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HomeMy WebLinkAbout11-7702COUNT BOARD SON CUMBER-LAND COUNTY U LEA PENNSYLVANIA ION CEERTIFICA. TIE OF ELECT aa- W-ew?'. "064 ce-W4 4ew!?04, Ar SILVER SPRING TOWNSHIP, IN THE COURT OF COMMON PLEAS, STATE CONSTABLE OFFICE, CUMBERLAND COUNTY, PENNSYLVANIA HON. J. MICHAEL WARD, Appellant V. CIVIL ACTION: REGISTRATION SUSPENSION APPEAL COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, Appellee No. 2011 -- 7742 - CIVIL TE.",0 ? r- ORDER SCHEDULING HEARING ON APPEAL ?.? f 7l AND NOW, this __Ll day of 1!?GfVkr , 2011, a hearing is sched on the appeal of Petitioner-Appellant for the W7 -day of ?? , 2011, at 11100 a.m. / {mm,., in Courtroom =)-1 , Cumberland County Courthouse, One Courthouse Square, Carlisle, PA, at which time testimony will be taken and argument heard. The filing of this appeal shall act as a supersedeas, and the suspension shall not be imposed until determination of the matter. BY THE COURT: mar= n c? --a O -4 01 +?\ J. -s 0001d Distribution: CoPi 0114/1 +j Philip M. Intrieri, Esq., 615 North 48th Street, Harrisburg, PA 17111-3625 PA Dept. Of Transportation, Office of Chief Counsel, 1101 South Front Street, 3`d Floor, Harrisburg, PA 17104-2516 w SILVER SPRING TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF STATE CONSTABLE OFFICE, : CUMBERLAND COUNTY, PENNSYLVAN HON. J. MICHAEL WARD, APPELLANT V. COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, APPELLEE NO. 11-7702 CIVIL ORDER OF COURT AND NOW, this 11th day of July, 2012, upon consideration of J. Michael Wa Appeal of Auto Registration Suspension, the briefs filed by the parties, and after hearing, IT IS HEREBY ORDERED AND DIRECTED that J. Michael Ward's Appeal of Suspension of Automobile Registration is DENIED. By the Court, ?? ---v ?A M. L. Ebert, Jr., J. ;f Philip M. Intrieri, Esquire Attorney for Appellant c-a v Philip Bricknell, Esquire Mw = C- - Attorney for Dept. of Transportation ^ -G ? N 1 yip, es . l ? '7?,??? a < ?n C, SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE, HON. J. MICHAEL WARD, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANI V. COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, APPELLEE NO. 11-7702 CIVIL OPINION AND ORDER OF COURT Ebert, Jr., J., July 11, 2012 - Before us is an appeal of auto registration suspension issued by the Departme of Transportation on September 13, 2011, regarding registration plate number MG-6104E. The suspension was issued because the required fee for the registration was not paid. The questions to be addressed are: (1) whether an elected constable c township of the second class is exempt from paying a $36.00 registration fee to the Pennsylvania Department of Transportation in order to secure a license plate for his and (2) whether an elected constable is entitled to a "municipal license plate." PROCEDURAL HISTORY On September 13, 2011, the Pennsylvania Department of Transportation, Bu of Motor Vehicles wrote a letter to the "Silver Spring Township Constables Office." Thy letter was addressed to "Sir/Madam," and indicated that the registration plate number MG-6104E for a 1997 Chevrolet Station Wagon, Title number 52020851, had been issued in error. The letter went on to advise that the registration plate was suspended indefinitely pursuant to §1373(b) (2) of the Vehicle Code states: a (b) SUSPENSION WITHOUT HEARING. - The Department may suspend a registration without providing the opportunity for hearing in any of the following cases: (2) The required fees have not been paid. 75 Pa.C.S.A. § 1373(b) (2) An appeal of auto registration suspension was filed by Appellant Ward on October 11, 2011. A hearing on the matter was held on December 14, 2011. The parties were ordered to file briefs with the Court on or before January 20, 2012, and were given until February 3, 2012, to file reply briefs. The matter is now before this Court for final disposition. FINDINGS OF FACT After a hearing, the Court makes the following Findings of Fact: 1. Silver Spring Township is a Township of the Second Class located in Cumberland County. It is not a Borough. 2. Appellant J. Michael Ward (hereinafter Ward) was appointed to serve as constable in Silver Spring Township to fill a vacancy in the office by President Judge Edgar B. Bayley on November 13, 2008. 3. Ward was elected constable for Silver Spring Township on November 3, 2009, pursuant to the provisions of 44 Pa.C.S.A. §714 (a) (1). 4. Ward began serving his six year term of office on January 4, 2010. 5. On February 9, 2009, Ward bought a 2001 Ford Crown Victoria from W. Bucher for $1,000.00. 6. Ward signed the Certificate of Title for a Vehicle, block D (Application for Tit and Lien Information) J. Michael Ward. 2 7. At the same time Ward, acting on his volition, chose to file with the Department of Transportation, Bureau of Motor Vehicles, Form MV-4 (4/06) Assign of Title which listed the purchaser to be Silver Spring Township Constable Office, 15 Wheatland Drive, Mechanicsburg, PA 17050. This address is Ward's home address. 8. Ward also filed an MV-4ST (5-00) form with the Bureau of Motor Vehicles requesting a sales tax exemption for the purchase of this vehicle. The exemption cod( listed on the form was Number 18. Municipal Authority. On the form below the purchase price and exemption reason code block, were the handwritten words "Municipal Tag Free." 9. An examination of the form's Sales Tax Information Exemption Reasons Codes reveals that Code Number 18 is described as a "Municipal Authority created under the Municipal Authority Act of 1935/1945." The Court notes that this Act was repealed on June 19, 2001. The Act was replaced by legislation now found at 53 Pa.C.S.A. §5601 et. seq. 10. The MV-4ST (5-00) form in block G-Certification is signed J. Michael Ward. This signature appears under the words "Signature of First Purchaser or Authorized Signer." There was no title of the authorized signer entered on the form. The certification stated among other things "If an exemption is claimed, the purchaser furth certifies that he/she is authorized to claim this exemption ... I/we acknowledge that I/we may be subject to a fine not exceeding $5,000.00 and imprisonment of not more than two years for any false statement that I/we make on this form." 3r 3 11. Based on the information provided by Ward, the Bureau of Motor Vehicles the Pennsylvania Department of Transportation erroneously issued Municipal Government plate MG-6104E to Ward for use on the Ford vehicle. 12. On November 18, 2010, Ward bought a 1997 Chevrolet Tahoe from Bobby Rahal Honda for $6,200.00. Ward signed the Certificate of Title for a Vehicle, block D. (Application for Title and Lien Information) J. Michael Ward. 13. At the same time, Ward, acting on his own volition, chose to file with the Department of Transportation, Bureau of Motor Vehicles Form MV-4 (03/01) Block B Reassignment of Title by Registered Dealer, which listed the Silver Spring Township Constables Office, 15 Wheatland Drive, Mechanicsburg, PA 17050 as the purchaser qr business name. This address is Ward's home address. The purchaser signature b was signed J. Michael Ward. 14. Ward also filed an MV-4ST (4-10) form with the Bureau of Motor Vehicles requesting a sales tax exemption for the purchase of this vehicle. The exemption Ii on the form was again Number 18 "Municipal Authority created under the Municipal Authority Act of 1935/1945." 15. Based on information provided by Ward, the Bureau of Motor Vehicles of Pennsylvania Department of Transportation erroneously allowed the transfer of municipal government plate MG-6104E to Ward for use on the Chevrolet Tahoe veh 16. Neither Ward's Ford Crown Victoria or Chevrolet Tahoe would qualify as a "emergency vehicle" under the provisions of 75 Pa.C.S.A. §102. 17. The use of a municipal government registration plate on Ward's vehicle not in any demonstrable way enhance Ward's safety as an elected constable. 4 CONCLUSIONS OF LAW 1. The "Silver Spring Township Constables (sic) Office" and/or the "Silver Sp Township, State Constable Office" is not a political sub-division, a state or local authority, or "the Commonwealth." 2. J. Michael Ward, as an elected constable, is not eligible for a municipal government license plate or any titling or registration fee exemption under the Pennsylvania Vehicle Code. DISCUSSION This case brings to mind the oft used quote "Oh how the mighty have fallen." When examining this dispute, one finds that it has little to do with the payment of a $36.00 vehicle registration fee. This case has everything to do with what Constables perceive as their rightful status in the realm of Pennsylvania law enforcement. A. The Role Of Constables In Law Enforcement Appellant Ward, in his brief, has included a very interesting history of how the position of Constable evolved. Indeed, it can be said that in medieval France the Constable of France was the first officer of the crown of France and was responsible commanding the Army. Shakespeare makes reference to such a Constable in his pla Henry V which describes the English victory at the battle of Agincourt in 1415. In England, following the Norman Conquest in 1066, a Constable was the persgn responsible for keeping and maintaining the king's arms in order to protect individual settlements throughout the country. By the reign of King Stephen (1135 - 1154) a High Constable was appointed as one of the great officers of state and responsible foi 5 command of the army. The jurist Bracton writing between 1220 and 1250 described role of the common constable as follows: In whatever way they come and on whatever day, it is the duty of the Constable to enroll everything in order, for he has record as to the things he sees; but he cannot judge, because there is no judgment at the Tower, since there the third element of a judicial proceeding is lacking, namely a judge and jurisdiction. He has record as to matters of fact, but not matters of judgment and law. Bracton On Laws and Customs of England The position of Constable was brought to colonial Pennsylvania and in those times played an important role in law enforcement. However, as the Appellant points out in his brief, "the Constable's long standing status as the primary law enforcement officers at the local level were supplanted by the development of organized police departments."' Consequently, the current definition of Constable used in Black's Law Dictionary is appropriate. A Constable is "a peace officer responsible for minor judicia duties, such as serving writs and warrants..." Black's Law Dictionary 329 (8th Edition 2004). It is not disputed that constables have some law enforcement powers based in common law. They do serve an important role in the minor judicial system, especial at the magisterial district judge level. However, one must also recognize that there is vast difference between constables and more traditional police officers, such as the state police, municipal police, and sheriffs. This Court takes judicial notice of the public records which indicate that Pennsylvania State Police undergo a basic training program consisting of 1,170 hou Municipal Police Officers trained under the Municipal Police Officers Education and Appellant's Brief, page 8. 6 Training Commission undergo 754 hours of basic training. Deputy Sheriffs who are trained under the auspices of the Deputy Sheriff Education and Training Board have a basic training program consisting of 760 hours. Constables, on the other hand, unde a basic training program of 80 hours which is administered by the Constables Educa and Training Board. While recognizing these differences, the training status of constables does not dictate the result in this case. B. A Constable Is Not A Political Sub-Division The Pennsylvania state police, agents of the Office of Attorney General, county sheriffs, county detectives and municipal police all have municipal government registration plates on their vehicles. Appellant Ward argues that since he has law enforcement powers, he should be afforded the same type of registration plate as all other law enforcement agencies in the state, and be exempt from any titling or registration fee. Unfortunately, for Ward, all of those other agencies are directly tied to the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth of Pennsylvania (i.e., a county, township, or borough). Ward attempts to solve this dilemma by creation of a fictional "political subdivision" called the "Silver Spring Township State Constable Office." One need only examine the caption of this case, formulated by Appellant Ward, to comprehend the underpinnings of his argument. Ward attempts to elevate his statu! as an elected official to that of a political subdivision by use of the term "Silver Spring Township State Constable Office." Use of this term is exactly what led to the error in registration of Ward's vehicles in the first place. It is clear that when the Bureau of 7 Motor Vehicles saw the documents bearing the name Silver Spring Township first, it was presumed that the registration was being made on behalf of Silver Spring Township. There is little doubt that if Silver Spring Township as a municipal corporation chose to provide Ward with a vehicle, it could do so and that such a vehicle would a Municipal Government (MG) registration plate. However, given an analysis of the case law regarding constables which has clearly found them to be independent contractors, it is highly unlikely that Silver Spring Township would ever do such a thing What does control are the appellate court decisions of this Commonwealth wh have explicitly stated that constables are not governmental or quasi-governmental entities. The courts have repeatedly identified constables as private contractors. A constable is a peace officer and belongs "analytically to the executive branch of the government." In re Act 147 of 1990, 582 Pa. 460, 463, 598 A.2d 985, 986-7 (1990); citing Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983). However, a constable does not act for or under the control of the Commonwealth. Id. A constable is not an employee of the state, judiciary, county or municipality in which he works. Id. A constable is an independent contractor. Id. Mr. Ward is a constable; consequently, he is not an exempt governmental or quasi-governmental entity, and his vehicle is not exempt from the cost of registration. A comparison to the Cumberland County Sheriff's Office is enlightening in this matter. As pointed out in Black's Law Dictionary, a constable is "a peace officer responsible for minor judicial duties, such as serving writs and warrants, but with less authority and smaller jurisdiction than a sheriff." (Emphasis added) Black's Law 8 Dictionary 329 (8th Edition 2004). The Sheriff of Cumberland County is a statutorily created elected office. 16 Pa. C.S.A. §401(10). The current Sheriff of Cumberland County received a certificate of election identical to the one presented to Ward (Petitioner's Exhibit C-6) which states that Ronny R. Anderson "was duly elected to the office of Sheriff, Cumberland County." However, unlike Ward's vehicle, an examination of the public records regarding the registration of the Sheriff's vehicle lists the owner of the vehicle as "County of Cumberland." Note that the vehicle is not titled in the name c the "Cumberland County Sheriffs Office." Similarly, for the purposes of this discussion, one might consider the Office of County District Attorney. Pursuant to the Commonwealth's Attorney's Act, "the District Attorney shall be the chief law enforcement officer for the county in which he is elected 71 Pa.C.S.A. §732-206(a). There is no question that the elected District Attorney of each county uses a vehicle in his work as chief law enforcement officer. He or she attends hearings, supervises electronic wire-taps at wire-tap facilities, goes to and personally views serious crime scenes, and often is present at the site where important search warrants are executed, etc. Again, the District Attorney of Cumberland County, for example, receives a certificate of election identical to the one presented to Ward. The Court takes judicial notice that some counties have provided their elected District Attorney with a government vehicle which is registered in the name of the county. However, most elected District Attorneys utilize their personal vehicle for their work, p for the vehicle, and have a personal registration license plate on the vehicle. The district attorney of Cumberland County does not hold himself out to be a political sub- division called the "Cumberland County, District Attorney Office." 