            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ross C. Cioppa and Maureen Cioppa,               :
                       Petitioners               :
                                                 :
                       v.                        :   No. 1219 C.D. 2014
                                                 :   Argued: April 14, 2015
State Employees’ Retirement System,              :
                        Respondent               :


BEFORE:        HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                     FILED: August 3, 2015


               This matter is a petition for review filed by Ross C. Cioppa (Mr.
Cioppa), a former Magisterial District Judge, and Maureen Cioppa (Mrs. Cioppa),
his wife, appealing an order of the State Employees’ Retirement Board (Board)
denying their appeals of two decisions of the State Employees’ Retirement System
(SERS) forfeiting Mr. Cioppa’s entire accrued pension benefits and Mrs. Cioppa’s
rights under his pension. For the reasons set forth below, we affirm.
               Mr. Cioppa was a member of SERS from April 13, 1973 until July 31,
1979 as an employee of the Department of Transportation and the Department of
Revenue. Board Opinion at 8; Hearing Officer Findings of Fact (F.F.) ¶¶1-3;
Docket No. 2012-29 Joint Stipulation ¶¶1-3, Reproduced Record (R.R.) at 46a.

   1
       This case was reassigned to the author on June 12, 2015.
When he left state employment in 1979, he filed for and received a refund of his
member contributions and interest. Board Opinion at 8; Hearing Officer F.F. ¶4;
Docket No. 2012-29 Joint Stipulation ¶4, R.R. at 46a. On June 25, 1999, Mr.
Cioppa resumed SERS membership as a District Justice (now Magisterial District
Judge)2 elected for a six-year term. Board Opinion at 8; Hearing Officer F.F. ¶5;
Docket No. 2012-29 Joint Stipulation ¶5, R.R. at 46a. In 2000, he purchased his
previously withdrawn 6.4122 years of service credit, and in 2004 purchased .5861
years of military service credit. Board Opinion at 8; Hearing Officer F.F. ¶¶6-7;
Docket No. 2012-29 Joint Stipulation ¶¶6-7, R.R. at 46a. In 2005, he was re-
elected to another six-year term as Magisterial District Judge. Board Opinion at 8;
Hearing Officer F.F. ¶8; Docket No. 2012-29 Joint Stipulation ¶8, R.R. at 47a.
              On October, 12, 2011, Mr. Cioppa was charged with the criminal
offenses of bribery, official oppression and indecent assault and was suspended
with pay by the Judicial Conduct Board. Board Opinion at 8; Hearing Officer F.F.
¶9; Docket No. 2012-29 Joint Stipulation ¶9, R.R. at 47a; Docket No. 2012-29
Joint Ex. 1, R.R. at 50a-51a; Docket No. 2012-29 Joint Ex. 2 F.F. ¶¶3-5, R.R. at
55a-56a. Mr. Cioppa resigned from office on December 9, 2011, electing to retire
under SERS Option 2, naming Mrs. Cioppa as his survivor annuitant, with a full
Option 4 withdrawal of his accumulated deductions. Board Opinion at 8; Hearing
Officer F.F. ¶¶10-11; Docket No. 2012-29 Joint Stipulation ¶¶10-11, R.R. at 47a;
Docket No. 2012-29 Joint Ex. 2 F.F. ¶6, R.R. at 56a. At the time that he resigned,
Mr. Cioppa was 70 years old and had a total of 19.4626 years of credited service in



    2
    The office of district justice was re-designated as magisterial district judge by the Act of
November 30, 2004, P.L. 1618, No. 207.



