court’s May 12, 2017
    orders approving the petitions for the appointment of Scott Koenig and Sterling
    Ritter as deputy constables for Lynn Township for the 2017 Municipal Primary and
    General Elections are AFFIRMED. The motion to transfer the above-captioned
    appeal to the Pennsylvania Supreme Court is DENIED.
    Jurisdiction is RELINQUISHED.
    MICHAEL H. WOJCIK, Judge
    

Document Info

Docket Number: 774 C.D. 2017

Citation Numbers: 172 A.3d 712

Judges: Wojcik, J.

Filed Date: 10/6/2017

Precedential Status: Precedential

Modified Date: 1/12/2023