J-A18019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ROY TRUSS                       :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                                        :
 APPEAL OF: ROY TRUSS                   :
                                        :
                                        :
                                        :
                                        :
                                        :    No. 1341 EDA 2018

                    Appeal from the Order May 12, 2017
   In the Court of Common Pleas of Northampton County Civil Division at
                     No(s): CP-48-MD-0002091-2015


BEFORE:    STABILE, J., STEVENS*, P.J.E., and STRASSBURGER**, J.

MEMORANDUM BY STEVENS, P.J.E.:                FILED SEPTEMBER 24, 2018

      Roy Truss appeals from the May 12, 2017, order entered in the Court of

Common Pleas of Northampton County, which removed him from his elected

position as Constable for Moore Township, Northampton County.         After a

careful review, we affirm.

      The relevant facts and procedural history have been set forth by the

Honorable Stephen G. Baratta, the President Judge of the Court of Common

Pleas of Northampton County, in part, as follows:

            On January 31, 2017, Deputy Court Administrator for
      Northampton County, Debra French, received competing
      complaints from Constable Roy Truss (“Truss”) and Deputy
      Constable Matthew Toso (“Toso”). Truss sought to terminate Toso
      for insubordination. Toso alleged that Truss failed to maintain
      residency within his elected municipality, and further, that Truss
      had harassed him on numerous occasions.
            On February 10, 2017, Northampton County Constable
     Douglas Fulmer filed a second complaint against Truss, also
____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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       asserting that Truss did not reside within the District to which he
       was elected.
              This matter was submitted to the Constable Review Board
       [] for a hearing.[1] On March 21, 2017, the Board conducted a full
       hearing. Truss and Toso fully participated in the March 21
       hearing; Constable Fulmer failed to appear. Following receipt of
       testimony and related exhibits, the Board deliberated and
       unanimously agreed to enter Findings and Recommendations.
       The Recommendations included that:
              (1)    Truss should be removed as Constable because
                     he failed to maintain residency in Moore
                     Township as required…for the period of May
                     2016 through the date the complaint was filed
                     on January 31, 2017;
              (2)    Truss should be removed as Constable because
                     he engaged in a pattern of harassment directed
                     against Toso; and,
              (3)    The complaint filed by Truss against Toso should
                     be dismissed as Truss was unable to meet his
                     burden of proof.

Trial Court Order, filed 5/12/17, at 2 (footnote added).2

       Thereafter, President Judge Baratta reviewed the detailed findings and

recommendations submitted by the Board, the March 21, 2017, transcript,

and the exhibits. Trial Court Opinion, filed 7/12/17, at 2. With regard to the

factual findings, President Judge Baratta indicated the following:



____________________________________________


1 President Judge Baratta indicated that, after the Court Administrator
received the complaints, he referred the complaints to the Northampton
County Constable Review Board, which was established via a local rule of court
on October 18, 2016. Trial Court Opinion, filed 7/12/17, at 1-2.

2President Judge Baratta noted the Board made no separate recommendation
as to Constable Fulmer’s complaint. Trial Court Opinion, filed 5/12/17, at 2
n.1.

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           Truss was elected in November of 2015 and installed in 2016
     as Constable for Moore Township, Northampton County. At the
     time of his election, he was living in an apartment at [] West Best
     Road, Moore Township, PA.
            During his testimony, Constable Truss acknowledged that in
     May of 2016, his roommates had evicted him from their shared
     apartment located at [] West Best Road and that he then moved
     out of his district to [] West Main Street, Bath, [PA]. After the
     instant complaints were filed against him, Truss returned to live
     in his district at [] Valley View Drive, Moore Township, on February
     15, 2017.
                                 ***
           The factual record [further] established the following: Truss
     acknowledged that he was not doing any constable work for the
     courts because he does not have a bond or liability insurance filed
     with the Criminal Division. While Truss stated that he did not want
     to work for the courts, he was hoping, once he gets liability
     insurance, to work for Domestic Relations.
           The record also established that on November 16, 2016,
     [the trial court] appointed Toso to be a deputy constable based
     upon the petition of Truss, in which he claimed to be laboring
     under a heavy workload regarding the service of paper work, for
     which he needed assistance.          Obviously, it was a false
     representation to [the trial court], as Truss was performing no
     court related constable work [at this time].
           The hearing record also includes testimony and exhibits
     regarding serial text messages sent by Truss to Toso, some of
     which were sent at odd hours, which…constituted “general”
     harassment given both the content (non-work related) and the
     frequency of the messaging. In addition, some of the text
     messages contain very explicit sexual discussions and
     propositions. During his testimony, Truss admitted that he
     contacted Toso and requested the opportunity to perform oral sex
     on Toso. Truss also admitted that after Toso declined the offer,
     that Truss provided Toso with a “notice of termination” related to
     constable work.
           The [trial court] found such communication to constitute
     sexual harassment. [The trial court] also [found] that the notice
     of termination constituted workplace retaliation.
           In addition, Truss also presented photos from text messages
     allegedly sent to him by Toso, which depicted Toso in various

