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                               2016 PA Super 49

IN RE: APPLICATION OF JOHN P.                    IN THE SUPERIOR COURT OF
CLADER, TRADING AS LT                                  PENNSYLVANIA
INVESTIGATIONS, FOR A PRIVATE
DETECTIVE LICENSE




APPEAL OF: COMMONWEALTH OF
PENNSYLVANIA

                                                       No. 2094 EDA 2014


                  Appeal from the Order Entered June 26, 2014
                  In the Court of Common Pleas of Pike County
                       Civil Division at No(s): CV128-2014


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., and JENKINS, J.

DISSENTING OPINION BY OTT, J.:                   FILED FEBRUARY 24, 2016

      While the Majority points out the public policy considerations at issue

when law enforcement officers seek a private detective license, I believe

that, for purposes of a private detective license, a school police officer’s

position   does    not   equate   with   other   law   enforcement   positions.

Furthermore, I view the court’s limitation upon the license issued pursuant

to the Private Detective Act of 1953 (“Act”), 22 P.S. § 11, et seq., as an

added safeguard that is not improper under the Act.         Therefore, I would

affirm the order of the trial court granting Mr. Clader a private detective
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license, subject to certain restrictions.     Accordingly, very respectfully, I

dissent.

      Regarding the issuance of a private detective license, the Act provides,

in part:

      When the application shall have been examined, and such
      further inquiry and investigation made as the court of quarter
      sessions or the district attorney shall deem proper, and when the
      court of quarter sessions shall be satisfied of the good character,
      competency and integrity of such applicant, … the court of
      quarter sessions shall issue and deliver to such applicant a
      certificate of license to conduct such business …

22 P.S. § 16(a). Therefore, the applicant must demonstrate good character,

competency, and integrity.       Although law enforcement officers are not

statutorily   barred   from   holding   private   detective   licenses,    case   law

establishes that, as a matter of public policy, law enforcement officers may

not simultaneously hold a license as a private detective.                 See In re

Centeno, 5 A.3d 1248 (Pa. Super. 2012) (corrections officer); In re Kuma

K-9 Security, Inc., 506 A.2d 445 (Pa. Super. 1986) (police captain);

Commonwealth v. Gregg, 396 A.2d 797 (Pa. Super. 1979) (probation

officer); In re Stanley, 201 A.2d 287 (Pa. Super. 1964) (constable). See

also, In re Application of Millennium Consulting & Assocs., 804 A.2d

735 (Pa. Cmwlth. 2002) (full-time members of borough police department);

Little v. Freeman, 484 A.2d 873 (Pa. Cmwlth. 1984) (mayor). I recognize

these cases stand for the principle that the appearance of impropriety or the

potential for abuse and conflict of interest warrants the denial of a private


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detective license in cases involving applicants who are law enforcement

officers.   However, I do not believe the instant case is controlled by this

precedent. A review of the above-cited cases, in chronological order, guides

my analysis.

      In the case of In re Stanley, 201 A.2d 287 (Pa. Super. 1964), this

Court dealt with a private detective who was elected constable for the Forty-

Fifth Ward of the City of Philadelphia, and became clothed with authority “to

execute warrants of arrest, to arrest on sight for breach of the peace,

vagrancy and drunkenness, to carry a weapon concealed upon his person

and to be present at polling places in order to keep the peace.” Id. at 289.

The Stanley Court found the constable’s “extraordinary authority” was not

conferred upon private citizens and raised public policy concerns that the

constable would use that authority for the benefit of private persons when

acting as a private detective.    Id.   Therefore, this Court sustained the

suspension of a private detective license while the constable served in his

elected position.

      Commonwealth v. Gregg, 396 A.2d 797 (Pa. Super. 1979), involved

two probation officers who, by statute, were “peace officers” with “police

powers and authority throughout the Commonwealth” to arrest probation or

parole violators with or without a warrant. Id. at 798, citing 19 P.S. § 1091.

The Gregg Court found that in addition to their statutorily granted powers,

the probation officers could “conceivably examine the police records of any


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individual.” Id. at 798. This Court concluded the probation officers should

not hold private detective licenses while they continued in their public

employment, and reversed the trial court’s order granting the licenses. Id.

       Furthermore, in Little v. Freeman, 484 A.2d 873 (Pa. Cmwlth. 1984),

involving a declaratory judgment action, the Commonwealth Court affirmed

the trial court’s holding that the appellant’s position as the duly elected

Mayor of the Borough of Kennett Square created at least the appearance of

a conflict of interest with his employment as a private investigator. Id. at

874.   The Mayor had submitted an affidavit stating that he had potential

access to certain police records, but he and his employees under the private

detective license would not conduct private investigations in the borough.

Id. The Commonwealth Court agreed with the trial court that the Mayor’s

intention did not remove the appearance of a conflict of interest. Id.

