            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Frank Tepper,                                     :
                               Appellant          :
                                                  :
                       v.                         :   No. 845 C.D. 2016
                                                  :   Submitted: February 9, 2017
City of Philadelphia Board of                     :
Pensions and Retirement                           :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION BY
JUDGE COHN JUBELIRER                                  FILED: June 2, 2017


       Frank Tepper appeals from the May 12, 2016 Order of the Court of
Common Pleas of Philadelphia County (common pleas) denying his appeal and
affirming the February 26, 2015 Decision of the City of Philadelphia Board of
Pensions and Retirement (Board).                In its Decision, the Board permanently
disqualified Tepper from pension eligibility pursuant to Section 22-1302(1)(a)(.5)
of the City of Philadelphia Public Employees Retirement Code (Retirement Code).1
Tepper was a police officer from October 25, 1993, until his discharge effective
January 30, 2010, for disciplinary reasons. On appeal, Tepper argues that common
pleas erred: (1) because first degree murder, the crime of which he was convicted,

       1
          Section 22-1302(1)(a)(.5) of the Retirement Code provides that an employee shall not
be entitled to retirement or other benefits or payments, except a return of the contribution paid, if
he or she “pleads or is finally found guilty . . . of . . . [m]alfeasance in office or employment.”
Phila. Pub. Employees Ret. Code, § 22-1302(1)(a)(.5).
did not occur during the course of, nor was it related to, his employment with the
City of Philadelphia (City); and (2) by applying res judicata and collateral estoppel
to the issue of whether he acted “in [his] office or employment” under Section 22-
1302(1)(a)(.5) based on a civil federal jury’s verdict that Tepper was a state actor
who had acted “under color of state law” under 42 U.S.C. § 1983 (Section 1983)
when he committed the crime. Tepper contends that, because the City argued
strenuously during the federal civil rights case that Tepper was not acting within
his City employment, it cannot now argue that he was. Because the federal jury’s
finding that Tepper acted “under color of state law” is conclusive on the issue of
whether he acted “in [his] office or employment,” and, therefore, the Board’s
application of collateral estoppel was not in error, we affirm.
      The facts are as follows. Tepper was hired as a police officer by the City’s
Police Department on October 25, 1993. (Common pleas’ op. (Op.), Aug. 5, 2016,
at 1, S.R.R. at 12b.) On November 21, 2009, Tepper shot and killed his neighbor,
William “Billy” Panas, Jr. (Panas), with his personal weapon following a
neighborhood dispute in front of his home. (Id.); Panas v. City of Phila., 871 F.
Supp. 2d 370, 372 (E.D. Pa. 2012). Tepper was off duty and had been drinking at
the time of the shooting. Tepper was fired from the police department effective
January 30, 2010, for conduct unbecoming an officer, disobedience of orders, and
neglect of duty in connection with the shooting. (Statements of Charges Filed and
Action Taken, Board Reproduced Record (B.R.R.) at 193-97.) On March 23,
2012, Tepper applied for Optional Early Retirement Benefits from the City. (Op.
at 1, S.R.R. at 12b; Pension Documents, B.R.R. at 3.)
      These facts formed the basis for three judicial proceedings: (1) a criminal
trial in Philadelphia common pleas court for murder; (2) a federal civil action by



                                          2
Panas’s family for damages for his murder; and (3) the instant action by Tepper for
reinstatement of his pension. At the criminal trial, a unanimous jury convicted
Tepper of Murder of the First Degree, pursuant to Section 2502(a) of the Crimes
Code, 18 Pa. C.S. § 2502(a), as amended,2 and related charges.3 (Op. at 1, S.R.R.
at 12b; Trial Disposition and Dismissal Form, B.R.R. at 9.) Tepper was sentenced
to confinement in a state correctional institution for life without the chance of
parole on April 4, 2012, and was ordered to pay restitution in the amount of
$12,686.00. (Common pleas Order, Apr. 4, 2012, S.R.R. at 35b.)
       The civil rights action filed by Panas’s family in the United States District
Court for the Eastern District of Pennsylvania (District Court) against the City and
Tepper, asserted federal constitutional claims pursuant to Section 19834 and state


