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MALLIE HORSLEY v. PHILADELPHIA BOARD PENSIONS AND RETIREMENT AND CITY PHILADELPHIA (08/17/88)

SUPREME COURT OF PENNSYLVANIA


decided: August 17, 1988.

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

Appeal from the Order of the Commonwealth Court entered May 30, 1986 at No. 3591 C.D. 1984, affirming the Order of the Court of Common Pleas of Philadelphia County entered October 31, 1984 at No. 1865, July Term, 1984. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Papadakos, J., concurs in the result.

Author: Mcdermott

[ 519 Pa. Page 266]

OPINION

Appellant appeals from the Commonwealth Court's affirmance of the order of the Court of Common Pleas of Philadelphia County. That order upheld the decision of the Philadelphia Board of Pensions and Retirement, which suspended the retirement benefits of her husband, Benjamin Horsley, Jr., pursuant to Section 217 of the Municipal Retirement System Ordinance*fn1 of the City of Philadelphia.

[ 519 Pa. Page 267]

The underlying facts of this controversy are not in dispute.

Appellant's husband was employed in various positions with the Philadelphia Department of Licenses and Inspections for nearly twenty years before budget reductions forced his early retirement in August of 1978. His last position with the Department was that of a Housing Rehabilitation Specialist with the Urban Homestead Program operated by the Philadelphia Office of Housing and Community Development. Shortly after his layoff Mr. Horsley filed an application for retirement benefits by virtue of his membership in the Municipal Retirement System. Upon approval by the Board Mr. Horsley began receiving monthly retirement payments in the amount of $869.89.

Approximately eight months into retirement, on April 10, 1979, Benjamin Horsley, along with two fellow employees, was indicted by a federal grand jury in the United States District Court for the Eastern District of Pennsylvania on extortion charges in violation of the Hobbs Act.*fn2 The indictment charged that Mr. Horsley, while employed by the City, conspired to and did extort money from certain building contractors doing business or wishing to do business with the Urban Homestead Program. On the eve of trial Mr. Horsley pled guilty to two counts of the indictment, and on November 2, 1979, he was sentenced to five years probation and a $2,500 fine.

Meanwhile, Mr. Horsley continued to receive his monthly pension check from the Municipal Retirement System. It was not until September 1, 1983, nearly five years after his separation from the City, that he was notified by the Board that his pension benefits were being suspended.

The sequence of events leading up to the suspension of benefits are as follows. On February 8, 1982, the Executive Director of the Board, Anthony Witlin, wrote to a

[ 519 Pa. Page 268]

Deputy City Solicitor, Tyler Wren, with information concerning Mr. Horsley's pension benefits.*fn3 The Board, however, received no response from the Solicitor's office.

It was not until August, 1983, that the Board sought information, this time from the Office of Housing and Community Development, regarding any former City employee that may be receiving pension benefits in violation of Section 217 of the ordinance. To this inquiry the Director of the Housing and Community Development agency informed the Board that Benjamin Horsley was implicated in the above mentioned kickback scheme.

With this information in hand the Board again contacted the Solicitor's office, in the person of Ralph J. Teti, a Deputy City Solicitor, and renewed its request for advice concerning the continued payment of retirement benefits to Benjamin Horsley. In a memorandum dated August 29, 1983, Teti advised the Board that Mr. Horsley fell within the ambit of Section 217. This determination was predicated upon a Formal Opinion from the Solicitor's Office, filed on February 3, 1983, which determined, inter alia, that the disqualification provision of the ordinance was applicable to a retired employee for offenses committed during his or her employment with the City. Based upon this legal advice, which the Board was bound to follow pursuant to Section 8-410 of the Philadelphia Home Rule Charter, the Board suspended benefits on September 1, 1983.

Mr. Horsley immediately requested a hearing before the Board as allowed by the Pennsylvania Local Agency Law, 2 Pa.C.S. § 553.*fn4 He wished to address what he felt were both procedural due process violations by the Board's actions and violations of the Local Agency Law. On February 23, 1984, a hearing was held before a panel of three members of the Board, consisting of two elected employee representatives, as provided under the Home Rule Charter,

[ 519 Pa. Page 269]

    and a designated alternate from the City Controller's office. In addition to the above individuals the Executive Director of the Board was in attendance, along with an Assistant City Solicitor who appeared solely in an advisory capacity.

At the hearing Mr. Horsley's counsel argued against the applicability of Section 217, contending that the disqualification provision of the ordinance spoke only to current employees of the City. Additionally, counsel argued that the events leading up to the suspension of benefits violated Mr. Horsley's procedural due process rights due to improper commingling of the Board's adjudicatory and prosecutorial functions. Absent from the hearing was any dispute regarding the underlying facts.

The panel members reconvened on May 20, 1984, and unanimously recommended to the Board to continue suspension of Mr. Horsley's retirement benefits. The Board adopted this recommendation.

On appeal to the court of common pleas the Board's suspension was upheld. This order was then affirmed by the Commonwealth Court.*fn5 Benjamin Horsley petitioned this Court for allowance of appeal, which we granted. We also affirm.

Permission to appeal was granted in this case to address two issues: the first involves an interpretation of the language of the ordinance to determine whether the disqualification provision applies to retired City employees; the second is whether the various roles played by individuals in the City Solicitor's office constituted impermissible commingling of the Board's adjudicatory and prosecutorial functions.