                                               2
SERS. Board Opinion at 8; Hearing Officer F.F. ¶¶1 n.1, 10; Docket No. 2012-29
Joint Stipulation ¶10, R.R. at 47a.
              On April 12, 2012, Mr. Cioppa pleaded guilty to two charges of
official oppression and two charges of indecent assault, for which he was
sentenced to six months house arrest and four years’ probation, and the bribery
charges were withdrawn. Board Opinion at 8; Hearing Officer F.F. ¶12; Docket
No. 2012-29 Joint Stipulation ¶12, R.R. at 47a; Docket No. 2012-29 Joint Ex. 1,
R.R. at 50a-51a; Docket No. 2012-29 Joint Ex. 2 F.F. ¶¶7, 9, R.R. at 56a-57a. The
offenses to which he pleaded guilty arose out of incidents in which he asked for
sexual favors from two female tenants in landlord-tenant cases before him in
exchange for favorable rulings in their cases. Docket No. 2012-29 Joint Ex. 2 F.F.
¶8, R.R. at 56a-57a. Mrs. Cioppa has been married to Mr. Cioppa since 1964.
Board Opinion at 5-6 F.F. ¶34; Docket No. 2012-29 Joint Stipulation ¶20, R.R. at
48a. There is no claim or evidence that Mrs. Cioppa had any involvement in or
knowledge of her husband’s misconduct or that she benefitted from his misconduct
in any way.
              On April 20, 2012, the Judicial Conduct Board filed a formal
complaint against Mr. Cioppa seeking disciplinary action against him for the
conduct admitted in his guilty pleas. Board Opinion at 5-6 F.F. ¶27; Docket No.
2012-29 Joint Stipulation ¶13, R.R. at 47a; Docket No. 2012-29 Joint Ex. 2, R.R.
at 53a. On July 24, 2012, the Court of Judicial Discipline ordered, pursuant to
Article V, Section 18(d)(1) of the Constitution, that Mr. Cioppa be removed from
the office of Magisterial District Judge and that he “shall hereafter be ineligible to
hold any judicial office in the Commonwealth of Pennsylvania.” Board Opinion at
5-6 F.F. ¶¶28-29; Docket No. 2012-29 Joint Stipulation ¶¶14-15, R.R. at 47a;



                                          3
Docket No. 2012-29 Joint Ex. 2, R.R. at 64a; Docket No. 2012-29 Joint Ex. 3, R.R.
at 65a.
                In April 2012, SERS notified the Cioppas that Mr. Cioppa’s pension
benefits and Mrs. Cioppa’s rights under his pension were being forfeited pursuant
to the Public Employee Pension Forfeiture Act (PEPFA)3 as result of his April 12,
2012 guilty plea to charges of official oppression. Docket No. 2012-30 Joint
Stipulation ¶13, R.R. at 113a. In August 2012, SERS notified the Cioppas that Mr.
Cioppa’s pension benefits and Mrs. Cioppa’s rights under his pension were being
forfeited pursuant to Article V, Section 16(b) of the Pennsylvania Constitution and
Section 3352(a) of the Judicial Code, 42 Pa. C.S. § 3352(a), as result of a July 24,
2012 decision of the Court of Judicial Discipline removing him from office and
barring him from holding judicial office in the future. Docket No. 2012-29 Joint
Stipulation ¶16, R.R. at 47a. The Cioppas appealed the April 2012 and August
2012 forfeitures to the Board. Docket No. 2012-30 Joint Stipulation ¶14, R.R. at
113a; Docket No. 2012-29 Joint Stipulation ¶17, R.R. at 47a; Appeal Letters, R.R.
at 1a-5a, 10a-13a, 16a-20a, 97a-101a. Those appeals were consolidated, and the
parties submitted the appeals to the Board’s hearing officer on stipulated facts and
exhibits.
                On March 10, 2014, the hearing officer issued findings of fact and
conclusions of law recommending denial of the appeals.                    The Cioppas filed
exceptions to the hearing officer’s opinion. On June 19, 2014, the Board overruled
the Cioppas’ exceptions and denied their requests to reinstate pension benefits. In
that opinion, the Board adopted the hearing officer’s findings of fact and made 12
additional findings of fact based on stipulated facts not included in the hearing

    3
        Act of July 8, 1978, P.L. 752, No. 140, as amended, 43 P.S. §§ 1311-1315.



                                                4
officer’s opinion.4      The Cioppas timely appealed the Board’s decision to this
Court.5
               The Board correctly upheld the forfeiture of Mr. Cioppa’s pension
rights under PEPFA, Article V, Section 16(b) of the Pennsylvania Constitution,
and Section 3352(a) of the Judicial Code. Section 3(a) of PEPFA provides:

