J. Quinn v. Police Pension Commission of the City of Sunbury

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jamie Quinn , :
Appellant :
:
v. : No. 1226 C.D. 2020
: Submitted: May 16, 2022
Police Pension Commission :
of the City of Sunbury :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: July 12, 2022
Appellant Jamie Quinn (Quinn) challenges the Court of Common Pleas of
Northumberland County’s (Common Pleas) October 29, 2020 order that affirmed
Appellee Police Pension Commission of the City of Sunbury’s (Pension
Commission) January 24, 2019 decision. In this decision, the Pension Commission
determined that Quinn had forfeited the pension benefits she had accrued after
working as a Sunbury police officer for 22 years, due to her being convicted of
conspiracy to tamper with or fabricate physical evidence.1 After careful review, we
reverse.
1
Per Section 4910 of the Crimes Code,
A person commits a misdemeanor of the second degree if, believing
that an official proceeding or investigation is pending or about to be
instituted, he:
(1) alters, destroys, conceals or removes any record,
document or thing with intent to impair its verity or
availability in such proceeding or investigation; or
(Footnote continued on next page…)
I. Background
The relevant facts in this matter are as follows. The Sunbury Police
Department (Department) provided Quinn with a cell phone, which was to be used
only to assist her in fulfilling her duties as a police officer, except in certain
emergency situations or with departmental approval. See Reproduced Record (R.R.)
at 100a-01a, 109a, 161a. Despite this requirement, Quinn gave her Department-
issued phone to her then-minor son in October 2016 for his personal use, in order to
replace another cell phone that had been confiscated by her son’s father.2 Id. at 127a-
30a, 161a-62a. Quinn did this in order to ensure that she would be able to stay in
touch with her son.
(2) makes, presents or uses any record, document or thing
knowing it to be false and with intent to mislead a public
servant who is or may be engaged in such proceeding or
investigation.
18 Pa. C.S. § 4910. As for conspiracy, Section 903(a) of the Crimes Code states that,
A person is guilty of conspiracy with another person or persons to
commit a crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons that they or one
or more of them will engage in conduct which constitutes
such crime or an attempt or solicitation to commit such
crime; or
(2) agrees to aid such other person or persons in the planning
or commission of such crime or of an attempt or solicitation
to commit such crime.
Id. § 903(a).
2
The precise status of the relationship between Quinn and her son’s father is not clear, but
the record does indicate that they were not living in the same household.
2
On November 29, 2016, Quinn’s son texted his mother and asked for her help
with a sexting3 and revenge porn4 situation involving the son’s then-girlfriend, who
was also a minor at that point. Id. at 132a, 163a; Quinn’s Br., App. 5. Quinn’s son
explained to his mother that, unbeknownst to him, his girlfriend had texted a topless
photo of herself to another teenaged male. Id. at 132a, 163a; Quinn’s Br., App. 5.
His girlfriend had then stopped communicating with the other male, who retaliated
by resending the photo to other individuals on November 28, 2016. Id. at 132a, 163a;
Quinn’s Br., App. 5. Shortly thereafter, Quinn’s son found out about the photo from
a third party and turned to his mother for guidance. Id. at 132a-34a, 163a; Quinn’s
Br., App. 5. During the course of their conversation, Quinn realized that her son had
potentially received the topless photo on her Department-issued phone, whereupon
she texted him, “Oh God! That picture was never on that phone was it? Either way
make sure you don’t have a copy of it and never admit to anyone else that you’ve
actually seen it.” Id. at 133a, 164a; Quinn’s Br., App. 5.
Two days later, on December 1, 2016, the Pennsylvania State Police initiated
an investigation into the situation and sent a state trooper to a local high school to
speak with the revenge porn victim and a number of other juveniles, including
Quinn’s son. R.R. at 81a. Prior to interviewing Quinn’s son, the trooper called Quinn
around 1:00 p.m. and asked for her permission to do so, as well as to search the son’s
phone. Id. at 82a, 164a. During this conversation, Quinn told the trooper that her
3
“Sexting” is “the sending of sexually explicit messages or images by cell phone.” Sexting,
Merriam-Webster.com. https://www.merriam-webster.com/dictionary/sexting (last visited July
11, 2022).
4
“Revenge porn” is defined as “sexually explicit images of a person posted online without
that person’s consent especially as a form of revenge or harassment.” Revenge porn, Merriam-
Webster.com. https://www.merriam-webster.com/dictionary/revenge%20porn (last visited July
11, 2022).
