King v. Com., State Employes' Retirement Bd.

• Citation: 566 A.2d 323,129 Pa.Cmwlth. 444
• Parties: Julian F. KING, Petitioner, v. COMMONWEALTH of Pennsylvania, STATE EMPLOYES' RETIREMENT BOARD, Respondent. 2109 C.D. 1988
• Decision Date: 31 October 1989
• Court: Commonwealth Court of Pennsylvania

Page 323

566 A.2d 323

129 Pa.Cmwlth. 444

Julian F. KING, Petitioner, v. COMMONWEALTH of Pennsylvania, STATE EMPLOYES' RETIREMENT BOARD, Respondent.

2109 C.D. 1988

Commonwealth Court of Pennsylvania.

Argued June 7, 1989.

Decided Oct. 31, 1989.

James E. Beasley and Kathleen A. Barrett, Beasley, Casey, Colleran, Erbstein, Thistle, Kline and Murphy, for petitioner.

Abbott A. Leban, Chief Counsel, for respondent.

Before DOYLE, BARRY, PALLADINO, McGINLEY and SMITH, JJ.

DOYLE, Judge.

Before this Court is an appeal by Judge Julian F. King (Petitioner) from an order of the State Employes' Retirement Board (Board) denying Petitioner's application for retirement benefits. The Board's order, which was entered without affording Petitioner notice and an opportunity to be heard, permitted Petitioner to withdraw his own contributions and the interest thereon, but denied the application in all other respects.

Although we have no findings in this case, the relevant facts are not in dispute. Pertinent for our purposes is that Petitioner was appointed to the Philadelphia Court of Common Pleas as a Judge in December of 1971. On December 30, 1971, he entered judicial office and on that same date became a member of the State Employes' Retirement System (System). He was then elected to a ten-year term in November of 1973 and reelected to another ten-year term in November of 1983. On July 20, 1988, the Pennsylvania Supreme Court directed that Petitioner be removed from judicial office. The court also ordered that Petitioner's salary cease from that date and that he be thereafter ineligible to hold judicial office. See Matter of Cunningham, 517 Pa. 417, 450, 538 A.2d 473, 490, appeal dismissed sub nom. White v. Judicial Inquiry and Review Board, 488 U.S. 805, 109 S.Ct. 36, 102 L.Ed.2d 16 (1988). ¹ On May 17, 1988, Petitioner filed an application with the System seeking to withdraw a lump-sum amount equal to his accumulated deductions, i.e., his own contributions including the statutory interest thereon, plus a reduced retirement allowance for life. The Board, without giving Petitioner notice or the opportunity to be heard, denied the application asserting that with the exception of Petitioner's own contributions to the System and the statutory interest on those contributions he was precluded from receiving his retirement benefits pursuant to Article V, Section 16(b) of the Pennsylvania Constitution. That Section provides:

Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years. Former and retired justices, judges and justices of the peace shall receive such compensation as shall be provided by law. No compensation shall be paid to any justice, judge or justice of the peace who is suspended or removed from office under section eighteen of this article or under article six. (Emphasis added.)

Petitioner was removed from office pursuant to Article V, Section 18, which provides that the Judicial Inquiry and Review Board (JIRB) may, after investigation, conduct a hearing concerning, inter alia, the suspension or removal of a judge. If, subsequent to the hearing, JIRB finds good cause, it may recommend to the Supreme Court that a judge be suspended or removed from judicial office. The Supreme Court is then to consider the record, but it may also take additional evidence. The court then imposes the discipline, if any, which it believes is warranted. Section 18(h) specifically provides that once suspension or removal is ordered, the judge's "salary shall cease from the date of such order."

The question we are called upon to decide is whether Section 16(b) precludes Petitioner from receiving his retirement benefits other than his own contributions with interest. Numerous arguments are presented by Petitioner that benefits were improperly denied to him. First, Petitioner maintains that the Board acted in excess of its powers and usurped the exclusive function of the Supreme Court of Pennsylvania in denying him his retirement benefits. In substance, Petitioner maintains that Article V, Section 18 of the Pennsylvania Constitution vests in the Pennsylvania Supreme Court exclusive power to remove or otherwise sanction members of the judiciary for misconduct in office. He argues, therefore, that the Board, in denying him certain retirement benefits, imposed a "sanction" upon him that only the Supreme Court could impose and that such action was beyond the Board's authority.

