Rizzo v. City of Philadelphia

582 A.2d 1128, 136 Pa. Commw. 13, 1990 Pa. Commw. LEXIS 491

• Court: Commonwealth Court of Pennsylvania
• Decided: September 7, 1990
• Docket: 1648 and 1649 C.D. 1989
• Status: Published

Opinions

SMITH, Judge.

Kevin M. Tucker, former Police Commissioner of the City of Philadelphia (Tucker) and the City of Philadelphia (City) appeal from the July 26, 1989 Order of the Court of Common Pleas of Philadelphia County which made final its Decree Nisi entered on June 15, 1989 permanently enjoining the City, its Finance Director and Board of Pensions and Retirement (Pension Board) from making further pension payments to Tucker out of the City’s Police Pension Plan.

The issues presented on appeal are whether Tucker served as a uniformed or investigatory police employee which qualified him for pension under the Police Pension Plan; whether the Pension Board properly exercised its discretion in determining that Tucker was eligible for pension under the Police Pension Plan; whether Frank L. Rizzo, former Mayor and Police Commissioner of the City of Philadelphia (Rizzo), failed to exhaust his administrative remedies; and whether Rizzo has standing to file a challenge to Tucker’s pension. This Court will not disturb the final decree of the trial court unless it is unsupported by the evidence or is demonstrably capricious. See Lower Frederick Township v. Clemmer, 518 Pa. 313, 543 A.2d 502 (1988); Delp v. Borough of Harrisville, 25 Pa.Commonwealth Ct. 486, 360 A.2d 758 (1976).

I

Rizzo filed his suit in equity and petition for preliminary injunction in the Court of Common Pleas of Philadelphia County on behalf of the taxpayers of the City seeking to enjoin the payment of pension benefits to Tucker pursuant to the Police Pension Plan, alternately referred to as Pension Plan D. Rizzo contends that the pension granted to Tucker by the Pension Board violates the Philadelphia Retirement System Ordinance of 1956, as amended (Ordinance) and the Philadelphia City Charter, 351 Pa.Code §§ 1.1-100 — 12.12-503, in that Tucker was improperly determined to be a police employee and thereby entitled to a pension restricted to that class of municipal employees. Under the Ordinance, art. I, § 101, the pensions of City employees are divided into the Municipal Division, Police Division and Fire Division.

Tucker was appointed on December 23, 1985 effective January 1, 1986 as Police Commissioner of the City. From December 23, 1985 to December 31, 1985, Tucker served as Deputy Managing Director of the City, performing functions related to the Police Department, and during this interim period, was placed in the Municipal Retirement Plan, alternately referred to as Pension Plan J. Tucker was subsequently transferred to the Police Pension Plan by the Executive Director of the Pension Board which was confirmed by memorandum dated January 17, 1986. This action formed the basis for Rizzo’s suit.

Tucker served as Police Commissioner of Philadelphia from January 1, 1986 until his early retirement in June 1988, effective September 13, 1988, at the age of 48. As a result of the early retirement incentive offered to its employees by the City, Tucker became entitled to an additional year of service, thereby making him eligible for an annual pension of $7,915.63 for the remainder of his life based upon service for pension purposes of three years, eight months and twenty-one days. Tucker contributed a total sum of $7,298.22 to the retirement system during his term as Police Commissioner. Rizzo maintained that had Tucker properly remained in Plan J, he would not have been eligible to retire until age 55 with at least ten years of service and moreover would not have received the enhanced pension benefits provided for under Plan D.

II

The issue of standing must be addressed at the outset. The trial court found that Rizzo, as a pensioner in the City’s retirement system, has a “substantial and immediate interest beyond that of the common taxpayer” in this case and would be adversely affected by an improper decision of the Pension Board and thus has standing. Indeed, it is the general rule that a party, in order to have standing, must have an interest in the action which is substantial, direct, and immediate to that party. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). The common interests shared by citizens and taxpayers in the administration of justice and proper resolution of disputes will in the usual case be insufficient to give a party standing in a controversey. Id. While this Court agrees with the trial court that Rizzo has standing, it is for reasons other than those articulated by the trial court.