9 In creating the fiction that the "office of Constable, Silver Spring Township" was political subdivision, even Ward was confused. On his MV-4ST(4-10) for the Chevrolet Tahoe and the MV-4ST(5-00) for the Ford Crown Victoria requesting exemption from payment of sales tax, Ward listed the exemption reason code as 18." Code 18 refers to a municipal authority created under the Municipal Authority Act of 1935/1945. Even cursory examination of these acts and their successor legislation found at 53 Pa.C.S.A §5601 et. seq., makes it clear that the tax exemption addressed at "18" relates to Municipal Authorities. "Authority" is defined as a "body politic and corporate created under this chapter; under the former act of June 28, 1935 (P.L. 463, No. 191), known a the Municipal Authorities Act of 1935; or under the act of May 2, 1945 (P.L. 382, No. 164), known as the Municipal Authorities Act of 1945." 53 Pa.C.S.A. §5602. The purposes and powers of municipal authorities "shall be for the purposes of financing working capitals; acquiring, holding, constructing, financing, improving, maintaining an( operating, owning or leasing, ...projects of the kind enumerated in this statute." 53 Pa.C.S.A. §5607. Generally, these authorities are responsible for acquiring equipment buildings, transportation, parks and recreation facilities, sewers, collection and removal of refuse, incinerator plants and waterworks, etc. There is absolutely no doubt in this Court's mind that a constable is not a municipal authority. Accordingly, it was erroneou for Ward to use this code to exempt himself from paying sales tax. Even more interesting is the fact that according to Section A of Ward's brief, his primary argument is that he is entitled to a fee exemption because his "office" is a political sub-division. This claim, however, is belied by the fact that when one examine the two MV-MST forms filed by Ward to claim his exemption, he never used exemption 10 reason code 17" which is found directly above the code he did use which specifically lists "Political subdivision of the Commonwealth." Using Ward's reasoning for exampl a second class township tax collector or auditor of Silver Spring Township who is elected in the same manner as the constable for Silver Spring Township could claim they are the Silver Spring Township Auditor Office or Silver Spring Township Tax Collector Office. Thus they too, as a "political sub-division," would be entitled to a fre( municipal government plate. Again, if Silver Spring Township chose to purchase a vehicle for use by these elected officials then a municipal government plate would be appropriate. The speciousness of Ward's argument may be highlighted by the proposition that this Court could proclaim itself the "Cumberland County Court of Common Pleas Judge Office" and thereby be entitled to a municipal government platE for my personal car. As appellant correctly points out in his brief, "an administrative agency's interpretation of its own regulations is entitled to controlling weight" and should not be disregarded unless it is shown to be "plainly erroneous or inconsistent with the regulation." Jackson v. The Pennsylvania Public Utility Commission, 522 A.2d 1187, 1189 (Pa. Cmwlth. 1987). Given our determination that a constable is not a political sub-division, the Department's interpretation that a constable is not entitled to a fee exemption is the correct interpretation and will be given deference. As pointed out by the Department, numerous categories of vehicles and entities have been exempted from title and registration fees or provided reduced rate processing fees. Clearly, the legislature did not choose to include constables in these exemptions. 11 C. The Doctrine of Equitable Estoppel Is Not Applicable In This Case. Ward asserts that the Department of Transportation is equitably estopped from taking back the MG license plate which was erroneously issued to him and for requirinc him to pay the registration fee for the Chevrolet Tahoe he now owns. Equitable estoppel, a doctrine sounding in equity recognizes that an informal promise - applied 1: one's words, deeds, or representations - that leads another to rely justifiably thereon tc his own injury or detriment may be enforced in equity. See, Novelty Knitting Mills, Inc. v. Siskind, 457 A.2d 502 (Pa. 1983). The two essential elements of equitable estoppel are inducement and justifiable reliance on that inducement. It is well-established ... that the burden rests on the party asserting the estoppel to establish such estoppel by clear, precise and unequivocal evidence. Id. at 504. In this case, Ward has not established by clear, precise and unequivocal evidence that he was "somehow induced" to apply for a municipal government registration plate. This Court finds as fact that it was Ward who provided the Department of Transportation with the information entered in block C of the form found in Commonwealth Exhibit 1, page number 7, ("Silver Spring Twp Constables Office") whe he purchased his first vehicle. As is often stated, circumstantial evidence may be used to establish the existence of any fact. This Court finds that Ward is the one who initialIN supplied the information that led others to identify him as the "Silver Spring Township Constable Office". It is highly unlikely that any car salesman or PennDOT official woul have recognized J. Michael Ward as a constable for Silver Spring Township. This is n to belittle Constable Ward, but to point out that the idea of calling oneself the "Silver 12 Spring Township Constables Office," definitely originated with Ward. Whether such identification was intentional or unintentional, it led to a mistake by the Department of Transportation. Furthermore, this Court finds that Ward did not rely upon obtaining a municipal government registration plate before he outfitted his personal vehicle to be a "police vehicle". Again, it is clear that Ward wanted to have all the accoutrements of a municipal police department patrol vehicle. It is reasonable to believe that Ward believes that all of this police equipment - the cage, magnetic identification stars, computer, etc., is essential to him performing his duties as a township constable. G this belief he would have purchased these things even if he would have had to pay $36.00 fee for a registration plate. As pointed out by the Commonwealth, the Department of Transportation is not seeking payment for any of the past registration fees from 2009, 2010 and 2011. Th simply want him to pay the $36.00 to register his Chevrolet Tahoe this year and in the future. If anything, the Department's actions of mistakenly exempting Ward gave him the benefit of not paying a registration fee for several years. The Department made a mistake based on information supplied or implied by Ward. Equitable estoppel is an equitable remedy and it is not intended to perpetuate mistakes or to bar parties from correcting mistakes. In short, the doctrine has no application in this case. D. There Is No Constitutional Bar to Ward Paving His Vehicle Registration Fee. While this Court admires the creative advocacy of Ward's counsel, the short answer to this issue is that an administrative mistake based on misinformation suppl 13 or implied by Ward does not create a constitutional right. The $36.00 vehicle registration fee, as noted at trial, is paid by a vast majority of the constables elected in this state. This argument might have greater merit if, for example, the legislature had granted constables a statutory exemption from registration fees and then during Ward' six year term of office they revoked the exemption. See Stilp v. Com., 905 A.2d 918 (P 2006). Obviously this is not the situation presented by this case. Ward, not being a political subdivision or municipal authority, was simply not entitled to any titling or registration fee exemption or eligible for a municipal government license plate. Never having been eligible, he cannot now say that an administrative mistake gave birth to a constitutional right. E. Use Of A Municipal Government Registration Plate Does Not Enhance Ward's Safety. Generally, Ward testified that he had large magnetic signs on the side of his vehicle identifying him as a state constable and that anyone looking at the vehicle's interior would know it is a police type vehicle. However, he claims that the municipal government license plate is necessary to identify the vehicle as a law enforcement vehicle to other police officers. He also testified that sometimes he doesn't want peop to immediately identify him as a constable and therefore removes the magnetic constable identification stars. This Court, before being elected to the position of judge, served as the Director of the Bureau of Criminal Investigation for the Pennsylvania Attorney General's Office in the early 1990's. Interestingly, that Bureau spent a good deal of time insuring that it law enforcement agent vehicles were equipped with "confidential plates". These are 14 plates which make no reference to being a state or municipal government vehicle and look like every other citizen's license plate. License plates do not make law enforcement officials safe. What does make them safe is the simple act of coordinating their law enforcement activities with the local police before they actually perform them. This is very simple to do with either a radio call or cell phone call to the local municipal police department, the State Police, or the county 911 center. In any regard, this Court finds that payment of a $36.00 vehicle registration fee and the display of a standard citizen vehicle registration plate on Ward's vehicle will have no effect on Constable Ward's safety in any demonstrable way. CONCLUSION Neither the "Silver Spring Township Constables (sic) Office" or the "Silver Sprint Township, State Constable Office" is a political sub-division, state or local authority, or "the Commonwealth". J. Michael Ward, as an elected constable, is not eligible for a municipal government license plate or any titling or registration fee exemption under th Pennsylvania Vehicle Code. ORDER OF COURT AND NOW, this 11th day of July, 2012, upon consideration of J. Michael Ward's Appeal of Auto Registration Suspension, the briefs filed by the parties, and after hearing, 15 IT IS HEREBY ORDERED AND DIRECTED that J. Michael Ward's Appeal of Suspension of Automobile Registration is DENIED. By the Court, ,%-IV" 4MA / M. L. Ebert, Jr., J. Philip M. Intrieri, Esquire Attorney for Appellant Philip Bricknell, Esquire Attorney for Dept. of Transportation 16 INTRIERI & ASSOCIATES 1,112 JUL 30 PM 2: 02 615 North 48"' Street Harrisburg, PA 17111-3625 C11M51~R L ,tl114 0 C ();'?? I ' (717) 564-6969 PENNS'YLVANI , Atty. 1. D.: 76117 PMILaw@verizon.net SILVER SPRING TOWNSHIP, IN THE COURT OF COMMON PLEAS, STATE CONSTABLE OFFICE, CUMBERLAND COUNTY, PENNSYLVANIA HON. J. MICHAEL WARD, Appellant V. CIVIL ACTION: REGISTRATION SUSPENSION APPEAL COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, Appellee : No. 2011 -- 7702 - CIVIL TERM NOTICE OF APPEAL Notice is hereby given that the Silver Spring Township, State Office of Constable, Hon. J. Michael Ward, hereby appeals to the Commonwealth Court of Pennsylvania from the order entered in this matter on the 12th day of July, 2012. This order has been entered on the docket as evidenced by the attached copy of the docket entry. Da (e 1-2Q Philip M. Intrieri, Esq. Counsel for Constable Ward 615 North 48th Street Harrisburg, PA 17111-3625 fs?.dw tl? ex-d aG 26 kj0- aysc3y INTRIERI & ASSOCIATES 615 North 48"' Street Harrisburg, PA 17111-3625 (717) 564-6969 Atty. I.D.: 76117 PMILaw@verizon.net SILVER SPRING TOWNSHIP, IN THE COURT OF COMMON PLEAS, STATE CONSTABLE OFFICE, CUMBERLAND COUNTY, PENNSYLVANIA HON. J. MICHAEL WARD, Appellant V. CIVIL ACTION: REGISTRATION SUSPENSION APPEAL COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, Appellee : No. 2011 -- 7702 - CIVIL TERM ORDER FOR TRANSCRIPT A Notice of Appeal, having been filed in this matter, the official Court Reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. The hearing in this case was held before the Hon. M.L. Ebert on December 14, 2011. 71-3,611-2-- Dfite Philip M. Intrieri, Esq. Counsel for Constable ward 615 North 48th Street Harrisburg, PA 17111-3625 SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE, HON. J. MICHAEL WARD, APPELLANT V. COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANI?\ NO. 11-7702 CIVIL ORDER OF COURT AND NOW, this 11th day of July, 2012, upon consideration of J. Michael Ward's Appeal of Auto Registration Suspension, the briefs filed by the parties, and after hearing, IT IS HEREBY ORDERED AND DIRECTED that J. Michael Ward's Appeal of Suspension of Automobile Registration is DENIED. Philip M. Intrieri, Esquire Attorney for Appellant Philip Bricknell, Esquire Attorney for Dept. of Transportation By the Court, ?k - \?, ?4 - M. L. Ebert, Jr., J L. -c k N C: --?c 71- 4V ' INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. 615 North 48"' Street Harrisburg, PA 17111-3625 (717) 564-6969 Attorney I. D. # 76117 PMILaw@verizon.net CERTIFICATE OF SERVICE I, Philip M. Intrieri, Esq., do hereby certify that on July 3 't?' 2012, 1 served a true and correct copy of the foregoing NOTICE OF APPEAL, by personal service, and/or causing the documents to be deposited in the United States Mail, first class postage, prepaid, to the following: Philip Bricknell, Esq. Hon. M.L. Ebert, Jr., PA Dept. of Transportation, Court of Common Pleas Office of Chief Counsel Cumberland County Courthouse 1101 South Front Street, 3`d Floor One Courthouse Square Harrisburg, PA 17104-2516 Carlisle, PA 17013 Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Official Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 July 3 b , 2012 Date /s/ iAp M. In nen Philip M. Intrieri, Esq. Attorney At Law 615 North 48th Street Harrisburg, PA 17111 (717) 564-6969 Atty. ID # 76117 PYS511 Cumberland County Prothonotary's Office Civil Case Print. 2011-07702 SILVER SPRING TOWNSHIP (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: Case Tyyppe...: CIVIL APPEALS - AGENCI Time..... Judgmegn e::...- .00 Execution Date Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: Page 10/11/2011 10:43 d/00/0000 0/00/0000 *********************************************************************** General Index Attorney Info SILVER SPRING TOWNSHIP STATE PLAINTIFF INTRIERI PHILIP M CONSTABLE OFFICE 15 WHEATLAND DRIVE MECHANICSBURG PA 17050 WARD MICHAEL J HONORABLE PLAINTIFF INTRIERI PHILIP M 15 WHEATLAND DRIVE MECHANICSBURG PA 17050 PENNSYLVANIA COMMONWEALTH OF DEFENDANT DEPARTMENT OF TRANSPORTATION 1101 SOUTH FRONT STREET 3RD FLOOR HARRISBURG PA 17104 2516 *********************************************************************** * Date Entries *********************************************************************** 10/11/2011 APPEAL FROM VEHICLE REGISTRATION SUSPENSION - BY PHILIP M I] ATTY FOR APPELLANT ---------------------------------------- 10/14/2011 ORDER SCHEDULING HEARING ON APPEAL - 10/14/11 - IN RE- HEAR' APPEAL 12/14/11 @ 11:00 AM IN CR 2 CUMB CO COURTHOUSE'- THE OF THIS APPEAL SHALL ACT AS A SUPERSEDEAS ANT THE SUSPENSIOI NOT BE IMPOSED UNTIL DETERMINATION OF THE MATTER - BY THE C( L EBERT JR J - COPIES MAILED 10/14/11 12/19/2011 ORDER OF COURT - 12/14/11 - IN RE: ORDERED THAT THE PARTIES ------------------------------------------------------------ SUBMIT BRIEFS TO THE COURT ON OR BEFORE 1/20/12 - FURTHER Ol THAT EACH PARTY SHALL BE GIVEN UNTIL 2/3/12 TO FILE A RESPOZ BRIEF IF THEY DESIRE - BY THE COURT M L EBERT JR J - COPIES MAILED 12/19/11 -------------------------------------------- 4/12/2012 TRANSCRIPT OF PROCEEDINGS IN REHEARING ON REGISTRATION SUSF APPEAL - 12/14/122 - BEFORE HONORABLE M L EBERT JR J --------------------------------------------- 7/12/2012 ORDER OF COURT - 7/11/12 - IN RE: ORDERED THAT APPEAL OF SUSPENSION OF AUTOMOBILE REGISTRATION IS DENIED - BY THE COL EBERT JR J - COPIES MAILED 7/12/12 - - - - - - - - - - - - - - LAST ENTRY - -- - - - - - - - - ************************************************************************ * Escrow Information * Fees & Debits Beg Bal Pmts/Ad? End Bal ******************************** ******** ****** *********************** APPEAL VEH REG TAX ON APPEAL 55.00 55.00 .00 SETTLEMENT .50 8 00 .50 8 00 .00 AUTOMATION FEE . 