               Notwithstanding any other provision of law, no public official
               or public employee nor any beneficiary designated by such
               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 convicted
               or pleads guilty or no defense to any crime related to public
               office or public employment.
43 P.S. § 1313(a). Official oppression, one of the crimes to which Mr. Cioppa
pleaded guilty, is a “crime related to public office or public employment” under
PEPFA. Section 2 of PEPFA, 43 P.S. § 1312.
               Article V, Section 16(b) of the Pennsylvania Constitution prohibits
payment of any retirement benefits to any judge, including a magisterial district
judge, who under Article V, 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




    4
       The hearing officer had ruled that Mr. Cioppa was entitled to repayment of his purchase of
.5861 years of military service credit and the Board reversed that ruling on the ground that Mr.
Cioppa had already received a full refund of his contributions. The Cioppas do not challenge the
Board’s ruling on the military service credit issue in this appeal.
     5
       The issues here, questions of statutory and constitutional interpretation, are issues of law as
to which our review is plenary. Heilbrunn v. State Employees’ Ret. Bd., 108 A.3d 973, 976 n.2
(Pa. Cmwlth. 2015).



                                                  5
into disrepute.” Pa. Const. art. V, § 16(b).6 Section 3352(a) of the Judicial Code
prohibits payment of any retirement benefits to any judge, including a magisterial
district judge, who “is suspended or removed from office under section 18 of
Article V or under Article VI of the Constitution of Pennsylvania.” 42 Pa. C.S. §
3352(a).7
               The July 24, 2012 order of the Court of Judicial Discipline satisfies
the forfeiture requirements of both of these provisions. It imposed discipline
pursuant to Article V, Section 18(d) of the Constitution for conduct in office which
is contrary to the proper administration of justice and brings the judicial office into
disrepute and ordered that Mr. Cioppa “is hereby removed from office as
magisterial district judge.” Docket No. 2012-29 Joint Ex. 2, R.R. at 64a ; Docket
No. 2012-29 Joint Ex. 3, R.R. at 65a; Docket No. 2012-29 Joint Stipulation ¶¶14-
15, R.R. at 47a. In addition, it is sufficient to support forfeiture under Article V,
Section 16(b), independent of the removal from office, because, pursuant to Article

    6
      Article V, Section 16(b) provides:
       Justices, judges and justices of the peace shall be retired on the last day of the
       calendar year in which they attain the age of 70 years. Former and retired
       justices, judges and justices of the peace shall receive such compensation as
       shall be provided by law. 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 or under Article VI, 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).
    7
      Section 3352(a) of the Judicial Code provides:
       Former and retired judges and magisterial district judges shall receive such
       compensation as shall be provided by or pursuant to statute. No salary,
       retirement benefit or other compensation shall be paid to any judge or
       magisterial district judge who is suspended or removed from office under
       section 18 of Article V or under Article VI of the Constitution of Pennsylvania.
42 Pa. C.S. § 3352(a).



                                                6
V, Section 18(d) of the Constitution, it also barred him from holding judicial office
as a sanction for that conduct. Docket No. 2012-29 Joint Stipulation ¶¶14-15, R.R.
at 47a; Docket No. 2012-29 Joint Ex. 2, R.R. at 64a; Docket No. 2012-29 Joint Ex.
3, R.R. at 65a.
             Mr. Cioppa does not dispute that his guilty plea satisfies the
requirements for forfeiture under PEPFA. Nor does he contest that the conduct for
which July 24, 2012 Court of Judicial Discipline order was issued satisfies the
requirements for forfeiture under Article V, Section 16(b) of the Constitution and
Section 3352(a) of the Judicial Code. Rather, he contends 1) that the pension
benefits that he earned prior to the term of office in which he committed the acts
for which he pled guilty are not forfeited under PEPFA; and 2) that his pension
benefits could not be forfeited under Article V, Section 16(b) of the Pennsylvania
Constitution and Section 3352(a) of the Judicial Code because he had retired and
was over the age of 70 at the time that Court of Judicial Discipline acted against
him. Neither of these arguments has merit. Indeed, both of these arguments have
been clearly and expressly rejected by our Supreme Court.
             Mr. Cioppa’s argument that PEPFA forfeiture is limited to the term of
office during which he committed the crime is contrary to the language of Section
3(a) of PEPFA that the public official or employee shall not receive “any
retirement or other benefit or payment of any kind except a return of the
contribution paid into any pension fund without interest.” 43 P.S. § 1313(a)
(emphasis added). The language of Section 3(c) of PEPFA relied on by Mr.
Cioppa, that “[e]ach time a public officer or public employee is elected, appointed,
promoted, or otherwise changes a job classification, there is a termination and
renewal of the contract for purposes of this act,” 43 P.S. § 1313(c), does not place