3
son’s phone was actually the Department’s property. Quinn also stated that the
topless photo had been on the phone for approximately two days, and that she would
get in trouble with the Department if the trooper seized the phone that day. Id. at
81a-82a. Nevertheless, Quinn allowed the trooper to search the phone for the photo
and interview her son. Id. at 82a.5
Shortly thereafter, Quinn had a text conversation with her son, which included
the following exchanges:
[Quinn’s Son:] Hey ma, I have to bring the other phone to
the [police] station.
[Quinn:] That’s no problem. I can pick you up and take
you over there if you would like. And I just called work
and it is OK for me to take the day off tomorrow so if you
want to spend the night and take my car tomorrow if you
want to go to school that would be fine. And I can take you
over to the state police [barracks] with the other phone.
But I will explain that all, use that as a general excuse to
have the phone, and go through anything that may be
incriminating
[Quinn’s Son:] Yup thats [sic] my plan
[Quinn:] OK. I would happy [sic] be happy to be there with
you through all of that if you would like. What do you
think?
[Quinn’s Son:] Thats [sic] fine
[Quinn:] When would you like me to pick you up?
[Quinn’s Son:] Ill [sic] let you know
....
[Quinn:] ok [sic]. Delete this next message this message
that I’m sending to you now. But I really don’t want you
to admit that the picture was ever on that phone. Seriously!
Delete this because the trooper and I had a conversation
about the text I sent you saying don’t admit. . . Anyway.
5
Quinn also contemporaneously contacted Captain Steven Bennick, one of her Department
superiors, and gave him the details about the unfolding situation. R.R. at 98a-99a, 101a-03a.
4
You just tell him that they need to look at it to be sure the
picture was never on that phone. Seriously—delete most
of these text [sic] we just sent!
Quinn’s Br., App. 5.
The trooper was unable to find the photo on the son’s phone and, as a result,
called Quinn after he returned to his barracks and informed her that he would need
to seize the phone as evidence in his ongoing investigation. R.R. at 82a. In response,
Quinn asked the trooper if he had seen the aforementioned text message, in which
she had directed her son to delete the photo and to never admit that he had seen it.
Id. The trooper did not answer Quinn’s question at that point, but ultimately found
the text referenced by Quinn after securing the phone and searching its contents a
second time. Id.
As a result of her actions, Quinn was charged on June 2, 2017, with multiple
crimes including diversion of services, theft by unlawful taking of movable property,
tampering with or fabricating physical evidence, and conspiracy to tamper with or
fabricate physical evidence. Id. at 63a-66a. The Department then fired Quinn on
August 28, 2017. Id. at 4a, 61a-62a. Quinn’s firing was due to the criminal charges
that had been lodged against her and not for giving her son her work cell phone; in
fact, according to Quinn’s supervising officer, this action would have been deemed
a minor violation of the Department’s policy manual, one that would have likely
resulted in the issuance of a written reprimand. See id. at 121a-22a. Quinn’s criminal
case then proceeded to a jury trial. On March 27, 2018, the jury convicted Quinn of
one count of conspiracy to tamper with or fabricate physical evidence.6 Id. at 4a,
6
Quinn was acquitted of theft by unlawful taking of movable property and Common Pleas
granted her motion to dismiss the remaining two charges. See id. at 160a, 184a-85a.
5
184a-85a. Thereafter, on June 20, 2018, Common Pleas sentenced Quinn to 24
months of intermediate punishment.7 Id. at 71a.
After her criminal trial concluded, Quinn filed a claim with Sunbury’s Police
Pension Fund regarding her vested pension benefits that she had accrued through her
twenty-two years as a Sunbury police officer. Id. at 4a; see id. at 161a. On August
28, 2018, the Pension Commission’s attorney notified Quinn that her claim had been
denied, because her conviction had rendered her ineligible for such benefits due to
the dictates of the Public Employee Pension Forfeiture Act (Pension Forfeiture Act).8
7
Intermediate punishment is similar to probation in some respects.
Both terms refer, broadly speaking, to a set of measures [imposable]
by the court which restrict an offender’s liberty but fall short of
traditional incarceration. There is also a substantial overlap in the
range of options available under either program[.] . . . Additionally,
whether an offender is serving a sentence of probation or
intermediate punishment, if he violates the assigned conditions, the
order of probation or intermediate punishment (as the case may be)
may be revoked and a new sentence imposed. . . .
