IN RE HUNTER

• Decision Date: 16 August 2001
• Citation: 782 A.2d 610
• Parties: In re Appointment of George M. HUNTER as Deputy Constable in the 19th Ward, City of Allentown. Appeal of Dennis C. Huber.
• Court: Pennsylvania Commonwealth Court

782 A.2d 610

In re Appointment of George M. HUNTER as Deputy Constable in the 19th Ward, City of Allentown.

Appeal of Dennis C. Huber.

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 22, 2001.

Decided August 16, 2001.

Joseph P. Maher, Allentown, for appellant.

Steven M. Luksa, Allentown, for appellee.

Before SMITH, J., FRIEDMAN, J., and McCLOSKEY, Senior Judge. FRIEDMAN, Judge.

Dennis C. Huber, an elected constable in the 19th Ward of the City of Allentown, Pennsylvania, appeals from two orders of the Court of Common Pleas of Lehigh County (trial court): the April 3, 2000 order denying Constable Huber's Petition For Disqualification Of Judge and the April 18, 2000 order denying Constable Huber's Petition To Appoint Deputy Constable. We affirm both orders.

On or about December 9, 1999, Constable Huber filed a petition (Appointment Petition) requesting that the trial court approve the appointment of George M. Hunter as an additional deputy constable for the 19th Ward. (R.R. at 3a-7a.) In his Appointment Petition, Constable Huber averred: "The volume of the business in the 19th Ward, City of Allentown, is such that [Constable Huber] is unable to complete his various duties and responsibilities within a reasonable period of time and is in need of further assistance." (Appointment Petition at ¶ 4; R.R. at 3a.) The Office of the District Attorney of Lehigh County objected to the appointment, and a hearing was scheduled for February 18, 2000. Subsequently, Judge Robert L. Steinberg granted Constable Huber's request for a continuance, and the matter was relisted for a hearing on April 3, 2000. (R.R. at 2a, 8a.)

Just prior to the April 3, 2000 hearing, Constable Huber filed a petition (Disqualification Petition) seeking to have Judge Steinberg disqualify or recuse himself in the action in conformance with Canon 3 C of the Pennsylvania Code of Judicial Conduct, which requires a judge to disqualify himself from a proceeding in which his impartiality might reasonably be questioned. (R.R. at 17a-19a.) In the Disqualification Petition, Constable Huber provided several reasons which he alleged "reasonably call into question the ability of Judge Steinberg to impartially rule in this matter." (Disqualification Petition at ¶ 11; R.R. at 18a-19a.) In listing these grounds for disqualification, Constable Huber focused on a period approximately five years earlier, when Judge Steinberg served as the District Attorney of Lehigh County. Constable Huber alleged that, as District Attorney, Judge Steinberg undertook several investigations of Constable Huber's activities, and, likewise, Constable Huber requested the Pennsylvania Attorney General to investigate the Lehigh County District Attorney's Office while Judge Steinberg held the position of District Attorney. In addition, Constable Huber alleged that, on at least one occasion, he and then District Attorney Steinberg exchanged harsh words during a confrontation at a constable's meeting.¹ (Disqualification Petition at ¶¶ 8-10; R.R. at 18a.)

After hearing Constable Huber testify with respect to the Disqualification Petition, (see N.T. at 36-46; R.R. at 26a-36a), Judge Steinberg concluded that he could be fair with respect to Constable Huber's Appointment Petition. Consequently, Judge Steinberg entered an order denying the Disqualification Petition and proceeded with testimony regarding Hunter's appointment as a deputy constable. (See N.T. at 47-48; R.R. at 37a-38a.) During this phase of the hearing, Constable Huber offered testimony as to why he needs a deputy constable. Specifically, Constable Huber stated that he currently operates on a sixty-five to eighty hour work week and, as a result, has started having health problems related to his workload. (N.T. at 49, 72-74; R.R. at 39a, 62a-64a.) Constable Huber points out that, prior to his attempt to have Hunter appointed, there was a deputy constable assigned to the 19th Ward; however, this deputy resigned at the end of 1999. Constable Huber testified that, if he is to remain able to fulfill his obligations as elected constable of the 19th Ward, another deputy needs to fill that vacant position. (N.T. at 49, R.R. at 39a.) Constable Huber explained that, between January 1999 and March 2000, the Lehigh County Constable Association answering service received approximately 2,047 telephone inquiries, approximately 800 of which required some form of response. (N.T. at 50, 60, 74; R.R. at 40a, 50a, 64a.) According to Constable Huber, without the assistance of a deputy certified to carry a concealed weapon, he is now the only certified officer able to handle these calls, and, consequently, he has had to turn some callers away. (N.T. at 49-50, 55, 68-69, 81; R.R. at 39a-40a, 45a, 58a-59a, 71a.)

