           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Willis W. Berry, Jr.,              :
                                   :
                        Petitioner :
                                   :
              v.                   : No. 738 C.D. 2018
                                   : Argued: September 9, 2019
State Employees’ Retirement Board, :
                                   :
                        Respondent :

BEFORE:       HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ROBERT SIMPSON, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: October 9, 2019


               Former common pleas court judge Willis W. Berry, Jr. (Petitioner)
petitions for review of the May 15, 2018 order of the State Employees’ Retirement
Board (Board), denying his appeal from a determination by the State Employees’
Retirement System (SERS) that his pension was subject to forfeiture, effective
December 11, 2015, pursuant to the Public Employee Pension Forfeiture Act (Act
140).1 We affirm.


       1
         Act of July 8, 1978, P.L. 752, as amended, 43 P.S. §§1311-1315. Section 3(a) of Act
140 states:
              (a) Notwithstanding any other provision of law, no public official
              or public employee . . . shall be entitled to receive any retirement
              or other benefit or payment of any kind except a return of the
              contribution paid into any pension fund without interest, if such
              public official or public employee is found guilty of a crime related
              to public office or public employment or pleads guilty or nolo
(Footnote continued on next page…)
                                 Facts and procedural history
                  Petitioner became a member of SERS on January 1, 1996, by virtue
of his employment as a Judge of the Philadelphia County Court of Common Pleas.
In 2002, he purchased 3.9972 years of credit for active duty military service that
was added to his SERS retirement account.2
                  From January 1997 through April 2007, Petitioner operated a real
estate business out of his judicial office, and his judicial secretary managed its day-
to-day operations.        Findings of Fact (F.F.)3 Nos. 1, 2.           In 2009, the Judicial
Conduct Board filed a complaint with the Court of Judicial Discipline (CJD) in

(continued…)

                 contendere to any crime related to public office or public
                 employment.

43 P.S. §1313(a) (emphasis added). Section 2 of Act 140 defines “crimes related to public
office” as:

                 Any of the criminal offenses as set forth in the following
                 provisions of Title 18 (Crimes and Offenses) of the Pennsylvania
                 Consolidated Statutes . . . when committed by a public official or
                 public employee through his public office or position or when his
                 public employment places him in a positon to commit the crime:

                                             *   *   *

                 Section 3926 (relating to theft of services) when the criminal
                 culpability reaches the level of a misdemeanor of the first degree
                 or higher.

43 P.S. §1312.

       2
        Petitioner elected to pay for this credit via an actuarial debt on his retirement account.
See Berkhimer v. State Employees’ Retirement Board, 60 A.3d 873, 882 (Pa. Cmwlth. 2013).

       3
           The Board adopted and incorporated the Hearing Examiner’s Findings of Fact.


                                                 2
which it charged Petitioner with engaging in conduct that brings the judicial office
into disrepute, a violation of Article V, §18(d)(1) of the Pennsylvania
Constitution.4 Based upon the parties’ stipulations of fact, the CJD held that
Petitioner’s conduct was such as to bring the judicial office into disrepute and
violated Article V, Sections 17(b)5 and 18(d)(1) of the Pennsylvania Constitution.
The CJD agreed that such conduct subjected Petitioner to discipline under Article
V, §18(d)(1) and ordered that he be suspended from his judicial office without pay



       4
           Article V, §18(d)(1) states:

                 A justice, judge or justice of the peace shall be subject to
                 disciplinary action pursuant to this section as follows:

                  (1) A justice, judge or justice of the peace may be suspended,
                 removed from office or otherwise disciplined for conviction of a
                 felony; violation of section 17 of this article; misconduct in office;
                 neglect or failure to perform the duties of office or conduct which
                 prejudices the proper administration of justice or brings the judicial
                 office into disrepute, whether or not the conduct occurred while
                 acting in a judicial capacity or is prohibited by law; or conduct in
                 violation of a canon or rule prescribed by the Supreme Court. In
                 the case of a mentally or physically disabled justice, judge or
                 justice of the peace, the court may enter an order of removal from
                 office, retirement, suspension or other limitations on the activities
                 of the justice, judge or justice of the peace as warranted by the
                 record. Upon a final order of the court for suspension without pay
                 or removal, prior to any appeal, the justice, judge or justice of the
                 peace shall be suspended or removed from office; and the salary of
                 the justice, judge or justice of the peace shall cease from the date
                 of the order.