Significantly, however, the General Assembly’s intention in
adopting intermediate punishment in this Commonwealth was not
merely to establish another form of probation parallel to the one that
already existed. Rather, as the Superior Court has explained:
The [L]egislature’s intent was: to give judges another
sentencing option which would lie between probation and
incarceration with respect to sentencing severity; to provide
a more appropriate form of punishment/ treatment for certain
types of non-violent offenders; to make the offender more
accountable to the community; and to help reduce the county
jail overcrowding problem while maintaining public safety.
Com[.] v. Philipp, 709 A.2d 920, 921 (Pa. Super. 1998) (quoting
SENTENCING IN PENNSYLVANIA 1990: 1990-1991 ANNUAL REPORT
OF THE PENNSYLVANIA COMMISSION ON SENTENCING 8).
Com. v. Wegley, 829 A.2d 1148, 1152-53 (Pa. 2003) (footnote and some internal citations omitted).
8
Act of July 8, 1978, P.L. 752, as amended, 43 P.S. §§ 1311-1315.
6
Id. at 186a-87a. Quinn administratively appealed this denial on September 21, 2018.
The Pension Commission issued a decision on January 24, 2019, denying Quinn’s
pension benefits request on the same basis. Id. at 188a-89a. Quinn appealed the
Pension Commission’s decision to Common Pleas, which affirmed the Pension
Commission on October 29, 2020.9 Quinn then filed the instant appeal with our
Court.
II. Discussion
Quinn presents two arguments for our consideration. First, Quinn argues that
Common Pleas erroneously concluded that a conviction for the crime of conspiracy
is a valid basis under the Pension Forfeiture Act for stripping an individual of their
pension benefits. Quinn’s Br. at 18-21. Second, Quinn asserts that, even if we fail to
agree with her first argument, it remains that Common Pleas abused its discretion by
finding that there was a “sufficient nexus” between the crime she was convicted of
9
The parties stipulated to the fact that the record developed before the Pension Commission
was incomplete. They agreed to submit additional evidence to Common Pleas and have the matter
reviewed de novo. Id. at 6a; see 2 Pa. C.S. § 754(a) (“In the event a full and complete record of the
proceedings before the local agency was not made, the court may hear the appeal de novo, or may
remand the proceedings to the agency for the purpose of making a full and complete record or for
further disposition in accordance with the order of the court.”).
Quinn asserts that our standard of review in this matter is to “determine[] whether the
Pension Commission violated Quinn’s constitutional rights, whether it committed an error of law
or whether necessary findings of fact are supported by substantial evidence.” Quinn’s Br. at 3.
That would have been the proper standard of review if Common Pleas had not taken additional
evidence and, instead, had merely considered the Pension Commission’s January 24, 2019 decision
on the record created before that administrative agency. See 2 Pa. C.S. § 754(b). However, where,
as here, a court of common pleas considers such a matter de novo, we instead review that court’s
decision to determine “whether . . . constitutional rights have been violated [or] whether the lower
court manifestly abused its discretion or committed an error of law.” McLaughlin v. Ctr. Cnty.
Hous. Auth., 616 A.2d 1073, 1074 n.3 (Pa. Cmwlth. 1992). “An abuse of discretion occurs when
findings are not supported by substantial evidence. . . . Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Tower Access
Grp., LLC v. S. Union Twp. Zoning Hearing Bd., 192 A.3d 291, 299 n.3 (Pa. Cmwlth. 2018)
(internal citation omitted).
7
committing and her employment as a Sunbury police officer. Id. at 21-29. As such,
she maintains that Common Pleas erred by affirming the Pension Commission’s
January 24, 2019 decision. We address each argument in turn.
In enacting the Pension Forfeiture Act, “the legislature
sought to promote integrity in public employment by
imposing a forfeiture provision that would deter acts of
criminal misconduct, thereby encouraging public
employees to maintain standards of conduct deserving of
the public’s trust.” Mazzo v. [Bd.] of Pensions and Ret[.]
of City of Philadelphia, . . . 611 A.2d 193, 196 ([Pa.]
1992). Section 3(a) of the Pension Forfeiture Act provides
that the pension of a “public official or public employee”
shall be forfeited upon a conviction for “any crime related
to public office or public employment.” 43 P.S. § 1313(a).
