Braig v. Pennsylvania State Employes' Retirement Bd.

• Decision Date: 12 September 1996
• Parties: Joseph P. BRAIG, Petitioner, v. PENNSYLVANIA STATE EMPLOYES' RETIREMENT BOARD, Respondent. Julian F. KING, Petitioner, v. PENNSYLVANIA STATE EMPLOYES' RETIREMENT BOARD, Respondent. Edna F. WHITE, designated Beneficiary and Executrix of the Estate of Thomas A. White, deceased, Petitioner, v. PENNSYLVANIA STATE EMPLOYES' RETIREMENT BOARD, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 881

682 A.2d 881

Joseph P. BRAIG, Petitioner, v. PENNSYLVANIA STATE EMPLOYES' RETIREMENT BOARD, Respondent.

Julian F. KING, Petitioner, v. PENNSYLVANIA STATE EMPLOYES' RETIREMENT BOARD, Respondent.

Edna F. WHITE, designated Beneficiary and Executrix of the Estate of Thomas A. White, deceased, Petitioner, v. PENNSYLVANIA STATE EMPLOYES' RETIREMENT BOARD, Respondent.

Commonwealth Court of Pennsylvania.

Argued June 13, 1996.

Decided Sept. 12, 1996.

David A. Yanoff, for petitioners.

Nicholas Joseph Marcucci, Deputy Chief Counsel, for respondent.

Before COLINS, President Judge, and PELLEGRINI and FRIEDMAN, JJ.

FRIEDMAN, Judge.

Julian F. King, Edna F. White, Executrix of the estate of Thomas A. White, and Joseph P. Braig (collectively, Claimants) appeal from an order of the Pennsylvania State Employes' Retirement Board (SERB), denying Claimants' request for interest on retirement benefits withheld by the State Employes' Retirement System (SERS) pursuant to a purported pension forfeiture.

I. Julian F. King

Julian F. King was appointed to the Philadelphia County Court of Common Pleas in December of 1971 and became a member of SERS on December 30, 1971. (SERB's Finding of Fact, No. 1.) In November of 1973, King was elected to a ten-year term with the common pleas court and, in November of 1983, King was re-elected to a second ten-year term with that court. (SERB's Finding of Fact, No. 2.)

By Opinion and Judgment filed February 25, 1988, however, the Pennsylvania Supreme Court ordered and adjudged, pursuant to Article V, Section 18 of the Pennsylvania Constitution, that King be removed from judicial office, that his salary cease from the date of the entry of the supreme court's order and that he, thereafter, be held ineligible to hold judicial office. (SERB's Finding of Fact, No. 3.)

Consequently, on May 17, 1988, King signed a SERS Application for Retirement Allowance in which he elected to withdraw an amount equal to all his previously taxed contributions and to receive a reduced retirement allowance in the form of a joint and survivor annuity. The application was received by SERS on June 13, 1988, bearing a purported effective date of retirement of February 26, 1988, the day after King's termination by the supreme court. (SERB's Finding of Fact, No. 4.)

By order dated July 20, 1988, SERB denied King's Application for Retirement Allowance except for the portion requesting to withdraw all previously taxed contributions. (SERB's Finding of Fact, No. 5.) SERB concluded that, because King was removed from office under Article V, Section 18(l ) of the Pennsylvania Constitution, Article V, Section 16(b) of the constitution created a pension forfeiture provision. ¹ (SERB's Finding of Fact, No. 5.) This court affirmed SERB's decision in King v. State Employes' Retirement Board, 129 Pa.Cmwlth. 444, 566 A.2d 323 (1989). (SERB's Finding of Fact, No. 6.)

By decision dated May 18, 1992, however, the supreme court reversed. ² See Glancey v. State Employes' Retirement Board, 530 Pa. 481, 610 A.2d 15 (1992). ³ In light of the Glancey decision, SERB calculated King's retirement benefit, taking into account King's previous withdrawal in an amount equal to his accumulated deductions. On July 22, 1992, SERS issued King a check in the amount of $88,737.56, representing King's monthly retirement benefits for the period from February 26, 1988 to July 1, 1992, less federal tax payment withheld. Since that date, SERS has been making monthly annuity payments of $1,931.40 to King. (SERB's Finding of Fact, No. 10.)

II. Thomas A. White

Thomas A. White initially became a member of SERS when he was elected to the Pennsylvania General Assembly in 1952. In 1959, he withdrew the contributions and interest which were attributable to his service in the General Assembly. (SERB's Finding of Fact, No. 11.)

White again became a member of SERS on January 2, 1978, after being elected to the Philadelphia County Court of Common Pleas the previous year. ⁴ In November of 1987, White was re-elected to a second ten-year term. (SERB's Finding of Fact, No. 12.)

By Opinion and Judgment filed February 25, 1988, however, the Pennsylvania Supreme Court ordered and adjudged, pursuant to Article V, Section 18 of the Pennsylvania Constitution, that White, like King, be removed from judicial office, that his salary cease from the date of the entry of the supreme court's order and that he, thereafter, be held ineligible to hold judicial office. (SERB's Finding of Fact, No. 13.)