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       stages of undress, including one which purported to show Toso’s
       erect penis….[At the hearing,] while Toso acknowledged that he
       posted pictures on Instagram, he denied that they were sent to
       Truss in text messages. Toso suggested that Truss somehow
       managed to capture his photographs[,] which were meant to be
       “private,” even though Toso did distribute them to others on a
       social media platform.      In addition, Toso questioned the
       authenticity of one of the photos, the one alleged to depict his
       genitalia.

Trial Court Order, filed 5/12/17, at 3, 6-7.

       Based on the aforementioned, in an order entered on May 12, 2017,

President Judge Baratta directed the removal of Truss from his elected position

as constable for Moore Township due to Truss’s “(1) failure to maintain

residency in Moore Township; and (2) [] incompetence and malfeasance in

the performance and discharge of his duties as constable for Moore

Township.”3 Id. at 1. In support thereof, the trial court reasoned:

             [I]n order for Truss to hold the elected office of Constable
       for Moore Township, he must reside within the municipality.
       Truss, by his own testimony, admitted that as of the date the
       Complaint was filed against him by Toso, he had been living
       outside [of] Moore Township as far back as May of 2016, when he
       was evicted from his apartment.
                                           ***
             Toso was a subordinate of Constable Truss serving as
       deputy constable. We find that the general harassment, and
       especially the sexual harassment, committed by Truss against his
       subordinate was improper, met the elements of the criminal
____________________________________________


3 President Judge Baratta indicated there was no evidence supporting Truss’s
claim of insubordination as it related to Toso; however, since Toso was
appointed as Deputy Constable at the request of Truss, President Judge
Baratta held “the November 16, 2016, order appointing [] Toso is vacated by
operation of law, as [] Toso’s authority was wholly derivative of [] Truss’s
service.” Id. at 1.

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       offense of harassment (a misdemeanor 3), created a hostile work
       environment, and violated the criteria of professionalism required
       of all Constables under Standards (3) and (7) found in Section III
       of the Pennsylvania Unified Judicial System’s Constable Policies,
       Procedures, and Standards of Conduct. We find that these
       violations also establish that Truss is incompetent to properly
       discharge his official duties as required under 44 Pa.C.S.A. § 7172.

Trial Court Order, filed 5/12/17, at 4, 7 (footnote omitted).4

       Truss filed a timely notice of appeal to the Commonwealth Court, and

all Pa.R.A.P. 1925 requirements were met.

       Subsequently, Truss filed in the Commonwealth Court a motion to

transfer the case to our Supreme Court. Therein, Truss alleged the

Pennsylvania Supreme Court had exclusive appellate jurisdiction over his case

pursuant to Section 722(2) of the Judicial Code5 since it involved his removal

from public office.

       In an unpublished memorandum, the Commonwealth Court declined

Truss’s request to transfer his appeal to the Supreme Court; however, the


____________________________________________


4 In separate orders, President Judge Baratta directed that all exhibits received
by the Board should be officially marked as exhibits. Also, the President Judge
indicated that he took judicial notice of the Administrative Order of October
18, 2016, which established the Board, as well as the Pennsylvania Unified
Judicial System Constable Policies, Procedures, and Standard of Conduct from
the Administrative Office of Pennsylvania Courts (“AOPC”).

5Section 722(2) of the Judicial Code 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.” 42 Pa.C.S.A.
§ 722(2).




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Commonwealth Court concluded that appellate jurisdiction more properly lay

with this Court.     In re: Roy Truss, 779 C.D. 2017 (Pa.Cmwlth. 4/18/18)

(unpublished memorandum).

       Specifically, the Commonwealth Court reasoned the Supreme Court

does not have exclusive appellate jurisdiction over the removal of Truss from

his position since “there is nothing in the record to suggest that the office of

constable relates to the exercise of any policy-making authority[.]”6 Id. at 3.

Further, the Commonwealth Court reasoned that, since the Superior Court

generally has “exclusive original jurisdiction over appeals from orders of the

courts of common pleas,” and this Court has routinely exercised jurisdiction

over appeals involving such removal actions, jurisdiction more properly lay

with this Court. Id. at 3-4. On May 15, 2018, this Court accepted transfer of

the appeal from the Commonwealth Court.

