Mariano v. City of Phila.
| Decision Date | 31 August 2011 |
| Docket Number | No. 1428 C.D. 2010,1428 C.D. 2010 |
| Parties | Richard Mariano v. City of Philadelphia Board of Pensions and Retirement, Appeal of: City of Philadelphia Board of Pensions and Retirement and City of Philadelphia |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
The City of Philadelphia (City) and the City's Board of Pensions and Retirement (Board) appeal the order of the Court of Common Pleas of Philadelphia County (trial court) granting the appeal of Richard Mariano, and reversing the Board's decision to retain Mariano's pension contributions totaling $65,435.88.1 We affirm.
Mariano was initially employed with the City as an employee of the City Council on January 6, 1992. He was elected a City District Councilman in November of 1995. During his employment, Mariano was a member of Pension Plan "L" and contributed a total of $65,435.88 to the City's retirement system. On March 17, 2006, Mariano was convicted in federal court of a number of felony counts of mail fraud, wire fraud, money laundering, bribery, filing a false tax return and conspiracy to commit honest services fraud.2 He resigned his employment with the City on May 2, 2006. Ultimately, Mariano was sentenced to serve 78 months in prison, and assessed an $1800.00 fine.
The City retained counsel from the Saul Ewing firm to represent Mariano during the investigation of the criminal charges and prior to his indictment.3 The City claimed that it paid the Saul Ewing firm $82,064.96 in legalfees for this representation on behalf of Mariano. See Reproduced Record (RR) at 0285-0318.
On March 24, 2006, the City's acting Director of Finance formally asserted a claim with the Board's Executive Director, pursuant to the City's Public Employee's Retirement Code (Code)4, against any return of contributions toMariano. See RR at 0104.5 On December 1, 2006, the Board's Pension Program Administrator requested an opinion from the City Solicitor's Office regarding Mariano's pension rights. Id. at 0124. On February 1, 2007, the City's Law Department advised the Board to retain Mariano's pension contributions to the extent required to pay the claim asserted by the City. See id. at 0141-0146. On March 22, 2007, the Board voted 8-0 to retain Mariano's pension contributions to offset the fees paid to Saul Ewing. See id. at 0158-0164.
As a result, on March 27, 2007, the Board sent Mariano a letter indicating that it had approved the disqualification of his pension and the retention of his pension contributions, and informed him of his right to appeal this determination within 30 days. RR at 0167. Mariano appealed this determination to the Board on April 26, 2007. Id. at 0176.
A hearing was conducted before a Board hearing panel on April 3, 2008. See RR at 0215-0232. On August 19, 2008, the Board notified Mariano that it had voted to withhold his contributions at its regular meeting on August 14, 2008. Id. at 0262-0264. On September 18, 2008, Mariano appealed the Board's decision to the trial court.
A hearing was conducted before the trial court on August 19, 2009. See RR at 0025-0056. On June 15, 2010, the trial court entered an opinion and order disposing of the appeal in which it determined, inter alia, that: (1) Section 22-1303 of the Code is not preempted by the relevant provisions of the Public Employee Pension Forfeiture Act (Act)6; (2) the City was entitled to recoup theattorney fees that it paid to Saul Ewing in Mariano's criminal defense; and (3) that the Board was not the proper forum in which the City could seek to recoup the attorney fees that it paid to Saul Ewing in Mariano's criminal defense. As a result, the trial court entered the instant order granting Mariano's appeal, and reversing the Board's decision to retain Mariano's pension contributions totaling $65,435.88.7 The City and the Board then filed this appeal from the trial court's order.8
The sole claim raised by the City and the Board in this appeal9 is that the trial court erred in determining that the Board was not the proper forum to consider the amount to be offset from Mariano's pension contributions based upon the attorney fees incurred by the City in connection with his criminal defense. More specifically, although the City and the Board concede that the Board did consider and dispose of Mariano's contest of the City's claim for the return of the attorney fees, the City and the Board assert that Mariano acquiesced that the Board was the proper forum to dispose of this claim and that the Board was, in fact, the proper forum to dispose of this claim. We do not agree.