Consequently, on May 23, 1988, White signed a SERS Application for Retirement Allowance in which he elected to withdraw an amount equal to all his accumulated deductions and to receive a reduced retirement allowance for life with a guaranteed total payment. The application was received by SERS on June 13, 1988, bearing a purported effective date of retirement of February 26, 1988, the day after White's termination by the supreme court. (SERB's Finding of Fact, No. 14.)

By order dated July 20, 1988, SERB denied White's Application for Retirement Allowance except for the portion requesting to withdraw an amount equal to his accumulated deductions. ⁵ (SERB's Finding of Fact, No. 15.) SERB concluded that, because White was removed from office under Article V, Section 18(l ) of the Pennsylvania Constitution, Article V, Section 16(b) of the constitution created a pension forfeiture provision. (SERB's Finding of Fact, No. 15.)

On October 31, 1989, while the Glancey decision was still pending, this court vacated and remanded SERB's order, holding that remand was necessary to determine whether White had been a member of SERS during his time in the General Assembly and, if so, whether White had withdrawn his benefits, thereby terminating his membership and subjecting himself to modifications of the State Employes' Retirement Code (Retirement Code), ⁶ without unconstitutional impairment of contract. (SERB's Finding of Fact, No. 17.) In the meantime, on August 17, 1990, White passed away, and his widow, Edna F. White (Executrix), was designated executrix of his estate and sole beneficiary with regard to state retirement benefits. (SERB's Findings of Fact, Nos. 18, 20.)

On May 18, 1992, in light of the subsequently decided Glancey decision, SERB re-calculated White's retirement benefit, taking into account White's previous withdrawal in an amount equal to his accumulated deductions. (SERB's Finding of Fact, No. 19.) In June, September and October of 1992, SERS received White's death certificate and, upon request, other essential beneficiary information, properly completed and notarized, from Executrix. (SERB's Findings of Fact, Nos. 20-22.) Accordingly, on October 23, 1992, SERS paid a death benefit to Executrix in the amount of $381,605.73, representing the remaining initial present value of White's retirement account. (SERB's Finding of Fact, No. 23.)

III. Joseph P. Braig

Joseph P. Braig was elected to a ten-year term on the Philadelphia County Court of Common Pleas in November of 1975 and became a member of SERS on January 5, 1976. He was subsequently re-elected to a second ten-year term in 1986. (SERB's Finding of Fact, No. 24.)

Braig voluntarily resigned from office, however, in March of 1989, with a date of termination of service of March 27, 1989. (SERB's Finding of Fact, No. 25.) Subsequently, on or before April 5, 1989, the United States District Court for the Eastern District of Pennsylvania, in Criminal Case No. 88-488, entered judgment on Braig's guilty plea to three counts of a multi-count indictment of federal offenses, imposing a fine, suspended prison sentence, three years probation and other conditions. (SERB's Finding of Fact, No. 26.)

Consequently, on April 19, 1989, Braig signed a SERS Application for Retirement Allowance in which he elected to withdraw an amount equal to all of his contributions and interest and to receive a reduced retirement allowance in the form of a joint and survivor annuity. The application was received by SERS on June 16, 1989, bearing a purported effective date of retirement of March 28, 1989, the day after Braig's resignation. (SERB's Finding of Fact, No. 27.)

On September 8, 1989, the Judicial Inquiry and Review Board (JIRB) petitioned the Pennsylvania Supreme Court to issue a Rule to Show Cause why Braig should not be automatically removed from judicial office under Article V, Section 18(l ) of the Pennsylvania Constitution for "misbehavior in office." (SERB's Finding of Fact, No. 28.) On December 22, 1989, the supreme court issued the Rule to Show Cause, and Braig timely filed a brief in response.

By order dated February 6, 1990, SERB denied Braig's Application for Retirement Allowance except for the portion requesting to withdraw an amount equal to his accumulated deductions. ⁷ (SERB's Finding of Fact, No. 31.) SERB concluded that, because Braig was automatically removed from office for committing an infamous crime under Article VI, Section 7 of the Pennsylvania Constitution, Article V, Section 16(b) of the constitution created a pension forfeiture provision. (SERB's Finding of Fact, No. 31.)

On February 21, 1991, this court reversed SERB's order on the grounds that SERB was required to defer to the supreme court's exclusive disciplinary jurisdiction over the judiciary. (SERB's Finding of Fact, No. 32.) On April 29, 1991, the supreme court ruled on the merits of the JIRB's Rule to Show Cause, concluding that Article V, Section 18(l ) of the Pennsylvania Constitution did not apply to Braig and, therefore, dismissing the December 22, 1989 Rule. (SERB's Finding of Fact, No. 37.)

On May 18, 1992, again in light of Glancey, SERB re-calculated Braig's retirement benefit, taking into account Braig's previous withdrawal in an amount equal to his accumulated deductions. On August 4, 1992, SERS issued Braig a check in the amount of $64,864.16, representing Braig's total monthly retirement benefits for the period from March 28, 1989 to ...