       On May 21, 2018, Truss filed in this Court an application to transfer his

case to the Supreme Court on the basis the Supreme Court has exclusive




____________________________________________


6 In this regard, the Commonwealth Court noted that, in Commonwealth v.
Spano, 549 Pa. 501, 701 A.2d 566, 567 n.4 (Pa. 1997), our Supreme Court
held “public office” is defined 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.” Thus, since the
parties in Spano pointed to nothing in the record to suggest the elected
borough constable exercised any policy-making authority, the Supreme Court
concluded that jurisdiction over an appeal from a trial court order with regard
thereto is vested in the Superior Court.

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appellate jurisdiction over his removal from office.     In a per curiam order

entered on June 8, 2018, we indicated:

            The Application to Transfer is hereby DENIED. This appeal
      was taken from an order of the trial court that removed [Truss]
      from his elected office as constable. This Court has jurisdiction to
      address this appeal pursuant to Commonwealth v. Spano, 701
      A.2d 566 (Pa. 1997) (right to appeal removal from office of
      borough constable is fully protected by appeal to the Superior
      Court). This appeal does not belong before the Supreme Court
      despite 42 Pa.C.S.A. § 722(2) (direct appeal from court of
      common pleas) because [] a constable does not have policy-
      making decisions to constitute it as a “public office.” See Rastall
      v. DeBouse, 736 A.2d 756 (Pa.Cmwlth. 1999) (distinguishing
      Spano in finding that an appeal by an appointee to the
      redevelopment authority was to be transferred to the Supreme
      Court)).

      On appeal, Truss sets forth the following issues in his Statement of

Questions Involved (verbatim):

      A. Because this appeal involves the right to hold public office,
         should this case be transferred to the Pennsylvania Supreme
         Court?
      B. Do the powers of a Constable           Review    Board   include
         recommending removal from office?
      C. Does a Court of Common Pleas [sic] the legal authority to
         invoke 44 Pa.C.S.A. § 7172 (and thus to remove a Constable
         from office) by relying solely on a Constable Review Board’s
         “Findings and Recommendation”?

Truss’s Brief at 12.

      In his first issue, Truss argues our Supreme Court has exclusive

jurisdiction over the instant matter since it involves his removal from public

office. However, as previously set forth by our sister court, as well as this

Court in a per curiam order, this Court is properly vested with jurisdiction in


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J-A18019-18


this matter. See also Spano, supra. Accordingly, we decline to address this

claim further.

      Truss’s second and third issues are intertwined. Initially, Truss contends

the Northampton County Constable Review Board exceeded its authority by

inquiring into matters that did not relate to the performance of Truss’s judicial

duties as a constable, as well as ultimately recommending his removal from

office (as opposed to recommending that the trial court not use his services).

He admits 44 Pa.C.S.A. § 7172 permits a court of common pleas to remove a

constable from office under certain circumstances.

      However, he contends President Judge Baratta erred in removing him

from office pursuant to Section 7172 since the President Judge did not hold a

hearing, relied “exclusively” on the formal recommendation of the Board, and

did not limit his inquiry to Truss’s “official conduct.” Truss further suggests

the President Judge erred in relying upon Section 7172 because Toso

commenced the instant matter via the filing of a “complaint” as opposed to a

“verified petition.”

      As a prefatory matter, we note that because the issues on appeal

concern the interpretation of court rules and statutes, the issues are a

question of law, over which our review is plenary. In re: Petition to Remove

Constable Visoski, 852 A.2d 345 (Pa.Super. 2004).

      By way of background, our Supreme Court promulgated Pa.R.J.A. No.

1907.2, which provides the following with regard to constables:


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     Rule 1907.2.       Policies,   Procedures    and    Standards     of
     Conduct
           (a) The Court Administrator shall establish uniform policies,
     procedures and standards of conduct for constables who perform
     services for the courts. These policies, procedures and standards
     of conduct shall be mandatory for all judicial districts and
     constables engaged to perform services for any court of the
     unified judicial system.
           (b) The president judge of a judicial district is authorized to
     enact policies and procedures consistent with those established by
     the Court Administrator in section (a) as local rules pursuant to
     Pa.R.J.A. No. 103(c). Any policies and procedures enacted by the
     president judge of a judicial district that may deviate from the
     uniform policies, procedures and standard of conduct for
     constables established by the Court Administrator must be
     approved by the Court Administrator before promulgation. See
     Pa.R.J.A. No. 505(a).
            (c) President Judges are responsible for implementing the
     provisions set forth in this rule within their respective judicial
     districts.
           Comment: Constables are independent contractors,
           belonging analytically to the executive branch of
           government. In re Act 147 of 1990, 528 Pa. 460,
           598 A.2d 985 (1991). Constables are defined as
           “related staff” under the Judicial Code. Rosenwald
           v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983). While
           these Rules are established pursuant to Pa. Const. Art.
           V, § 10(c), nothing herein, or in any document created
           under these Rules, shall be construed to alter the
           status of constables as independent contractors and
           related staff.

Pa.R.J.A. No. 1907.2.

     As Truss points out, in response to Pa.R.J.A. No. 1907.2, the AOPC

established “Constable Polices, Procedures and Standards of Conduct.”

Relevantly, therein, AOPC provided:

     Constable Review Board


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           President Judges may authorize the creation of an advisory
     board called a Constable Review Board (CRB) to assist in resolving
     any disputes related to a constable’s performance of judicial
     duties. If a CRB is created, the President Judge, in consultation
     with relevant county officials, should develop filing procedures and
     guidelines, including notice and opportunity to be heard, and
     timetables for decisions.
           The CRB may receive complaints by or against constables
     regarding the performance of judicial duties, financial/payment
     disputes or other matters relevant to a constable’s services to the
     courts.   The CRB may then make recommendations to the
     President Judge regarding the judiciary’s continued use of the
     constable’s services, or to the county controller/county executive
     if the dispute concerns financial or other matters within the
     county’s control.
        Any findings of suspected criminal activity shall be forwarded
     to the county District Attorney. The President Judge shall be
     notified of any referrals to the District Attorney and shall
     determine if a constable’s services should continue to be used.
        It is recommended that membership on a CRB include:
              A Judge of the Court of Common Pleas or
               Magisterial District Judge
              The District Court Administrator or Special Courts
               Administrator
              A Certified Constable and an alternate to be used
               in case of conflict
              The County Controller or his or her designee.

AOPC “Constable Policies, Procedures and Standards of Conduct,” May 2013,

at 5 (footnote omitted).

     Thereafter, by administrative order entered on October 18, 2016, the

Northampton County Constable Review Board was created. With regard to

the Board, the Northampton County local rules relevantly provide:

     Rule 2. Scope.
                                 ***


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           b. Consistent with the Pennsylvania Unified Judicial
     System’s Constable Policies, Procedures and Standards of
     Conduct, the Constable Review Board may receive complaints by
     or against constables regarding:
           1. the performance of judicial duties;
           2. payment of constable fees and other financial
           disputes related to the work of a constable; and
           3. other matters relevant to the constable’s judicial
           duties.
           c. The Constable Review Board does not have the authority
     to revise the Constable Policies, Procedures and Standards of
     Conduct issued by the [AOPC].
            d. Nothing in these rules precludes any person, judicial
     officer, governmental officer or surety of a constable from filing a
     verified petition in accordance with 44 Pa.C.S. § 7172, alleging
     that a constable is incompetent to discharge official duties.
     Rule 3. Authority
           a.   The     Constable    Review   Board    may     make
     recommendations to the President Judge regarding the judiciary’s
     continued use of a constable’s services.
           b. If a matter involves a financial dispute or other matter
     within Northampton County’s control, the Constable Review Board
     may make recommendations to the Northampton County
     Executive regarding payment for services.
           c. The Constable Review Board shall forward any findings of
     suspected criminal activity to the Northampton County District
     Attorney.
           d. The President Judge remains the ultimate authority with
     regard to a constable’s performance of judicial duties within the
     Third Judicial District. In that respect, the President Judge may,
     at any time, temporarily place a moratorium on the use of a
     particular constable while awaiting review and recommendation of
     the Constable Review Board on any pending complaint.

Northampton County Administrative Order No. 2016-4 (filed 10/18/16).

     Further, 44 Pa.C.S.A. § 7172, to which President Judge Baratta cited in

removing Truss from office, provides the following:


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     § 7172. Incompetence
      (a) Inquiry.--A court of common pleas with competent
     jurisdiction may inquire into the official conduct of the constable
     if any of the following apply:
           (1) A surety of the constable files a verified petition
           alleging that the constable is incompetent to
           discharge official duties because of intemperance or
           neglect of duty.
           (2) 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. This paragraph includes an act of oppression
           of a litigant or a witness.
     (b) Determination.--If the court determines that the constable
     is incompetent to discharge official duties, the following apply:
           (1) The court may:
              (i) require additional security from the constable;
              or
              (ii) remove the constable from office.
           (2) Upon removal under paragraph (1)(ii), the court
           may appoint a suitable individual to fill the vacancy
           until a successor is elected and qualified. The
           appointed individual must have a freehold estate with
           at least $1,000 beyond incumbrance or furnish
           security.

44 Pa.C.S.A. § 7172.

     As indicated supra, in the instant case, this matter was instituted when

a complaint was filed against Truss with the Northampton County Court

Administrator. The President Judge referred the matter to the Board, which

held a hearing on March 21, 2017, received exhibits, and issued a

recommendation.




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       Thereafter, the President Judge conducted a full review of the transcript

and exhibits from the March 21, 2017, hearing, as well as reviewed the Board’s

recommendation. The President Judge, acting as the ultimate authority in this

case, rendered the decision that Truss be removed from office due to (1) his

failure to maintain residency in Moore Township, and (2) incompetence and

malfeasance in the performance and discharge of his duties as a constable.

       We conclude the President Judge had the authority to remove Truss

from office due to his failure to maintain residency in Moore Township, and

thus, we affirm on this basis.7

       Residence in the district to which a constable is elected is a common-

law requirement. See In re Rodriguez, 587 Pa. 408, 900 A.2d 341 (2003).

In enacting the current statutes related to constables, see 44 Pa.C.S.A. §§

7101-7178, our legislature did not expressly abrogate the common-law rule,

and thus, we conclude the legislature intended to retain it. See id. We find

our Supreme Court’s opinion in In re Rodriguez to be instructive.

Specifically, in In re Rodriguez, our Supreme Court held:

             Whenever we are called to interpret a statute and determine
       the legislative intent, the analysis must necessarily begin with the
       Statutory Construction Act. Under that Act an implication alone
       cannot be interpreted as abrogating existing law. The legislature
       must affirmatively repeal existing law or specifically preempt
       accepted common law for prior law to be disregarded.
____________________________________________


7 As we may affirm on any ground, we need not analyze whether Truss was
properly removed from office based on the alternate ground provided by
President Judge Baratta. See Blumenstock v. Gibson, 811 A.2d 1029
(Pa.Super. 2002).

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                                    ***
             Based on this principle of law, we must assume that the
      General Assembly understands the legal landscape upon which it
      toils, and we therefore expect the General Assembly to state
      clearly any intent to redesign that landscape. The General
      Assembly did not do so here. By its language, [the statute]
      expresses no clear intent to abrogate the common-law residency
      requirement for constables. We must therefore agree with the
      lower courts that because the General Assembly did not expressly
      abrogate the common-law rule, [the statute] must be understood
      as having retained it.

Id. at 414-15 (citation omitted).

      In the case sub judice, Truss does not dispute that he did not maintain

the residency requirement after he was elected as constable in Moore

Township. Thus, inasmuch as the legislature has not expressly abrogated the

common-law residency requirement, we conclude President Judge Baratta had

the authority to remove Truss from office for violating the residency

requirement.

      Truss suggests the Board exceeded its authority as to its inquiry and

recommendation, and the President Judge erred in relying “exclusively” on the

formal recommendation of the Board. However, as the President Judge noted,

the Board acted in an advisory capacity. The President Judge reviewed the

entire record and, as was within his sole province, removed Truss from office.

      Moreover, to the extent Truss contends the trial court was required to

hold a hearing prior to removing Truss from office, we note the Board

conducted a full hearing, upon which the trial court relied.   Truss has not




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explained how he was prejudiced or denied a full opportunity to be heard in

this regard.

       Finally, to the extent Truss contends President Judge Baratta could not

invoke Section 7172 to order his removal from office absent the filing of a

“verified petition,” we note that Toso filed a complaint, which bears his

signature, in which he averred:

             All the information that has been provided in this
       documentation is on my own free will and accord and intended for
       the use of investigation of Mr. Truss and review for the following
       parties: Honorable President Judge Baratta, the Northampton
       County District Attorney Office, the Northampton County Sheriff’s
       Office, Debra French, and the Constable Review Board for the 3 rd
       Judicial District of Pennsylvania.

Toso’s Complaint, filed 1/31/17, at 3.

       Truss has not developed his issue further. Accordingly, we decline to

find that any formal errors in the verification prevented consideration of the

complaint under Section 7172. See generally Monroe Contract Corp. v.

Harrison Square, Inc., 405 A.2d 954, 958 (Pa.Super. 1979) (en banc)

(holding a document’s verification “must not be transferred into an offensive

weapon designed to strike down an otherwise valid petition”).

       For all of the foregoing reasons, we affirm.8

       Affirmed.


____________________________________________


8 Appellant filed an Application to File a Supplement to the Record.
Specifically, he sought to supplement the record with relevant Northampton
County Local Rules. As the record already includes the Rules, we deny
Appellant’s Application as moot.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/18




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