                                         7
any limit on the forfeiture of all benefits required by Section 3(a) or suggest any
intent to limit forfeiture. Rather, it is intended to subject public officials and
employees who began their public employment prior the enactment of PEPFA in
1978 to forfeiture of their entire pensions by making a post-PEPFA re-election,
reappointment or job change a new contract to which PEPFA’s forfeiture
provisions can validly apply. Shiomos v. State Employes’ Ret. Bd., 626 A.2d 158,
161-62 (Pa. 1993); Apgar v. State Employes’ Ret. Sys., 655 A.2d 185, 188 (Pa.
Cmwlth. 1994) (en banc).
             Moreover, the Pennsylvania Supreme Court has addressed this precise
issue and held that PEPFA requires forfeiture of all retirement benefits, including
those earned in terms of office long before the public official committed any
criminal conduct. Shiomos, 626 A.2d at 162-63. In Shiomos, the Supreme Court
ruled that a judge whose pension was vested prior to his re-election and second
term of office forfeited his entire pension as a result of a conviction for extortion as
a senior judge after his retirement. Id. at 160, 162-63. The Court concluded that
the language of Section 3(a) of PEPFA required forfeiture of the entire pension,
including benefits earned before the judge’s second term of office, and explained:

             As a reasonable condition of public employment, the
             employee reaffirms his commitment to perform his job with
             honesty and integrity every time he or she begins a new term
             of office, receives a promotion or appointment, or experiences
             a change in job classification …. With each appointment
             there is a renewal of the agreement to perform the term of
             public service without violating [PEPFA]; an agreement
             which encompasses all that has gone before. Thus, whether or
             not a public employee’s right to receive retirement benefits
             has vested, or he or she is in actual receipt of benefits, all
             previous accumulated rights to receive such benefits are
             subject to forfeiture by and through the “renewed” agreement


                                           8
             which is formed each time a person chooses to become a
             “public official” as defined by [Section 3(a)].

             It is neither unconscionable nor unreasonable to require
             honesty and integrity during an employee’s tenure in public
             service. Nor is it violative of the Pennsylvania Constitution to
             provide that at every new term of employment a public
             official or employee renews and amends his or her pension
             contract to include the new public service and to place at risk
             that which may have already been earned. Such is the nature
             of the public employment agreement.
Id. at 162-63 (emphasis added); see also Scarantino v. Pub. Sch. Employees’ Ret.
Bd., 68 A.3d 375, 385 (Pa. Cmwlth. 2013).
             Forfeiture of all benefits, including benefits vested before the
misconduct and the term in which the misconduct occurred, is likewise required
under Article V, Section 16(b) of the Pennsylvania Constitution and Section
3352(a) of the Judicial Code. Berkhimer v. State Employees’ Ret. Bd., 60 A.3d
873, 880 (Pa. Cmwlth. 2013). Mr. Cioppa does not dispute this. Instead, he
contends that neither of these forfeiture provisions can apply to him because he had
already resigned seven months earlier and was 70 years old and therefore
constitutionally ineligible from holding judicial office by virtue of his age. See Pa.
Const. art. V, § 16(b). Mr. Cioppa asserts that these facts render the Court of
Judicial Discipline order removing him from office and barring him from future
judicial office “meaningless” and “a nullity.” Petitioners’ Br. at 12, 17, 20. This
argument is equally invalid.
             The Court of Judicial Discipline has jurisdiction to institute
disciplinary proceedings against former judges after they have resigned. In re
Melograne, 812 A.2d 1164, 1166-67 (Pa. 2002); In re Ciavarella, 108 A.3d 983,
987-88 (Pa. Ct. Jud. Disc. 2014). Prior resignation and inability to hold judicial
office in the future do not prevent the entry of a valid order removing a judge from

