Mazzo v. Board of Pensions & Retirement of Philadelphia

ZAPPALA, Justice,

dissenting.

I conclude that the Public Employee Pension Forfeiture Act, 43 P.S. § 1311 et seq., does not preempt Philadelphia’s municipal ordinance prohibiting payment of benefits to employees who have not been reinstated to their positions after dismissal due to the filing of criminal charges. I would affirm the Commonwealth Court’s decision denying pension benefits to the Appellants.

Preemption of the field by the General Assembly is the exception and not the rule. Council of Middletown Township v. Benham, 514 Pa. 176, 523 A.2d 311 (1987). We must exercise restraint, therefore, in determining whether legislative action by the General Assembly was intended to proscribe municipal legislation in the area. Local legislation is permissi*86ble unless the state has retained all regulatory and legislative power for itself.

“The state is not presumed to have preempted a field merely by legislating in it. The General Assembly must clearly show its intent to preempt a field in which it has legislated.” Council of Middletown, 514 Pa. at 180, 523 A.2d at 313, (citations omitted.). Where, as here, the statute does not expressly provide that municipal legislation is forbidden, we must undertake an analysis of the statutory provisions to ascertain the legislative intent. Western Pennsylvania Restaurant Association v. City of Pittsburgh, 366 Pa. 374, 77 A.2d 616 (1951).

The purpose of the pension forfeiture statute was to deny retirement and other benefits to public officials and public employees for criminal conduct committed through their public offices or positions. The forfeiture provision is a safeguard for the public intended to deprive a public official or public employee of the benefits of his position when the position and public trust have been abused. Forfeiture acts not only as retribution for such misconduct, but also as a disincentive.

The pension forfeiture statute mandates that the public official or public employee shall not receive benefits upon conviction or a plea of guilty or no defense for any crime related to his office or employment. The Philadelphia ordinance further prohibits the payment of benefits when the individual who has been dismissed from his position following such criminal charges has not been reinstated. Unlike the majority, I do not interpret the pension forfeiture statute as a directive that benefits shall be paid when individuals have been acquitted or absolved of criminal charges. Nor do I interpret the Philadelphia municipal ordinance as imposing restrictions inconsistent with the forfeiture statute.

The Philadelphia municipal ordinance imposes restrictions that are complementary to, and not in conflict with, the forfeiture statute. In furtherance of the purpose of the statute, the ordinance implicitly recognizes that an acquittal in a criminal proceeding is not the legal equivalent of a finding of innocence. For that reason, we permit a guilty verdict to be *87introduced in a collateral civil proceeding as proof of the facts underlying the criminal conviction, but do not allow an acquittal to be introduced to show that the accused did not commit the acts charged.

As we stated in Pennsylvania Turnpike Commission v. U.S. Fidelity & Guaranty Co., 412 Pa. 222, 227-28, 194 A.2d 423, 426 (1963), (citations omitted.),

In the case of a judgment of acquittal or nolle prosequi, Pennsylvania has consistently followed the rule that the criminal judgment is not admissible as evidence to prove that the defendant did not do the act complained of....
In view of the substantial difference in the quantum of proof required in civil and criminal cases, the rule of exclusion in cases wherein a judgment of acquittal is entered is rational and well grounded.

A judgment of conviction is a positive finding, indicating that the Commonwealth has established the charges beyond a reasonable doubt, whereas an acquittal is a “negative statement that the proof necessary for a conviction was not forthcoming.” City of Philadelphia v. Fraternal Order of Police, 105 Pa.Cmwlth. 639, 525 A.2d 460, 462 (1987), (citation omitted.)

A municipality should not be foreclosed from establishing the offenses charged in a collateral civil proceeding involving dismissal from employment because the public official or public employee was not convicted of the offenses in a criminal proceeding. The fact that the Appellants were found not guilty in the criminal proceedings does not establish that they did not commit acts in their official capacity as police officers that abused their position and the public trust. The Philadelphia municipal ordinance would deny public officials and public employees retirement benefits for criminal conduct committed through their positions in instances where there was no criminal conviction, but sufficient evidence was introduced in the collateral civil proceeding to establish the criminal conduct.

I would not invalidate the Philadelphia municipal ordinance because the ordinance reinforces the objective of the pension forfeiture statute. The pension forfeiture statute was not *88intended to foreclose a municipality from denying retirement benefits for public officials and employees who have committed criminal conduct simply because the evidence falls short of the legal standard necessary for a criminal conviction. The pension forfeiture statute was intended to impose an additional civil penalty for criminal conduct involving a public office or public employment. In instances in which a criminal conviction has been secured, the civil penalty is mandatory. In instances in which there has not been a criminal prosecution or conviction, a municipality should not be foreclosed from producing evidence of criminal conduct in a collateral civil proceeding that will affect the public officer’s or public employee’s right to receive retirement benefits. Yet, that is the result of the majority’s holding. Accordingly, I dissent.