Porter v. Com., State Employes' Retirement Bd.
| Decision Date | 31 October 1989 |
| Citation | 565 A.2d 512,129 Pa.Cmwlth. 290 |
| Parties | William PORTER, Petitioner, v. COMMONWEALTH of Pennsylvania, STATE EMPLOYES' RETIREMENT BOARD, Respondent. 2026 C.D. 1988 |
| Court | Pennsylvania Commonwealth Court |
Stephen P. Gallagher, Stack & Gallagher, P.C., Philadelphia, for petitioner.
Abbott A. Leban, Chief Counsel, for respondent.
Before DOYLE, BARRY, PALLADINO, McGINLEY and SMITH, JJ.
Before us for consideration is an appeal by Judge William Porter (Petitioner) from an order of the State Employes' Retirement Board (Board) which, without a hearing, granted Petitioner's application insofar as it permitted him to withdraw his own retirement contributions along with the statutory interest thereon but denied his application in all other respects.
Although we have no record before us the salient facts are not in dispute. Petitioner was appointed to the Court of Common Pleas of Philadelphia County as a judge on December 30, 1971 at which time he became a member of the State Employes' Retirement System (System). He was elected to a full term commencing January 7, 1974 and served for ten years. He was then reelected to a second full term of ten years commencing January 2, 1984. Subsequently, in an order dated February 25, 1988 the Pennsylvania Supreme Court directed that Petitioner be suspended from judicial office, forfeit his office, and further declared Petitioner's office to be vacant. See Matter of Cunningham, 517 Pa. 417, 538 A.2d 473, 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
The Board determined that because Petitioner had been suspended from judicial office pursuant to disciplinary proceedings instituted under Article V, Section 18 of the Pennsylvania Constitution he had forfeited his right to retirement benefits pursuant to Article V, Section 16(b) of the Constitution. Section 16(b) 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.)
The Board maintains that the retirement benefits in issue here fall within the purview of "compensation" as that term is employed under Article V, Section 16(b). Accordingly, it denied Petitioner's application for benefits except to the extent that it permitted Petitioner to withdraw his own contributions and statutory interest thereon. Appeal to this Court followed.
Petitioner has raised a raft of constitutional issues which are identical to those raised in the companion case of King v. State Employes' Retirement System, --- Pa.Commonwealth Ct. ----, 566 A.2d 323 (1989). As to those issues, we deem the decision in King to be controlling. We held therein, in summary, that Section 16(b) mandated that a judge who was removed from office on the basis of misconduct must be denied compensation and that compensation included retirement benefits. We also rejected the arguments that our interpretation of Section 16(b) worked an impairment on the obligation of contracts and that Section 16(b) was inconsistent with the State Employees' Retirement Code 2 (Code) and, accordingly, concluded that Section 16(b)'s provisions must be considered when determining retirement benefits under the Code.
This case however, does have one fact which makes it somewhat different from King. Unlike the petitioner in King, Petitioner here was suspended, not removed from this office. It is clear, however, in the Cunningham case that the Supreme Court did more than just suspend Petitioner. It also directed that she forfeit her office. Indeed, it specifically discussed the question of whether suspension could carry with it the penalty of forfeiture from office. It observed, "[w]here a judicial officer breaches the trust vested in one holding that office, the injury is further compounded because a public trust has been betrayed." 517 Pa. at 425, 538 A.2d at 477. The court further reasoned that there is a "need to fill the office with one capable and competent to carry out the responsibilities demanded by the position." Id. at 426, 538 A.2d at 478. To this end the court wrote:
Any interpretation of the constitutional sanction of suspension which would preclude the replacement of the offending jurist would serve the interest of the offender and ignore the needs of the offended. Obviously such interpretation must be rejected. We therefore conclude that although the sanction of suspension does not require an automatic forfeiture of the office, we in our discretion can require a forfeiture with the sanction of suspension where it is appropriate. Such a reading still maintains a distinction between the two sanctions [of suspension and removal]. Removal provides for a perpetual bar against ever holding judicial office. Suspension, while permitting the office to be declared vacant, does not impose that perpetual impediment upon a former jurist.
