PETITION FOR REVIEW (STATE EMPLOYES' RETIREMENT BOARD)
John Rogers Carroll, Carroll & Carroll, Philadelphia, for petitioner.
Abbott A. Leban, Chief Counsel, Harrisburg, for respondent.
Craig, Colins, Palladino, McGinley and Smith, JJ. Barry, Judge, in support of affirmance. Crumlish, Jr., President Judge, and Doyle, J., did not participate in the decision in this case. Craig and Palladino, JJ., join in this opinion. Colins, Judge, in support of reversal. McGinley and Smith, JJ., join in this opinion.
[ 126 Pa. Commw. Page 459]
Joseph R. Glancey appeals an order of the Commonwealth of Pennsylvania State Employes' Retirement Board (Board) which denied his application for retirement benefits.
Glancey became a judge of the Philadelphia Municipal Court, effective January 6, 1969, and he remained in that office until he resigned on March 31, 1988. During his tenure as a judge, Glancey contributed into the retirement system as required by the State Employes' Retirement Code.*fn1 After resigning, Glancey filed an application for retirement benefits in which he sought to withdraw all of his own contributions (option 4) and receive a reduced retirement allowance for the rest of his life (option 1). 71 Pa.C.S. § 5705. The Board determined that Glancey was entitled to no more than the return of his own contributions and the statutory interest on those contributions. To support its decision, the Board relied upon various provisions of Article V of the Pennsylvania Constitution and the circumstances of Glancey's resignation.
A thorough discussion detailing Glancey's present status can be found in the Supreme court opinions of In the Matter of Glancey, 515 Pa. 201, 527 A.2d 997 (1987) (Glancey I) and In the Matter of Glancey, 518 Pa. 276, 542 A.2d 1350 (1988) (Glancey II). For our present purposes, it is sufficient to note that the Judicial Inquiry and Review Board (JIRB) had recommended the removal of Glancey because of misconduct. After the JIRB had made its recommendation but before the matter was argued and decided by the Supreme Court, Glancey resigned. Following its
[ 126 Pa. Commw. Page 460]
constitutionally mandated review of the record of the JIRB, the Supreme Court entered an order which "forever barred [Glancey] from holding judicial office in this Commonwealth." Glancey II at 288, 542 A.2d at 1356.
Article V, Section 16(b) of the Pennsylvania Constitution, which became effective on January 1, 1969, 5 days before Glancey's term as a judge commenced, provides, "No compensation shall be paid to any justice, judge or justice of the peace who is suspended or removed under section 18 of this article or under Article VI." Section 18, which created the JIRB, contains the following pertinent provision, "A justice, judge or justice of the peace . . . removed under this section 18 shall forfeit automatically his judicial office and thereafter be ineligible for judicial office." Pa. Const. Article V, Section 18( l).
Glancey first argues that he was not "removed" from office and therefore, Article V, Section 16(b) does not apply. He relies upon the following statement in the majority opinion of Glancey II.
Having thus concluded that [Glancey's] conduct warrants severe discipline with no compelling reasons for us to hold otherwise, we would have no hesitancy in accepting the Board's recommendation of removal. In view of Judge Glancey's submission of resignation and its acceptance by the Governor, the entry of a formal order of removal is unnecessary.
Glancey II at 288, 542 A.2d at 1356. Glancey believes that his resignation before a formal entry of removal, as expressed in Article V, Section 16(b), rendered ...