       2
           Section 2502(a) of the Crimes Code defines Murder of the First Degree as “[a] criminal
homicide . . . when it is committed by an intentional killing.” 18 Pa. C.S. § 2502(a). The
punishment for a conviction of first degree murder is death or life imprisonment. See Section
9711(a)(1) of the Sentencing Code, 42 Pa. C.S. § 9711(a)(1), as amended.
         3
           Tepper was also found guilty of Possession of an Instrument of Crime with intent to
employ it criminally under Section 907(a) of the Crimes Code, 18 Pa. C.S. § 907(a), as amended,
and Recklessly Endangering Another Person under Section 2705 of the Crimes Code, 18 Pa. C.S.
§ 2705. (Trial Disposition and Dismissal Form, B.R.R. at 9.)
         4
           Section 1983 of the United States Code provides for civil actions for deprivation of
rights, as follows:

      Every person who, under color of any statute, ordinance, regulation, custom, or
      usage, of any State or Territory or the District of Columbia, subjects, or causes to
      be subjected, any citizen of the United States or other person within the
      jurisdiction thereof to the deprivation of any rights, privileges, or immunities
      secured by the Constitution and laws, shall be liable to the party injured in an
      action at law, suit in equity, or other proper proceeding for redress, except that in
      any action brought against a judicial officer for an act or omission taken in such
      officer’s judicial capacity, injunctive relief shall not be granted unless a
      declaratory decree was violated or declaratory relief was unavailable. For the
      purposes of this section, any Act of Congress applicable exclusively to the
(Footnote continued on next page…)


                                                3
law tort claims, and sought compensation for the loss of their son. In order “[t]o
state a claim under [Section] 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted) (emphasis added). The
City moved for summary judgment, arguing that Tepper was off-duty at the time of
the murder and was not a state actor.5 The District Court denied the motion in part
as to the Section 1983 claims, and the case went to trial. Panas, 871 F.Supp. 2d at
371-72.
       At the trial’s conclusion, on the issue of Tepper’s individual liability, the
jury found, by a preponderance of the evidence, that: Tepper was a state actor at
the time that he murdered Panas; Tepper violated Panas’s Fourth Amendment
rights; and Tepper’s conduct was the factual cause of Panas’s death. (Jury Verdict
Slip, S.R.R. at 83b.) Judgment was entered against Tepper who did not appeal the
federal jury verdict. (Dist. Ct. Order, filed Dec. 13, 2012, S.R.R. at 86b.) Tepper
did file a Motion for a New Trial, which the District Court denied. (B.R.R. at 73-
76.)
       With this background, we reach the instant action regarding Tepper’s
pension eligibility.     Tepper had applied for his retirement benefits after his
_____________________________
(continued…)
       District of Columbia shall be considered to be a statute of the District of
       Columbia.

42 U.S.C. § 1983 (emphasis added).
        5
          The City also argued that it was immune from the plaintiff’s state law claims pursuant
to the act commonly known as the Political Subdivision Tort Claims Act, 42 Pa. C.S. §§ 8541-
8542. (B.R.R. at 146-47.) The District Court granted the City’s motion in part on these claims.
Panas, 871 F.Supp.2d at 371-72.