Pa. Const. art. V, §18(d).

       5
         Article V, §17(b) states that Justices and Judges shall not engage in any activity
prohibited by law. Pa. Const. art. V, §17(b).


                                                   3
for a period of four months. In re Berry, 979 A.2d 991 (Pa. Ct. Jud. Disc., 2009).
F.F. Nos. 3, 4.
                  SERS determined that the temporary suspension did not result in a
forfeiture of Petitioner’s pension benefits under the judicial pension forfeiture
provisions of Article V, §18 of the Pennsylvania Constitution and the Pennsylvania
Judicial Code, 42 Pa. C.S. §§101-9909. F.F. No. 5.
                  Following his suspension, Petitioner returned to the bench for an
additional two and a half years. His employment as a common pleas court judge
terminated on October 5, 2012; he retired with 20.4168 years of credited service
with SERS and began receiving his pension.6
                  On May 21, 2014, the Pennsylvania Office of Attorney General
charged Petitioner with one count of Theft of Services, 18 Pa. C.S. §3926(b), and
one count of Conflict of Interest, 65 Pa. C.S. §1103(a), for operating his personal
real estate business out of his judicial chambers from January 1997 through April
2007. Petitioner was convicted of both offenses, each a third degree felony, and he
was sentenced on December 11, 2015, to three years’ probation.7 F.F. Nos. 7-9.
                  By letter dated December 30, 2015, SERS notified Petitioner that his
felony conviction of theft of services triggered the forfeiture of his pension under
Act 140, effective December 11, 2015. Petitioner appealed.



       6
          Petitioner executed an application for an annuity on September 5, 2012, which
identified his effective date of retirement as October 6, 2012. He elected an Option 3 survivor
annuity, identifying his wife as his survivor annuitant. Petitioner also elected to withdraw all of
his contributions and interest under Option 4. F.F. No. 6.

       7
       Petitioner also was ordered to pay $19,612.50 in restitution, but his resentencing on
November 1, 2017, eliminated the requirement to pay restitution to the Commonwealth.


                                                4
               A Hearing Examiner conducted a hearing on January 5, 2017. The
Hearing Examiner’s June 16, 2017 opinion included the Findings of Fact
summarized above, based on the parties’ statement of chronology (Joint Ex. 1).
Based on those findings, the Hearing Examiner concluded that the unambiguous
language of Act 140 required the forfeiture of Petitioner’s pension benefits. The
Hearing Examiner concluded that Act 140 did not support Petitioner’s arguments
that he was entitled to benefits based on service he performed after his criminal
conduct ceased, or that forfeiture of his pension under Act 140 was precluded by
the doctrines of equitable estoppel, collateral estoppel, and laches.
               The Board denied Petitioner’s exceptions to the Hearing Examiner’s
decision and confirmed the forfeiture of Petitioner’s retirement benefits under Act
140. Relying on Berkhimer v. State Employees’ Retirement Board, 60 A.3d 873,
882 n.16 (Pa. Cmwlth. 2013), the Board rejected Petitioner’s contentions that he
should be allowed to retain pension credit for his military service, noting that
Petitioner could re-purchase his active military service credit if he chooses to
return to state service and accrues a corresponding amount of state service credit.
71 Pa. C.S. §5304(c)(2). Similarly, the Board rejected his argument that forfeiture
should be limited to exclude contributions made after his criminal activity ceased.
               The Board also rejected Petitioner’s assertion that SERS’ 2009
determination (that his suspension from office did not result in pension forfeiture
under Article V, §18) precluded SERS from later determining that his pension was
forfeited under Act 140 as a result of a criminal conviction, because the underlying
conduct was the same. The Board concluded that collateral estoppel and equitable
estoppel did not apply to preclude the forfeiture of Petitioner’s pension under Act
140. The Board explained that Act 140 is separate and distinct from Article V,


