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JULIAN F. KING v. COMMONWEALTH PENNSYLVANIA (10/31/89)

decided: October 31, 1989.

JULIAN F. KING, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT BOARD, RESPONDENT



Appeal from PETITION FOR REVIEW.

COUNSEL

James E. Beasley and Kathleen A. Barrett, Beasley, Casey, Colleran, Erbstein, Thistle, Kline and Murphy, for petitioner.

Abbott A. Leban, Chief Counsel, for respondent.

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

Author: Doyle

[ 129 Pa. Commw. Page 446]

Before this Court is an appeal by Judge Julian F. King (Petitioner) from an order of the State Employes' Retirement Board (Board) denying Petitioner's application for retirement benefits. The Board's order, which was entered without affording Petitioner notice and an opportunity to be heard, permitted Petitioner to withdraw his own contributions and the interest thereon, but denied the application in all other respects.

Although we have no findings in this case, the relevant facts are not in dispute. Pertinent for our purposes is that Petitioner was appointed to the Philadelphia Court of Common Pleas as a Judge in December of 1971. On December 30, 1971, he entered judicial office and on that same date became a member of the State Employes' Retirement System

[ 129 Pa. Commw. Page 447]

(System). He was then elected to a ten-year term in November of 1973 and reelected to another ten-year term in November of 1983. On July 20, 1988, the Pennsylvania Supreme Court directed that Petitioner be removed from judicial office. The court also ordered that Petitioner's salary cease from that date and that he be thereafter ineligible to hold judicial office. See Matter of Cunningham, 517 Pa. 417, 450, 538 A.2d 473, 490, appeal dismissed sub nom. White v. Judicial Inquiry and Review Board, U.S. , 109 S.Ct. 36, 102 L.Ed.2d 16 (1988).*fn1 On May 17, 1988, Petitioner filed an application with the System seeking to withdraw a lump-sum amount equal to his accumulated deductions, i.e., his own contributions including the statutory interest thereon, plus a reduced retirement allowance for life. The Board, without giving Petitioner notice or the opportunity to be heard, denied the application asserting that with the exception of Petitioner's own contributions to the System and the statutory interest on those contributions he was precluded from receiving his retirement benefits pursuant to Article V, Section 16(b) of the Pennsylvania Constitution. That Section 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.)

Petitioner was removed from office pursuant to Article V, Section 18, which provides that the Judicial Inquiry and Review Board (JIRB) may, after investigation, conduct a

[ 129 Pa. Commw. Page 448]

    hearing concerning, inter alia, the suspension or removal of a judge. If, subsequent to the hearing, JIRB finds good cause, it may recommend to the Supreme Court that a judge be suspended or removed from judicial office. The Supreme Court is then to consider the record, but it may also take additional evidence. The court then imposes the discipline, if any, which it believes is warranted. Section 18(h) specifically provides that once suspension or removal is ordered, the judge's "salary shall cease from the date of such order."

The question we are called upon to decide is whether Section 16(b) precludes Petitioner from receiving his retirement benefits other than his own contributions with interest. Numerous arguments are presented by Petitioner that benefits were improperly denied to him. First, Petitioner maintains that the Board acted in excess of its powers and usurped the exclusive function of the Supreme Court of Pennsylvania in denying him his retirement benefits. In substance, Petitioner maintains that Article V, Section 18 of the Pennsylvania Constitution vests in the Pennsylvania Supreme Court exclusive power to remove or otherwise sanction members of the judiciary for misconduct in office. He argues, therefore, that the Board, in denying him certain retirement benefits, imposed a "sanction" upon him that only the Supreme Court could impose and that such action was beyond the Board's authority.

While we agree that a sanction was imposed, we reject the contention that the Board acted impermissibly in doing so. Nothing in Article V, Section 18 suggests in any way that the Supreme Court is to decide in the course of Section 18 proceedings the question of retirement benefits. In contrast, the provisions of Sections 5905-5907 of the State Employees' Retirement Code (Code), 71 Pa.C.S. §§ 5905-5907, expressly dictate that applications for retirement allowances are to be filed with the Board. Further, disbursements may not be made except upon requisition presented to the State Treasurer signed on behalf of the Secretary of the Board. Section 5931(d) of the Code, 71 Pa.C.S.

[ 129 Pa. Commw. Page 449]

§ 5931(d). It is thus apparent to this Court that the question of whether Petitioner is entitled to retirement benefits, is in the first instance, to be presented to the Board. And, inasmuch as Article V, Section 18 of the Pennsylvania Constitution does not indicate that the Supreme Court is to decide, as a threshold issue, questions pertaining to employee benefits, which questions may arise in light of Article V, Section 18 disciplinary procedures, we hold that the Board's determination does not impermissibly impinge upon the Pennsylvania Supreme Court's plenary powers.

Next, Petitioner argues that the denial of retirement benefits constituted an increased sanction upon him and that such escalation of punishment not only was beyond the Board's authority, an argument we have already rejected, but also is prohibited by the doctrines of collateral estoppel and res judicata. Petitioner reasons that because the Pennsylvania Supreme Court limited his punishment to removal from judicial office, termination of his salary, and permanent ineligibility to hold office again, the Board cannot act to increase that ...


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