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

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 ...


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