In Re Petition for Appointment of Constable Pender
25 A.3d 453
| Pa. Commw. Ct. | 2011Background
- Pender sought appointment as constable for Allentown's 2nd Ward to fill a vacancy under 44 Pa.C.S. § 7121, filing February 24, 2010 with 17 electors' signatures.
- The Lehigh County District Attorney opposed Pender's appointment.
- At the hearing, Pender testified about his past constable experience, residence in Allentown for five months, and relevant training; he had prior federal civil suits and arrests in his career as a law enforcement officer.
- The trial court convicted Pender of being not suitable, citing a 'checkered' background including civil suits and arrests from his tenure as deputy/constable, and lack of positive recommendations.
- The trial court indicated suitability is a threshold for appointment; if suitable, a candidate must later become qualified via education/training.
- On appeal, the Commonwealth Court affirmed, holding the court acted within its discretion and properly weighed Pender's background in determining suitability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 'suitability' under § 7121 is distinct from being 'qualified'. | Pender contends suitability must be viewed broadly with respect to the Constable Law. | Court correctly treated suitability as a threshold, separate from later qualifications. | Suitability and qualification are separate; court properly evaluated suitability first. |
| Whether the trial court gave undue weight to Pender's prior arrests and civil actions. | Pender argues prior offenses were not convictions and occurred outside of his constable duties. | Court properly considered Pender's entire history as part of suitability. | Court did not abuse discretion in weighing Pender's background. |
| Whether Detective Ressler's hearsay testimony impacted the decision. | Pender challenges reliance on hearsay. | Testimony was not essential to the result and, if relied on, was harmless error given substantial evidence of unsuitability. | Any error was harmless; substantial evidence supported denial of suitability. |
Key Cases Cited
- In re Petition to Remove Constable Visoski, 852 A.2d 345 (Pa.Super.2004) (reaffirms context of constable removal and offenses during tenure)
- Paden v. Baker Concrete Constr. Inc., 540 Pa. 409 (Pa.1995) (abuse of discretion standard; heavy burden on challenger)
- Commonwealth v. Eichinger, 591 Pa. 1 (Pa.2007) (abuse of discretion and support for appellate review concepts)
- Allen v. Thomas, 976 A.2d 1279 (Pa.Cmwlth.2009) (commonwealth court discretion in review)
- Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super.2008) (deference standard in discretionary rulings)
- Grady v. Frito-Lay, Inc., 576 Pa. 546 (Pa.2003) (defining reasonableness and evidence standards in appeals)
- In re Act 147 of 1990, 528 Pa. 460 (Pa.1991) (concepts on staff and related roles within judicial system)