Original jurisdiction in case of Henry J. Cianfrani v. Commonwealth of Pennsylvania, State Employees' Retirement Board.
Charles M. Golden, with him Sharlyn B. Cohen, for petitioner.
Susan J. Forney, Deputy Attorney General, with her Allen C. Warshaw, Chief, Civil Litigation, and Harvey Bartle, III, Acting Attorney General, for respondent.
Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr. Judge Williams, Jr. dissents.
[ 57 Pa. Commw. Page 136]
Petitioner has brought in the Commonwealth Court's original jurisdiction a complaint containing a count for declaratory judgment and a count for a writ of mandamus. Petitioner contends that Section 5953 of the State Employees' Retirement Code (Code), 71 Pa. C.S. § 5953, constitutes an unconstitutional impairment of petitioner's contractual rights and permits the taking and confiscation of property by the Commonwealth without due process of law. Presently before the Court is petitioner's motion for summary judgment under Pa. R.C.P. No. 1035.*fn1
Petitioner was elected to the Senate of the Commonwealth in 1966 and held that elective office until his resignation on December 15, 1977. After his resignation petitioner furnished the respondent State Employees' Retirement Board (Board) with all of the necessary documentation to complete his application
[ 57 Pa. Commw. Page 137]
for retirement benefits under the Code. Subsequently the Board determined that petitioner was entitled to monthly retirement benefits of $920.00 for life, plus certain medical insurance benefits, and petitioner began receiving monthly checks in that amount from the Board.
On September 23, 1977, a Grand Jury sitting in the Eastern District of Pennsylvania returned a Bill of Indictment against petitioner, charging him with various federal crimes. On December 30, 1977 petitioner entered pleas of guilty to one count of racketeering, 101 counts of mail fraud, and four counts of obstruction of justice, and entered pleas of nolo contendere to four counts of income tax evasion.
On June 26, 1978 the Senate of the Commonwealth, by resolution, acknowledged the findings of its Committee on Ethics and Official Conduct that a sum of $30,232.80 in Senate funds had been improperly paid, based on petitioner's admitted retention of "ghost" employees at Senate expense. The resolution authorized the President of the Senate to immediately take all steps necessary to recover the sum from petitioner. As a result of the resolution and pursuant to Section 5953 of the Code, the President of the Senate requested that the Secretary of the Board assign to the Senate the retirement payments otherwise due petitioner until the sum of $30,232.80 was paid to the Senate. By letter dated July 26, 1978, the Secretary of the Board notified petitioner that the annuity payments were suspended in order to satisfy the obligation alleged to be due the Commonwealth.
Before October 7, 1975 Section 5953 of the Code provided in pertinent part:
(a) The right of a person to any benefit or right accrued or accruing under the provisions of this part and the moneys in the fund are ...