          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition for Appointment               :
of Constable                                  :   No. 1485 C.D. 2015
                                              :   Submitted: June 6, 2016
Appeal of: Exel Zamora                        :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: July 6, 2016

               In this appeal, Exel Zamora (Zamora) asks whether the Court of
Common Pleas of Monroe County1 (trial court) erred in denying his petition for
appointment as a second constable for Pocono Township (Township). Zamora
asserts the trial court erred in determining no vacancy existed for a second
constable position. Upon review, we affirm.


                                      I. Background
               In December 2014, Zamora, representing himself, filed a petition for
appointment as a constable for the Township and attached a petition purportedly
signed by 10 qualified electors. Thereafter, the trial court dismissed the petition
without prejudice to Zamora’s right to refile a petition that properly pled a vacancy
in the position of constable because current election records showed the position
was filled by a duly elected constable.



      1
          The Honorable David J. Williamson presided.
             In May 2015, Zamora refiled his petition. In turn, the trial court
issued an order scheduling a hearing on the petition in which it stated that, prior to
addressing the substance of the petition, it would receive evidence and argument as
to whether a vacancy existed in the office of constable in the Township in
accordance with 44 Pa. C.S. §§7114 and 7121. The trial court’s order also directed
the Monroe County District Attorney (District Attorney) to perform a background
check on Zamora, including, at a minimum, a criminal history check and an
evaluation of Zamora’s qualifications and suitability for the office of constable in
accordance with 44 Pa. C.S. §7121.


             In addition, the trial court directed Zamora to serve copies of his
petition and the trial court’s order on the District Attorney, Magisterial District
Judge Thomas E. Olsen, Pocono Township and Peter Gallagher (Gallagher),
Pocono Township Constable.        The trial court’s order also indicated that any
objections to the petition and any submissions addressing the legal issue of
whether a vacancy currently existed were required to be filed and served at least
five business days before the hearing. The trial court then held a hearing on the
petition in July 2015 at which only Gallagher and Zamora appeared and testified.


             After the hearing, the trial court issued an order denying Zamora’s
petition for appointment as a constable of the Township under 44 Pa. C.S. §7121
based on lack of proof of a vacancy. The trial court noted, pursuant to 44 Pa. C.S.
§7114(a)(2), “[t]he qualified electors of each township of the first class may vote
for and elect a properly qualified person to serve as constable, in addition to the
constable elected under paragraph (1).” Id. (emphasis added). The trial court



                                          2
stated there was insufficient testimony here to show: (1) the Township elected to
place a second constable position on the most recent ballot; and, (2) a vacancy in a
constable position currently exists.


               Zamora, now through counsel, appealed to this Court. The trial court
directed him to file a concise statement of the errors complained of on appeal
pursuant to Pa. R.A.P. 1925(b), which he did.


               Thereafter, the trial court issued an opinion pursuant to Pa. R.A.P.
1925(a) in which it observed that in his Pa. R.A.P. 1925(b) Statement, Zamora
asserted the trial court erred in: (1) determining the Township had to initially
conduct an election for a second constable position in order for a vacancy to exist;
and, (2) denying the petition where it was unopposed and met all procedural
requirements.


               At the outset of its opinion, the trial court explained, the Township is
presently a first class township. To that end, the trial court heard testimony and
took judicial notice that the Township became a first class township after a vote by
its residents. The trial court appointed the first board of commissioners to begin
serving in 2013. Prior to that time, the Township was a second class township.
The trial court stated second class townships are permitted one elected constable;
however, first class townships may have two elected constables. See 44 Pa. C.S.
§7114(a)(2).




                                           3
             At the hearing, Gallagher, the elected constable of the Township,
testified he has been an elected constable in the Township since 2001, and he was
most recently reelected in 2013, the first election after voters opted to make the
Township a first class township.       Prior to Gallagher’s election in 2013, the
Township was a second class township, which permitted only one constable. The
2013 ballot for constable in the Township only had one constable position for
election, even though the Township was a first class township and could have
opted for two constables. Gallagher testified the board of elections only placed
one constable position on the ballot because the board’s interpretation of the statute
was that the Township may (not shall) elect a second constable. Gallagher testified
the Township decided not to elect a second constable. Gallagher stated that, had
there been a second constable position on the ballot, his own deputy constable
would have run for it, as he was already needed for coverage in the Township. The
trial court found Gallagher’s testimony credible and convincing.