                                               4
conviction for first degree murder. At the Board’s regular meeting on March 27,
2014, it voted to permanently disqualify Tepper from pension eligibility pursuant
to Section 22-1302(1)(a)(.5) of the Retirement Code, and it notified Tepper via
letter the next day. (Board Case Summary, Mar. 27, 2014, B.R.R. at 77; Board
Letter to Tepper, Mar. 28, 2014, B.R.R. at 78.) Tepper timely requested a hearing
before the Board, which was held on December 17, 2014. (Op. at 2, S.R.R. at
13b.) Tepper did not appear at the hearing, but counsel appeared on his behalf.
      At the hearing, Tepper argued that there were two reasons the City was
bound by its prior position that Tepper was not acting in his office or employment.
First, the Philadelphia Police Department had made this determination when
reviewing his conduct. (Hr’g Tr., Dec. 17, 2014, at 7-8, 30-31, B.R.R. at 95-96,
118-19.) Second, the City consistently asserted in the federal Section 1983 action
that Tepper was not a state actor when he murdered Panas. (Id. at 5-9, B.R.R. at
93-97.)   Tepper argued that the City could not afterwards take the opposite
position. Tepper also argued that murder is not a separately enumerated offense,
and the issue of whether he was disqualified for committing “[m]alfeasance in
office or employment” under Section 22-1302 of the Retirement Code requires an
examination of his criminal conviction, which is a distinct and different area of law
than civil liability under Section 1983. (Id. at 14, 27, B.R.R. 102, 115.) Tepper
argued that there is no evidence that he was acting in his job as a police officer
when he committed the murder and, for support, cited DiLacqua v. City of
Philadelphia Board of Pensions and Retirement, 83 A.3d 302, 310 (Pa. Cmwlth.
2014) (conviction for mail fraud committed as volunteer charter school board
member did not disqualify police officer from receiving pension).




                                         5
        In contrast, the City argued that the jury’s verdict in the federal Section 1983
action was a factual determination that Tepper had acted in his official capacity
when he killed Panas, and thus, issue preclusion applied. Therefore, according to
the City, the City and the Board were bound by this determination which
established that Tepper was “in office or employment” at the time of the murder.
Both the City and Tepper filed legal memoranda with the Board, attaching several
exhibits, including transcripts from the criminal trial, Tepper’s criminal conviction,
depositions from the civil proceeding, the civil jury instruction, and the civil jury
slip.
        The Board denied Tepper’s appeal at its regular meeting held on February
26, 2015, and notified Tepper of its Decision via letter the next day. (Board Letter
Re: Appeal of Pension Disqualification, B.R.R. at 449.) Tepper timely filed a
statutory appeal of the Board’s Decision in common pleas, and the Board thereafter
submitted its Findings of Fact and Conclusions of Law to common pleas. The
Board determined that, under the doctrine of collateral estoppel, it was bound by
the jury verdict finding that Tepper was a state actor under Section 1983 when he
committed murder, which satisfied Section 22-1302’s requirement that the offense
be committed “in office or employment.” (Board Conclusions of Law (COL) ¶¶ 4-
6, 11.) The Board also concluded that murder committed by a police officer as a
state actor met the standard for “malfeasance in office or employment” pursuant to
Section 22-1302(1)(a)(.5) of the Retirement Code. (COL ¶¶ 12-15.) The Board
found that the City was not bound by its prior position under the doctrine of
judicial estoppel because a party cannot assume a position inconsistent with his or
her assertion in a previous action, if that contention was successfully maintained.
However, because the City’s prior position was not successfully maintained, the



                                            6
Board concluded that it was Tepper who was estopped from asserting he did not
act in office. (COL ¶¶ 17-19.)
       On appeal to common pleas, both Tepper and the Board submitted briefs
reiterating their prior arguments, and oral argument was held on April 28, 2016.
(Tepper’s Br., R.R. at 9-19 (relying on DiLacqua); Board’s Br., R.R. at 20-32; see
also Op. at 6, S.R.R. at 17b.)           After considering the record, briefs, and oral
arguments,6 common pleas denied Tepper’s appeal by Order dated May 12, 2016,
and affirmed the Board’s Decision. (R.R. at 8.) Tepper filed a Notice of Appeal
with this Court on May 18, 2016, and common pleas ordered Tepper to file a brief
statement of errors complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b),7 which he did.
(S.R.R. at 9b-10b.)
       In its Opinion explaining the reasoning for its Order, common pleas
explained that the Board properly applied the doctrine of collateral estoppel, or
issue preclusion, to find that Tepper engaged in “malfeasance in office or
employment” under Section 22-1302(1)(a)(.5) and that common pleas did not err
in finding that Tepper was collaterally estopped from challenging the federal jury’s

