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THOMAS N. SHIOMOS v. COMMONWEALTH PENNSYLVANIA (07/28/89)

decided: July 28, 1989.

THOMAS N. SHIOMOS, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT BOARD, RESPONDENT



PETITION FOR REVIEW (STATE EMPLOYES' RETIREMENT BOARD)

COUNSEL

F. Emmett Fitzpatrick, III, F. Emmett Fitzpatrick Law Offices, Philadelphia, for petitioner.

Abbott A. Leban, Chief Counsel, Irene Mary Chiavaroli, Asst. Counsel, Harrisburg, for respondent.

Craig, Doyle, Barry, Colins, Palladino, McGinley and Smith, JJ. Crumlish, Jr., President Judge, and Colins, J., did not participate in this case. Smith, J., dissents. McGinley, Judge, dissenting.

Author: Palladino

[ 128 Pa. Commw. Page 40]

Thomas N. Shiomos appeals from an order of the Pennsylvania State Employes' Retirement Board (Board) terminating his eligibility for retirement benefits, effective November 4, 1987.

The facts are not in dispute,*fn1 and they are as follows. Shiomos served as a judge of the Court of Common Pleas of Philadelphia County from January 3, 1973 until his retirement on March 1, 1984. Following retirement, Shiomos withdrew his accumulated deductions from the State Employes' Retirement System (SERS). Commencing on his retirement date, Shiomos began receiving, as an annuitant of SERS, a gross monthly benefit of $1,883.61.

Subsequent to his retirement, Shiomos was designated a senior judge by the Chief Justice of Pennsylvania. Shiomos's last assignment was to sit on the Philadelphia Court of Common Pleas for the month of November, 1986. On November 18, 1986, the Chief Justice revoked the order assigning Shiomos a seat on the Philadelphia County Court of Common Pleas.

On November 28, 1986, the Judicial Inquiry and Review Board (JIRB) commenced disciplinary proceedings against Shiomos, and, on August 5, 1987, the JIRB filed with the Pennsylvania Supreme Court its opinion and recommendation in Shiomos's case. The JIRB recommended that Shiomos

[ 128 Pa. Commw. Page 41]

    be removed from office. On November 4, 1987, the supreme court issued an order stating as follows: "AND NOW, this 4th day of November, 1987, the Recommendation of the Judicial Inquiry and Review Board in the instant proceedings is accepted, and it is hereby ORDERED that respondent, Thomas N. Shiomos, be forever barred from judicial duties or office."

On July 20, 1988 the Board entered an order suspending payment of retirement benefits to Shiomos, effective with any payment due Shiomos for the month of August, with the suspension continuing until further order of the Board. Shiomos appealed the order of suspension to the Board, and sought to have SERS reinstate the payment of his retirement benefits. On October 13, 1988, the Board denied Shiomos's appeal, and entered an order terminating Shiomos's retirement benefits as of November 4, 1987.

The Board reasoned that the supreme court's November 4, 1987 order adopting the JIRB's recommendation constituted removal within the meaning of Pa.Const. art. V, § 16(b), and that, therefore, SERS was prohibited from paying Shiomos any further retirement allowance or other retirement compensation. Shiomos has appealed to this court from the Board's October 13, 1988 order.

Shiomos raises two issues for review: 1) whether the Board erred in concluding that Shiomos was removed from judicial office within the meaning of Pa. Const. art. V, § 16(b); and 2) whether the Board exceeded its authority in denying Shiomos accrued retirement benefits for judicial service performed prior to the conduct that was the subject of the November 4, 1987 order of the Pennsylvania Supreme Court. For the reasons which follow, we affirm.

We begin by noting the relevant provisions of the Pennsylvania Constitution. Article 5, Section 18 of the Pennsylvania Constitution establishes the JIRB. Section 18(g) of Article 5 provides that the JIRB, after hearing, shall, if it "finds good cause therefor . . . recommend ...


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