The Pennsylvania Supreme Court has determined in Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979) and more recently in Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988), that special cases will grant a taxpayer standing even when his or her interest may not be substantial, direct, and immediate. Such cases arise when governmental action will go unchallenged unless the taxpayer has the ability to intervene by judicial process. Biester; Sprague. In particular, these cases will most often occur where “those directly and immediately affected by the complained of conduct were beneficially affected as opposed to adversely affected,” thus making it improbable that a party will challenge the governmental action before the agency or on appeal. Sprague, 520 Pa. at 44, 550 A.2d at 187. A taxpayer may in the appropriate case therefore have standing to challenge the action pursuant to his or her common interest as a citizen to ensure the legality or propriety of the acts of government.

Taxpayer standing is not automatic in every such case. As the Supreme Court stated in Sprague, “consideration must be given to other factors [when determining whether a taxpayer should have standing in a controversy] such as, for example, appropriateness of judicial relief, the availability of redress through other channels, or the existence of other persons better situated to assert the claim.” 520 Pa. at 44, 550 A.2d at 187 (quoting Biester, 487 Pa. at 446, 409 A.2d at 852). The record does not present any factor that would indicate that Rizzo as a taxpayer should not have standing in this case.

Here, Tucker’s application for retirement benefits was supported by the City and approved by the Pension Board. No party was aggrieved by the Pension Board’s decision, and thus a challenge to its decision was not made by any original party. A challenge would therefore only arise by taxpayer intervention. Rizzo, as a taxpayer, instituted a challenge by bringing the present action in equity. Pursuant to Biester and Sprague, Rizzo has standing to do so. As discussed hereafter, Rizzo’s standing as a taxpayer pursuant to the holdings of Biester and Sprague is an important factor in determining whether the provisions of Section 753(a) of the Local Agency Law, 2 Pa.C.S. § 753(a), apply to this case. Tucker and the City contend that Rizzo is barred from raising any challenge in this matter pursuant to Section 753(a) because Rizzo failed to exhaust administrative remedies.

Initially, it must be observed that there is a very important factual distinction between this case and the focus of Section 753(a) which prohibits a “party who proceeded before a local agency” from raising on appeal questions not raised before the agency. See Lundy v. City of Williamsport, 120 Pa.Commonwealth Ct. 520, 548 A.2d 1339 (1988), which holds that a party to a proceeding before a local agency may not institute an independent equity action under Section 753(b) when that party failed to file an appeal from a decision of the agency pursuant to Section 753(a). Rizzo, however, was not a party to the proceedings before the Pension Board. Neither Tucker nor the City is required or expected to notify the taxpayers or other pensioners concerning Tucker’s or any other person’s application for pension benefits, and the record does not indicate that any prior, contemporaneous, or even post notice was provided to Rizzo or any other taxpayer. Rizzo testified that he first became aware of Tucker’s award of the Plan D pension from reading an after-the-fact account of it in a newspaper article.

Thus, Section 753(a) has no applicability to this case or in the usual case where a taxpayer raises a challenge to local governmental action under Biester and Sprague. A taxpayer rarely will receive prior notice of local governmental action of the kind at issue in this case, or even suspect that the governmental body will take action contrary to the public good. Therefore, the taxpayer cannot, at least in the usual case, be treated as if he or she were a party to the underlying administrative action, binding the taxpayer to participate in or timely appeal from administrative proceedings when he or she does not become cognizant of the case until after the administrative proceedings have concluded. Otherwise, the standing of taxpayers to challenge governmental action recognized in Biester and Sprague, and the important policy concerns underlying such standing, would be completely undermined.¹

A taxpayer, therefore, may institute equity proceedings to review or challenge local agency action pursuant to Section 753(b) of the Local Agency Law. This section provides that:

The remedy at law provided by subsection (a) shall not in any manner impair the right to equitable relief heretofore existing, and such right to equitable relief is hereby continued, notwithstanding the provisions of subsection (a).

A taxpayer having standing under Biester and Sprague to challenge governmental action enjoys the right to equitable relief as a taxpayer. See, e.g., Bruhin v. Commonwealth, 14 Pa.Commonwealth Ct. 300, 305, 320 A.2d 907, 910 (1974) (“equity will intervene to restrain acts of officials which are contrary to positive law or amount to bad faith or constitute a violation of public duty”). Thus, Rizzo’s equity action is not barred by Section 753(a); rather, it falls squarely under Section 753(b).