5.00 . 5.00 .00 00 JCP FEE 23.50 --------- 23.50 -- . .00 92.00 ------- --- 92.00 -------0-- * End of Case Information TRUE COPY FROM RECORD In Testimony whereof, 1 here unto set my hand and the se of said urt ?t Carlisle, Pa. This av nft?? I c r ********* ******** * ******** TRIERI NG ON FILING SHALL URT M SHALL DERED SIVE ENSION RT M L ******** * * ******** ******* * ******* V?e./2 SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE, HON. J. MICHAEL WARD, APPELLANT V. COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANI NO. 11-7702 CIVIL "C- ORDER OF COURT AND NOW, this 31St day of July, 2012, the Court being in receipt of a notice of appeal in the above captioned matter, IT IS HEREBY ORDERED AND DIRECTED that: 1. Appellant file a concise statement of the errors complained of on appeal on before August 22, 2012; 2. The Statement shall be filed of record; 3. The Statement shall be served on this Court pursuant to Pa.R.A.P., Rule 1925(b) (1); IT IS FURTHER ORDERED AND DIRECTED that any issue not properly included in the Statement shall be deemed waived. By the Court, ??A AV M. L. Ebert, Jr., 0 J. Philip M. Intrieri, Esquire Attorney for Appellant V/ Philip Bricknell, Esquire Attorney for Appellee bas Cvf,e.s h,, :fed $?f l i a Commontneattb Court of Vennoptbania Kristen W. Brown Pennsylvania Judicial Cen Prothonotary 601 Commonwealth Avenue, Suite 21 Michael Krimmel, Esq. P.O. Box 691 Chief Clerk of Commonwealth Court Harrisburg, PA 17106-91 August 6, 2012 www.pacourts NOTICE OF DOCKETING APPEAL RE: Silver Spring Township et al v. DOT 1452 CD 2012 Filed Date: July 30, 2012 Trial Court Docket No: No. 11-7702 CIVIL A Notice of Appeal from an order of your court has been docketed in the Commonwe Court of Pennsylvania. The Commonwealth Court docket number must be on correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appea has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do no' transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmissi of the record. The address to which the Court is to transmit the record is set forth on the next page of th notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or their counsel indicated on the proof c service accompanying the Notice of Appeal. The appearance of all counsel has been entered o the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing c the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa.R.A.P. 90 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to i that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordii must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on the page of this Notice. If you have special needs, please contact this court in writing as soon as possible. Philip M. Intrieri, Esq. Philip M. Intrieri, Esq. Philip Murray Bricknell, Esq Silver Spring Township State Constable Office Appellant J. Michael Ward Appellant Bureau of Motor Vehicles Appellee Address all written communications to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 (717) 255-1650 Filings may be made in person at the following address (except on Saturdays, Sundays a holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m. Office of the Chief Clerk Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 (717) 255-1650 Pleadings and similar papers (but not paperbooks or certified records) may also be filed ii person only at: Office of the Chief Clerk Commonwealth Court of Pennsylvania Filing Office Suite 990 The Widener Building 1339 Chestnut Street Philadelphia, PA 19107 (215) 496-4980 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under Pa.R.A.P. 3702, writs or other process issuing out of the Commonwealth Court shall only from the Harrisburg Office. INTRIERI & ASSOCIATES 615 North 480 Street Harrisburg, PA 17111-3625 (717) 564$969 Atty. I.D.: 76117 PMILawMverizon. net tt1!rS ,3 ? AUG -7 AM !t: C CUMBERLAND COUNTY PENNSYLVANIA SILVER SPRING TOWNSHIP, STATE C014STABLE OFFICE, HON. J. MICHAEL WARD, Appellant V. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION: REGISTRATION SUSPENSION APPEAL COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, Appellee : No. 2011 - 7702 CIVIL TERM STATEMENT OF MATTERS CQVP MINED OF ON APPEAL RULE 1925 (b) (1) BEFORE THE HONORABLE JUDGE M. L. EBERT, JR. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY FOR THE SILVER SPRING TOWNSHIP STATE CONSTABLE'S OFFICE: PHILIP M. INTRIERI, ESQ. I. STATEMENT OF THE CASE This case involves the apparent tension between the current statutes which place constables at the township level of government, and three appellate court decisions which appear to sever the office of constable from its connection to local government. The General Assembly, through a 2009 recodific atiion of constable law, recently reaffirmed the status of constables as township and borough officers. 44 Pa. C.S.A. 7111 et. seq. On the other hand, two Supreme and one Superior Court decisions, ranging in age from 21 to 29 years old, are in conflict with the current law. These cases are In Re: Act 147 of 1990, Comm. v. Roose, and Rosenwald v. Barbieri , cited below. These cases held, respectively, that constables are independent contractors, that they use private vehicles, and that they are not controlled by or paid by a township. This PennDOT appeal involves Constable Ward, who was denied !his formerly accepted entitlement to title, register and plate his duty vehicle in the official name of his government entity, office of constable. DOT also demanded payment of taxes and fees, which that agency had previously waived for 3 years. The Office of Constable, in whose name this action is brought, argues that under the Vehicle Code, 75 Pa. C.S.A. 1901, such registrations are free to governmental and quasi- governmental entitles. DOT has recalled Ward's existing title and suspended his municipal plate, due to non payment of the fees and sales tax and his alleged inappropriate use of an official name. Thus the central issue in this case is whether the Office of Constable, and vehicles owned by such an office, used 100% for public service, must be classified as govemment-related or individually held. If they are government- related no fees are due and DOT's case falls. Conversely, and as held by This Honorable Court, if a constable vehicle is necessarily private in character, then rex?istration fees and sales tax are due as paid like any other individual citizen, and DOT's refusal to maintain the titles in an official name or allow the use of a blue plate was proper. 1. Court agreed, that the fee exemptions claimed by the Office of Constable accrue solely to political subdivisions. And the classic definition of political subdivision, while it includes townships and boroughs, does not include constables. 1 Pa. C.S.A. 1991. Moreover, This Court held that since constables are independent contractors, they can not cite any affirmative law that categorizes them as local government or an independent state agency. Therefore, the office of constable can not qualify for the tax exemptions given to every other government entity. Nor, it is reasoned, should the constable qualify for a municipal plate, since his vehicle is not provided by Silver Spring Township. We disagree. This Court issued a well-written opinion, centered on the declining status of constables in the realm of Pennsylvania law enforcement. We believe The Court missed the thrust of our argument. It is not about the constable's role in law enforcement; rather, it is about their status in government. Constable brief, at 3. Certainly we offer no criticism of a court that faithfully followed appellate precedent. We think the precedent is wrong, or is being interpreted in an overly broad manner, and this is the reason we respectfully dissent. LEGAL POSITION OF THE OFFICES OF CONSTABLE The constables argue that Pennsylvania common law and historical tradition have placed constables within township government for three centuries. Further, that the current statutes in Title 44, issued by the General Assembly in 2009, are completely consistent with such common law. Title 44 establishes constables in every political subdivision in Pennsylvania, excluding Philadelphia. Title 53 establishes other township and borough officers. Each body of law must be read together to give equal effect to both provisions. Our legislature has fashioned a system of local government in Pennsylvania that includes executive branch officials like mayors and constables, and officials with both executive and 3. legislative authority such as supervisors and commissioners. These offices are ultimately created and selected under the People's franchise. The local government also includes appointive officers like deputy constables and zoning officials. See: The Second Class Township Code, 53 P.S. 65101 et seq., the Borough Code, 53 P.S. 45001 et. seq., and 44 Pa. C.S.A. 7111 et. seq. Nothing in the Borough or Township Codes repealed any act relating to constables. Constable brief, at 10. The Office of Constable never claimed to be a separate political subdivision, as the opinion misperceives. Rather, the Office of Constable is part of an existing political subdivision, based on the plain terms above. It is not our place to question the wisdom of the General Assembly. Therefore, the Office of Constable qualifies for the same exemptions from registration fees and sales tax granted to any other part of local government, and cannot be denied the right to title a vehicle because such fees were not submitted. Further, the Department can not enforce a de facto nullification of the existence of the office of constable, nor can DOT destroy the discretion inherent in that office to hold property for a public purpose. And since that property is held for a public purpose, it logically follows it can carry a public license plate. The constable believes This Honorable Court has engaged in an overly broad interpretation of the case law cited above. This interpretation clearly violates the separation of powers clauses in our Constitution. Neither Rosenwald, Roose, nor In re Act 147 can be read as excluding the office of constable from our very fabric of government. This power is reserved to our legislature, which has never abrogated the status of the office of constable as a township office. Constable brief, at 9, 14. The legislative power of the Commonwealth is vested in the General Assembly. Pa. Const. Art. 11, Sec. 1. The selection of public officers not enumerated in the Constitution shall be "as directed by law". Pa. Const. Art. VI, Sec. 1. This is a legislative power when it concerns constables. "The 4. foundational principle of our Constitution forbids one branch of government from exercising the functions exclusively committed to another branch." Ju leer v. Rendell, 953 A.2d 514, 529 (Pa. 2008). The legislative power is to make, alter and repeal laws. Blackwell v. State Ethics Comm., 567 A.2d 630, 636 (Pa. 1989). Our Supreme Court's only power over officers enforcing orders is to prescribe their "practice, procedure and conduct". Pa. Const. Art. V Sec. 10(c). Consequently neither This Court, nor an administrative court, can demote or remove the office of constable from local government, not by calling them "private contractors", or any other strained phrase. Contract law simply does not apply to the constable system. Consequently the Department's position, based entirely on the above case law, represents an impermissible intrusion into the province of the legislature. Only the General Assembly can alter the status of the constable. It follows then, that This Court may not decree that a vehicle owned by a public office is "private" without express legislative authorization. Consequently, the Silver Spring Office of Constable departs from the well- written opinion of the Ninth District. If the rulings issued at the common pleas and administrative levels are allowed to stand, they have numerous impacts counter to our basic democratic principles. Among these are: a) The Office of Constable is now the only government entity subject to sales tax. It is not our position that a personal vehicle should be tax free; only a car that a constable devotes 100% to public service. b) The Office of Constable is now the only government entity that can't own a car. c) That every six years, the electorate all over Pennsylvania gathers together to elect a constable, not as a public officer vested with the inherent discretion to budget for the operation of his office, but as the functional equivalent of a plumber. 5. d) That the constable's use of the phrase Office of Constable, a term officially recognized in this case by the Cumberland County Board of Election , is some type of masquerade and not "bona fide". What is more tenuous? The use of an officially recognized title, or the use of a manufactured label like independent contractor, when none of them have contracts? Courts are not equipped to decide the desirability of legislation, and cannot eliminate measures which do not happen to suit its tastes. Daniel v. Family Security Life Insurance Co., 336 U.S. 220, 224, 69 S. Ct. 550 (1949). Inherent in This Court's opinion is a reading of the case law that is violative of the Constitution, which Appellants can not support. Accordingly, the Office of Constable dissents from and files exceptions to the ruling of This Honorable Court. We note seven specific areas of exception below. For the convenience of the reader, we will not extensively repeat argument contained in the brief, or as noted above, and truncate our citations. III. COMM STATEMENT OF MATTERS COMPLAINED OF ON AMAL The Court's findings will be overturned if they are not supported by substantial evidence, or if there exists an error of law, or a violation of the Constitution. Reaknuto v. Dent. of Transportation, 637 A.2d 769 (Pa. Commw, 1994). 1. SEPARATION OF POWERS: The constable presented a rather extensive analysis of the common law history of constables as part of township government, the current statutes which continue that status, and the weakness of using the three cases cited above to disconnect constables from their lawful position. Constable brief, at 6-14. Our courts have held that any diminution in 6. the authority of an officer of common law origin must be by a clear and unequivocal legislative expression. Constable brief, at 13. We cautioned that following case law to the contrary was an impermissible intrusion into the province of the General Assembly. Constable brief, at 14. This is true, in particular, when such case law is prior in time to the more recent reenactment of the constable statutes in 2009. Constable brief, at 15. The instant opinion fails to analyze the apparent conflict between Title 44 and the case law, or presents an overly broad interpretation of such case law. If the office of constable is a government entity, any vehicle owned by that office qualifies for the fee exemptions granted to any other public entity. Accordingly, we bring exception to the holding, on grounds of error of law, and violation of the separation of powers clauses in the Pennsylvania Constitution. This is the central issue in the case, and it is one of first impression in the Commonwealth. 