                                          5
§18; therefore, Petitioner’s conduct could - and did - lead to two separate and
distinct results: a determination by the CJD that his conduct warranted a temporary
suspension, and a decision by the Office of Attorney General to prosecute him
under the Crimes Code that eventually resulted in a felony conviction. Each of
these results, in turn, carried separate potential consequences for pension forfeiture.
                 Noting, inter alia, that collateral estoppel requires unity of parties,
the Board observed that it was not a party to the judicial suspension or the criminal
proceeding and is not collaterally estopped from determining that Petitioner’s
pension is forfeited under Act 140. The Board also rejected Petitioner’s equitable
estoppel argument, finding the record contained no evidence of misrepresentations
by SERS. Further, the Board found that Petitioner knew or should have known
that the conduct leading to his judicial suspension could eventually result in a
criminal conviction, which, in turn, would subject his pension benefits to forfeiture
under Act 140. The Board concluded that laches did not apply because SERS’
determination and notice were given to Petitioner within three weeks after his
conviction, which was the triggering event for his forfeiture determination.
                 Finally, the Board noted that Petitioner’s constitutional claims, that
the forfeiture is punitive and excessive8 and in violation of due process, did not
state whether his claims arose under the United States or Pennsylvania
Constitutions. Notwithstanding, the Board concluded that the penalties for his
misconduct under the Crimes Code are different from the pension forfeiture




       8
         At the time, Petitioner argued that the $19,612.50 in restitution ordered by the trial court
was sufficient punishment for his crimes. As previously noted, the restitution order in
Petitioner’s criminal case was later vacated.


                                                 6
required under Act 140, noting that Act 140 is not a criminal statute but rather
establishes a condition precedent to eligibility to receive pension benefits.
                 Accordingly, the Board overruled Petitioner’s exceptions, adopted
the Hearing Examiner’s Findings of Fact and Conclusions of Law, and denied
Petitioner’s request to reinstate the forfeited pension benefits. Petitioner filed a
timely petition for review with this Court.


                                          Discussion9
               Petitioner first argues that collateral estoppel, equitable estoppel, or
laches precludes the forfeiture of Petitioner’s pension under Act 140, based on his
criminal conviction, when SERS determined in 2009 that the same underlying
misconduct and suspension did not require pension forfeiture under Article V,
Section 16(b) of the Pennsylvania Constitution and Section 3352 of the Judicial
Code, 42 Pa. C.S. §3352.
               In relevant part, Article V, Section 16(b) (emphasis added) states:

               Except as provided by law, no salary, retirement benefit
               or other compensation, present or deferred, shall be paid
               to any justice, judge or justice of the peace, who under
               section 18 . . . is suspended, removed or barred from
               holding judicial office for conviction of a felony or
               misconduct in office or conduct which prejudices the
               proper administration of justice or brings the judicial
               office into disrepute.
Pa. Const. art. V, §16(b).



       9
         The issues on appeal, questions of statutory and constitutional interpretation, are issues
of law as to which our review is plenary. Heilbrunn v. State Employees’ Retirement Board, 108
A.3d 973, 976 n.2 (Pa. Cmwlth. 2015).