       6
          The hearing transcript can be found in the Reproduced Record at pages 2-7.
       7
          Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure provides, in pertinent
part, as follows:

       (b) Direction to file statement of errors complained of on appeal; instructions
       to the appellant and the trial court.--If the judge entering the order giving rise
       to the notice of appeal (“judge”) desires clarification of the errors complained of
       on appeal, the judge may enter an order directing the appellant to file of record in
       the trial court and serve on the judge a concise statement of the errors complained
       of on appeal (“Statement”).

Pa. R.A.P. 1925(b).



                                                7
determination. (Op. at 10-11, S.R.R. at 21b-22b.) Common pleas determined that
the issues in the federal action and in this action are identical: “was [Tepper] a
state actor when he committed the crime?” (Op. at 10, S.R.R. at 21b (citing West,
487 U.S. at 49 (“acting under color of state law requires that the defendant in a
[Section] 1983 action have exercised power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state
law.”) (internal quotations omitted)).) Common pleas concluded that the Board
properly determined that first degree murder constitutes malfeasance under the
Retirement Code, citing Merlino v. Philadelphia Board of Pensions and
Retirement, 916 A.2d 1231 (Pa. Cmwlth. 2007) (construing the term
“malfeasance” under the Retirement Code), and that Tepper’s reliance on
DiLacqua was misplaced. (Op. at 11 n.3, 12, S.R.R. at 22b n.3, 23b.)
       On appeal,8 Tepper argues that common pleas erred because the crime of
which he was convicted, murder, which is not an enumerated disqualifying offense
under the Retirement Code, did not occur during the course of, nor was it related
to, his employment with the City. Tepper argues that common pleas erred by
applying res judicata and collateral estoppel to preclude him from litigating before
the Board whether he acted in his office or employment when he committed the
crime based on the federal jury’s verdict that Tepper was a state actor who had
acted under color of state law under Section 1983.
       Section 22-1302(1)(a)(.5) of the Retirement Code provides that an employee
shall not be entitled to receive retirement benefits if the employee pleads guilty or

       8
          “This court’s scope of review, where the trial court takes no additional evidence, is
limited to determining whether constitutional rights were violated, [whether] an error of law was
committed or whether necessary findings of fact were supported by substantial evidence.”
Martorano v. Phila. Bd. of Pensions and Ret., 940 A.2d 598, 600 n.3 (Pa. Cmwlth. 2008).



                                               8
is found guilty of one of the enumerated offenses in that section, the relevant
offense here being “[m]alfeasance in office or employment.”                            Phila. Pub.
Employees Ret. Code, § 22-1302(1)(a)(.5).9 Thus, for Tepper to be disqualified

      9
          Section 22-1302(1)(a) of the Retirement Code provides, as follows:

      § 22-1302. Disqualification.

          (1) Notwithstanding any other provision of this Title, no employee nor any
          beneficiary designated by or for any employee shall be entitled to receive any
          retirement or other benefit or payment of any kind except a return of
          contribution paid into the Retirement System, without interest, if such
          employee:

            (a) pleads or is finally found guilty, or pleads no defense, in any court, to any
            of the following:

              (.1) Perjury committed in connection with the employee’s official duties or
              in any affidavit or proceeding concerning the employee’s official duties or
              conduct;
              (.2) Acceptance of a bribe for the performance, or affecting the
              performance or for the non-performance of the employee’s official duties, or
              the offering or giving of a bribe to any other City employee or employee of
              the Commonwealth or of the United States for the performance or affecting
              the performance or for the non-performance of the employee’s official
              duties;
              (.3) Engaging in graft or corruption incident to or in connection with the
              employee’s office or employment constituting a violation of the laws of the
              Commonwealth or the United States;
              (.4) Theft, embezzlement, willful misapplication, or other illegal taking of
              funds or property of the City, or those of any official agency of the City, or
              agency, engaged in performing any governmental function for the City or
              the Commonwealth;
              (.5) Malfeasance in office or employment;
              (.6) Any offense designated as a “listed offense” under the Pennsylvania
              Registration of Sexual Offenders Act (Megan’s Law), 42 [Pa. C.S.] § 9795.1
              or its statutory equivalent in another jurisdiction, if committed incident to or
              in connection with the employee’s office or employment;
              (.7) Engaging in a conspiracy to commit any of the foregoing.

(Footnote continued on next page…)


                                                  9
from receiving pension benefits, first degree murder must constitute malfeasance
and “must be committed in connection with [his] employment or public office.”
DiLacqua, 83 A.3d at 311.
       Although “malfeasance” is not defined in the Retirement Code, it has been
defined by case law as “not merely error in judgment or departure from sound
discretion, but the act, omission or neglect must be wilful, corrupt and amount to a
breach of duty legally required by one who has accepted public office.” Bellis v.
Bd. of Pensions and Ret., 634 A.2d 821, 825 (Pa. Cmwlth. 1993) (internal
quotations omitted) (holding that bribery constitutes malfeasance under the former
Retirement Code). “[M]alfeasance occurs when there is ‘either the breach of a
positive statutory duty or the performance by a public official of a discretionary act
with an improper or corrupt motive.’” Merlino, 916 A.2d at 1235 (quoting Bellis,
634 A.2d at 825 (citations omitted)). The focus is on “the underlying illegal act, as
opposed to the particular crime, [that] form[s] the basis for a forfeiture . . . .” Id.
(citing Bellis, 634 A.2d at 825).            We have construed the undefined term
“malfeasance” “according to its common and approved usage,” that is as a
wrongful or unlawful act, especially wrongdoing or misconduct by a public
official. Id.; see also Black’s Law Dictionary 976 (8th ed. 2004). For example, in
Merlino, the Court held that a police officer who had pled guilty to making false
statements to a federal agency had committed “a wrongful and unlawful act,”
which constituted “malfeasance in office or employment,” and affirmed the
Board’s denial of pension benefits. Merlino, 916 A.2d at 1235.


_____________________________
(continued…)
Phila. Pub. Employees Ret. Code, § 22-1302(1)(a) (emphasis added) (footnote omitted).



                                             10
       Tepper’s argument to this Court is not that first degree murder cannot be
considered malfeasance,10 but that his actions here cannot be considered
“malfeasance in office or employment.” He contends that he was not on duty or in
uniform, did not use police equipment, used his personal weapon, and the murder
resulted from a personal altercation between neighbors. Because, throughout the
federal civil litigation, the City forcefully made these same contentions in asserting
that Tepper was not acting as a police officer when he committed the murder, he
argues that the City should not now be able to argue the opposite for its financial
benefit. Moreover, the jury verdict in a civil action cannot be used to foreclose this
inquiry because, according to Tepper, the standard in Section 22-1302 of the
Retirement Code is a criminal standard, not a civil standard. He therefore contends
that there can be no preclusive effect under either res judicata or collateral estoppel
from the jury verdict.
       We initially address whether common pleas correctly affirmed the Board’s
finding that the jury verdict had a preclusive effect in this case. “The doctrine of
res judicata encompasses two related, yet distinct, principles: technical res judicata
and collateral estoppel.” Maranc v. Workers’ Comp. Appeal Bd. (Bienenfeld), 751
A.2d 1196, 1199 (Pa. Cmwlth. 2000). Thus, there can be some confusion by the
use of the term “res judicata.” However, neither the Board nor common pleas
applied technical res judicata because the causes of action are not identical, which
is required.11 Instead, the Board and common pleas applied collateral estoppel,