2. THE CONSTABLE IS PART OF THE POLITICAL SUBDIVISION: Of course if this was 1790, there would be no controversy since constables are dearly recognized in that Constitution as township officers. The fact that this constitutional reference was removed is meaningless. We are well aware the current definition of political subdivision, 1 Pa. C.S.A. 1991, does not include constables; it doesn't need to, since the current statutes continue to place constables within those political subdivisions. We are also well aware that the Supreme Court has noted the statutory language employed in Section 1991, running to any county, city, township, borough and school district, has no bearing on the substantive question of what is a political subdivision. Pa. R.Civ.P. 76. This tells us we should look a little deeper than the surface definition. This Court is critical of our argument that the Silver Spring Office of Constable, as part of a political subdivision, meets the qualifications in the Vehicle Code for a government registration and plate. He points out that, by this 7. reasoning, the Silver Spring Auditor, or Tax Collector Office, or even the Common Pleas Judge's Office could proclaim itself a political subdivision and demand a free government registration for a personal vehicle. We agree with Judge Ebert; none of the above offices could claim a valid exemption from sales taxes and registration fees, even if they used the vehicle for business. But this is because these offices must necessarily draw from the public coffers for a vehicle, if it is decided through distinct budget processes one is necessary. The key distinction between the office of constable and the above examples is the funding mechanisms our legislature has put in place; in one case taxes, and the other a fee system. A constable has only the fees allowed him by the General Assembly from which to draw the funds to acquire an official vehicle. This makes him the unique, singular official with the inherent discretion to reserve the funds garnered by his office to acquire a vehicle for a public purpose and reserve it for public use. This is his decision alone, but if he makes it, it's a public vehicle. The A.L.J. did find as fact that Ward's vehicle is used exclusively for constable duties, a fact about which we request This Court take judicial notice. We understand the regret of a sheriff or an auditor that they have to run to the commissioners to get a car; the constables equally regret that they can not draw from the municipal budget to do the same, but this is the system the General Assembly has created under its sole authority, and we do not question its desirability or its wisdom. The Vehicle Code does not define political subdivision, but we must construe that term liberally, not only to give effect to the statutory law including constables, but to recognize their inherent discretion to acquire and title a vehicle in an official name, when that property is used exclusively for a public purpose. The Roosee case, calling a constable vehicle private, was only ever a single sentence of dicta from a 2-1 panel of the Superior Court, on an unrelated case. In relying on the above case, and disregarding the unique status a constable holds in our system of local government, we believe This Court has made an error of law. 8. 3. THE LOWER COURT OPINION IS UNDULY RESTRICTIVE OF THE CONSTABLE'S DISCRETION: Why do we so easily bless the decision of a township supervisor to budget for a dice vehicle, and at the same time condemn the constable's choice of the same? Both vehicles serve the public, both help the public safety, and both provide for the common weal. What authority has PennDOT, or This Court, to cheer the discretion of the township supervisor, but remove the discretion of the constable? Both officials were elected by the People, to exercise equal discretion in matters reasonably coming within the function of their office. Pa. Const. Art. 1, Sec. 2. This Court has no role in diminishing the voting strength of the electors of Silver Spring Township. Nay, This Court must give effect to their voice, and their vote. Certainly in the modem age a car is necessary equipment for a lave enforcement officer, and certainly the electorate has a right to expect their vote for a constable signifies that he at least will acquire the basic equipment to do their job safely and efficiently. No one elected Ward thinking he would ride a skateboard. Would the People really object to granting a constable a break of a few hundred dollars in sales tax, when that constable has invested triple that amount in transporting prisoners in a safe, properly-equipped, computerized and caged vehicle? This is what makes the practical, and very real difference between a professional constable system, and those who merely toss dangerous criminals into the family sedan. From a public policy standpoint, which practice do we wish to encourage? The constable's decision as to how to hold title to property used by his office is an official and discretionary decision; not personal. This constable did not spend thousands of dollars to properly equip and devote an official vehicle to public service on some type of personal whim. If he merely wanted to have fun, he could have bought a dirt bike. 9. Justice Eakin wrote, that there is a presumption of correctness given the discretionary acts of elected olftials, and if there is a dispute, "the burden of proving otherwise should be on the inquisitive party." Constable brief, at 5. In the face of this, the lower court still grants deference to PennDOT to interpret its own regulations, even when they have none on point. We believe it was an abuse of discretion for This Court to graft the phrase "except constables" onto the above law, and exalt a PennDOT regulation that doesn't exist. The burden of prof in this matter rests dearly with the Department. The constable holds the favorable presumption. The constable will not disavail himself of this advantage so easily. We are also convinced the view of This Court unduly restricts the inherent discretion of this elected official. Accordingly, we respectfully depart from the holding and claim errors of law. 4. INDEPENDENT CONTRACTORS: The Court held that constables were independent contractors. The opinion fails to explain why this is so. On the other hand, the constables presented numerous arguments as to why contract theory doesn't fit, including lack of consideration, principles of equal protection and the simple fact that constables don't use contracts. The constable's interaction with the Magisterial District Judges of this Commonwealth, and their powers, duties and compensation arise by operation of law, and not by contract. Constable brief, at 8-10. No contract could ever expand nor diminish their statutory powers and duties. This is why, 21 years after the decision in In Re: Act 147, no government body of which we are aware ever acted to implement this portion of the decision and actually approach constables with contractual proposals. This includes the Ninth District. Indeed, DOT presented no evidence that this constable had a contract with anyone. Nor, out of a thousand certified constables in the state, did DOT call any to establish as a fact they were contractors. No legal holding is valid without a scintilla of factual evidence to back it up. 10. We must presume the Supreme Court in the above case had no intent to violate the Constitution. The main holding of In Re: Act 147, placing constables in the executive, but not judicial branch of government was correct. The high court had full power under Article 5 to make this decision. However, our Supreme Court never had the legislative power to demote constables away from government itself. This is why, either This Court has misconstrued the term independent contractor and given it an overly broad and unconstitutional effect, or the high court itself has exceeded its authority. The term "independent contractor" was not essential to the holding. It was never anything more than surplusage. Similarly, we believe the Rosenwald decision, insulating townships from defending constables in cases of civil liability, is not diapositive of the issue of whether constables remain at the township level for purposes of exemption from registration fees, sales tax, and qualifying for a government plate. Here too, if the Rosenwald Court has removed constables from township and borough government for all purposes, it has presumed a legislative power beyond that given to the judicial branch. As a result, we depart from this portion of the opinion as an error of law, and a violation of the separation of powers clauses of our Constitution. We also claim an error of fact as well, to make it abundantly dear there is nothing in this record supporting the idea that a constable is a contractor. 5. EXEMPTION FROM SALES TAX: We believe the Departrnent's position in this regard is incorrect. It is a fundamental error for one level of government to assert the right to tax another. The exemption from sales tax runs not just to the duty vehicle, but every self-defense weapon, every badge, every uniform, every bullet, every transport belt, every tactical vest, every holster, every prisoner restraint, and any other equipment that is reasonable and necessary to 11. carry out the function of the constable office. The argument is adequately presented in the pages above, and in the administrative proceedings. It will not be needlessly extended, since This Court did not focus on the sales tax issue. We echo the words of the learned trial court; sometimes the mighty do fall, and certainly all would hope that falling is not in the line of duty, for the lack of an incentive to acquire the proper safety equipment. 6. BONA FIDE NAME: The Court held that registering a vehicle in the name of the Silver Spring Township Constable's Office was a fiction. It is no more a fiction than Cumberland County Sheriffs Office. The constable's official title as recognized by the Board of Election is Office of Constable, Silver Spring Township, and the above variant misrepresents nothing. Still, the Department argues the above is not a bona fide name as required by the Vehicle Code. We disagree. This conclusion lacks common sense. DOT collected Constable Ward's name and addresses at the time of application. Constable Ward submitted his official I.D. as well. DOT made a copy of it. It is of no moment that his tine is at the top of the title application and his signature is at the bottom. There is no evidence to suggest he was not acting in his official capacity. We all know who the owner is. Bona fide means good faith. As explained in our brief, the constable has demonstrated a complete absence of theft and fraud, and did meet each and every criterion the Bureau demands to register a vehicle. 75 Pa. C.S.A. 1103.1. At the administrative hearing, DOT was constrained to admit there was no fraud present, therefore DOT can never meet the legal definition of bad faith. Our research has shown the sole purpose of the statutory requirement to submit a bona fide name is "...to prevent registration, renewal or transfer of registration based on false or fraudulent information." Jill A. Foerster, di TAG- 12. R-UP v. Dept. of Transportation 2011 Pa. Commw. Unpub. LEXIS 725. This is the only case that even comes close to interpreting "bona fide", and it is completely favorable to the constable, since there is nothing false or fraudulent in the instant case. The Bureau has taken a phrase from the Vehicle Code designed to prevent fraud, and is attempting to leverage that term into the power to regulate the manner in which a public official holds title to official property. Clearly, the Bureau is overextending itself, and we except to the holding as an error of law. While we are on the subject of labels, our Court continues to labor under the false impression the constable called himself a municipal authority. This block on the application form was filled out by PennDOT or its agents. The constable never held himself out to be anything more than a constable. He never adopted PennDOT's characterization, and to place responsibility for this misstep on the constable is unfair. Trial is a search for truth. Counsel for the Bureau has a duty of candor to this tribunal, and a duty to correct the record on this point. 7. THE FINDING THAT THE DEPARTMENT MADE A "MISTAKE" IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE: The facts adduced at trial show that DOT originally issued title in the name of the office held by Ward in 2009. DOT also approved fee and tax exemptions at the same time. DOT did the same for at least 7 other constable offices. This Court held this was nothing more than a mistake based on Ward's information. Administrative Judge Cline, on the title case, concurs with Judge Ebert. The constable argues that DOTs reversal of its previous decision to grant registrations in a public name to constables is a policy reversal, not a mistake. Therefore, the "mistake defense" is unavailable to the Department. We point out that our Court did not have the benefit of PennDOT's testimony in the registration case, since DOT called no witnesses. We do now have that benefit, from the title case before the A.L.J., and we present it as a matter of public record upon which 13. This Court can take judicial notice. This Court is likely not bound by anything which occurred at administrative level; so we present our review of the matter for whar persuasive value it may have. We point out that for anyone to have committed a mistake in 2009, there must be evidence that the transaction was counter to a statute, regulation, or policy that existed contemporaneous with the alleged mistake. We quote from our Brief on Exceptions, from the Administrative Docket, below: `The Hearing Officer held that these transactions, one of which was approved by a supervisor, were counter to a longstanding policy, and nothing more than an honest and unintentional mistake. Findings of Fact 34, 35, Proposed Report at 8,9. He found the testimony of DOT's witness, Mr. Comp, credible in this regard. We do not. The action to recall the titles at issue originated in the Bureau of Motor Vehicles, Research and Support section, in September, 2011. At that time, they had only a vague notion that they no longer wished to recognize an Office of Constable could awn a vehicle. The problem was that the Bureau had no legal footing to recall the titles; there being no [specific] statute nor regulation against a constable office holding title in an official name. The Bureau needed a policy, and they found one. On November 29, 2011, well after hearing the constable's objections at the informal hearing, someone crafted a memo "clarifying" for supervisory staff that no office of constable was entitled to official registration and plates. Constable Exhibit 2. This memo was pawned off to a defense attorney in a related case, and the constables entered it into evidence. The idea that a memo written in 2011 is evidence that a policy existed in 2009 is an affront to our sense of justice. We invite the Secretary to review the cross examination of Mr. Comp on this subject. We summarize it here, from the Constable Brief, at 30: "What policy? The Department never entered any policy into the record, although primary witness Mr. Comp promised to do so. N.T. 78. The only thing we have is a memo supplied through a third party, which the constables have provided. Constable exhibit 2. Mr. Comp stated there were several policies, then could only remember one. N.T 73. He couldn't say whether it was a new policy or the re-issuance of an old one. N.T. 73. He didn't recall how many pages a recent policy covered. N.T. 69. He couldn't say who authored the 14. policy. N.T. 72. He couldn't offer the date of issuance of any policy. N.T. 72. He did say the policy has been active at least three or four years. N.T. 72. He called this a longstanding policy. N.T. 71. He admitted that any policies were probably not approved by the Secretary, but he didn't know for sure. N.T. 72. One thing we do know, from the testimony of Constables Kelley and Wand, is that if there was a policy, no one followed it in their cases. N.T. 92,102, 137, 151. And no Department employee was disciplined for failure to follow a policy, if