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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 :
:
:
:
:
:
:
:
: 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 Northamp ton County, which removed him from his elected

position as Constable for Moore Township, Northampton Coun ty. After a

careful review, we affirm.

The relevant f acts and procedural history have b een set forth by the

Honorable Stephen G. Barat ta, 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, alsoJ

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asserting that Truss did not reside within the District to which he was electe d.
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 te stimony and related exhibits, the Board deliberated and unanimously agree d 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 requi red... 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

recommen dations submitted by the Board, the March 21, 2017, trans cript,

and the exhibits. Trial Court Opinion, filed 7/12/17, at 2. With regard to the
factual findings, Presid ent Judge Baratta indicated the following:

_________________ __________ ______ ____ _______

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 1 8, 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.J

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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 loca ted 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, 20 17.

*** 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 o f 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 Tr uss to Toso, some of which were sent at odd hours, which

... constituted “general” harassment given both the content (non

- work related) and the fr equency 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 t ermination constituted workplace retaliation. In addition, Truss also presented photos from text messages allegedly sent to him by Toso, which depicted Toso in variousJ

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stages of undress, including one which purported to show Toso’s erect penis.... [At the hea ring,] 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 di stribute 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 entere d 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 performan ce and discharge of his duties as constable for Moore
Township.” 3 Id. at 1. In support the reof, the trial court reasoned :

[I]n order for Truss to hold the elected office of Constable for Moore Township, he must r eside 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

_________________ __________ ______ ____ _______

3 President Judge Baratta indicated ther e 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.J

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offense of harassme nt (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 re quired under 44 Pa.C.S.A. § 7172

.

Trial Court Order , filed 5/12/17, at 4, 7 (footnote omitted )

. 4

Truss fil ed a timely notice of appeal to the Commonwealth Court , and

a ll 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 Code 5 since it involved his removal

from public office.

In an unpublished mem orandum, the Com monwealth Court declined

Truss’s request to transfer his appea l to the Supreme Court; however, the

_________________ __________ ______ ____ _______

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 offic e.” 42 Pa.C.S.A. § 722(2).J

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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 order s of the

courts of common pleas ,” and this Court has routinely exercised jurisdiction

over appeal s involvi ng 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

_________________ __________ ______ ____ _______

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 pub l ic importance.” Thus, since the parties in Spano pointed to nothing in the record to suggest the elected borough constable exercised a ny 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.J

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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 policy

making decisions to constitute i t 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 recommend ing 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, th is Court is properly vested with jurisdiction inJ

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this matter

. See also Spano , supra

. Accordingly , we declin e to address this

claim further.

T r uss’ s second and third issue s 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 o ffice pursuant to Section 7172 since the President Judge did n ot 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 b ecause 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: Pe tition 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:J

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Rule 190 7.2. 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 sh all 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 establi shed 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 conduc t 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 re spective 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 i n 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 BoardJ

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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 disput es 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 timeta bles 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 t o 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 activ ity 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 in clude:

 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.

***J

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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 co nstables 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 consta ble 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 Boar d 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 du ties 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 compl aint.

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:J

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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 fro m 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 w as 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.J

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Thereafter, the President Judge conducted a full review of the transcript

and exhibits from t he March 21, 2017, hearing, as well as reviewed the Board’s

recommendation. The President Judge, acting as the ultima te 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 reside ncy in Moore Township, and

thus, we affirm on this basis. 7

Residence in the district to which a constable is elected is a common

law requirement. See In re Rodriguez , 587 Pa. 408, 900 A.2d 341 (2003).

In enacting the current statutes related to constabl es, 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.

Specificall y, 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 inter preted as abrogating existing law. The legislature must affirmatively repeal existing law or specifically preempt accepted common law for prior law to be disregarded.

_________________ __________ ______ ____ _______

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).J

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- *** Based on this principle of law, we must assume that the General Assembly understa nds 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 requir ement after he was elected as constable in Moore

Township. Thus, inasmuch as the legislature has not expre ssly 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

recommen dation, 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 hi s 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 notJ

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explained how he was prejudiced or denied a full opportun ity 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

sign ature, 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 3 rd Judicial District of Pennsylvania.
Toso’s Complaint, filed 1/31/17, at 3.

Truss has not developed his issu e further. Accordingly, we decline to

find that an y formal errors in the verification prevent ed 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.

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8 Appellant filed an Application to File a Supplement to the Record. Specifically, he sought to supplement the recor d with relevant Northampton County Local R ule s. As t he record already includes the R ule s , we deny Appellant’s Application as moot.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/24/18