Ungard v. Williamsport Bureau of Police Pension Bd., 210 A.3d 1121, 1125 (Pa.
Cmwlth. 2019).10 The version of Section 2 of the Pension Forfeiture Act that was in
effect at the time of Quinn’s criminal activity defined “[c]rimes related to public
office or public employment” as being any of a number of listed offenses derived
from the Crimes Code or other Pennsylvania statutes, as well as similar federal
crimes. See former 43 P.S. § 1312 (2004). Among these crimes is “Section 4910 [of
the Crimes Code] (relating to tampering with or fabricating physical evidence).” Id.
In addition, the applicable statutory language made clear that conviction for such a
crime necessitated pension forfeiture only “when committed by a public official or
public employee through his public office or position or when his public
employment places him in a position to commit the crime[.]” Id.
It is well established that “[p]ension forfeiture is not favored and, thus,
pension forfeiture statutes are strictly construed.” Wiggins v. Philadelphia Bd. of
Pensions & Ret., 114 A.3d 66, 72 (Pa. Cmwlth. 2015). However, there are narrow
10
Quinn does not dispute that, as a police officer, she constituted a “public employee” for
purposes of the Pension Forfeiture Act. See Quinn’s Br. at 21, 24-28.
8
exceptions to this rule of construction. To that end, while the former version of
Section 2 does not state that a person may be stripped of their pension if they are
convicted of conspiracy to commit one of the crimes expressly listed therein, as
Quinn was, we have nevertheless concluded that forfeiture for such a conspiracy
conviction is indeed permitted by the Pension Forfeiture Act. As we explained in
Luzerne County Retirement Board v. Seacrist,
[t]he main difference between inchoate crimes [like
attempt and conspiracy] and the underlying crimes to
which they relate is the execution of the underlying crime
itself.
....
Attempt and conspiracy both require the same mens rea as
the underlying substantive crimes. Attempt and
conspiracy are treated as crimes of the same grade and
degree of the most serious offense which is attempted or
is an object of the conspiracy. Section 905 of the Crimes
Code, 18 Pa. C.S. § 905. Both carry the same maximum
sentences as the underlying crimes to which they relate.
[Id.]; Com[.] v. Hoke, . . . 962 A.2d 664 ([Pa.] 2009). Since
the crimes of attempt and conspiracy are subject to the
same criminal sentences as the underlying substantive
crimes, it logically follows they would also be subject to
the same civil consequences. To conclude otherwise
would defeat the very purpose of the Pension [Forfeiture]
Act. Hence, any public official or public employee who is
convicted of attempting or conspiring to commit any of the
criminal offenses enumerated in the Pension [Forfeiture]
Act is subject to pension forfeiture under [that law].
988 A.2d 785, 788-89 (Pa. Cmwlth. 2010) (internal footnote omitted).
Quinn acknowledges our holding in Seacrist, but asserts that we should
overturn that decision, due to the combined effect of the General Assembly’s failure
to expressly add conspiracy as a forfeiture-eligible crime through its 2004 and 2019
amendments of the Pension Forfeiture Act and the aforementioned requirement that
pension forfeiture statutes be strictly construed. See Quinn’s Br. at 18-21. We
9
decline to accept this argument for several reasons. First, Seacrist was decided by
our Court in 2010 and, thus, the 2004 amendments were considered in the course of
our analysis in that matter, including the fact that those amendments did not modify
the Pension Forfeiture Act to explicitly state that conspiracy was a crime that could
result in such forfeiture. Second, per Section 1926 of the Statutory Construction Act,
“[n]o statute shall be construed to be retroactive unless clearly and manifestly so
intended by the General Assembly.” 1 Pa. C.S. § 1926. Given that the 2019
amendments applied only to forfeiture-eligible crimes perpetrated on or after March
28, 2019,11 and Quinn committed the acts that gave rise to her conspiracy conviction
in November and December 2016, the changes made through those amendments to
the Pension Forfeiture Act are inapplicable to this situation. Finally, even though
those 2019 amendments have no substantive bearing on this case, they nevertheless
contradict Quinn’s argument that conspiracy is not a crime that can result in pension
forfeiture. It is understood that “[t]he legislature is presumed to be aware of the
construction placed upon statutes by the courts[.]” City of Philadelphia v. Clement
& Muller, Inc., 715 A.2d 397, 399 (Pa. 1998).