As this Court has previously noted:
As a creature of statute, the Pension Board can exercise only those duties given to it by the legislature. Marinucci v. State Employees' Retirement System, 863 A.2d 43, 47 (Pa. Cmwlth. 2004) (an employee has only those retirement rights created by statute and none beyond it); see also Costanza v. Department ofEnvironmental Resources, [606 A.2d 645, 646 (Pa. Cmwlth. 1992)] (). Although a retirement system must be liberally administered in favor of its members, "a liberal administration of the retirement system does not permit the board to circumvent the express language of the Code...." Dowler v. Public School Employes' Retirement Board, [620 A.2d 639, 644 (Pa. Cmwlth. 1993)]. Accordingly, the Board has no authority to grant equitable relief in contravention of the statutory mandates of the Retirement Code. Rowan v. Pennsylvania State Employes' Retirement Board, 685 A.2d 238, 240 (Pa. Cmwlth. 1996)....
Martorano, 940 A.2d at 601. See also Pequea Township v. Herr, 716 A.2d 678, 686 (Pa. Cmwlth. 1998) ( ) (citations omitted).
As noted above, Section 22-1201(1) of the Code provides that "[t]he general administration and management of the Retirement System is vested in the Board." Phila. Code § 22-1201(1). In addition, Section 22-1202(1) provides that Phila. Code § 22-1202(1).
Thus, although Section 22-1303(1) of the Code provides that the City may "[o]ffset any claim of the City against such person and the rights or benefitsarising from membership under this Title...",10 neither Section 22-1201(1) nor Section 22-1202(1) of the Code confer upon the Board the authority to dispose of the City's request for equitable relief11 in which it is seeking the reimbursement of the attorney fees. Martorano; Pequea Township; Rowan.
Moreover, Mariano's purported acquiescence in the Board's authority to grant such relief does not confer such power upon the Board in the absence of some legislative mandate. See Pequea Township, 716 A.2d at 686 (); Costanza, 606 A.2d at 646 (). As a result, the trial court did not err in determining that the Board was not the proper forum to consider and dispose of the City's claim for attorney fees in this case.12
Accordingly, the trial court's order is affirmed.
/s/_________
Judge Cohn Jubelirer did not participate in the decision in this case.
AND NOW, this 31st day of August, 2011, the order of the Court of Common Pleas of Philadelphia County, dated June 15, 2010 at September Term, 2008 No. 02804, is AFFIRMED.
/s/_________
1. It should be noted that the appellate brief filed by the City and the Board in this Court does not contain a Statement of Jurisdiction or the Order or Other Determination in Question as required by Pa.R.A.P. 2111(a)(1), (2), 2114, and 2115. As a result, the appellate brief could be suppressed, and the instant appeal could be quashed or dismissed, pursuant to the provisions of Pa.R.A.P. 2101. Nevertheless, this Court may proceed to dispose of this appeal on the merits as the foregoing enumerated defects in the appellate brief do not preclude effective appellate review. Hatter v. Landsberg, 563 A.2d 146 (Pa. Super. 1989), petition for allowance of appeal denied, 525 Pa. 626, 578 A.2d 414 (1990).
2. More specifically, Mariano was convicted of 18 criminal counts comprised of: (1) one count of Conspiracy to Commit Honest Services Fraud, 18 U.S.C. § 371; (2) five counts of Mail Fraud - Deprivation of Right to Honest Services of Public Official and Aiding and Abetting, 18 U.S.C. §§ 1343, 1346; (3) six counts of Wire Fraud - Deprivation of Right to Honest Services and Aiding and Abetting, 18 U.S.C. §§ 1343, 1346; (4) two counts of Money Laundering and Aiding and Abetting, 18 U.S.C. § 1956(a)(1)(B)(i); (5) three counts of Bribery, 18 U.S.C. § 666(a)(2) & (b); and (6) one count of False Tax Return, 26 U.S.C. § 7206(1).
3. See Section 20-702 of the Philadelphia Code, Phila. Code § 20-702 (...
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