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WILLIAM PORTER v. COMMONWEALTH PENNSYLVANIA (10/31/89)

decided: October 31, 1989.

WILLIAM PORTER, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT BOARD, RESPONDENT



PETITION FOR REVIEW, (STATE EMPLOYES' RETIREMENT SYSTEM).

COUNSEL

Stephen P. Gallagher, Stack & Gallagher, P.C., 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. McGinley, Judge, dissenting. Smith, Judge, dissenting.

Author: Doyle

[ 129 Pa. Commw. Page 291]

Before us for consideration is an appeal by Judge William Porter (Petitioner) from an order of the State Employes' Retirement Board (Board) which, without a hearing, granted Petitioner's application insofar as it permitted him to withdraw his own retirement contributions along with the statutory interest thereon but denied his application in all other respects.

Although we have no record before us the salient facts are not in dispute. Petitioner was appointed to the Court of Common Pleas of Philadelphia County as a judge on December 30, 1971 at which time he became a member of the State Employes' Retirement System (System). He was elected to a full term commencing January 7, 1974 and served for ten years. He was then reelected to a second full term of ten years commencing January 2, 1984. Subsequently, in an order dated February 25, 1988 the Pennsylvania Supreme Court directed that Petitioner be suspended from judicial office, forfeit his office, and further declared Petitioner's office to be vacant. See Matter of Cunningham, 517 Pa. 417, 538 A.2d 473, appeal dismissed sub nom. White v. Judicial Inquiry and Review Board, U.S. , 109 S.Ct. 36, 102 L.Ed.2d 16 (1988).*fn1

[ 129 Pa. Commw. Page 292]

The Board determined that because Petitioner had been suspended from judicial office pursuant to disciplinary proceedings instituted under Article V, Section 18 of the Pennsylvania Constitution he had forfeited his right to retirement benefits pursuant to Article V, Section 16(b) of the Constitution. Section 16(b) 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.)

The Board maintains that the retirement benefits in issue here fall within the purview of "compensation" as that term is employed under Article V, Section 16(b). Accordingly, it denied Petitioner's application for benefits except to the extent that it permitted Petitioner to withdraw his own contributions and statutory interest thereon. Appeal to this Court followed.

Petitioner has raised a raft of constitutional issues which are identical to those raised in the companion case of King v. State Employes' Retirement System, Pa. Commonwealth Ct. , 566 A.2d 323 (1989). As to those issues, we deem the decision in King to be controlling. We held therein, in summary, that Section 16(b) mandated that a judge who was removed from office on the basis of misconduct must be denied compensation and that compensation included retirement benefits. We also ...


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