J-A18019-18

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* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ROY TRUSS

APPEAL OF: ROY TRUSS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 
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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:

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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. 

2 President 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 

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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 

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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”). 

5 Section 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 

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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 policymaking 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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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 commonlaw 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. 

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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 3rd

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