       In Kuma K-9 Security, Inc., 506 A.2d 445 (Pa. Super. 1986), this

Court addressed the situation where a private detective agency retained a

police captain as a consultant. This Court reasoned that the agency, through

its consultant, “would have access to information and be in a position not

enjoyed by other private detectives” and that this potential advantage to the

agency “would create at least the appearance of a conflict of interest and a

potential source of abuse.” Id. at 449. Therefore, this Court conditioned its

affirmance of the trial court’s grant of a private detective license to the

agency on the resignation of the police captain from the agency.


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       More recently, in In re Application of Millennium Consulting &

Associates, 804 A.2d 735 (Pa. Cmwlth. 2002), the Commonwealth Court

affirmed the denial of a private detective license to a firm that consisted of

two partners who were active, full-time members of the Kutztown Borough

Police Department. In support, the Court cited Kuma K-9 Security, Inc.,

supra; Gregg, supra; In re Stanley, supra, and Little, supra.               See

Millennium Consulting & Associates, 804 A.2d at 736–737.                    The

Commonwealth Court noted, “Police patrolmen have access to various

resources that the public does not, such as police department files, reports,

and other non-public databases.       That singular access is precisely the

rationale supporting the decisions just discussed.” Id. at 737.

       Finally, this Court, in In re Centeno, 5 A.3d 1248 (Pa. Super. 2010),

considered the Commonwealth’s claim that “the trial court erred in granting

a private detective license to appellee because a prison guard is a peace

officer and so is prohibited from holding a private detective license.” Id. at

1249    (quotations   omitted).    The   Centeno    Court   agreed   with   the

Commonwealth, stating that “corrections officers are also considered law

enforcement officers,” and “[t]he Courts of Pennsylvania have consistently

held that a law enforcement officer cannot simultaneously hold a license as a

private detective.” Id. at 1249.

       In contrast to the individuals in the above-cited cases, Mr. Clader has

limited law enforcement-type powers and duties as a school police officer.


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Specifically, the duties of a school police officer are “[t]o enforce good order

in school buildings, on school buses and on school grounds.” 24 P.S. § 7-

778(c)(1). Section 7-778(c)(2) provides that, if authorized by the court, a

school police officer has the same powers that are presently or may

thereafter be exercised under authority of law or ordinance by municipal

police wherein the school property is located.      Finally, under Section 7-

778(c)(3), a school police officer, if authorized by the court, can issue

summary citations or detain individuals until local law enforcement is

notified. Here, Mr. Clader is authorized by the court with the powers and

duties specified in 24 P.S. § 7-778(c)(1-3).

      The policy of the Wallenpaupak Area School District School Resource

Officer Program includes objectives to “[i]nvestigate [and] document any

violation of law and make arrests for summary offenses,” and “[d]etain

students that violate any law that constitutes a misdemeanor or a felony.”

N.T., 6/3/2014, at 9–10, 15; Petitioner’s Exhibit 1. Mr. Clader testified that

he had issued citations for summary offenses, but had not made any arrests

for felonies or misdemeanors. N.T., 6/3/2014, at 10. He also stated he had

been involved in six or seven misdemeanor or felony investigations, which

had been turned over to the Pennsylvania State Police. Id. at 10–11. Mr.

Clader testified the specific policy of the Wallenpaupack Area School District

is that school police do not make felony or misdemeanor arrests. Id. at 13.




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      Furthermore, Mr. Clader stated the Wallenpaupack Area School District

has an Originating Agency Identifier (ORI) assignment number.      However,

the ORI number only gives school police access to driver’s license,

registration and stolen vehicle information. Id. at 12. Therefore, although

Mr. Clader can obtain certain information from the Commonwealth Law

Enforcement Assistance Network (CLEAN), he has no access to criminal

background information that is provided to other types of law enforcement

officers.   See N.T., 6/3/2014, at 11–13, 15; Petitioner’s Exhibit 2, Letter

from Pennsylvania State Police to Mr. Clader, 9/30/2013 (explaining that the

“‘VS’ ORI will permit your agency to access Drivers License, Registration and

Hot File Information only. Criminal History Information is restricted to

Criminal Justice/Law Enforcement.” (emphasis added)).