Appellant,*fn6 in her first issue, advances the following argument: since Section 217 only makes reference to an "employee", and that term is defined in the ordinance as

[ 519 Pa. Page 270]

"any elected or appointed officer or employee who is paid out of the Treasury of the City", the disqualification provision did not apply to her husband because as a retiree he was not paid out of the City's Treasury.*fn7 She attempts to bolster this argument by asserting that Section 217 is penal in nature and as such must be strictly construed. See 1 Pa.C.S. § 1928(b)(1).

With statutory interpretation questions such as this, it is instructive to refer to the Statutory Construction Act of 1972.*fn8 That Act provides, inter alia: that the object of all interpretation and construction of legislation is to ascertain and effectuate the intention of the drafters, 1 Pa.C.S. § 1921(a); and that the drafters of a statute do not intend a result that is absurd, impossible of execution or unreasonable, 1 Pa.C.S. § 1922(1).

Appellant has placed great reliance on her penal-strict construction argument. However, even assuming that we accept the argument that Section 217 is a penal provision, we cannot accept the argument that the section does not apply to Mr. Horsley. As noted by the appellee the prefatory statement to the definitions upon which appellant relies states clearly that the definitions are effective "[u]nless a different meaning is required by the context."*fn9 We believe the situation posed by this case is of a type which the drafters had in mind when they mandated that the context in which a term appears shall be given precedence over the ordinance's general definitions.

[ 519 Pa. Page 271]

Unquestionably, the clear intent of the City Council in enacting Section 217 was to disqualify those employees who commit crimes while in the City's employ from receiving retirement benefits. Given this intent the ultimate time of discovery of a person's felonious acts seems of no moment. To hold otherwise would unfairly advantage those corrupt and felonious City employees who are fortuitous enough to avoid detection of their crimes until after they leave the City's employ: a result which would be both absurd and unreasonable.*fn10

Having determined that the disqualification provision was applicable to Mr. Horsley, we next turn to appellant's due process arguments.

Appellant attacks the Board's adjudication on several due process grounds. First, appellant argues that the various functions performed by the City Solicitor's office violated Mr. Horsley's due process right to a fair hearing. Specifically she complains: (1) a Deputy City Solicitor, based upon the Formal Opinion rendered by the then acting City Solicitor, advised and recommended to the Board's executive director that he initially suspend retirement benefits; (2) an Assistant City Solicitor was available as legal advisor to the panel during the hearing; and (3) the City Solicitor was a member of the Board that ultimately voted to continue suspension of benefits.*fn11 It is upon this procedural matrix that appellant asserts that there was an improper commingling

[ 519 Pa. Page 272]

    of adjudicatory and prosecutorial functions by the Board. We do not agree.

It should be emphasized that the hearing about which appellant complains was not a fact finding hearing. Mr. Horsley, through his counsel, admitted all the facts upon which the Board based its decision, and chose instead to argue the legal question of whether Section 217 applied to his case.*fn12 Consequently, all that was before the panel, and ultimately the Board, was an application of the law to the facts of the case; and the Board's decision was and is fully reviewable on appeal.

In Pennsylvania Human Relations Commission v. Thorp, Reed & Armstrong, 25 Pa. Commw. 295, 361 A.2d 497 (1976) the Commonwealth Court remarked:

[T]he most critical function in the prosecution and adjudication of administrative cases is in the resolution of disputed facts because the findings of fact which result from administrative proceedings are subject to only limited appellate review. The fact finding process, therefore, must be afforded the broadest dimensions of constitutional protection.

Id. at 302, 361 A.2d at 501. With this observation we agree. Thus, it is primarily in a fact finding situation where the possibility of prejudice is most dangerous. Where, however, an administrative tribunal is applying its interpretation of the law to undisputed facts, a decision which is fully reviewable, any possibility of prejudice can be effectively cured by the independent review of an appellate court.

In this case the Board was bound by terms of the Philadelphia Home Rule Charter to follow the legal advice of the City Solicitor. See Section 8-410 of the Philadelphia Home Rule Charter.*fn13 The composition of the Board was

[ 519 Pa. Page 273]

    also dictated by the Charter. Once Mr. Horsley admitted to the facts, the Board's discretion ended. Therefore, although the decision of the Board was adverse to him, we cannot say that decision resulted from any prejudice on the Board's part since the adverse decision was the only decision which the Board had the power to render.*fn14

In summary, since Mr. Horsley admitted all of the facts which formed the basis of the Board's decision, and given those facts the Board was required to suspend his benefits, appellant has failed to show that the Board acted with bias, or that the possibility of bias existed. In addition, Mr. Horsley's due process rights were at all times preserved by his unqualified right to have the Board's legal interpretation reviewed by an appellate court. Therefore, we find no merit to appellant's arguments.*fn15 While we find no commingling of functions here, by virtue of the admitted facts,

[ 519 Pa. Page 274]

    the penalties however necessary are severe: the loss of a lifetime's effort. The possibility of commingled functions in such cases must be carefully scrutinized and regularity of proceedings carefully followed.

Accordingly, the order of the Commonwealth Court is affirmed.


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