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ROCCO A. BURELLO v. COMMONWEALTH PENNSYLVANIA (02/20/80)

decided: February 20, 1980.

ROCCO A. BURELLO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT SYSTEM, RESPONDENT



Appeal from the Order of the State Employes' Retirement Board in case of Rocco A. Burello, dated September 6, 1978.

COUNSEL

Irving M. Green, for petitioner.

Allen M. Marshaw, with him, Raymond Kleiman, Susan J. Forney, Norman J. Watkins, Deputy Attorneys General, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Crumlish, Jr., Mencer, DiSalle, Craig and MacPhail. President Judge Bowman and Judges Wilkinson, Jr., Rogers and Blatt did not participate. Opinion by Judge Craig. This decision was reached prior to the death of President Judge Bowman. Judge DiSalle did not participate in the decision in this case. Dissenting Opinion by Judge MacPhail.

Author: Craig

[ 49 Pa. Commw. Page 365]

The question in this case is whether a statute violates constitutional prohibitions against impairment of obligation of contract or bills of attainder where it provides retroactively that pension benefits being received by a retired Commonwealth employee shall be forfeited if the employee is convicted or pleads no defense to a crime related to public office or public employment.

This question has been raised by petition for review on behalf of petitioner (now deceased) from an action of the State Employes' Retirement Board (board) discontinuing the pension benefits which petitioner had been receiving in retirement.

The wholly documentary record certified to us by the board reveals that petitioner, as a retired Commonwealth employee, had qualified for, and was receiving,

[ 49 Pa. Commw. Page 366]

    state pension benefits when, on July 12, 1978, he pleaded nolo contendere in the United States District Court for the Western District of Pennsylvania to four counts of federal extortion charges under 18 U.S.C. ยง 1951 and received a penalty of fine and probation.

On July 8, 1978 the Public Employee Pension Forfeiture Act*fn1 (Act) was enacted and became effective, providing in pertinent part as follows:

Section 3. Disqualification and forfeiture of benefits.

(a) Notwithstanding any other provision of law, no public official or public employee nor any beneficiary designated by such public official or public employee shall be entitled to receive any retirement or other benefit or payment of any kind except a return of the contribution paid into any pension fund without interest, if such public official or public employee is convicted or pleads guilty or no defense to any crime related to public office or public employment.

(b) . . . Such conviction or plea shall be deemed to be a breach of a public officer's or public employee's contract with his employer.

(c) Each time a public officer or public employee is elected, appointed, promoted, or otherwise changes a job classification, there is a termination and renewal of the contract for purposes of this act.

Section 7. Retroactively [sic]

The provisions of this act shall be retroactive to December 1, 1972.

[ 49 Pa. Commw. Page ...


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