       10
           There is no question that first degree murder, which is a “willful, deliberate and
premeditated killing,” 18 Pa. C.S. § 2502(a), (d), “represent[s] the commission of a wrongful and
unlawful act thereby constituting malfeasance . . . in violation of Section 22-1302 of the
Retirement Code.” Merlino, 916 A.2d at 1235.
        11
           Technical res judicata “provides that when a final judgment on the merits exists, a
future suit between the parties on the same cause of action is precluded.” Maranc, 751 A.2d at
(Footnote continued on next page…)


                                               11
which “forecloses re-litigation in a later action, of an issue of fact or law which
was actually litigated and which was necessary to the original judgment.” City of
Pittsburgh v. Zoning Bd. of Adjustment, 559 A.2d 896, 901 (Pa. 1989). The
doctrine “is designed to prevent relitigation of an issue in a later action, despite the
fact that the later action is based on a cause of action different from the one
previously litigated.” Pucci v. Workers’ Comp. Appeal Bd. (Woodville State
Hosp.), 707 A.2d 646, 647-48 (Pa. Cmwlth. 1998). The doctrine applies if:

        (1) the issue decided in the prior case is identical to one presented in
        the later case; (2) there was a final judgment on the merits; (3) the
        party against whom the doctrine is asserted was a party or in privity
        with a party in the prior case and had a full and fair opportunity to
        litigate the issue[;] and (4) the determination in the prior proceeding
        was essential to the judgment.

Id. at 648. After careful examination, we agree that collateral estoppel applies
here.
        The first requirement, that the issue decided in the federal case be identical
to the issue presented here in the pension case, is the only requirement Tepper
challenges. Tepper argues that the issue here in the pension case, whether he acted
“in office or employment” under the Retirement Code when he committed the
murder, is not identical to the finding of a federal civil jury that he acted “under
color of state law” under Section 1983. There is no dispute that Tepper was

_____________________________
(continued…)
1199. For technical res judicata (or res judicata) to apply, the prior and the present case must
share four elements: “(1) [i]dentity in the thing sued upon or for; (2) [i]dentity of the cause of
action; (3) [i]dentity of the persons and parties of the action; and (4) [i]dentity of the quality or
capacity of the parties suing or sued.” McCandless Twp. v. McCarthy, 300 A.2d 815, 820 (Pa.
Cmwlth. 1973).



                                                12
employed as a police officer for the City at the time of the murder. In the federal
case, the jury heard testimony that Tepper was off duty, not in uniform, did not use
police equipment, used his personal weapon, the murder resulted from a personal
altercation between neighbors, and also that Tepper exited his home, flashed his
badge, and identified himself as a police officer. (Jury Instruction, S.R.R. at 58b-
62b.) After hearing those facts, the jury found that Tepper acted “under color of
state law,” in his official capacity as a police officer, under the definitions of that
term and the guidelines set forth in the federal jury charge. (Id.)
      The United States Supreme Court has stated that acting “under color of state
law” requires that a defendant in a Section 1983 action has exercised power
“possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.” West, 487 U.S. at 49. “If an individual is
possessed of state authority and purports to act under that authority, his action is
state action.” Griffin v. State of Maryland, 378 U.S. 130, 135 (1964) (emphasis
added). Furthermore, a person may act under color of state law when he misuses
or abuses his position. West, 487 U.S. at 50.
      Thus, acting “under color of state law” for purposes of Section 1983 has the
same meaning as “in office or employment” under the Retirement Code here,
where the jury found that Tepper acted “under color of state law” in his official
capacity as a police officer. Tepper argues, nonetheless, that the preponderance of
the evidence standard used in the federal civil case to find that he was a state actor
is not the proper standard to use in this pension case under the Retirement Code.
Because Section 22-1302(1)(a) of the Retirement Code states that an employee that
“pleads or is finally found guilty, or pleads no defense” forfeits his pension, he