While we agree that a sanction was imposed, we reject the contention that the Board acted impermissibly in doing so. Nothing in Article V, Section 18 suggests in any way that the Supreme Court is to decide in the course of Section 18 proceedings the question of retirement benefits. In contrast, the provisions of Sections 5905-5907 of the State Employees' Retirement Code (Code), 71 Pa.C.S. §§ 5905-5907, expressly dictate that applications for retirement allowances are to be filed with the Board. Further, disbursements may not be made except upon requisition presented to the State Treasurer signed on behalf of the Secretary of the Board. Section 5931(d) of the Code, 71 Pa.C.S. § 5931(d). It is thus apparent to this Court that the question of whether Petitioner is entitled to retirement benefits, is in the first instance, to be presented to the Board. And, inasmuch as Article V, Section 18 of the Pennsylvania Constitution does not indicate that the Supreme Court is to decide, as a threshold issue, questions pertaining to employee benefits, which questions may arise in light of Article V, Section 18 disciplinary procedures, we hold that the Board's determination does not impermissibly impinge upon the Pennsylvania Supreme Court's plenary powers.

Next, Petitioner argues that the denial of retirement benefits constituted an increased sanction upon him and that such escalation of punishment not only was beyond the Board's authority, an argument we have already rejected, but also is prohibited by the doctrines of collateral estoppel and res judicata. Petitioner reasons that because the Pennsylvania Supreme Court limited his punishment to removal from judicial office, termination of his salary, and permanent ineligibility to hold office again, the Board cannot act to increase that penalty by additionally denying him retirement benefits. He contends that in so doing the Board is relitigating the question of his punishment.

In order for the defense of res judicata to prevail there must be a concurrence of four conditions:

(1) Identity in the thing sued upon or for;

(2) Identity of the cause of action;

(3) Identity of persons and parties to the action; and

(4) Identity of the quality or capacity of the parties suing or sued.

McCarthy v. Township of McCandless, 7 Pa.Commonwealth Ct. 611, 617, 300 A.2d 815, 820 (1973). Petitioner seeks to characterize the JIRB proceedings as much broader in scope than they were. The focus of those proceedings was upon whether Petitioner had committed acts justifying removal from judicial office; the focus was not upon whether Petitioner was or was not entitled to retirement benefits. The McCarthy case makes it clear that there is identity of causes of action when in both the old and the new proceedings the subject matter and the ultimate issues are the same. The question of whether Petitioner committed acts justifying removal from office is, quite simply, not the same as whether Petitioner is entitled to retirement benefits. Thus, the subject matter in the two cases is not identical. Certainly, the outcome of the retirement question may be dependent upon the other proceeding, but that does not mean that the two proceedings concerned themselves with either the identical subject matter or the identical ultimate issue.

The doctrine of collateral estoppel will act as a bar in the second action only as to those matters in issue that "(1) are identical; (2) were actually litigated; (3) are essential to the judgment ...; and (4) were 'material' to the adjudication." McCarthy, 7 Pa.Commonwealth Ct. at 619, 300 A.2d at 820-21. It is apparent that the question of Petitioner's entitlement to retirement benefits was not litigated in the JIRB proceedings nor would such issue have any bearing whatsoever on whether his conduct justified removal from office. Thus, the retirement benefit issue was neither essential to the judgment of the disciplinary proceedings nor material to the resultant adjudication. Further, while the denial of retirement benefits may be a sanction, nothing in Article V, Section 18 suggests that it is a sanction that must be considered during the JIRB proceedings anymore than the question of whether Petitioner should be denied unemployment compensation benefits on the basis of willful misconduct. Accordingly, we must conclude that the doctrine of collateral estoppel is not helpful to Petitioner in this case.

Next, Petitioner contends that Article V, Section 16(b) of the Pennsylvania Constitution does not authorize the denial of retirement benefits to him. In regard to this argument Petitioner asserts three things. First, he contends that had the delegates to the constitutional convention intended the term "compensation" to include retirement benefits they would have stated so more clearly in drafting Section 16(b). Second, he contends that because Section 5955 of the Code, 71 Pa.C.S. § 5955, unequivocally provides that "[p]ension rights of State employees shall be determined solely by this part or any amendment thereto...." (emphasis added), the Board, by utilizing Article V, Section 16(b) as a basis for denying the benefits, acted in contradiction of Section 5955 and, hence, committed error. Third, Petitioner reasons that because Section 5955 provides that pension rights of state employees are to be determined solely by the Code and because the statutory terms of the Code are deemed to be contractually binding on the Commonwealth, Cianfrani v. State Employees' Retirement Board, 505...