Ill

Having established that Rizzo has standing to bring this action and that it is not barred by the Local Agency Law, the substantive issues raised by this appeal must now be addressed: whether Tucker is entitled to Plan D pension benefits. The trial court’s resolution of this issue is eminently reasonable, logical, and persuasive and is also supported by the evidence. As the trial court found, neither the City Charter nor the Ordinance directly address the issue of whether the Police Commissioner is a civilian head of the Police Department or a member of the police forces he heads. Section 7-301 of the City Charter, 351 Pa.Code § 7.7-301, states however:

All officers and employees of the City, including all officers and employees of all departments, all independent boards and commissions and all departmental boards and commissions, shall be under civil service except:

(b) The Managing Director, the Director of Finance and the Personnel Director and their deputies, the heads of departments and their deputies, and members of boards and commissions ... [emphasis added].

It is clear, therefore, that the Police Commissioner as a department head is not in the City’s civil service. This fact is dispositive of this issue because, as the trial court found, civil service employment “is required of any member of the Philadelphia investigatory and uniformed police force.” Trial Court Adjudication, p. 17. Only those employees defined as police officers who are governed by the civil service provisions of the City Charter, 351 Pa.Code §§ 7.7-100 — 7.7-401, are entitled to coverage in the Police Pension Plan.

In finding that Tucker was not a police officer, the trial court stated that “[h]e took no competitive examination for his position, written or oral. He had no right to a hearing before dismissal from his position and served at the pleasure of the appointing authority.” Trial Court Adjudication, p. 17. Further, because Tucker is not a member of the City’s civil service, and never has been, he is, unlike any police officer, eligible for social security benefits and did in fact contribute to the Social Security System. Moreover, the trial court acknowledged, although not binding on the court, that the August 29, 1988 opinion of the Inspector General of Philadelphia and the March 21, 1974 opinion of the Pennsylvania Attorney General determined respectively that Tucker was not a sworn member of the police force and was entitled to be in the Social Security System. Police Officers are restricted to their pension contributions for retirement purposes.

Upon hire, Tucker acknowledged that his position was non-civil service and that he became a member of the Municipal Pension Plan J. Moreover, art. II, § 106.3 of the Ordinance provides:

If any member of the Municipal Retirement System is appointed commissioner or deputy commissioner of the Fire Department or Police Department, he shall retain his membership in that division of the municipal retirement system covering his prior employment.

While the trial court de-emphasized the applicability of this Ordinance section to Tucker’s situation (he served for one week in the Managing Director’s Office prior to assuming duties as Police Commissioner), Section 106.3 further serves to illustrate the separate and special nature of the Police Commissioner’s position as compared to the police force which the Police Commissioner manages.

The parameters for determining whether an agency has committed an abuse of discretion in its decision-making are well established:

An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence of record, discretion is abused.

Wingert v. Workmen’s Compensation Appeal Board (Getty Refining), 78 Pa.Commonwealth Ct. 640, 643, 468 A.2d 526, 528 (1983). Thus, the record demonstrates that the Pension Board abused its discretion in determining Tucker eligible for benefits under Police Pension Plan D as no logical bash existed for the Pension Board’s interpretation. Hence, the Pension Board’s apparent overlooking or misapplication of relevant law renders its decision-making an abuse of discretion. See also Leader Nursing Home v. Department of Public Welfare, 82 Pa.Commonwealth Ct. 53, 475 A.2d 859 (1984), which reiterates the view that courts will not accord deference to an agency’s interpretation of its regulations where it is nonsensical or contrary to relevant administrative and decisional precedent.

Based upon the foregoing, this Court must accordingly affirm the order of the Court of Common Pleas making final its Decree Nisi.

ORDER

AND NOW, this 7th day of September, 1990, the July 26, 1989 Order of the Court of Common Pleas of Philadelphia County is affirmed.

1 . The record does not indicate, for example, if Rizzo learned of the action of the Pension Board within thirty days of such action allowing for a timely appeal to the common pleas court. In contrast, if a party has a direct, substantial, and immediate interest in a controversy, he or she will more likely receive prior, personal notice of the proceedings by service or otherwise.