After hearing the testimony,² Judge Steinberg gave counsel for both parties until April 10, 2000 to file a supporting memorandum of law. Then, on April 18, 2000, he issued a ruling denying the Application Petition. Based on all the evidence, Judge Steinberg concluded that Constable Huber had not demonstrated the requisite necessity for Hunter's deputation in the 19th Ward. Constable Huber now appeals that decision.

On appeal, Constable Huber first contends that Judge Steinberg erred when he failed to recuse himself from presiding over Constable Huber's Application Petition despite compelling evidence that the two had a prior history of confrontation over constable related issues.

In general, recusal is required whenever there is substantial doubt as to a jurist's ability to preside impartially.³Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310 (1995); Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). However, the issue of recusal is addressed particularly and peculiarly to the conscience and sound discretion of the judge; therefore, if the judge feels that he or she can hear and dispose of the case fairly and without prejudice, that decision will be final absent an abuse of discretion. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983). Because the integrity of the judiciary is compromised by the appearance of impropriety, a jurist's recusal is necessary where his behavior appears to be biased or prejudicial. Rohm and Haas Co. v. Continental Casualty Co., 732 A.2d 1236 (Pa.Super.1999),appeal granted, 562 Pa. 673, 753 A.2d 820 (2000). Thus, before it can be said that a judge should have recused himself or herself, the record must clearly show prejudice, bias, capricious disbelief or prejudgment. Nemeth v. Nemeth, 306 Pa.Super. 47, 451 A.2d 1384 (1982). The party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal. Darush. Here, Constable Huber fails to meet that burden.

Constable Huber bases his Disqualification Petition on his past relationship with Judge Steinberg, alleging that, during Judge Steinberg's service as District Attorney, he conducted an investigation of Constable Huber and, in a harsh exchange of words, confronted Constable Huber over matters concerning constables. However, the testimony offered by Constable Huber does not support his claims of bias.

In connection with the investigation of his activities, Constable Huber recalled only brief dealings with agents of the District Attorney's Office, noting that they questioned him on several occasions and, on one occasion, took documents from him. (N.T. at 37; R.R. at 27a.) Moreover, with respect to the alleged personal confrontations between Constable Huber and then District Attorney Steinberg, Constable Huber conceded that these actually were public debates at constables' meetings; Constable Huber agreed that the debates might have involved legal interpretations where some of those present at the meeting took his view while others sided with District Attorney Steinberg.⁴ (N.T. at 39-40; R.R. at 29a-30a.) Constable Huber could offer no examples of harsh words exchanged between himself and District Attorney Steinberg; in fact, Constable Huber acknowledged that it was only his "impression" that District Attorney Steinberg issued a personal attack on him during the debates. (N.T. at 41; R.R. at 31a.) Finally, Constable Huber claimed that Judge Steinberg had acted with animosity toward him in a previous hearing regarding Hunter's appointment as a deputy constable.⁵ (N.T. at 44-46; R.R. at 34a-36a.) However, Constable Huber conceded that Judge Steinberg did not disapprove Hunter's appointment as deputy but, rather, continued the matter pending completion of the required fingerprint check on Hunter. (N.T. at 47-48; R.R. at 37a-38a.)

After considering the facts and allegations upon which Constable Huber premises his argument, we disagree that they establish substantial doubt as to Judge Steinberg's impartiality. Further, our review of the record indicates that Judge Steinberg displayed no bias while presiding over the merits of the case, and he provided each party with an equal opportunity to present its position. Accordingly, because we cannot conclude that Judge Steinberg abused his legal discretion by refusing to recuse himself, Constable Huber's first argument must fail.

Next, Constable Huber argues that the trial court abused its discretion and made errors of law by failing to approve Hunter's appointment as a deputy constable. Section 1 of the Act of June 19, 1913, P.L. 534, 13 P.S. § 21, which governs the appointment and eligibility of deputy constables, provides that:

the sole power to appoint a deputy constable, or constables, in any ward, borough, or township, shall be vested in the constable of such ward, borough, or township, subject to the approval of the court of quarter sessions [⁶] as provided by law; and that no person shall be appointed as a deputy constable unless he shall be, at the time of his appointment, a bona fide

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