When confronted with questions of statutory construction,
the words of a statute are to be interpreted in light of
antecedent case law, and the legislative intent to effectuate
a drastic change in the law is not to be inferred by mere
omission and implication. . . . The failure of the General
Assembly to change the law which has been interpreted by
the courts creates a presumption that the interpretation was
in accordance with the legislative intent; otherwise the
General Assembly would have changed the law in a
subsequent amendment.
Fonner v. Shandon, Inc., 724 A.2d 903, 906 (Pa. 1999) (footnote and internal
citations omitted). Accordingly, because the General Assembly did not amend the
11
See Section 5 of the Act of March 28, 2019, P.L. 1, No. 1.
10
Pension Forfeiture Act after Seacrist to exclude conspiracy as a crime for which
pension forfeiture can occur, the presumption arises that the General Assembly’s
inaction evinces its agreement with our interpretation of the law. Given that Quinn
has failed to rebut this presumption, we have no basis for revisiting our holding from
Seacrist. In short, a conviction for conspiracy to commit a crime enumerated in
Section 2 of the Pension Forfeiture Act remains a legally valid basis for stripping a
public employee of their pension benefits.
However, we are persuaded by Quinn’s contention that Common Pleas
improperly found a sufficient nexus between her criminal activity and her
employment as a police officer that would warrant this extreme penalty. It is true
that some of the crimes that can serve as a basis for pension forfeiture “can only be
committed by one in public office or employment[,]” while others may “be
committed in a private context.” Ungard, 210 A.3d at 1126. The one constant that
ties convictions for all such forfeiture-eligible crimes together, though, is that, under
the Pension Forfeiture Act, forfeiture cannot occur unless the relevant criminal
activity was “committed by a public official or public employee through his public
office or position or when his public employment place[d] him in a position to
commit the crime[.]” Former 43 P.S. § 1312 (2004).
In this instance, Common Pleas acted as the factfinder and determined that
Quinn was convicted of conspiring with her juvenile son
to tamper with her [D]epartment-issued cell phone, which
weeks prior she had given to her son to use, in violation of
department policies.
Testimony at [Quinn’s] criminal trial was that the phone
in question was issued to Quinn by the . . . Department for
Quinn’s use for departmental business, and [for] very
proscribed personal use. Quinn stated that she would be in
trouble if her employer found out that she had given the
phone to her son to use, and if the sexting content was
11
found on the phone. The nexus between the public
employee[, i.e., Quinn], the crime, and [Quinn’s] public
employment [as a police officer has] been established.
Common Pleas Op., 10/29/20, at 2.
However, in light of the requirement that pension forfeiture provisions be
construed narrowly, we conclude that, in this specific instance, Common Pleas’
application of the Pension Forfeiture Act was not supported by substantial evidence.
Though the phone that Quinn gave to her son was Department property, it remains
that Quinn did not use it to conspire to tamper with or fabricate physical evidence as
part of her responsibilities as a public employee. Instead, Quinn acted in her private
capacity as a mother, using her own personal phone to take steps to limit the fallout
produced by her son’s romantic travails. Furthermore, her son’s use of the
Department-issued phone was completely unrelated to any of Quinn’s official duties
or responsibilities. Under the Pension Forfeiture Act, a public employee or official
does not automatically forfeit their pension simply because their government-issued
property was involved in a forfeiture-eligible crime. Rather, given the
aforementioned language used in former Section 2, such usage of government-issued
property is material to pension forfeiture only where the record reflects that the
employee or official also committed the crime through their public position, or that
the property they accessed by virtue of their position had more than an incidental
connection to the crime’s commission. See former 43 P.S. § 1312 (2004). As there
was no such evidence here, we conclude that Common Pleas abused its discretion
when it determined that Quinn’s conviction was a sufficient basis under the Pension
Forfeiture Act to strip her of her pension benefits.
12
III. Conclusion
In light of the foregoing analysis, we reverse Common Pleas’ October 29,
2020 order.
____________________________
ELLEN CEISLER, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jamie Quinn, :
Appellant :
:
v. : No. 1226 C.D. 2020
:
Police Pension Commission :
of the City of Sunbury, :
ORDER
AND NOW, this 12th day of July, 2022, it is hereby ORDERED that the Court
of Common Pleas of Northumberland County’s October 29, 2020 order is
REVERSED.
____________________________
ELLEN CEISLER, Judge