In Re: JohnCarlo Oren Approbriation of Appointment of Deputy Constable for the Borough of Delaware Water Gap ~ Appeal of: M. Rodriguez
159 A.3d 1023
| Pa. Commw. Ct. | 2017Background
- Manuel Rodriguez (constable) petitioned the Monroe County Court of Common Pleas to approbate his appointment of JohnCarlo Oren as deputy constable under 44 Pa.C.S. § 7122(a).
- The trial court ordered a background check by the District Attorney; Rodriguez attached a Pennsylvania State Police clearance indicating no criminal record for Oren.
- The DA’s investigation revealed Oren had multiple DUI or DUI-related convictions in other jurisdictions, had used a prior name (not disclosed on the clearance), was the subject of an ongoing fraud/forgery investigation, and previously had a constable appointment suspended in Pike County.
- At the approbation hearing, the DA (through counsel and the detective who performed the investigation) opposed the appointment; the trial court denied the petition based on the background results, perceived evasiveness by Oren, the ongoing investigation, and lack of proof of residency.
- Rodriguez appealed, raising four issues: (1) court applied an improper "suitability" test and violated separation of powers; (2) DA improperly participated in what appellant characterizes as an ex parte, non-adversarial proceeding; (3) DA failed to file objections within the court-ordered five days, depriving Rodriguez of opportunity to rebut; (4) trial court abused discretion in denying motion to vacate for lack of notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether court erred by applying a "suitability" test and violating separation of powers | Rodriguez: §7122 is unambiguous and permits appointment subject only to court approval; applying a suitability standard and separation-of-powers review is improper | Trial court/DA: Court may examine nominee’s fitness; prior precedent supports inquiry into suitability | Waived on appeal (first raised in Rule 1925(b)); court could not address the claim |
| 2. Whether DA improperly participated in the approbation hearing (statute contemplates non-adversarial process) | Rodriguez: DA lacked standing and the hearing should be non-adversarial under §7122(b) | DA: As county chief law enforcement officer, DA has standing to present evidence on nominee’s suitability | Rejected: Court follows Fry; DA had standing to participate and present evidence |
| 3. Whether DA’s failure to timely file objections (per court order) deprived Rodriguez of due process | Rodriguez: DA did not file objections ≥5 days before hearing, so Rodriguez lacked opportunity to rebut DA’s findings | DA: Trial court ordered and conducted background check >30 days in advance; Rodriguez received notice that DA would investigate; any incomplete clearance resulted from Oren’s nondisclosure of prior name | Rejected/waived in part: Appellant failed to develop argument with authority (Pa.R.A.P. 2119(a)) and record showed notice of investigation; not reversible error |
| 4. Whether trial court abused discretion by denying motion to vacate given lack of DA notice | Rodriguez: Requested new hearing to create record and contest DA evidence | DA/Trial court: No authority shown to require vacatur; Rodriguez failed to cite supporting authority | Waived for inadequate briefing; court affirmed denial |
Key Cases Cited
- In re Fry, 110 A.3d 1103 (Pa. Cmwlth.) (plurality opinion recognizing court may assess nominee "suitability" and permitting DA participation)
- In re Hunter, 782 A.2d 610 (Pa. Cmwlth. 2001) (prior decision requiring need showing for deputy appointment—overruled/considered in Fry)
- Browne v. Commonwealth, 843 A.2d 429 (Pa. Cmwlth. 2004) (failure to include relevant authority on appeal results in waiver)
- In re Approval of Special Counsel, 866 A.2d 1157 (Pa. Cmwlth. 2005) (discussed re: standing issues; court found it inapplicable here)