             For his part, Zamora also testified a second constable position was not
on the ballot in the Township at the most recent election. Zamora did not have any
other information about the Township’s position on the matter. Zamora’s view
was that a vacancy existed as to a second constable position in the Township, even
though the position was not on the most recent ballot and there was never a second
constable position filled in the Township. Zamora believed the second constable
position existed immediately upon the Township becoming a first class township,
and as that position was not filled (whether on the recent ballot or not), a
“vacancy” existed within the meaning of the statute.




                                          4
             The trial court explained that its reading of 44 Pa. C.S. §7114(a)(2)
led it to conclude a township of the first class has discretion to determine whether a
second constable position will exist and appear on the ballot for election. The trial
court indicated the operative language of the provision states that each first class
township may vote for and elect a second constable. As such, a township has
discretion whether to place the matter on the ballot, which effectively creates the
position. The trial court observed there was no specific language in the statute that
the second position was created automatically, with or without an election.


             The trial court further explained the evidence here showed the
Township did not place a second constable position on the 2013 ballot. Further, a
second constable never served in the Township. The trial court stated there was no
evidence a vacancy existed in a second constable position and no evidence such a
position was ever created in the Township.


             In addition, the trial court stated there was no legislative authority
regarding the number of constables or election of constables or creation of a
second constable position in first class townships other than that set forth in 44 Pa.
C.S. §7114. The trial court deemed itself bound by the language of that statutory
provision, and it found no other guidance.


             The trial court noted Zamora’s argument that his petition was
unopposed. However, it stated, that fact did not necessitate a finding that was
contrary to law. In any event, the trial court found Zamora’s petition was opposed
by Gallagher, who noted that if there was a second position on the ballot, his



                                          5
deputy would have run for it. The trial court disagreed that Zamora’s petition was
procedurally correct as there was no second position created by an election for
which there was a vacancy.


               In sum, the trial court determined a vacancy in the position of a
second constable did not exist immediately upon the Township becoming a first
class township. Rather, a vacancy exists when an actual constable position no
longer has someone serving in that position.              Because it found 44 Pa. C.S.
§7114(a)(2) gave a first class township discretion to create a second constable
position by placing it on the ballot, and there was no evidence the Township did so,
there was no position for which Zamora could claim a vacancy. For these reasons,
the trial court denied Zamora’s petition.              This matter is now before us for
disposition.


                                           II. Issue
               On appeal, Zamora argues the trial court erred in determining it was
initially necessary that the Township conduct an election for a second constable
position prior to recognizing Zamora’s petition to be appointed as a second
constable in the Township because a vacancy existed from the moment the
Township became a first class township.2




       2
          No brief in opposition to Zamora’s appeal was filed. To that end, although the docket
sheet lists the appellee as the Township c/o the Monroe County District Attorney, this Court
received no entry of appearance or any other document from the appellee. As a result, this Court
entered an order precluding the Township c/o the Monroe County District Attorney from filing a
brief or participating in oral argument.



                                               6
                                  III. Discussion
                                  A. Contentions
             Zamora contends the initial issue here, which essentially prevented the
appointment of a second constable in the Township, centers on a misinterpretation
of 44 Pa. C.S. §7114. He argues that what the trial court misapprehended is that
when the electors of a second class township vote to convert a township to a first
class township, certain changes in the structure and offices in the township occur.
One of these is the automatic creation of a second constable position.


             Zamora maintains some of the confusion regarding the second
constable position is based on the erroneous assumption that the Township,
through its governing body or otherwise, must take some further action to “start-
up” the second constable position, i.e., petition the board of elections to place the
new constable position on the ballot. Zamora argues this is not the case, but rather
the second constable position exists as of the effective date of the Township’s
change in classification.


