Argued December 10, 2014
Appealed from No. January Term, 2013, No. 01710. Common Pleas Court of the County of Philadelphia. Ceisler, J.
Jose L. Ongay, Camden, NJ, for appellant.
Craig R. Gottlieb, Philadelphia, for appellee.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.
MARY HANNAH LEAVITT,
Tyrone Wiggins appeals the order of the Court of Common Pleas of the First Judicial District of Pennsylvania (trial court) stripping him of his pension for the stated reason that he committed employment-related malfeasance. In doing so, the trial court affirmed the decision of the Philadelphia Board of Pensions and Retirement (Pension Board). In his appeal, Wiggins contends, inter alia, that the Pension Board did not give him notice adequate to defend against the Pension Board's termination of his pension. We agree and, accordingly, we vacate and remand.
Wiggins began employment as a police officer with the Philadelphia Police Department on March 3, 1986. Independent of this employment, Wiggins operated a karate school where he met a 10-year-old girl in 1995 (Student). In 1997, shortly after Student's twelfth birthday, Wiggins began a sexual relationship with her, and it continued for the next eight and a half years. In 2006, Student, now an adult, reported the sexual relationship to the Philadelphia Police Department, and it investigated.
Wiggins resigned his employment effective November 19, 2009, and began collecting a retirement pension benefit in the amount of $3,004.84 per month. Shortly thereafter, the police arrested Wiggins for sexual assault of Student. In December 2010, a jury convicted Wiggins of Involuntary Deviate Sexual Intercourse -- Forcible Compulsion (18 Pa. C.S. § 3123), Aggravated Indecent Assault (18 Pa. C.S. § 3125), Statutory Sexual Assault (18 Pa. C.S. § 3122.1), and Corruption of a Minor (18 Pa. C.S. § 6301). In March 2011, Wiggins was sentenced to a prison term of 17 1/2 to 35 years.
On November 18, 2011, the City's Inspector General notified the City Solicitor's Office about Wiggins' conviction and requested that " pension disqualification" be considered. Certified Record at 928 (C.R. ). On November 30, 2011, the City Solicitor's Office sent a letter to the Pension Board recommending that it terminate Wiggins' pension for the stated reason that Wiggins had committed " malfeasance in office or employment," which rendered him ineligible for a pension under Section 22-1302(1)(a)(.5) of the Philadelphia Public Employees Retirement Code (Philadelphia Retirement Code). The letter stated that Wiggins' malfeasance related to his employment in several ways:
[U]sing his position to both control the victim, intimidate her family and others, and the use of City facilities to allow him time alone with his victim, during which some of the assaults took place.
C.R. 940. The Deputy City Solicitor advised the Pension Board to take the following actions:
The Board should first vote to suspend Tyrone Wiggin's [sic] pension in light of the information the Board has received regarding his convictions and sentencing in state court. The Board should then vote on whether Mr. Wiggins is subject to the permanent disqualification and termination of his retirement benefits. The Board should give Mr. Wiggins notice of the decision and an opportunity to be heard on this matter in accordance with the Board's standard appeals process, including advising Mr. Wiggins that if he declines the hearing, or does not respond to the Board's letter within a specified period (30 days, as provided in Paragraph 1.2 of the Board's Regulation No. 1), he will have forever waived his rights to a hearing on this issue. In order to provide Mr. Wiggins with an official adjudication in the event he wishes to appeal, this matter should be listed on the agenda of the next Board meeting for a vote by the full Board.
At its next meeting on December 8, 2011, the Pension Board voted to suspend Wiggins' ongoing pension benefits and to disqualify him from any further pension benefits. By letter dated December 12,
2011, the Pension Board informed Wiggins of its decision and advised him of his right to a hearing. The letter stated, in its entirety, as follows:
Dear Mr. Wiggins:
At its regular meeting held on December 8, 2011, the Philadelphia Board of Pensions and Retirement approved to immediately suspend your pension benefits and permanently disqualify and terminate your pension eligibility.
Should you wish to challenge the Board's decision, you have the right to a hearing before a panel of the Board, at which you may, if you wish, be represented by an attorney and present any relevant evidence, witness or argument you may have. To request a hearing, write to [the Pension Board's Executive Director] at the above address within thirty (30) days of the date of this letter. A Board hearing is an adjudication of a local agency and is conducted in accordance with the Local Agency Law, 2 Pa.C.S. § 551 et seq.
C.R. 960 (emphasis in original).
Wiggins requested a hearing. On December 29, 2011, the Pension Board sent a letter to Wiggins stating that a hearing would be scheduled and instructing Wiggins to make an appointment " to review the case file prior to the hearing date." C.R. 962. On January 13, 2012, the Pension Board sent Wiggins a second letter that scheduled the hearing for February 22, 2012. Instructing Wiggins to " be fully prepared to proceed," the letter stated, in relevant part, as follows:
Enclosed is a copy of the Board of Pensions' Regulation No. 1, which pertains to hearing panels and a copy of Section 22-1302 of the Philadelphia Code which pertains to your specific issue. Please read the ...