in fad it existed. N.T. 68." We believe the evidence shows that the Bureau's actions were no mere mistake. Rather this was a reversal of a standard practice in existence for at least three years. In plain terms, DOT formerly recognized the office of constable as a viable owner, exempt from taxes and fees, and now it no longer wishes to do so. DOT's case is sufficiently solid without resort to the tactic described above. As a result, we take exception to this holding, and urge the Secretary to specifically reverse the finding that credible evidence demonstrates that a "longstanding" policy existed counter to the interest of the constables." Brief on Exceptions, 030, 031 A. D. 2011, at 10, 11. We submit to This Court, that without the "honest mistake" defense, the Bureau's argument that a mistake could never give rise to a constitutionally- protected benefit fails. Pa. Const. Art. III, Sec. 27. Therefore, we dissent from this holding as well. The constable believes the Department's original ruling to grant his vehicle public status was correct. Additionally, the Department's actions in approving titles in the name of the Silver Spring Office of Constable, and recalling them 3 years later, after the constable had made substantial investment in his official vehicle, do now demonstrate reliance and legal detriment. Absent the "honest mistake" defense, DOT's original approval of the titles rises to the level of an intentional or negligent misrepresentation. We believe This Court has misapprehended the sequence of events under which equitable estoppel is properly analyzed. It is our Court's view that Ward induced the Bureau based on information 15. he supplied, not the other way round. We submit it was the Bureau who misrepresented the constable's status. In the beginning Wand's offered title application was nothing more than paper, until DOT blessed it and granted the constable a public registration and plate. It was only at this point that the transaction, and therefore the promise, and therefore the inducement, was complete. As The Court did not rebut any other element necessary, these being reliance and detriment, the constable's equitable estoppel defense retains its vitality. Therefore, we object to the holding that equitable estoppel does not apply in the instant case, as an error of law. We also except to the lack of a finding that the constable system would qualify for official registration and tax exemptions as an independent state agency. This would recognize their primary service to the Unified Judicial System. The two prime elements to a finding that the Office of Constable is an instrumentality of the state are whether they were created by the state to perform a state function. There is no doubt the legislature created the console system, and there is no doubt, today, that they serve the state courts. PennDOT would have a difficult task attempting to dispute these factors. IV. CONCLUSION Certainly it is unusual that an agency which administers the Vehicle Code would act negatively toward a system that spends the majority of its time serving warrants to enforce that Code. We might ask ourselves the question, "why are we here?" The question does focus on the fad that after eleven months of litigation, PennDOT has yet to identity a single compelling state interest against a constable holding a public registration and plate. But that is a debate for another time. Our question today concerns a court's power to legislate. We presume the General Assembly could reshape the Office of Constable into an independent state agency, or as some type of public office wholly 16. unconnected with any other recognized level of government. As it stands now, the constables are historically and statutorily part of local government, and are just as tax exempt and official as any other part of local government. One might find their current status unusual, considering that while constables contribute to the general public safety of the localities they were elected to serve, their primary focus is service to the Commonwealth. Yet no court, no Commonwealth agency, and no administrative adjudication can alter or change their status as an executive branch township and borough office. Our Constitution mandates that such change must arise exclusively from the General Assembly. When balanced against the call of our Constitution, the Department's ministerial powers to claim a registration "bona fide", and to collect a tax must give way. We believe it appropriate and just to approve the eligibility of the Office of Constable to title a duty vehicle in the name of his elective office, and further approving his use of municipal plates. We further believe the Office of Constable is properly granted exemptions from sales tax, for such equipment that is reasonable and necessary to carry out the function of that public office. This is the same standard This Court employs in its own battle for resources. Therefore, we respectfully dissent from the ruling of This Honorable Court. Respectfully submitted, Date Philip M. lntiieri, Esq. For The Office of Constable Silver Spring Township 17. INMIERI & ASSOCIATES Philip M. Intrieri, Esq. 615 North 4e Street Harrisburg, PA 17111-3625 (717) 564-6969 Attomey I. D. # 76117 PMILaw@verizon.net CERTIFICATE OF SERVICE I, Philip M. Intrieri, Esq., do hereby certify that on August ?, 2012, 1 served a true and correct copy of the foregoing STATEMENT OF MATTERS COMPLAINED OF ON APPEAL, in accordance with the requirements of Pa. R.A.P. 121, by causing the documents to be deposited in the United States Mail, first class postage prepaid, or by personal service, to the following: PA Dept. of Transportation, Philip Bridmeil, Esq. Office of Chief Counsel 1101 South Front St., 3'd Floor Harrisburg, PA 17104-2516 August 2012 Date Hon. M. L. Ebert, Jr. Court of Common Pleas, Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 /s/Ph& M. Intft Philip M. Intrieri, Esq. Attorney At Law 615 North 48th Street Harrisburg, PA 17111 (717) 564-6969 Atty. ID # 76117 SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE, HON. J. MICHAEL WARD, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, APPELLEE NO. 11-7702 CIVIL IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a) Ebert, Jr., J., August 21, 2012 - Defendant appeals from an Order entered by this Court on July 11, 2012, which denied J. Michael Ward's Appeal of Suspension of Automobile Registration. The Appellant filed its appeal on July 30, 2012. This Court by Order dated July 31, 2012, ordered the Appellant to file a Concise Statement of Error Complained of on Appeal. Appellant filed a "Statement of Matters Complained of on Appeal, Rule 1925(b)(1)" on August 7, 2012. The statement is seventeen pages long and for all intents and purposes appears to be a legal brief which reargues the case. The Statement of Matters Complained of on Appeal concludes by stating "Therefore, we respectfully dissent from the Ruling of this Honorable Court." Frankly, other than Concise Statement of Errors Complained of on Appeal filed by pro se litigants, this Court has never seen a "Concise Statement" in such a format as filed by this Appellant. Clearly the Appellant's Rule 1925 statement is far from concise and is replete with argument. Such a statement of error may provide a basis to deny Appellate review. See, LSI Title Agency v. Evaluation Services, 951 A.2d 384 (Pa.Super. 2008). However, this Court does not find that the Appellant has shown a lack of good faith with regard to its Rule 1925 statement. While this Court cannot in good candor state that the issues presented in this appeal have any widespread impact for the Commonwealth or its citizens, there is no appellate precedent available to resolve the matter. It appears that Appellant is appealing on the basis that this Court's decision was "not supported by substantial evidence, or if (sic) there exists an error of law, or a violation of the Constitution" (See Appellant's Statement of Matters Complained of on Appeal Rule 1925 (b)(1), p. 6). We feel that all of these issues have been addressed in our previous opinion of July 11, 2012. Accordingly, that prior opinion is incorporated herein. By the Court, M. L. Ebert, Jr., I/ Philip M. Intrieri, Esquire Attorney for Appellant Philip Bricknell, Esquire Attorney for Dept. of Transportation C p l e-5 Ovc J. GF s r_ r? f-1 2 SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE, HON. J. MICHAEL WARD, APPELLANT V. COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-7702 CIVIL ORDER OF COURT AND NOW, this 11th day of July, 2012, upon consideration of J. Michael Ward's Appeal of Auto Registration Suspension, the briefs filed by the parties, and after hearing, IT IS HEREBY ORDERED AND DIRECTED that J. Michael Ward's Appeal of Suspension of Automobile Registration is DENIED. Philip M. Intrieri, Esquire Attorney for Appellant By the Court, ?k \-? U?, M. L. Ebert, Jr., J. Philip Bricknell, Esquire Attorney for Dept. of Transportation SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE, HON. J. MICHAEL WARD, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION, APPELLEE NO. 11-7702 CIVIL OPINION AND ORDER OF COURT Ebert, Jr., J., July 11, 2012 - Before us is an appeal of auto registration suspension issued by the Department of Transportation on September 13, 2011, regarding registration plate number MG-6104E. The suspension was issued because the required fee for the registration was not paid. The questions to be addressed are: (1) whether an elected constable of a township of the second class is exempt from paying a $36.00 registration fee to the Pennsylvania Department of Transportation in order to secure a license plate for his car and (2) whether an elected constable is entitled to a "municipal license plate." PROCEDURAL HISTORY On September 13, 2011, the Pennsylvania Department of Transportation, Bureau of Motor Vehicles wrote a letter to the "Silver Spring Township Constables Office." The letter was addressed to "Sir/Madam," and indicated that the registration plate number MG-6104'E for a 1997 Chevrolet Station Wagon, Title number 52020851, had been issued in error. The letter went on to advise that the registration plate was suspended indefinitely pursuant to §1373(b) (2) of the Vehicle Code states: (b) SUSPENSION WITHOUT HEARING. - The Department may suspend a registration without providing the opportunity 1 for hearing in any of the following cases: (2) The required fees have not been paid. 75 Pa.C.S.A. § 1373(b) (2) An appeal of auto registration suspension was filed by Appellant Ward on October 11, 2011. A hearing on the matter was held on December 14, 2011. The parties were ordered to file briefs with the Court on or before January 20, 2012, and were given until February 3, 2012, to file reply briefs. The matter is now before this Court for final disposition. FINDINGS OF FACT After a hearing, the Court makes the following Findings of Fact: 1. Silver Spring Township is a Township of the Second Class located in Cumberland County. It is not a Borough. 2. Appellant J. Michael Ward (hereinafter Ward) was appointed to serve as constable in Silver Spring Township to fill a vacancy in the office by President Judge Edgar B. Bayley on November 13, 2008. 3. Ward was elected constable for Silver Spring Township on November 3, 2009, pursuant to the provisions of 44 Pa.C.S.A. §714 (a) (1). 4. Ward began serving his six year term of office on January 4, 2010. 5. On February 9, 2009, Ward bought a 2001 Ford Crown Victoria from Robert W. Bucher for $1,000.00. 6. Ward signed the Certificate of Title for a Vehicle, block D (Application for Title and Lien Information) J. Michael Ward. 2 7. At the same time Ward, acting on his volition, chose to file with the Department of Transportation, Bureau of Motor Vehicles, Form MV-4 (4/06) Assignment of Title which listed the purchaser to be Silver Spring Township Constable Office, 15 Wheatland Drive, Mechanicsburg, PA 17050. This address is Ward's home address. 8. Ward also filed an MV-4ST (5-00) form with the Bureau of Motor Vehicles requesting a sales tax exemption for the purchase of this vehicle. The exemption code listed on the form was Number 18. Municipal Authority. On the form below the purchase price and exemption reason code block, were the handwritten words "Municipal Tag Free." 9. An examination of the form's Sales Tax Information Exemption Reasons Codes reveals that Code Number 18 is described as a "Municipal Authority created under the Municipal Authority Act of 1935/1945." The Court notes that this Act was repealed on June 19, 2001. The Act was replaced by legislation now found at 53 Pa.C.S.A. §5601 et. seq. 10. The MV-4ST (5-00) form in block G-Certification is signed J. Michael Ward. This signature appears under the words "Signature of First Purchaser or Authorized Signer." There was no title of the authorized signer entered on the form. The certification stated among other things "if an exemption is claimed, the purchaser further certifies that he/she is authorized to claim this exemption ... I/we acknowledge that I/we may be subject to a fine not exceeding $5,000.00 and imprisonment of not more than two years for any false statement that I/we make on this form." 3 11. Based on the information provided bV Ward, the Bureau of Motor Vehicles of the Pennsylvania Department of Transportation erroneously issued Municipal Government plate MG-6104E to Ward for use on the Ford vehicle. 12. On November 18, 2010, Ward bought a 1997 Chevrolet Tahoe from Bobby Rahal Honda for $6,200.00. Ward signed the Certificate of Title for a Vehicle, block D. (Application for Title and Lien Information) J. Michael Ward. 13. At the same time, Ward, acting on his own volition, chose to file with the Department of Transportation, Bureau of Motor Vehicles Form MV-4 (03/01) Block B Reassignment of Title by Registered Dealer, which listed the Silver Spring Township Constables Office, 15 Wheatland Drive, Mechanicsburg, PA 17050 as the purchaser or business name. This address is Ward's home address. The purchaser signature block was signed J. Michael Ward. 14. Ward also filed an MV-4ST (4-10) form with the Bureau of Motor Vehicles requesting a sales tax exemption for the purchase of this vehicle. The exemption listed on the form was again Number 18 "Municipal Authority created under the Municipal Authority Act of 1935/1945." 15. Based on information provided by Ward, the Bureau of Motor Vehicles of the Pennsylvania Department of Transportation erroneously allowed the transfer of municipal government plate MG-6104E to Ward for use on the Chevrolet Tahoe vehicle. 16. Neither Ward's Ford Crown Victoria or Chevrolet Tahoe would qualify as an "emergency vehicle" under the provisions of 75 Pa.C.S.A. §102. 17. The use of a municipal government registration plate on Ward's vehicle does not in any demonstrable way enhance Ward's safety as an elected constable. 4 CONCLUSIONS OF LAW 1. The "Silver Spring Township Constables (sic) Office" and/or the "Silver Spring Township, State Constable Office" is not a political sub-division, a state or local authority, or "the Commonwealth." 