      I read 24 P.S. § 7-778 to draw a distinction between school police and

municipal police, which, I believe, is demonstrated by Mr. Clader’s

testimony, discussed above. When viewed in context of the statute and the

school system’s mission, Mr. Clader’s power is limited, in terms of scope and

jurisdiction, in comparison to the broad county-wide or state-wide powers of

police, probation and corrections officers. As then Justice (now former Chief




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Justice) Castille explained in his dissent in In Interest of R.H., 791 A.2d

331 (Pa. 2002) (plurality):1

       Although school police may be authorized to exercise the same
       powers as municipal police on school property pursuant to 24
       P.S. § 7-778(c)(2), these powers must be viewed in the context
       of the statute as a whole and in light of the function of schools.
       The duties of the school police are not solely, or even
       predominantly, to investigate criminal conduct, but rather the
       prescribed duty is to “enforce good order in school buildings, on
       school buses and on school grounds.” § 7-778(c)(1). Thus,
       school police are authorized to detain individuals, but only “until
       local law enforcement is notified.” § 7-778(c)(3). Most
       importantly, the salaries of school police are paid by the school
       district, § 7-778(e), and they are, “at all times,” employees of
       the school district, § 7-778(g). Thus, it is the school district, not
       the police department, that school police answer to. When § 7-
       778 is read in toto, it is apparent that school police officers
       appointed under the statute are not so much law enforcement
       officials charged with ferreting out criminal activity -- as the lead
       opinion necessarily assumes in granting relief here -- but are
       specialized members of the school staff, employed and
       compensated by the school district, whose purpose is to assist
       teachers and school administrators in the important, unique
       requirement of maintaining safety, order, and discipline.

Id. at 341–342 (Castille, J., dissenting).

       This analysis highlights the difference between school police officers

and other law enforcement officers.2 In the order appointing Mr. Clader as a

____________________________________________


1
   In In Interest of R.H., 791 A.2d 331 (Pa. 2002) (plurality), the
Pennsylvania Supreme Court determined that where a student was taken
into custody and questioned on school grounds, school police officers “were
‘law enforcement officers’ within the purview of Miranda [v. Arizona, 384
U.S. 436 (1966)].” Id. at 334.
2
  The Commonwealth asserts that “the full municipal police powers granted
to Mr. Clader … demonstrate a sworn school police officer is most akin to a
(Footnote Continued Next Page)


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school police officer for the Wallenpaupak Area School District, he was

authorized “to possess and exercise all of the powers and duties set forth in

24 P.S. Section 7-778(c)(1-3).” Order, 6/27/2013. As such, under 24 P.S.

§ 7-778(c)(1) and (c)(2), Mr. Clader was authorized to exercise the same

powers while on school property as the municipal police, including the power

to arrest, issue summary citations and detain individuals until local law

enforcement is notified, in order to “enforce good order in school buildings,

on school buses and on school grounds,” pursuant to 24 P.S. § 7-778(c)(1).

His power, in terms of scope and jurisdiction, is limited, consistent with his

duties as a school district police officer employed by the school district.

      Therefore, given the limited powers and duties of school police, I

would find no error in the trial court’s decision to grant Mr. Clader’s

application for a private detective license. Furthermore, I believe that, while

it was not necessary for the trial court to impose restrictions in order to

grant the private detective license to Mr. Clader, the trial court could

properly impose restrictions as an additional safeguard.




                       _______________________
(Footnote Continued)

municipal officer as in Millennium Consulting.”          Commonwealth’s
Substituted Brief, at 17. However, the Commonwealth offers this conclusory
statement without any practical analysis to demonstrate how Mr. Clader’s
work for the school district would create the appearance of a conflict of
interest or potential for abuse.



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      Nothing in the Act prevents the court from granting a private detective

license subject to limitations, such as the one imposed in this case, as

follows:

      This Certificate of License is also issued subject to the limitation
      that [Mr. Clader], who has previously been appointed as a school
      police officer for the Wallenpaupak Area School District, shall not
      engage in any private detective business, as defined by the Act,
      in any matter involving school administrators, teachers,
      employees, officials, parents or students of the Wallenpaupack
      Area School District, without prior approval of the Court and
      notice thereof to the Pike County District Attorney.

Order and Certificate of License, 6/26/2014.

      In fact, this Court, in Kuma K-9 Security, Inc., supra, affirmed the

trial court’s order granting a private detective license to the appellee-

agency, “subject to compliance with the conditions set forth in this Opinion.”

Id., 506 A.2d at 449. Specifically, the Kuma Court ordered as a condition

to the agency’s retention of the license that a police captain, who was

employed as a consultant, “sever all ties with Kuma and resign as a

consultant to the company.” Id. at 449. Our Court stated: “We note that

under 22 P.S. § 15 the district attorneys of the various counties have the

power to enforce the provisions of the act. Any violation of this order would

thus be grounds to seek revocation of Kuma’s license.” Id.

      The trial court explained that it carefully crafted its order to

“specifically eliminate[] any potential for abuse that would normally exist

when allowing an official with police powers to be licensed [and] eliminate[]

the appearance of impropriety because the Applicant is prohibited from using

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any information he may obtain on such individuals against them in his

private business.” Trial Court Opinion, 8/28/2014, at 3.   As such, I believe

this court-ordered limitation serves as an added safeguard for the school

community, and is not improper under the Act.

     Accordingly, I dissent.

     Judge Panella joins this dissenting opinion.




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