Id. at 427, 538 A.2d at 478 (footnote omitted).
Petitioner argues that the Supreme Court immediately upon suspending him, "vacated" his office and, hence, his suspension was momentary only. First, we are not inclined to view the Supreme Court's suspension as momentary as such penalty would seem to be nothing more than the proverbial slap on the wrist for what the Supreme Court found to be a serious offense. Second, the notion that the suspension was somehow implicitly vacated immediately after it was imposed is not an interpretation we are inclined to accept inasmuch as we believe that had the Supreme Court intended the suspension to be momentary only, it would have made that clear in its opinion and order. Third, we have searched in vain and cannot find the word "vacated" anywhere in the Cunningham opinion. Rather, what the Supreme Court did, and what it clearly stated that it did, was to declare the office vacant, not vacated. Its purpose in declaring the office vacant, as the opinion explains, was so that someone could be selected to fill it. This is obvious since the court in the opinion exhibited its concern that the populace would suffer if more judges were not placed quickly into the positions of those individuals who had been suspended or removed because of the Roofers Union scandal.
Our review of Webster's New Collegiate Dictionary 1281 (1981) indicates that "vacant" is defined as "not occupied by an incumbent, possessor, or officer." In contrast, "vacate" means "to make legally void: ANNUL" or, as an alternate meaning, "to deprive of an incumbent or occupant." Id. Had Petitioner's office been vacated, as he alleges, his argument that he cannot be suspended from an office which no longer exists might have merit. But, because his office was declared vacant, the office itself exists although it may not be filled by Petitioner. Thus, Petitioner's novel theory, that his suspension was momentary only, must be rejected by this Court.
There remains, however, the difficult question of whether a suspension should be viewed differently than a removal for purposes of retirement benefits. It is clear that when one is removed from office the sanction includes a perpetual bar upon one becoming a member of the judiciary again. Cunningham. While Petitioner was suspended and forfeited his office, Cunningham makes it clear that he is not subject to the perpetual bar. Thus, the question which presents itself is whether Petitioner retains, perhaps in abeyance, some right to his retirement benefits when his suspension is lifted, when and if that event ever occurs.
On the narrow facts of this case, we hold that no such rights continue to exist. We do so because Petitioner was "more than suspended." The Supreme Court directed that in addition to being suspended, he forfeit his office. 3 Thus, we believe that the action herein, while it is a suspension in that it does not forever bar Petitioner from running for judicial office at some future time, is in many ways more akin to a removal, because of the forfeiture, than a "mere suspension." We expressly do not decide the question of whether Petitioner's retirement benefits rights may have remained had he been suspended only and not been subject to forfeiture of office.
Based upon the foregoing discussion, the order of the Board is affirmed. 4
ORDERNOW, October 31, 1989, the order of the State Employes' Retirement Board in the above-captioned matter is hereby affirmed.
CRUMLISH, Jr., President Judge, did not participate in the decision in this case.
As I stated in my dissenting opinion in Shiomos v. State Employes' Retirement Board, --- Pa.Commonwealth Ct. ----, 562 A.2d 969 (1989) "while public retirement benefits are deferred compensation, it does not necessarily, nor reasonably follow that ... retirement benefits are 'compensation' " as that term is used in Article V, Section 16(b) of the Pennsylvania Constitution.
I most respectfully dissent from the majority's determination that Petitioner is not entitled to receive vested retirement benefits due to his suspension and forfeiture of the office of judge.
Since the Pennsylvania Supreme Court's decision in Retirement Board of Allegheny County v. McGovern, 316 Pa. 161, 174 A. 400 (1934), public retirement benefits have been viewed as deferred compensation for services actually rendered in the past. See also Bellomini v. State Employees' Retirement Board, 498 Pa. 204, 445 A.2d 737 (1982). Judicial compensation is divided into two parts--present which is the salary paid and deferred which is the pension payment. Goodheart v. The Honorable Robert P. Casey, 521 Pa. 316, 555 A.2d 1210 (198...
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