             Zamora further asserts the archaic language found in 44 Pa. C.S.
§7114 relates back to the prior version of the statute that was first adopted around
1911. At that time, Zamora argues, the concept of having a second constable in a
larger, more sophisticated first class township was a new concept. Thus, the
General Assembly’s language can easily be construed to be saying, “you
townships, by voting to become one of these new 1 st class townships, have a right
to elect a 2nd constable!” Appellant’s Am. Br. at 8.




                                         7
             Zamora contends there are numerous instances where a second class
township voted to become a first class township where either an election took place
after the conversion or someone was initially appointed to fill the new constable
position and thereafter the second position would come up automatically at least
every six years to be filled by election.


             Zamora maintains the trial court abused its discretion or committed an
error of law in determining it was initially necessary that the Township conduct an
election for a second constable before recognizing Zamora’s petition to be
appointed a second constable as a vacancy existed from the moment the Township
became a first class township. He asserts the trial court cited no case law in
support of its decision.


             Zamora argues there are several reasons why the trial court’s
interpretation of 44 Pa. C.S. §7114 was in error. First, if this statutory provision is
interpreted to mean that an individual can only become a constable by way of
election, many constable positions would never be filled or, alternatively, would
remain vacant for a considerable period.


             Second, in the factual scenario here, the Township, following a voter
referendum, elected to change its status from a second class to a first class
township. As a result of this elector-approved change, many new processes and
positions were changed. The existence of a second constable position may not
have been one of the noted, enumerated benefits, but it is clearly permitted under
44 Pa. C.S. §7114.



                                            8
               Zamora argues, although not expressly stated, it would appear the
Township or the board of elections is fearful of having another constable appointed
in the Township per some “necessity” standard. However, he asserts, what these
entities should realize is, as noted by this Court in In re Fry, 110 A.3d 1103, 1108-
09 (Pa. Cmwlth 2014) (en banc):

               [C]onstables … are not salaried public employees, but instead
               are paid ‘by the piece’ for each warrant served or other service
               performed at the direction of a magisterial district judge. Thus
               the cost to the public for constable services is measured by the
               number of services to be performed, not by the number of
               constables available to perform them.

As such, Zamora contends his appointment would not add any costs to the
Township budget.


               In addition, Zamora points out, the statutory provision at issue dates
back to the original Pennsylvania constable law in 1911. The addition of this
provision for a second constable when a township moves up in class based on
population and a need to provide more services, had the General Assembly
thinking the new township officials could place this second position on the ballot
immediately, just like they could make provisions for other elected position
changes in the new first class township. Section 208 of the First Class Township
Code3 provided for many new positions based on need by moving to first class
status and the need for additional constable services could well be such a need.




      3
          Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §55208.



                                               9
             Finally, Zamora maintains many new first class townships were
created in the Commonwealth in the last several decades, particularly in eastern
Pennsylvania where counties such as Lehigh, Northampton and Monroe, saw a
major influx of people moving in from New York and New Jersey. With this
growth, many townships saw new large tract housing developments that brought
with them the need for new services, including additional constable services.


                                    B. Analysis
             The issue presented poses a question of statutory construction, to
which our review is plenary. Snizaski v. Workers’ Comp. Appeal Bd. (Rox Coal
Co.), 891 A.2d 1267 (Pa. 2006). The object of statutory construction is to ascertain
and effectuate legislative intent. 1 Pa. C.S. §1921(a). In pursuing that end, we are
mindful that a statute’s plain language generally provides the best indication of
legislative intent. Bd. of Revision of Taxes, City of Phila. v. City of Phila., 4 A.3d
610 (Pa. 2010). Thus, statutory construction begins with examination of the text
itself. Se. Pa. Transp. Auth. v. Holmes, 835 A.2d 851 (Pa. Cmwlth. 2003).


             When the words of a statute are clear and free from all ambiguity, the
letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.
C.S. §1921(b). It is only when the words of the statute are not explicit on the point
at issue that resort to statutory construction is appropriate. Commonwealth v.
Fedorek, 946 A.2d 93 (Pa. 2008). In reading the plain language of a statute,
“[w]ords and phrases shall be construed according to rules of grammar and
according to their common and approved usage.” 1 Pa. C.S. §1903(a). Further,




                                         10
every statute shall be construed, if possible, to give effect to all its provisions so
that no provision is “mere surplusage.” 1 Pa. C.S. §1921(a).


             Moreover, although we must “listen attentively to what a statute
says[;][o]ne must also listen attentively to what it does not say.” Kmonk-Sullivan
v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955, 962 (Pa. 2001). We may not
insert a word the legislature failed to supply into a statute. Girgis v. Bd. of
Physical Therapy, 859 A.2d 852 (Pa. Cmwlth. 2004).


             At issue here is the interpretation of 44 Pa. C.S. §7114(a) (entitled,
“Townships”), which states, in pertinent part (with emphasis added):

             (a) Election.--The following shall apply:

                   (1) The qualified voters of every township shall vote for
                   and elect a properly qualified person for constable.

                   (2) The qualified electors of each township of the first
                   class may vote for and elect a properly qualified person
                   to serve as constable, in addition to the constable elected
                   under paragraph (1).

             Further, 44 Pa. C.S. §7121 (entitled, “Constables”) states, as pertinent:

             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.




                                         11
             Here, the plain language of clause (1) of 44 Pa. C.S. §7114(a) states
that the qualified voters of every township shall vote for and elect a properly
qualified person for constable     The plain language of clause (2) of 44 Pa. C.S.
§7114(a) states that the qualified electors of each first class township may vote for
and elect a second properly qualified person to serve as constable. Generally, the
word “may” confers discretion, while the word “shall” imposes a non-discretionary
duty. Jennison Family Ltd. P’ship v. Montour Sch. Dist., 802 A.2d 1257 (Pa.
Cmwlth. 2002) (citing Zimmerman v. O’Bannon, 442 A.2d 674 (Pa. 1982)); see
also Volynsky v. Clinton, 778 F. Supp.2d 545, 554 (E.D. Pa. 2011) (citations
omitted). Thus, “the word ‘may’ in a statute will not be construed to mean ‘shall’
unless the context or subject matter compels such construction or unless it is
unnecessary to give effect to the clear policy and intention of the Legislature[.]” In
re Columbia Borough, 354 A.2d 277, 279 (Pa. Cmwlth. 1976) (citation omitted).


             Because the Legislature used both the words “shall” and “may” within
the same subsection, it is clear that the first clause was intended to be compulsory
and mandatory, while the second clause was intended to be permissive and
discretionary rather than compulsory or mandatory. Id. (where statutory provision
utilized “shall” and “may” in same sentence, this Court agreed with common pleas
court that former was compulsory or mandatory while latter was discretionary or
permissive); see also Jennison Family Ltd. P’ship, 802 A.2d at 1262 (quoting
MacDonald, Illig, Jones & Britton v. Erie Cnty. Bd. of Assessment Appeals, 604
A.2d 306, 311 n.4 (Pa. Cmwlth. 1992) (“where … both ‘shall’ and ‘may’ are used
in the same statute, ‘it is a fair inference that the legislature realized the difference
in meaning, and intended that the verbs used should carry with them their ordinary



                                           12
meanings.’”)). Thus, while the Legislature mandated that every township elect one
constable, it afforded first class townships discretion to elect a second constable.


             Our review of the brief transcript before the trial court here reveals
that the Township residents voted to make the Township a first class township in
2013, but the Township did not yet choose to elect a second constable. Tr. Ct.
Hr’g, Notes of Testimony, 7/6/15, at 4-6.        Thus, “[t]he evidence showed the
Township did not place a second constable position on the 2013 ballot.
Furthermore, there has never been a second constable serving in the Township.”
Tr. Ct., Slip Op., 9/2/15, at 3. As a result, there was no evidence that the Township
opted to elect a second constable and no evidence a vacancy existed in a second
constable position. Given that the Township did not yet exercise its discretion to
elect a second constable, no error is apparent in the trial court’s determination that
no vacancy existed for which the trial court could appoint Zamora as a second
constable for the Township.


             Indeed, although undefined in the statute at issue here, the plain
meaning of the term “vacancy” is “a vacant office [or] post” or “a vacating of an
office [or] post[.]” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1299 (10th ed.
2001). Because the Township did not opt to elect a second constable here, no
vacancy existed for Zamora to fill.


             Moreover, although Zamora argues a second constable position was
automatically created when the Township became a first class township, this
argument is not supported by the plain language of 44 Pa. C.S. §7114(a)(2), which



                                          13
vests first class townships with discretion to elect a second constable. As the trial
court observed, “[t]here is no specific language that the second position is created
automatically, with or without an election.” Tr. Ct., Slip Op., at 3.


             In addition, although Zamora references the fact that certain changes
to the offices of the Township occurred when it became a first class township, the
position of constable is not a township office. When a new first class township is
created, the court of common pleas “shall appoint five commissioners, and the
other elective officers to which the township is entitled ….” Section 225 of the
First Class Township Code, 53 P.S. §55225. In turn, the elected officers of a first
class township are township commissioners, a township tax collector and three
elected auditors or an appointed auditor, or a controller where such office is
established. Section 503 of the First Class Township Code, 53 P.S. §55503. Thus,
as our Supreme Court stated: “A constable is an elected official authorized to
appoint deputy constables. A constable is an independent contractor and is not an
employee of the Commonwealth, the judiciary, the township, or the county in
which he works.” In re Act 147 of 1990, 598 A.2d 985, 986 (Pa. 1991) (emphasis
added) (citation omitted); see also Ward v. Dep’t of Transp., Bureau of Motor
Vehicles, 65 A.3d 1078 (Pa. Cmwlth. 2013).

             In sum, as the trial court stated (with emphasis added):

                    Our reading of 44 Pa. [C.S.] §7114 (a)(2), leads us to
             conclude that a township of the first class has the discretion to
             determine whether or not a second constable position will exist
             and appear on the ballot for election. The operative language of
             the statute states each township of the first class may vote for
             and elect a second constable. As such, it is discretionary with a
             township whether or not to place the matter on the ballot, which


                                          14
              effectively creates the position. There is no specific language
              that the second position is created automatically, with or
              without an election.

                    The evidence showed the Township did not place a
              second constable position on the 2013 ballot. Furthermore,
              there has never been a second constable serving in the
              Township. There was no evidence a vacancy existed in a
              second constable position, and no evidence such a position was
              ever created in the Township.

                     There is no legislative authority regarding the number of
              constables, or election thereof, or creation of the second
              constable position in townships of the first class other than in
              44 Pa. [C.S.] §7114. We are bound by the language of that
              statute and find no other guidance in the matter. …

                     We find that a vacancy in the position of a second
              constable did not exist immediately upon [the] Township
              becoming a first class township. Rather, a vacancy exists when
              an actual constable position no longer has someone serving in
              that position. As we find the enabling statute of 44 Pa. [C.S.]
              §7114 (a)(2) gives a first class township the discretion to create
              a second constable position by placing it on the ballot, and there
              was no evidence [the] Township did so, then there was no
              position for which Zamora, or anyone else, may claim a
              vacancy.

Tr. Ct., Slip Op., at 4 (emphasis in original).4




       4
         Zamora offers incomplete citations to In re Petition for Appointment of Price, Lehigh
County Dkt. No. 0124-M/1992 (South Whitehall Township) and In re Petition for Appointment
of Miller, Lehigh County Dkt. No. 2215-M12004 (Salisbury Township), in which he asserts
appointments were made to fill newly created constable positions. See also In re 11th Ward
Constable, Allentown, 7 Northampton Reporter 187 (1900). However, despite a passing
reference to these matters (that does not include citations that allow us to locate any orders or
opinions), Zamora provides no explanation concerning the factual details of those matters or how
they support his position here.



                                               15
               Based on the foregoing, we affirm.5




                                             ROBERT SIMPSON, Judge




       5
         Zamora also contends the trial court erred in denying his petition for appointment when
no one opposed his petition, and he met all the qualifications to be appointed to fill the existing
vacancy for the second constable position. Because we agree with the trial court that no vacancy
in a second constable position exists here, we need not address this issue.



                                               16
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition for Appointment     :
of Constable                        :   No. 1485 C.D. 2015
                                    :
Appeal of: Exel Zamora              :

                                  ORDER

            AND NOW, this 6th day of July, 2016, the order of the Court of
Common Pleas of Monroe County is AFFIRMED.




                                   ROBERT SIMPSON, Judge
