PETITION FOR REVIEW, (STATE EMPLOYES' RETIREMENT BOARD).
James E. Beasley, with him, Kathleen A. Barrett, Beasley, Casey, Colleran, Erbstein, Thistle, Kline and Murphy, Philadelphia, 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.
[ 129 Pa. Commw. Page 337]
Before this Court is an appeal by Judge Thomas A. White (Petitioner) from an order of the State Employes' Retirement Board (Board) denying Petitioner's application for retirement benefits. The Board 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.
It appears to be undisputed that Petitioner was elected to the Philadelphia Court of Common Pleas as a judge in November of 1977. He was reelected to a second ten year term in November 1987. On July 20, 1988 the Pennsylvania Supreme Court directed that Petitioner be removed from judicial office.*fn1 The court also ordered that Petitioner's salary cease from that date and that he be thereafter ineligible to hold judicial office. See Cunningham, 517 Pa. at 450, 538 A.2d at 490 (1988). On May 23, 1988 Petitioner filed an application with the State Employes' Retirement System (System) seeking to withdraw a lump sum amount
[ 129 Pa. Commw. Page 338]
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 for a hearing, denied the application and asserted 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 hearing concerning, inter alia, the suspension or removal of a judge. If, subsequent to the hearing, JIRB finds good cause, it may recommend that a judge be suspended or removed from judicial office. The Supreme Court is then to consider the record, and, if it chooses, may also take additional evidence. The Supreme 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 the rest of his retirement benefits. There are, however, factual questions which are unresolved and for this reason we shall decline to reach certain constitutional issues at this ...