2. J. Michael Ward, as an elected constable, is not eligible for a municipal government license plate or any titling or registration fee exemption under the Pennsylvania Vehicle Code. DISCUSSION This case brings to mind the oft used quote "Oh how the mighty have fallen." When examining this dispute, one finds that it has little to do with the payment of a $36.00 vehicle registration fee. This case has everything to do with what Constables perceive as their rightful status in the realm of Pennsylvania law enforcement. A. The Role Of Constables In Law Enforcement Appellant Ward, in his brief, has included a very interesting history of how the position of Constable evolved. Indeed, it can be said that in medieval France the Constable of France was the first officer of the crown of France and was responsible for commanding the Army. Shakespeare makes reference to such a Constable in his play Henry V which describes the English victory at the battle of Agincourt in 1415. In England, following the Norman Conquest in 1066, a Constable was the person responsible for keeping and maintaining the king's arms in order to protect individual settlements throughout the country. By the reign of King Stephen (1135 - 1154) a Lord High Constable was appointed as one of the great officers of state and responsible for 5 command of the army. The jurist Bracton writing between 1220 and 1250 described the role of the common constable as follows: In whatever way they come and on whatever day, it is the duty of the Constable to enroll everything in order, for he has record as to the things he sees; but he cannot judge, because there is no judgment at the Tower, since there the third element of a judicial proceeding is lacking, namely a judge and jurisdiction. He has record as to matters of fact, but not matters of judgment and law. Bracton On Laws and Customs of England The position of Constable was brought to colonial Pennsylvania and in those times played an important role in law enforcement. However, as the Appellant points out in his brief, "the Constable's long standing status as the primary law enforcement officers at the local level were supplanted by the development of organized police departments."' Consequently, the current definition of Constable used in Black's Law Dictionary is appropriate. A Constable is "a peace officer responsible for minor judicial duties, such as serving writs and warrants..." Black's Law Dictionary 329 (8th Edition 2004). It is not disputed that constables have some law enforcement powers based in common law. They do serve an important role in the minor judicial system, especially at the magisterial district judge level. However, one must also recognize that there is a vast difference between constables and more traditional police officers, such as the state police, municipal police, and sheriffs. This Court takes judicial notice of the public records which indicate that Pennsylvania State Police undergo a basic training program consisting of 1,170 hours. Municipal Police Officers trained under the Municipal Police Officers Education and ' Appellant's Brief, page 8. 6 Training Commission undergo 754 hours of basic training. Deputy Sheriffs who are trained under the auspices of the Deputy Sheriff Education and Training Board have a basic training program consisting of 760 hours. Constables, on the other hand, undergo a basic training program of 80 hours which is administered by the Constables Education and Training Board. While recognizing these differences, the training status of constables does not dictate the result in this case. B. A Constable Is Not A Political Sub-Division The Pennsylvania state police, agents of the Office of Attorney General, county sheriffs, county detectives and municipal police all have municipal government registration plates on their vehicles. Appellant Ward argues that since he has law enforcement powers, he should be afforded the same type of registration plate as all other law enforcement agencies in the state, and be exempt from any titling or registration fee. Unfortunately, for Ward, all of those other agencies are directly tied to the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth of Pennsylvania (i.e., a county, township, or borough). Ward attempts to solve this dilemma by creation of a fictional "political subdivision" called the "Silver Spring Township State Constable Office." One need only examine the caption of this case, formulated by Appellant Ward, to comprehend the underpinnings of his argument. Ward attempts to elevate his status as an elected official to that of a political subdivision by use of the term "Silver Spring Township State Constable Office." Use of this term is exactly what led to the error in registration of Ward's vehicles in the first place. It is clear that when the Bureau of 7 Motor Vehicles saw the documents bearing the name Silver Spring Township first, it was presumed that the registration was being made on behalf of Silver Spring Township. There is little doubt that if Silver Spring Township as a municipal corporation chose to provide Ward with a vehicle, it could do so and that such a vehicle would bear a Municipal Government (MG) registration plate. However, given an analysis of the case law regarding constables which has clearly found them to be independent contractors, it is highly unlikely that Silver Spring Township would ever do such a thing. What does control are the appellate court decisions of this Commonwealth which have explicitly stated that constables are not governmental or quasi-governmental entities. The courts have repeatedly identified constables as private contractors. A constable is a peace officer and belongs "analytically to the executive branch of the government." In re Act 147 of 1990, 582 Pa. 460, 463, 598 A.2d 985, 986-7 (1990); citing Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983). However, a constable does not act for or under the control of the Commonwealth. Id. A constable is not an employee of the state, judiciary, county or municipality in which he works. Id. A constable is an independent contractor. Id. Mr. Ward is a constable; consequently, he is not an exempt governmental or quasi-governmental entity, and his vehicle is not exempt from the cost of registration. A comparison to the Cumberland County Sheriff's Office is enlightening in this matter. As pointed out in Black's Law Dictionary, a constable is "a peace officer responsible for minor judicial duties, such as serving writs and warrants, but with less authority and smaller jurisdiction than a sheriff." (Emphasis added) Black's Law 8 Dictionary 329 (8th Edition 2004). The Sheriff of Cumberland County is a statutorily created elected office. 16 Pa. C.S.A. §401(10). The current Sheriff of Cumberland County received a certificate of election identical to the one presented to Ward (Petitioner's Exhibit C-6) which states that Ronny R. Anderson "was duly elected to the office of Sheriff, Cumberland County." However, unlike Ward's vehicle, an examination of the public records regarding the registration of the Sheriff's vehicle lists the owner of the vehicle as "County of Cumberland." Note that the vehicle is not titled in the name of the "Cumberland County Sheriff's Office." Similarly, for the purposes of this discussion, one might consider the Office of County District Attorney. Pursuant to the Commonwealth's Attorney's Act, "the District Attorney shall be the chief law enforcement officer for the county in which he is elected." 71 Pa.C.S.A. §732-206(a). There is no question that the elected District Attorney of each county uses a vehicle in his work as chief law enforcement officer. He or she attends hearings, supervises electronic wire-taps at wire-tap facilities, goes to and personally views serious crime scenes, and often is present at the site where important search warrants are executed, etc. Again, the District Attorney of Cumberland County, for example, receives a certificate of election identical to the one presented to Ward. The Court takes judicial notice that some counties have provided their elected District Attorney with a government vehicle which is registered in the name of the county. However, most elected District Attorneys utilize their personal vehicle for their work, pay for the vehicle, and have a personal registration license plate on the vehicle. The district attorney of Cumberland County does not hold himself out to be a political sub- division called the "Cumberland County, District Attorney Office." 9 In creating the fiction that the "office of Constable, Silver Spring Township" was a political subdivision, even Ward was confused. On his MV-4ST(4-10) for the Chevrolet Tahoe and the MV-4ST(5-00) for the Ford Crown Victoria requesting exemption from payment of sales tax, Ward listed the exemption reason code as "18." Code 18 refers to a municipal authority created under the Municipal Authority Act of 1935/1945. Even a cursory examination of these acts and their successor legislation found at 53 Pa.C.S.A. §5601 et. seq., makes it clear that the tax exemption addressed at 18" relates to Municipal Authorities. "Authority" is defined as a "body politic and corporate created under this chapter; under the former act of June 28, 1935 (P.L. 463, No. 191), known as the Municipal Authorities Act of 1935; or under the act of May 2, 1945 (P.L. 382, No. 164), known as the Municipal Authorities Act of 1945." 53 Pa.C.S.A. §5602. The purposes and powers of municipal authorities "shall be for the purposes of financing working capitals; acquiring, holding, constructing, financing, improving, maintaining and operating, owning or leasing, ...projects of the kind enumerated in this statute." 53 Pa.C.S.A. §5607. Generally, these authorities are responsible for acquiring equipment, buildings, transportation, parks and recreation facilities, sewers, collection and removal of refuse, incinerator plants and waterworks, etc. There is absolutely no doubt in this Court's mind that a constable is not a municipal authority. Accordingly, it was erroneous for Ward to use this code to exempt himself from paying sales tax. Even more interesting is the fact that according to Section A of Ward's brief, his primary argument is that he is entitled to a fee exemption because his "office" is a political sub-division. This claim, however, is belied by the fact that when one examines the two MV-MST forms filed by Ward to claim his exemption, he never used exemption 10 reason code 17" which is found directly above the code he did use which specifically lists "Political subdivision of the Commonwealth." Using Ward's reasoning for example, a second class township tax collector or auditor of Silver Spring Township who is elected in the same manner as the constable for Silver Spring Township could claim they are the Silver Spring Township Auditor Office or Silver Spring Township Tax Collector Office. Thus they too, as a "political sub-division," would be entitled to a free municipal government plate. Again, if Silver Spring Township chose to purchase a vehicle for use by these elected officials then a municipal government plate would be appropriate. The speciousness of Ward's argument may be highlighted by the proposition that this Court could proclaim itself the "Cumberland County Court of Common Pleas Judge Office" and thereby be entitled to a municipal government plate for my personal car. As appellant correctly points out in his brief, "an administrative agency's interpretation of its own regulations is entitled to controlling weight" and should not be disregarded unless it is shown to be "plainly erroneous or inconsistent with the regulation." Jackson v. The Pennsylvania Public Utility Commission, 522 A.2d 1187, 1189 (Pa. Cmwlth. 1987). Given our determination that a constable is not a political sub-division, the Department's interpretation that a constable is not entitled to a fee exemption is the correct interpretation and will be given deference. As pointed out by the Department, numerous categories of vehicles and entities have been exempted from title and registration fees or provided reduced rate processing fees. Clearly, the legislature did not choose to include constables in these exemptions. 11 C. The Doctrine of Equitable Estoppel Is Not Applicable In This Case. Ward asserts that the Department of Transportation is equitably estopped from taking back the MG license plate which was erroneously issued to him and for requiring him to pay the registration fee for the Chevrolet Tahoe he now owns. Equitable estoppel, a doctrine sounding in equity recognizes that an informal promise - applied by one's words, deeds, or representations - that leads another to rely justifiably thereon to his own injury or detriment may be enforced in equity. See, Novelty Knitting Mills, Inc. v. Siskind, 457 A.2d 502 (Pa. 1983). The two essential elements of equitable estoppel are inducement and justifiable reliance on that inducement. It is well-established ... that the burden rests on the party asserting the estoppel to establish such estoppel by clear, precise and unequivocal evidence. !d. at 504. In this case, Ward has not established by clear, precise and unequivocal evidence that he was "somehow induced" to apply for a municipal government registration plate. This Court finds as fact that it was Ward who provided the Department of Transportation with the information entered in block C of the form found in Commonwealth Exhibit 1, page number 7, ("Silver Spring Twp Constables Office") when he purchased his first vehicle. As is often stated, circumstantial evidence may be used to establish the existence of any fact. This Court finds that Ward is the one who initially supplied the information that led others to identify him as the "Silver Spring Township Constable Office". It is highly unlikely that any car salesman or PennDOT official would have recognized J. Michael Ward as a constable for Silver Spring Township. This is not to belittle Constable Ward, but to point out that the idea of calling oneself the "Silver 12 Spring Township Constables Office," definitely originated with Ward. Whether such identification was intentional or unintentional, it led to a mistake by the Department of Transportation. Furthermore, this Court finds that Ward did not rely upon obtaining a municipal government registration plate before he outfitted his personal vehicle to be a "police vehicle". Again, it is clear that Ward wanted to have all the accoutrements of a municipal police department patrol vehicle. It is reasonable to believe that Ward believes that all of this police equipment - the cage, magnetic identification stars, computer, etc., is essential to him performing his duties as a township constable. Given this belief he would have purchased these things even if he would have had to pay the $36.00 fee for a registration plate. As pointed out by the Commonwealth, the Department of Transportation is not seeking payment for any of the past registration fees from 2009, 2010 and 2011. They simply want him to pay the $36.00 to register his Chevrolet Tahoe this year and in the future. If anything, the Department's actions of mistakenly exempting Ward gave him the benefit of not paying a registration fee for several years. The Department made a mistake based on information supplied or implied by Ward. Equitable estoppel is an equitable remedy and it is not intended to perpetuate mistakes or to bar parties from correcting mistakes. In short, the doctrine has no application in this case. D. There Is No Constitutional Bar to Ward Paying His Vehicle Registration Fee. While this Court admires the creative advocacy of Ward's counsel, the short answer to this issue is that an administrative mistake based on misinformation supplied 13 or implied by Ward does not create a constitutional right. The $36.00 vehicle registration fee, as noted at trial, is paid by a vast majority of the constables elected in this state. This argument might have greater merit if, for example, the legislature had granted constables a statutory exemption from registration fees and then during Ward's six year term of office they revoked the exemption. See Stilp v. Com., 905 A.2d 918 (Pa. 2006). Obviously this is not the situation presented by this case. Ward, not being a political subdivision or municipal authority, was simply not entitled to any titling or registration fee exemption or eligible for a municipal government license plate. Never having been eligible, he cannot now say that an administrative mistake gave birth to a constitutional right. E. Use Of A Municipal Government Reaistration Plate Does Not Enhance Ward's Safety. Generally, Ward testified that he had large magnetic signs on the side of his vehicle identifying him as a state constable and that anyone looking at the vehicle's interior would know it is a police type vehicle. However, he claims that the municipal government license plate is necessary to identify the vehicle as a law enforcement vehicle to other police officers. He also testified that sometimes he doesn't want people to immediately