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).
2

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 
3

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 19834and 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...)
4

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.
5

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).
6

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 
7

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).
8

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,8Tepper 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).
9

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...)
10

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).
11

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...)
12

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).
13

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 58b62b.) 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 
14

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).
15

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.
16

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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Tepper, :

Appellant :

 :

v. : No. 845 C.D. 2016

 :

City of Philadelphia Board of :

Pensions and Retirement :

O R D E R

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