Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of George X. Schwartz v. Board of Pensions and Retirement and City of Philadelphia, No. 1793 March Term, 1983.
John M. Myers, Assistant City Solicitor, with him, Pamela Foa and Valerie West, Assistant City Solicitors, and Barbara W. Mather, City Solicitor, for appellants.
Richard M. Rosenbleeth, with him, Norman L. Holmes, Blank, Rome, Comisky & McCauley, for appellee.
Judges Craig, Barry and Palladino, sitting as a panel of three. Opinion by Judge Barry.
[ 97 Pa. Commw. Page 540]
This appeal results from an order of the Philadelphia County Court of Common Pleas which reversed the decision of the Philadelphia Board of Pensions and Retirement (Board) suspending pension payments to George X. Schwartz (Schwartz), and which remanded the case to the Board for computation of the amount due.
Schwartz, while president of the city council, was indicted on charges of conspiracy while in public office to
[ 97 Pa. Commw. Page 541]
violate the Racketeer Influenced Corrupt Organizations Act (RICO)*fn1 and the Hobbs Act.*fn2 A federal court trial ensued and Schwartz was found guilty, resigning his office three days thereafter. The district court, however, set aside the conviction and granted a judgment of acquittal on the grounds of entrapment.*fn3 Schwartz then applied for his pension from the city. That pension was granted based upon the advice of the city solicitor's office.*fn4 One year later, however, the Third Circuit reinstated the conviction*fn5 and remanded to the trial court for sentencing. After his post-trial motions from that proceeding were denied, Schwartz prosecuted another appeal to the Third Circuit.
The Board of Pensions and Retirements thereupon held a hearing with respect to Schwartz's pension eligibility, having received an opinion from the Law Department of the City of Philadelphia that under the Philadelphia Retirement System Ordinance (Ordinance) the pension was to be suspended because of Schwartz's earlier "resign[ing] while under . . . criminal charges."*fn6 That opinion, which had been requested by the Board, was based upon Section 217.2 of the Ordinance, which provides, in pertinent part:
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Where an employee is dismissed for [among other things, 'engaging in graft or corruption incident to or in connection with his office,' (Section 217.1 of the Ordinance)], or resigns while Page 542} under such charges, no retirement or other benefit shall be payable pending the final disposition of any criminal proceedings and the expiration of any period for appeal. . . .
Id. (emphasis added). At an ensuing hearing convened to consider a suspension, the city was represented by Tyler Wren (Wren), the same attorney who had submitted to the Board the requested legal advice with respect to whether a suspension of Schwartz's pension was in order. Another assistant city solicitor, Ralph Teti (Teti) served as a voting member of the Board. Both the giving of advice and service on the Board by the city solicitor are mandated by the Philadelphia Home Rule Charter.*fn7
At the conclusion of the hearing the Board voted five to four in favor of suspending Schwartz's pension. Teti, notably, voted in favor of suspension, creating a tie vote and forcing the chairman to vote, which vote constituted the fifth and pivotal vote resulting in the suspension. Schwartz then appealed to the trial court, which held that the proceedings had denied Schwartz due process, declaring as inappropriate Wren's dual role as advisor and prosecutor, and stating as further grounds "the participation of Mr. Wren's supervisor, Ralph Teti . . . as a voting member of the Board. . . ." Trial Court op. at 4. The trial court then disqualified Teti's vote, thereby eliminating the need of the chairman's tie-breaking vote; without these votes to ...