                                                7
             Section 3352(a) of the Judicial Code likewise provides that no salary,
retirement benefit or other compensation shall be paid to any judge “who is
suspended . . . under section 18 of Article V” of the Pennsylvania Constitution. 42
Pa. C.S. §3352(a). Petitioner was suspended under Article V, Section 18(d)(1),
expressly for “conduct that brings the judicial office into disrepute.” Pa. Const. art.
V, §18(d)(1).    Per the parties’ joint stipulation, because Petitioner “was not
removed from judicial office, SERS concluded that his suspension would not result
in a forfeiture under Article V, Section 18 of the Pennsylvania Constitution.”
Reproduced Record (R.R.) at A-122.
             Collateral estoppel will prevent relitigation of issues in a subsequent
case if all of the following apply: (1) the issue decided in the prior case is identical
to that of the subsequent case; (2) the prior case resulted in a final judgment on the
merits; (3) the party against whom the doctrine is asserted was a party in the prior
case; and, (4) the party against whom collateral estoppel is asserted had a full and
fair opportunity to litigate the issue in the prior action. Rue v. K-Mart Corp., 713
A.2d 82, 84 (Pa. 1998). Emphasizing that the underlying facts of both SERS
determinations involve the same misconduct, Petitioner asserts that each of the
elements of collateral estoppel are satisfied here.
             Nevertheless, Petitioner recognizes that there are significant
distinctions between the two matters, particularly, that SERS’ 2015 determination
was triggered by a criminal conviction for theft requiring forfeiture under Act 140,
while neither the criminal conviction nor Act 140 was implicated in the 2009
determination. Consequently, the issues in the two proceedings were not identical,
and collateral estoppel does not apply.




                                           8
              Petitioner argues that because his criminal conviction was delayed for
many years after his conduct was known to the CJD, the Judicial Conduct Board,
and SERS, forfeiture of his pension is barred by equitable estoppel or laches. We
disagree.
              A party asserting equitable estoppel against a Commonwealth agency
must establish that: (1) the agency intentionally or negligently misrepresented a
material fact; (2) the agency knew or had reason to know that the party would
justifiably rely on the misrepresentation; and (3) the party acted to his or her
detriment by justifiably relying on the misrepresentation.      Carroll v. City of
Philadelphia, Board of Pensions and Retirement, 735 A.2d 141, 144 (Pa. Cmwlth.
1999). While Petitioner argues that he relied on SERS’ 2009 decision to work for
another two-and-a-half years, he does not identify any misrepresentation by SERS
or any prejudice he allegedly suffered when he returned to the bench.
              “A party asserting the doctrine of laches must first show that there
was a delay caused by the other party’s failure to exercise due diligence, and
second, prejudice from that delay.” McGaffic v. City of New Castle, 74 A.3d 306,
317 (Pa. Cmwlth. 2013).       Petitioner complains that SERS was aware of his
misconduct in 2009. However, he does not dispute that SERS acted promptly after
his conviction, which was the triggering event under Act 140.
              Based on the forgoing, the Board correctly concluded that the
doctrines of collateral estoppel, equitable estoppel, and/or laches did not preclude
the forfeiture of Petitioner’s pension under Act 140 based on his criminal
conviction.




                                          9
             Alternatively, Petitioner argues that the Board erred in determining
that he is not entitled to retain the military service credit he purchased or the part of
the pension he earned after the illegal activity ceased.
             Petitioner relies on Berkhimer to argue that he is entitled to retain a
portion of his pension. Berkhimer was elected to office as a magisterial district
judge in 1987, and he was reelected in 1993 and 1999. In 2002, he purchased 3.5
years of service credit for active duty, non-intervening military service from 1972
to 1976. The CJD removed Berkhimer from his elected office in 2005. In 2006,
he became employed with the Pennsylvania Department of Corrections as a
corrections officer. Shortly thereafter, SERS notified Berkhimer that his entire
accrued pension, including his credited military service, had been forfeited under
Article V, Section 16(b) of the Pennsylvania Constitution and Section 3352(a) of
the Judicial Code. This Court affirmed the forfeiture of the entire amount of
Berkhimer’s pension that was attributable to his employment as a magisterial
district judge, but we reversed the forfeiture of Berkhimer’s accrued military
service pension credit, which was not earned during his employment with the
Commonwealth.
             Petitioner relies on the following excerpt from our decision in
Berkhimer:

             While we believe that the Board properly determined that
             Berkhimer’s accrued pension benefit was subject to
             forfeiture, we conclude that Berkhimer’s military service
             credit, which was not earned via his employment with the
             Commonwealth, was not subject to forfeiture. Rather,
             the purchase of such a credit is a privilege granted by the
             legislature in light of an individual’s active military
             service. See Section 5304(c)(2) of the Retirement Code,
             71 Pa. C.S. §5304(c)(2) (specifically permitting active
             SERS members to purchase a maximum of five years of

                                           10
             nonintervening military service). . . . Accordingly, we
             reverse the order of the Board insofar as it directed the
             forfeiture of that part of Berkhimer’s pension attributable
             to his military service credit.

60 A.3d at 882-83. However, in doing so, Petitioner omits the following pertinent
language:
             In this regard, we observe that while the military service
             credit was posted to Berkhimer’s retirement account in
             2002, he had not yet paid for this credit. As noted above,
             Berkhimer elected to pay for this credit via an actuarial
             debt on his retirement account, whereby the purchase
             price and accumulated interest were to be deducted from
             the present value of his account at the time he retired.16
Id. (emphasis added) (footnote omitted). Importantly, in footnote 16 the Court
observed, “Given the method chosen by Berkhimer for payment of his
nonintervening military service and his subsequent removal from office, the
practical effect of our decision here is to permit Berkhimer another opportunity to
purchase credit for this service and apply it to his new state pension account as a
corrections officer.” 60 A.3d at 882 n.16 (emphasis added).
             Petitioner likewise purchased his military credit via an actuarial debt
on his retirement account. If he returns to state service and earns sufficient state
service credit,10 he would have the same opportunity to purchase credit for his
military service as did the employee in Berkhimer.
             Petitioner further asserts that the employee in Berkhimer received a
state pension as a corrections officer as well as his military pension. Petitioner
argues that, pursuant to Berkhimer, he should be permitted to receive his accrued
pension for the period from May 2007, when his misconduct allegedly ended, to

      10
         Military service can be purchased by SERS members who have earned a corresponding
amount of state-service credit. See 71 Pa. C.S. §5304(d).


                                           11
his retirement in October 2012. However, Act 140 explicitly states that, “no public
employee shall be entitled to receive any retirement” if he is found guilty of a
crime related to public office. 43 P.S. §1313(a) (emphasis added). Berkhimer
involved forfeiture under Article V, Section 16(b) of the Pennsylvania Constitution
and Section 3352(a) of the Judicial Code. Consequently, it provides no support for
Petitioner’s assertion that pension forfeiture under Act 140 can be prorated.
              In Apgar v. State Employes’ Retirement System, 655 A.2d 185 (Pa.
Cmwlth. 1994), we explained:

              [In enacting Act 140], the legislative branch of this
              Commonwealth, speaking for the citizens of the
              Commonwealth, established that certain types of conduct
              would not be rewarded. Because criminal conduct
              committed in the course of one’s employment is a
              violation of the trust the people of the Commonwealth
              place in their employees, such conduct shall not be
              sanctioned. 43 P.S. §1311. Petitioner cites no authority
              for [his] position and after a complete review of the
              statute, we do not find any language in Act 140 requiring
              or even suggesting that the [Board] has the power to
              decline to enforce Act 140.
655 A.2d at 189 (emphasis added). Subsequently, in Public School Employes’
Retirement Board v. Matthews, 806 A.2d 971, 975 (Pa. Cmwlth. 2002),11 we stated:


       11
          The employee in Matthews was a member of the Public School Employes’ Retirement
System (PSERS) by virtue of her employment as a cafeteria worker with a school district.
Matthews simultaneously worked for the school district in a separate position as a tax collector,
but she was not a member of PSERS in that capacity. In her position as tax collector, she
embezzled school district funds, and she pled guilty to criminal charges under Section 3927(a) of
the Crimes Code, 18 Pa. C.S. §3927(a). Because Matthews earned her pension during her
employment as a cafeteria worker but she was convicted of a crime while employed in a separate
position as a tax collector, the Public School Employes’ Retirement Board filed an action for
declaratory judgment seeking a declaration as to whether Act 140 required the forfeiture of her
PSERS pension. We determined that Matthews was a public employee at the time she
(Footnote continued on next page…)
                                               12
              Act 140 clearly and unambiguously requires a forfeiture
              of benefits of a public employee who commits a
              forfeitable offense. And, a statute must be read in
              accordance with its plain and common meaning when it
              is clear and unambiguous on its face. Furthermore, Act
              140 contains no requirement that the pension benefits
              that are forfeited be necessarily connected to the public
              employment related to crime the public employee
              committed.
806 A.2d at 975 (citation omitted).
              In sum, Petitioner urges an interpretation of Act 140 that cannot be
reconciled with the express statutory language prohibiting the receipt of any
retirement benefit by an employee found guilty of a crime related to public office.
43 P.S. §1313(a). Furthermore, Petitioner’s return to work after his suspension
does not place him in a position different from any other employee who engages in
criminal conduct and continues to work and accrue retirement credit after the
criminal conduct ceases but before a disqualifying conviction occurs.
Accordingly, the Board properly determined that Petitioner is not currently entitled
to the military service credit he purchased or the part of the pension he earned prior
to his conviction but after his illegal activity allegedly ceased. The conviction, not
the misconduct, triggers forfeiture under Act 140.
              Finally, Petitioner asserts that the forfeiture of his pension was
unconstitutional as an excessive fine or a diminution of judicial compensation.
Petitioner does not support these assertions with citations to authority or legal
analysis. Nevertheless, we note that in Scarantino v. Public School Employees’


(continued…)

committed a crime that was related to public employment, and, therefore, Act 140 required the
forfeiture of Matthews’ pension.


                                             13
Retirement Board, 68 A.3d 375 (Pa. Cmwlth. 2013), we rejected a similar
excessive punishment argument and explained that forfeiture under Act 140 results
from a breach of the contract between the pensioner and the Board.

             The Excessive Fines Clause of the Eighth Amendment is
             only implicated if the fine is a punishment. . . .
             Forfeitures are “fines” if they constitute punishment for
             an offense. . . . The relationship between [an employee]
             and the PSERS is contractual in nature. . . . Section 3(a)
             of [Act 140] provides for the mandatory disqualification
             and forfeiture of benefits upon “conviction[] or plea[] of
             guilty or no defense to any crime related to public office
             or public employment.” Section 3(b) provides that the
             conviction or plea is a breach of the public employee’s
             contract with his employer.         In order to receive
             retirement benefits, an employee must satisfy all of the
             conditions precedent such as minimum retirement age
             and requisite years of service. . . . An additional
             condition precedent for eligibility to receive pension
             benefits is that an employee cannot have been convicted
             of one of the enumerated crimes or a substantially the
             same federal crime. . . . Such a conviction breaches the
             employee’s contract and renders him ineligible to receive
             pension benefits.
68 A.3d at 384-85 (citations omitted). Additionally, as Petitioner concedes, in
Berkhimer we held that the forfeiture of a judge’s entire accrued pension due to
judicial misconduct did not violate the Pennsylvania Constitution’s prohibition
against diminution of judicial salaries during a term of office.
             Accordingly, we affirm the adjudication of the Board.




                                        MICHAEL H. WOJCIK, Judge
Judge Ceisler did not participate in the decision of this case.


                                          14
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Willis W. Berry, Jr.,              :
                                   :
                        Petitioner :
                                   :
              v.                   : No. 738 C.D. 2018
                                   :
State Employees’ Retirement Board, :
                                   :
                        Respondent :



                                 ORDER


             AND NOW, this 9th day of October, 2019, the order of the State
Employees’ Retirement Board, dated May 15, 2018, is AFFIRMED.




                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge
