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BENJAMIN B. HORSLEY v. PHILADELPHIA BOARD PENSIONS AND RETIREMENT AND CITY PHILADELPHIA (05/30/86)

decided: May 30, 1986.

BENJAMIN B. HORSLEY, APPELLANT
v.
PHILADELPHIA BOARD OF PENSIONS AND RETIREMENT AND CITY OF PHILADELPHIA, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Benjamin B. Horsley v. Board of Pensions and Retirement, and City of Philadelphia, No. 1865 July Term, 1984.

COUNSEL

Thomas S. McNamara, with him, Philip L. Blackman, Abramson, Cogan, Kogan, Freedman & Blackman, P.C., for appellant.

Kenneth Smukler, Assistant City Solicitor, with him, Ralph J. Teti, Divisional Deputy City Solicitor, and Barbara W. Mather, City Solicitor, for appellees.

Judges Craig, Doyle and Colins, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 97 Pa. Commw. Page 560]

Benjamin B. Horsley appeals from an order of the Court of Common Pleas of Philadelphia County affirming a decision of the Philadelphia Board of Pensions and Retirement terminating his pension benefits. We affirm.

The employee worked for the City of Philadelphia from July 14, 1958 through September 30, 1978. Effective October 1, 1978, the employee began to receive pension benefits. On April 10, 1979, a federal grand jury indicted the employee on charges that he had conspired, while employed by the city, to violate the Hobbs Act, 18 U.S.C. § 1951. On November 2, 1979, the employee entered a guilty plea to two of the six counts in the indictment. Those two counts of extortion involved building contractors doing business or wishing to do business with the City of Philadelphia while the employee had held the position of Housing Rehabilitation Specialist with the Urban Homestead Program.

In August 1983, the executive director of the board asked the city law department for "some guidance with regard to our continuance of payments" to the employee. A deputy city solicitor responded by memorandum and advised the board that the employee's guilty plea fell within section 217 of the Municipal Retirement System Ordinance and that the board therefore should immediately terminate his benefits. By letter dated September 1, 1983, the executive director of the board notified the employee that the board was suspending his pension benefits. The director stated that the board's decision was premised on an opinion from the city solicitor's office, indicating that the employee's guilty plea fell within the scope of the section 217 disqualification provisions.

[ 97 Pa. Commw. Page 561]

The employee requested a hearing in accordance with the Local Agency Law, 2 Pa. C.S. § 553, which was held on February 23, 1984. By letter dated February 28, 1984, the employee inquired whether the board considered itself bound by opinions of the city solicitor's office. By letter dated March 30, 1984, the director of the board indicated to the employee that, under section 8-410 of the Home Rule Charter,*fn1 the board was bound by the city solicitor's opinions.

By letter dated June 22, 1984, the board notified the employee of its adjudication*fn2 to sustain the suspension of his pension benefits under section 217 of the pension ordinance.

The employee challenges the trial court's affirmance of the board's decision on numerous grounds. The employee's two major contentions are (1) that the board unlawfully terminated the employee's pension benefits

[ 97 Pa. Commw. Page 562]

    under section 217 of the pension ordinance and, (2) that the board's adjudication, in the form of a letter dated June 22, 1984, violated the Local Agency Law.

Pension Benefits Termination under Section 217 of the Municipal Retirement System Ordinance

The city solicitor's office advised the board that the employee's guilty plea fell within the scope of section 217(a)(2), (3), (5), (6) of the Municipal ...


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