                                          13
argues that a determination of whether he committed “malfeasance in office or
employment” requires a criminal standard to be employed. This is not correct.
       First, although malfeasance in office was a common law crime, it along with
other common law crimes were abolished in this Commonwealth pursuant to
Section 107(b) of the Crimes Code, 18 Pa. C.S. § 107(b), and there is no other
equivalent crime under that statute. As previously discussed, “malfeasance in
office or employment,” can include other crimes, such as making false statements
to an agency, Merlino, and first degree murder, here. Second, in the criminal trial,
the jury found Tepper guilty of first degree murder beyond a reasonable doubt.
Were we to agree with Tepper that collateral estoppel did not apply to the issue of
whether he committed “malfeasance in office or employment,” we would remand
to the Board to make that determination. The standard of proof that the Board
would use in making that determination would not be “beyond a reasonable
doubt,” but rather a preponderance of the evidence standard.12 Therefore, there
would be no difference in the standard used by the Board to determine whether the
malfeasance occurred in office or employment than the federal jury used in
determining whether Tepper acted under color of state law. The federal jury
thoroughly considered identical operative facts and determined that Tepper was a
state actor. Therefore, because the issues, and the underlying facts, are the same,
the first requirement of collateral estoppel has been satisfied.




       12
          “[A] litigant’s burden of proof before administrative tribunals as well as before most
civil proceedings is satisfied by establishing a preponderance of evidence which is substantial
and legally credible.” Samuel J. Lansberry Inc. v. Pa. Pub. Util. Comm’n, 578 A.2d 600, 602
(Pa. Cmwlth. 1990).



                                              14
       There is no argument about whether the final prongs of collateral estoppel
are met here. The federal action was a final judgment on the merits because
Tepper did not appeal the verdict; Tepper, as a defendant, was a party in the prior
federal action; Tepper had a full and fair opportunity to litigate whether he was a
state actor in the prior federal action; and the determination of whether Tepper was
a state actor was essential to the judgment in the federal case because, without a
finding of governmental action, there could be no liability in a Section 1983 action.
See 42 U.S.C. § 1983; see also Panas, 871 F. Supp. 2d at 377 (“there can be no
[Section] 1983 liability unless the wrongdoer acts under color of [state] law”).
       Because all of the elements of collateral estoppel are met, common pleas did
not err in concluding that Tepper is collaterally estopped from challenging the
federal jury’s finding that he was a state actor under Section 1983 at the time he
murdered Panas. Tepper is, therefore, precluded from relitigating whether he was
acting in office or employment under the Retirement Code when the murder
occurred.13




       13
           We note that DiLacqua, which Tepper relies upon as support for his contention that he
was not acting “in office or employment,” is distinguishable. In DiLacqua, although a police
officer pled guilty to the federal crime of honest services mail fraud, she committed the offense
in connection with her volunteer position on a charter school’s board of directors, not as a police
officer. DiLacqua, 83 A.3d at 311-12. For that reason, the crime was not committed “in office
or employment” under the Retirement Code. We also note that the City was not bound by its
prior position, that Tepper was not a state actor, under the doctrine of judicial estoppel because
its contention regarding Tepper was not successfully maintained in the prior action. Trowbridge
v. Scranton Artificial Limb Co., 747 A.2d 862, 864 (Pa. 2000) (“As a general rule, a party to an
action is estopped from assuming a position inconsistent with his or her assertion in a previous
action, if his or her contention was successfully maintained.”). Therefore, Tepper’s arguments to
the contrary are not persuasive.



                                                15
      Accordingly, we affirm the Order of common pleas affirming the Board’s
Decision to disqualify Tepper from receiving a pension pursuant to Section 22-
1302(1)(a)(.5) of the Retirement Code.




                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge




                                         16
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Frank Tepper,                           :
                         Appellant      :
                                        :
                  v.                    :   No. 845 C.D. 2016
                                        :
City of Philadelphia Board of           :
Pensions and Retirement                 :


                                     ORDER


      NOW, June 2, 2017, the May 12, 2016 Order of the Court of Common Pleas
of Philadelphia County, entered in the above-captioned matter, is hereby
AFFIRMED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