identify him as a constable and therefore removes the magnetic constable identification stars. This Court, before being elected to the position of judge, served as the Director of the Bureau of Criminal Investigation for the Pennsylvania Attorney General's Office in the early 1990's. Interestingly, that Bureau spent a good deal of time insuring that its law enforcement agent vehicles were equipped with "confidential plates". These are 14 plates which make no reference to being a state or municipal government vehicle and look like every other citizen's license plate. License plates do not make law enforcement officials safe. What does make them safe is the simple act of coordinating their law enforcement activities with the local police before they actually perform them. This is very simple to do with either a radio call or cell phone call to the local municipal police department, the State Police, or the county 911 center. In any regard, this Court finds that payment of a $36.00 vehicle registration fee and the display of a standard citizen vehicle registration plate on Ward's vehicle will have no effect on Constable Ward's safety in any demonstrable way. CONCLUSION Neither the "Silver Spring Township Constables (sic) Office" or the "Silver Spring Township, State Constable Office" is a political sub-division, state or local authority, or "the Commonwealth". J. Michael Ward, as an elected constable, is not eligible for a municipal government license plate or any titling or registration fee exemption under the Pennsylvania Vehicle Code. ORDER OF COURT AND NOW, this 11th day of July, 2012, upon consideration of J. Michael Ward's Appeal of Auto Registration Suspension, the briefs filed by the parties, and after hearing, 15 IT IS HEREBY ORDERED AND DIRECTED that J. Michael Ward's Appeal of Suspension of Automobile Registration is DENIED. By the Court, M. L. Ebert, Jr., J. Philip M. Intrieri, Esquire Attorney for Appellant Philip Bricknell, Esquire Attorney for Dept. of Transportation 16 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE, HON. J. MICHAEL WARD Vs. COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION 2011-7702 CIVIL TERM 1452 CD 2012 The documents comprising the record have been numbered from No. 1 to 121, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 8/24/2012. Da id D. B ell, rothonotary Alma Kostjerevac, Deputy An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania ti5: County of Cumberland I, David D. Buell ,Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE. HON. J. MICHAEL 1VARD Plaintiff, and COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION Defendant, as the same remains of record before the ;aid Court at No. 2011-7702 of Civil Term./152 CD 20/2 In TESTIMONY WHEREOF, I have hereunto set my hand nd affixed the seal of said Court this 24th day of t August A. D., 2012 1 Prothonntan~ I, Kevin A. Hess President .lodge of the Ninth .ludicial District, composed of the County of Cumberland, do certify that - David D. Buell by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time ofso doing, and now is Prothonotary in and for said County of- Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts ofjudicature as elsewhere, and at the said record, certificate and attestation are in due form of law and made by~ proper offieer,.~ Prc,idcnt .IuJEc Cnmrnonwealth of Pennsylvania / County of Cumberland ss: I David D. Buell Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A. Hess by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit arc and ought to be given, as well in Courts of iurlirtture as elsewhere. tN IESI'IMONY WHEREOF, I have hereunto set my ~ nd and affixed the seal of said Court this 24 of August ,q•p. 2012 Prcrlhnnol:vl No. Term 19- No. 2011-7702 CIVIL TERM CIVIL TeI'lIl 1452 CD 2012 SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE, HON. J. MICHAEL WARD Versus COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION EXEMPI,1FIEll RECORD From Cumberland Count Y Debt, $ [nt. from Costs Entered and Filed Prothonotary. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland county c'~ in the Commonwealth of Pennsylvania 2011-7702 CIVIL TERM to No. 1452 CD 2012 Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE, HON. J. MICHAEL WARD VS. COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION **SEE CERTIFIED COPY OF DOCKET ENTERIES** Civil Case~Print ,2Q11-07702 SILVER SPR11vG TOWNSHIP (vs) PENNSYLVANIA _OMMONWEALTH OF Reference No. Filed......... Case Ty e...... CIVIL APPEALS - AGENCI Time. ... Judgmen~..... .00 Execution Date Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. ------------ Case Comments -------------- Higher Crt 1.: Higher Crt 2.: ~ __ _ 101/11/2011 10:43 Oi/00/0000 0/00/0000 1452 CD 2012 General Index Attorney Info SILVER SPRING TOWNSHIP STATE PLAINTIFF INTRIERI PHILIP M CONSTABLE OFFICE 15 WHEATLAND DRIVE MECHANICSBURG PA 17050 WARD MICHAEL J HONORABLE PLAINTIFF INTRIERI PHILIP M 15 WHEATLAND DRIVE MECHANICSBURG PA 17050 PENNSYLVANIA COMMONWEALTH OF DEFENDANT DEPARTMENT OF TRANSPORTATION 1101 SOUTH FRONT STREET 3RD FLOOR HARRISBURG PA 17104 2516 ******** * Date Entries Iba - FIRST ENTRY - -~f 10/11/2011 APPEAL FROM VEHICLE REGISTRATION SUSPENSION - BY PHILIP M I ATTY FOR APPELLANT ----------------------------------------------------------- ~ 10/14/2011 ORDER SCHEDULING HEARING ON APPEAL - 10/14/11 - IN RE; HEAR APPEAL 12/14/11 @ 11:00 AM IN CR 2 CUMB CO COURTHOUSE - THE OF THIS APPEAL SHALL ACT AS A SUPERSEDEAS ANT THE SUSPENSIO NOT BE IMPOSED UNTIL DETERMINATION OF THE MATTER - BY THE C L EBERT JR J - COPIES MAILED 10/14/11 ----------------------------------------------------------- ~2 12/19/2011 ORDER OF COURT - 12/14/11 - IN RE: ORDERED THAT THE PARTIES SUBMIT BRIEFS TO THE COURT ON OR BEFORE 1/20/12 - FURTHER 0 THAT EACH PARTY SHALL BE GIVEN UNTIL 2/3 12 TO FILE A RESPO BRIEF IF THEY DESIRE - BY THE COURT M L BERT JR J - COPIES MAILED 12/19/11 ----------------------------------------------------------- 13- 5 6 4/12/2012 APPEALRIPI2/14%RO2EEDBEFORENHONORABLENM ~NEBERTSJR JION SUS ----------------------------------------------------------- ~-7 °j 7/12/2012 OPINION AND ORDER OF COURT - 7/11/12 - IN RE: ORDERED THAT . OF SUSPENSION OF AUTOMOBILE REGISTRATION IS DENIED - BY THE M L EBERT JR J - COPIES MAILED 7/12/12 ----------------------------------------------------------- ~j~(-'')g 7/30/2012 FORIPLF~FCONSTABLEOWARDMONWEALTH COURT - BY PHILIP M INTRIE: ----------------------------------------------------------- <jS 7/30/2012 ORDER FOR TRANSCRIPT - BY PHILIP M INTRIERI ATTY FOR PLFF ----------------------------------------------------------- 7/31/2012 ORDER OF COURT - DATED JULY 31, 2012 - THE COURT BEING IN R: OF A NOTICE OF APPEAL IN THE ABOVE CAPTIONED MATTER IT IS HEREBY ORDERED AND DIRECTED THAT 1 APPELLANT FILE A CONCISE STATEMENT OF ERRORS COMPLAINED ~ APPEAL ON OR BEFORE AUGUST 22, 2012 2 THE STATEMENT SHALL BE FILED OF RECORD 3 THE STATE SHALL BE SERVED ON THIS COURT PURSUANT TO PA R RULE 1925 (B} (1) IT IS FURTHER ORDERED AND DIRECTED THAT ANY ISSUE NOT P] INCLUDED IN THE STATEMENT SHALL BE DEEMED WAIVED BY THE COURT M L EBERT JR COPIES MAILED 8/1/2012 ~t9-8~ 8/07/2012 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1452 3_~p~ 8/07/2012 STATEMENT OF MATTERS COMPLAINED OF ON APPEAL RULE 1925 B 1 TRIERI NG ON FILING SHALL URT M SHALL DERED SIVE ENSIGN PPEAL COURT I ATTY ;CEIPT >F ON A P '.OPERLY D 2012 -BY---- r i V-»-.i L, UtIIAICl 1Q11U I.,V Ull 1. V r. v1, 11V11V L0.1 y ~ .`~ V111C.:C iF 0.LlC G Civic Case '?r_nt 2011-07702 SILVER SPR~1~G TOWNSHIP (vs) :'ENNSYLVANIA _OMMONWEALTH OF Reference No. Filed......... 10'/11/2011 Case Tyyppe.....: CIVIL APPEALS - AGENCI Time........ 10:43 Judgmenf...... .00 Execution Date 0',/00/0000 Jud e Assi ned: EBERT M L JR Jur Trial.... D Disposed DescCase Comments ------------- HigheredrDale: 145 00/0000 C 2012 Higher Crt 2.: PHILIP M INTRIERI ATTY FOR APPELLANT ------------------------------------------------------------------- ~QZ-~QQ 8/21/2012 IN RE OPINION PURSUANT TO PA RAP 1925A DATED 8-21-12 - BY T E COURT M L EBERT JR J- COPIES MAILED 8-21-12 ----------------------------------------------------------- ------- 8/23/2012 NOTICE OF DOCKET ENTRIES MAILED TO PHILIP M INTRIERI ESQ PH LIP BRICKNELL ESQ /.~J - - - - _ _ ~ ~Y - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - *************`~h* 6r ~-S ************************************************ ******** * Escrow Information * Fees & Debits Be~ Bal Pmts/Ad~ End Bal ******************************** ******** ****** ********************** ******** APPEAL VEH REG 55.00 55.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 23.50 23.50 .00 APPEAL HIGH CT 57.00 ----------- 57.00 .00 --- 149.00 ---------- --- 149.00 --------- ,00 * End of Case Information *********************************************************************** ******** TRUE COPY FROM RECORD In Testimony whereof, I here unto aet my hand and the al of said at Carlisle, Pa. This day at (~~~ ~~_.__. 20 / 2 `~ Prothonotary ~ ~~ ~~ l CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland w the said court being a court of record, do hereby certify that annexed hereto is a &~e correct copy of the whole and entire record, including an opinion of the court as r~qui by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcrip~if proceedings, if any, and the docket entries in the following matter: ~~ .~ -~- ,.: ~ 3 `" 7 f'r'i ~~ . [_" SILVER SPRING TOWNSHIP, STATE CONSTABLE OFFICE, u' HON. J. MICHAEL WARD Vs. COMM. OF PENNSYLVANIA DEPT. OF TRANSPORTATION 2011-7702 CIVIL TERM 1452 CD 2012 The documents comprising the record have been numbered from No. 1 to 121, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the n `" of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 8/24/2012. Date Da id D. B ell, rothonotary Alma Kostjerevac, Deputy Signature & Title Commonbjealtb Court of Vennoptbania Kristen W.Brown Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue,Suite 2100 Michael Krimmel,Esq. P.O.Box 69185 Chief Clerk of Commonwealth Court Harrisburg,PA 17106-9185 July 24, 2013 www.pacourts.us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: David D. Buell Prothonotary RE: Silver Spring Township et al v. DOT 1452 CD 2012 Trial Court: Cumber dl nana CountyLCourt-of-Comm(yn- leas Trial Court Docket No: No. 11-7702 CIVIL Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description trial court record August 27, 2012 1 Remand/Remittal Date: ORIGINAL RECIPIENT ONLY- Please acknowledge receipt by signing,dating,and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Common Court Filing Office f.w rn CO Fri �`, C") S ` C 1 t"t�., r CD +�r Silver Spring Township et al v. DOT July 24, 2013 1452 CD 2012 Letter to: Buell, David D. Acknowledgement of Certificate of Remittal/Remand of Record(to be returned): Signature Date Printed Name IN THE COMMONWEALTH COURT OF PENNSYLVANIA Silver Spring Township State Constable Office, Hon. J. Michael Ward, Appellant No. 1452 C.D. 2012 V. Submitted: December 28, 2012 Commonwealth of Pennsylvania, Department of Transportation, rn Bureau of Motor Vehicles z car+ 0' BEFORE: HONORABLE DAN PELLEGRINI, President Judge '. ,k HONORABLE ROBERT SIMPSON, Judge : HONORABLE JAMES GARDNER COLINS, Senior Judge < OPINION BY SENIOR JUDGE COLINS FILED: April 18, 2013 Appellant J. Michael Ward, the elected Constable of Silver Spring Township, Cumberland County, Pennsylvania, appeals from the order of the Cumberland County Court of Common Pleas (trial court), which affirmed the suspension of Constable Ward's automobile registration by the Department of Transportation, Bureau of Motor Vehicles (DOT). The issues before us on appeal are whether an elected constable is exempt under the Vehicle Code' from paying DOT a $36.00 registration fee to receive a license plate and whether he is entitled to a municipal license plate. For the reasons set forth below, we affirm. The material facts do not appear to be in dispute. (Appellant Br. at 6.) Constable Ward was appointed by Cumberland County Court of Common Pleas President Judge Edgar B. Bayley to serve as constable in Silver Spring Township ' 75 Pa. C.S. H 101-9805. J on November 13, 2008, to fill a vacancy in that office. (Trial Ct. Findings of Fact (F.F.) ¶3.) Constable Ward was later elected on November 3, 2009, and began serving his six-year term on January 4, 2010. (F.F. ¶¶4-5.) On February 9, 2009, Constable Ward had purchased a Ford Crown Victoria. To complete the vehicle registration, Constable Ward filled out a DOT Form MV-4ST, identifying the "purchaser" of the vehicle as "Silver Spring Township Constables Office" and thereby registering the vehicle in that name. (F.F. ¶¶5-7; Feb. 9, 2009 DOT Form, Reproduced Record (R.R.) at Ia.) He listed his home address on the form and signed the form in his own name, without identifying his office. (F.F. ¶¶7, 10.) A handwritten notation on the Form claims a sales tax exemption under code number "18" and also states "Municipal Tag Free." (F.F. ¶8.) Code number 18 corresponds to the sales tax exemption for "Municipal Authority created under the Municipal Authority Act of 1935/1945." (F.F. ¶9.) There is no finding regarding whether Constable Ward or DOT personnel made these handwritten notes. The trial court found that, "based on information provided by Ward," DOT erroneously issued a Municipal Government (MG) plate to Ward for use on the Ford Crown Victoria. (F.F. ¶11.) DOT did not collect the $36.00 registration fee from Constable Ward for the Ford Crown Victoria in 2009. On November 18, 2010, Constable Ward purchased a 1997 Chevrolet Tahoe and filled out another DOT Form MV-4ST, identifying the purchaser as the "Silverspring Twp. Constables Office" and requesting a sales tax exemption under code number 18, corresponding to the exemption for municipal authorities. (F.F. ¶¶12-14; Nov. 18, 2010 DOT Form, R.R. at 4.) The trial court found that, "based on information provided by Ward," DOT erroneously allowed Ward to transfer his MG-plate from the Ford to the Chevrolet Tahoe. (F.F. ¶15.) DOT did not collect the $36.00 registration fee from Constable Ward for the Chevrolet Tahoe in 2010. 