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MAURICE OSSER v. CITY PHILADELPHIA (01/09/86)

decided: January 9, 1986.

MAURICE OSSER, PETITIONER
v.
CITY OF PHILADELPHIA, RESPONDENT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Maurice Osser v. City of Philadelphia, No. 2352 August Term, 1976.

COUNSEL

Neil E. Jokelson, Neil E. Jokelson & Associates, P.C., for petitioner.

Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, with her, Barbara W. Mather, City Solicitor, and Kenneth L. Fox, for respondent.

Judges Craig and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 94 Pa. Commw. Page 118]

On March 27, 1985, our Supreme Court entered an order*fn1 reversing a prior order of this Court*fn2 and remanding this case to us for disposition of the remaining issue as originally certified by the Philadelphia Court of Common Pleas.*fn3 We will affirm the trial court.

The history of this case and the relevant factual background is found in the prior reported decisions of the trial court, our Court and our Supreme Court. Suffice it to say that Maurice Osser (Appellant) was convicted in the Federal District Court for the Eastern District of Pennsylvania of the crimes of mail fraud, conspiracy and endeavoring to obstruct a criminal investigation. At the time of the alleged crimes, Appellant was an elected City Commissioner of the City of Philadelphia (City). Following his conviction, Appellant resigned his city position and then applied for his pension. When that application was denied by the City's Board of Pensions and Retirement, Appellant filed a complaint in assumpsit in the Court of Common Pleas of Philadelphia. Appellant then moved for judgment on the pleadings.*fn4 The trial court denied the motion. Appellant then filed a notice of appeal, and the trial court subsequently certified for appeal its

[ 94 Pa. Commw. Page 119]

    order denying the motion. The certification order stated the necessary averments to comply with the provisions of 42 Pa. C.S. ยง 702(b)*fn5 relating to interlocutory appeals by permission. This Court ultimately received the case on a transfer order from the Superior Court and addressed the matter of the constitutionality of Section 217.1 of the Philadelphia Retirement System Ordinance (Ordinance).*fn6 We held the provision to be unconstitutionally applied to Appellant. The Supreme Court reversed.

Appellant petitioned for reargument and/or remand pursuant to which our Supreme Court modified its previous order of reversal to read as follows:

[ 94 Pa. Commw. Page 120]

Order of the Commonwealth Court reversed and the case is remanded to the Commonwealth Court for disposition of the remaining issue as originally certified by the Philadelphia Court of Common Pleas.

Osser v. City of Philadelphia, 506 Pa. 339, 344, 485 A.2d 392, 395 (1984). In order to address the question of what is now before us we must examine what the trial court certified for appellate consideration. The trial court stated that its order denying Appellant's motion for judgment on the pleadings

     involves controlling questions of law as to which there are substantial grounds for difference of opinion, including : the constitutionality of the pension ordinance and whether the statutory definition of malfeasance applies to the general crime of mail fraud. It is further certified that an immediate appeal from the said Order would materially advance the ultimate termination of the matter as the factual matters are not in dispute. (Emphasis added.)

The trial judge's opinion which denied Appellant's motion for judgment on the pleadings addresses the four reasons Appellant advanced in an attempt to induce the trial court to enter judgment on the pleadings in his favor, namely that (1) he was not convicted of any of the offenses enumerated under Section 217.1 of the Ordinance; (2) payment of his pension was mandated by statute; (3) his pension rights were vested; and (4) his due process and equal protection rights would be violated if his pension rights were denied.

The City contends that our present review is limited to the issue of whether the statutory definition of malfeasance applies to the general crime of mail fraud, because that is the only other issue mentioned in the ...


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