2 The vehicle registration credential that DOT provided to Ward identifies "Silverspring Twp. Constables Office" as the registrant at Ward's home address and indicates that the registration is permanent and does not expire. (R.R. at 5a.) On September 13, 2011, DOT sent an "Official Notice of Suspension" to the "Silver Spring Township Constables Office" suspending indefinitely the registration for the 1997 Chevrolet Tahoe. (Supplemental Reproduced Record (S.R.R.) at 10b.) DOT wrote that the MG-plate "was issued in error. . . . More specifically, the above registration was issued to your vehicle without payment of the required fees." (Id.) DOT cited Section 1373(b)(2) of the Vehicle Code, which provides, "The Department may suspend a registration without providing the opportunity for a hearing in any of the following cases: . . . (2) The required fees have not been paid." (Id.) See 75 Pa. C.S. § 1373. Constable Ward timely appealed the suspension to the trial court, which conducted a hearing on December 14, 2011. At the hearing, DOT met its burden to prove the suspension of Constable Ward's vehicle registration was proper by introducing into evidence certified copies of the various registration documents showing that the Chevrolet Tahoe was registered to a constable and that no registration fee had been paid. (Hearing Transcript (H.T.) at 8, S.R.R. at 21b.) There was no objection to admissibility of the Township's exhibits. From there, DOT rested on its legal argument that a constable does not meet any of the statutory fee exemptions. Constable Ward testified on his own behalf, explaining the nature of his duties as constable and how he registered what he considered his service vehicles. Constable Ward testified that, relying on having received the MG-plate, he purchased various police accoutrement to make it appear that his Chevrolet Tahoe was a service vehicle, like a cage for the backseat, bars on the windows, a computer stand for the front seat, and magnetic stars to place on the 3 outside of the vehicle. (H.T. at 37-38, S.R.R. at 50b-51b.) He explained that the funds used to purchase the vehicles and the equipment that he installed came out of the statutory fees that he is paid for his official duties and that the equipment enabled him to perform some of his duties, like enforcing warrants and transporting prisoners. (H.T. at 31, S.R.R. at 44b.) He testified that if his vehicle were not properly outfitted with the equipment he purchased, he thought it likely that the court of common pleas would no longer engage him to perform those duties. (H.T. at 39, S.R.R. at 52b.) Finally, he testified that he used the Chevrolet Tahoe only for official constable business and did not use it for any type of family or personal use. (H.T. at 37, S.R.R. at 50b.) DOT offered no rebuttal witnesses. The trial court issued an opinion and order on July 11, 2012, denying Constable Ward's appeal of DOT's suspension of his vehicle registration. The trial court reasoned that the office of constable does not meet any of the exemptions for the registration fee found at Section 1901 of the Vehicle Code, 75 Pa. C.S. § 1901, and that DOT had issued the MG license plate in error.2 The trial court also rejected Constable Ward's equitable estoppel argument. Constable Ward argued that DOT was equitably estopped from revoking the registration because he had taken several acts in reliance on the issuance of the municipal license plate, including the expenditures he made to outfit his vehicle. The trial court found, as a factual matter, that Constable Ward did not rely on obtaining an MG plate before he outfitted his vehicle as "a police vehicle." (Trial Ct. Op. at 13.) The trial court noted that Constable Ward testified that he considered the equipment necessary to perform his duties as constable and, as a result, he would have made the purchases 2 On appeal, Constable Ward concedes that, absent estoppel, DOT has the authority to correct an error if, in fact,one was made. (Constable Reply Br. at 1.) See also 75 Pa. C.S. § 1373. 4 even had DOT not erred in waiving the registration fee and issuing him a municipal license plate. (M) The trial court also noted that DOT was not seeking past registration fees, only that Constable Ward pay the fee going forward. (Id.) Finally, the trial court rejected Constable Ward's "creative" argument that the registration fee waiver was an emolument of the position of constable that, constitutionally, could not be revoked. Constable Ward timely appealed to this Court, where he raises several issues. First, he argues that the trial court erred in deciding that a constable is not part of the political subdivision of Silver Spring Township such that the position qualifies for an exemption from the registration fee and a municipal license plate. Second, he argues that the trial court erred in deciding that the fee exemption is not a constitutionally-protected emolument of office. And third, he argues that the trial court erred in denying his equitable estoppel claim.3 The Vehicle Code provides that no person shall knowingly drive a vehicle that is not registered in the Commonwealth unless the vehicle is exempt from registration. 75 Pa. C.S. § 1301(a). DOT issues license plates, including municipal plates, pursuant to 75 Pa. C.S. § 1331, titled "Issuance and reissuance of registration plates." The Vehicle Code lists those entities that are exempt from the requirement to pay a fee for registration: (a) Governmental and quasi-governmental entities.— Except as otherwise specifically provided in this title, no fees shall be charged under this title to any of the following: 3 Our scope of review is limited to determining whether the trial court's findings are supported by competent evidence, whether errors of law have been committed, or whether the trial court's determinations demonstrate a manifest abuse of discretion. Finnegan v. Department Of Transportation, Bureau of Driver Licensing, 844 A.2d 645 (Pa. Cmwlth. 2004). 5 (1) The Commonwealth. (2) Political subdivisions. (3) State and local authorities. (4) State-related institutions of higher learning. (5) The Federal Government. (6) Other states. 75 Pa. C.S. § 1901(a). The issue before us, which is an issue of first impression, is whether a constable is a governmental or quasi-governmental entity under Section 1901(a) of the Vehicle Code that qualifies for an exemption from the vehicle registration fee. Constable Ward's briefs to this Court and the court below provide an interesting and fulsome history of the constable position, dating back to medieval France, when, we are told, the constable was the first officer to the crown and was responsible for commanding the army. (Trial Ct. Op. at 5.) Although interesting, the history of the constable position is largely irrelevant. Today, in Pennsylvania, the constable is a creature of statute and, perhaps, some remnant common law powers that are not at issue here. See 44 Pa. C.S. §§ 7101-7178, Act 2009-49, Oct. 9, P.L. 494, No. 49 (effective Dec. 8, 2009). The scope of a constable's duties and authority, and the fees he may collect, are all prescribed by the statute. See 44 Pa. C.S. § 7161. The statute authorizes cities of the second and third class,, boroughs, and townships to conduct elections in each ward to fill the office of constable. 44 Pa. C.S. §§ 7112, 7113, 7114. When a vacancy occurs in the office of constable, the court of common pleas of the county of the vacancy shall appoint a constable for the remainder of the term. 44 Pa. C.S. § 7121. The statute creates a statewide Constables' Education and Training Board and directs the creation of a training 6 program, requiring that constables must obtain a certificate thereunder as a prerequisite for performing any duties or receiving any fees. 44 Pa. C.S. §§ 7142- 7144. Constables must carry their own professional liability insurance. 44 Pa. C.S. § 7142(b). The statute expressly provides that a county shall not be liable for the acts of a constable through the doctrine of respondeat superior. 44 Pa. C.S. § 7142(e). We find that a constable is not a governmental or quasi-governmental entity under the Vehicle Code and, consequently, that a constable is not exempt from paying the $36.00 vehicle registration fee. Constable Ward contends he is exempt from the fee because his office is part of the political subdivision of Silver Spring Township. There is no question that Silver Spring Township, if it were to purchase and register vehicles for official use, would qualify for the fee exemption and municipal license plates. 75 Pa. C.S. § 1901(a)(2). However, a constable, created by statute, has no authority whatsoever under that statute to act on behalf of the government unit in which he works. The statutory provisions recited above make clear that the General Assembly did not grant a constable that authority and, in fact, it intended quite the opposite by expressly providing that the county in which a constable works shall not be liable through respondeat superior for the acts of a constable. The facts here show that Constable Ward purchased his Chevrolet Tahoe, the vehicle he uses to discharge his duties as constable, on his own, without express authorization or permission from the Township. He determined, on his own, that the vehicle was necessary for his job, and he determined, on his own, that he would maintain the vehicle solely for work and would not drive it for family or personal use. In short, he had no authority to register a vehicle on behalf of the political subdivision in which he works and, as a 7 result, he is not eligible for a registration fee exemption for governmental and quasi-governmental entities. Although no court has addressed the specific issue before us, there is precedent regarding the status of constables in our government that supports our holding. Our Supreme Court has held that a constable is a peace officer and belongs "analytically to the executive branch of the government." In re Act 147 of 1990, 528 Pa. 460, 463, 598 A.2d 985, 986-87 (1990). However, the Court has also held that a constable does not act for or under the control of the Commonwealth or a political subdivision. Id. A constable is not an employee of the state, judiciary, county, or municipality in which he or she works. Id. A constable is an independent contractor. Id. In Commonwealth v. Roose, the Superior Court vacated a defendant's conviction for driving under the influence of alcohol because he had been pulled over and arrested by a constable, who is not authorized to take such action. 690 A.2d 268, 269 (Pa. Super. 1997). In distinguishing the office of constable from other law enforcement officers, the Superior Court wrote: Constables and deputy constables are not employees of any municipal subdivision as police and sheriffs are. They are not paid a salary by any municipal subdivision but rather are independent contractors whose pay is on a per job basis. . . . As independent contractors, they are not acting for or under the control of the Commonwealth and cannot be considered Commonwealth employees in order to receive legal representation when sued in connection with their duties. Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983). No one supervises constables in the way a police chief supervises police officers or a sheriff supervises deputies. No municipality is responsible for their actions in the way a city, borough, or township is responsible for its police or a county is responsible for its sheriffs office. In fact, our supreme court has found unconstitutional legislation which 8 e attempted to place constables under the supervisory authority of the courts. In re Act 147 of 1990, 528 Pa. 460, 598 A.2d 985 (1991). Id. at 269. In discussing the public safety concerns posed by a constable who decides to make unauthorized arrests, the Superior Court continued: For example, is a citizen required to stop when signaled to do so by a constable or deputy constable? The offense of fleeing or attempting to elude a police officer by its very terms is limited to police officers who are in a clearly identifiable police vehicle or, if the vehicle is unmarked, the officer must be in uniform and displaying a badge. 75 Pa. C.S. § 3733. Constables and deputy constables do not have uniforms and they are not provided with municipal vehicles but use their own private cars. By what means does a constable or deputy constable signal a driver to stop? Under the Motor Vehicle Code, a constable's private automobile does not fit within the definition of an emergency vehicle, 75 Pa. C.S. § 102, and is not within that class of vehicles which may display flashing red or blue lights or use sirens. 75 Pa. C.S. § 4571. If a constable or deputy constable violates someone's constitutional rights, is there "state action"? What if a constable or deputy constable is injured or killed while making a traffic stop? Since there is no employer, there would be no workers' compensation coverage, leaving the injured constable to pay any expenses. Id. at 269-70 (emphasis added). Relevant to the instant matter, the Court continued in a footnote to discuss a constable's vehicle and the lack of a standardized uniform that would signal to the public a higher authority: We recognize that some constables have outfitted themselves in a "uniform" of their own choosing. However, inherent in the concept of a uniform is that all members of the particular organization, be it a police force or a Scout troop, are required by some higher authority to wear identical clothing. This is simply not 9 possible with a constable who is an independent contractor and is not supervised by a higher authority in a particular organization. Id. at 270 n.1; see also id. at 271 (discussing public safety concern of allocating to constables police powers that are reserved for "highly trained" police officers and sheriffs). Not only is a constable not authorized by statute to purchase a vehicle on behalf of a political subdivision, our courts have recognized significant public safety issues where a constable has attempted to overreach his statutorily granted authority and take actions akin to those reserved for "highly trained" police officers. Constable Ward next argues that the trial court erred in deciding that the fee exemption is not a constitutionally-protected emolument of office. See Article III, Section 27 of the Pennsylvania Constitution ("No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment."); Meade v. City of Philadelphia, _ A.3d (Pa. Cmwlth., No. 1995 C.D. 2011, filed March 20, 2013) (holding that Pennsylvania Constitution prohibits the reduction in salary of a public officer in the middle of a term of office). Having already decided that Constable Ward is not entitled to the fee exemption, it follows that the fee exemption cannot be an emolument of the office of constable. Finally, Constable Ward argues that, even if a constable does not qualify for a fee exemption or an MG license plate under the Vehicle Code, DOT is equitably estopped from requesting a registration fee from him and from revoking his MG plate because he justifiably relied on DOT's prior action. "The essential elements of estoppel are an inducement by the party sought to be estopped to the party who asserts the estoppel to believe certain facts to exist — and the party asserting the estoppel acts in reliance on that belief." Westinghouse Elec. 10 Corp./CBS v. Workers' Compensation Appeal Board (Korach), 584 Pa. 411, 423, 883 A.2d 579, 586 (2005) (internal quotations omitted). The trial court found as a matter of fact that Constable Ward took no actions in reliance on DOT's erroneous grant of a fee exemption and erroneous issuance of an MG plate. Constable Ward argues that he purchased certain equipment for his vehicle relying on the fact that he would have an MG plate. The trial court specifically rejected that assertion, finding that given Constable Ward's testimony that he considered the equipment necessary to perform his duties, he would have purchased the equipment in any event, even had DOT never issued him an MG plate and even if DOT had requested the $36.00 registration from the beginning. The finding is supported by competent evidence and it is not erroneous as a matter of law.4 For the above reasons, we affirm the order of the trial court. -7A—MIES GARDNER COLINS, Senior Judge 4 The trial court also rejected the equitable estoppel argument on the basis that DOT's error was based on misinformation supplied by Constable Ward when he filed the vehicle registration form under the name "Silver Spring Twp. Constables Office." This finding was error. First, there is no evidence that the information supplied by Constable Ward forced DOT to make the legal error of determining that a constable qualified for a fee exemption and a municipal license plate under the Vehicle Code. DOT itself admitted that the error was its own in the Notice of Suspension. Second, there was no evidence that the registration name was inaccurate. The trial court erroneously assumed that Constable Ward, by supplying accurate information that he was an elected constable in the Township, could have compelled DOT to issue a license plate that should not have been issued in the first place. To use the example the trial court used, if the trial court judge purchased a vehicle and listed his title as judge of the court of common pleas in the registration box, and DOT waived the registration fee and issued him a municipal license plate as a result, the legal error of determining a judge of the court of common pleas qualifies for an exemption under the Vehicle Code would be DOT's error and DOT's alone. 11 r 1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Silver Spring Township State : Constable Office, Hon. J. Michael Ward, Appellant No. 1452 C.D. 2012 v. � Commonwealth of Pennsylvania, ,E=, Department of Transportation, U,►-' cam`�' Cn Bureau of Motor Vehicles ORDER AND NOW, this 18th day of April, 2013, the order of the Cumberland County Court of Common Pleas is AFFIRMED. R"'ry JAM"' GARDNER COLINS, Senior Judge