                                          9
office and barring him from holding judicial office. Melograne, 812 A.2d at 1167-
68; Ciavarella, 108 A.3d at 987-88.
              In Melograne, a former district justice, who had resigned upon his
criminal conviction and before the Judicial Conduct Board filed a complaint
against him, made the same argument as here that the Court of Judicial Discipline
could not validly order that he be removed from office or ban him from holding
judicial office in the future, asserting that

              the facts of this case render each of these sanctions
              meaningless. He reasons that he cannot be removed from
              office as he has already removed himself. Furthermore, as
              Article 2, § 7 of the Pennsylvania Constitution forbids him
              from holding office following his conviction for an “infamous
              crime,” he is effectively barred from running for office by
              virtue of his felony conviction. Thus, Appellant deduces, if his
              actions effectively impose self-punishment, there is nothing
              left for the Court of Judicial Discipline to accomplish via
              sanctions.
812 A.2d at 1167-68 (emphasis added). Our Supreme Court rejected that argument
and upheld the order removing him from office and declaring him ineligible to
hold future judicial office, stating:

              Appellant misapprehends the role of the Court of Judicial
              Discipline. The Court of Judicial Discipline exists not only to
              chasten the misbehaving judge; rather, it serves an equally --
              if not more -- important function as protector of the integrity
              of the judiciary and the public’s confidence in that branch of
              government. In disciplining a judicial officer for his
              misconduct, that tribunal not only punishes the wrongdoer,
              but also repairs the damaged public trust and provides
              guidance to other members of the judiciary regarding their
              conduct. Appellant’s conviction and resignation do not
              accomplish these goals. Therefore, we cannot equate the
              voluntary relinquishment of office and the presumption that
              Appellant’s felony conviction would bar him from running for

                                            10
             public office with the discipline imposed by the Court of
             Judicial Discipline. One simply is not a substitute for the
             other. We thus hold that Appellant’s resignation from judicial
             office and conviction of a felony crime did not divest the
             Court of Judicial Discipline of its authority to impose
             sanctions on Appellant.
Id. at 1168 (emphasis added). The Supreme Court’s ruling in Melograne is equally
applicable here and requires rejection of Mr. Cioppa’s challenge to the Court of
Judicial Discipline’s order.
             Accordingly, forfeiture of all of Mr. Cioppa’s rights to receive
retirement benefits is required by PEPFA, Article V, Section 16(b) of the
Pennsylvania Constitution, and Section 3352(a) of the Judicial Code.
             Nonetheless, Mrs. Cioppa argues that she has two types of rights in
Mr. Cioppa’s pension that are not subject to forfeiture, a “marital interest” in his
pension and her rights as a survivor annuitant. We disagree.
             Mrs. Cioppa has no marital interest that gives her any enforceable
rights under her husband’s pension. A spouse has a marital property interest in a
pension that is recognized in equitable distribution in the event of a divorce, and
the State Employees’ Retirement Code (Retirement Code), 71 Pa. C.S. §§ 5101-
5956, provides for alternate payees pursuant to domestic relations orders. Glancey
v. State Employes’ Ret. Bd., 610 A.2d 15, 25 (Pa. 1992); Titler v. State Employees’
Ret. Bd., 768 A.2d 899, 901 (Pa. Cmwlth. 2001); 71 Pa. C.S. § 5953(a)(3); 71 Pa.
C.S. § 5953.1. That, however, does not give a spouse of a SERS member any
enforceable interest in the member’s pension or right to receive benefits prior to a
divorce. Titler, 768 A.2d at 901 (estranged spouse had no right to pension death
benefits where no divorce was final and no domestic relations order had been
issued and Retirement Code permitted member to freely revoke her beneficiary
status because “[i]n order for a spouse to acquire an interest in a member’s

                                        11
retirement account, a Board approved [domestic relations order] must be issued
through the divorce proceedings”); Hoffman v. State Employes’ Ret. Bd., 743 A.2d
1014, 1017-18 (Pa. Cmwlth. 2000) (en banc) (denial of pension death benefits to
estranged spouse who had not yet divorced did not deprive her of property right
because equitable distribution of marital property requires a divorce).
             Nor do we find merit in Mrs. Cioppa’s claim that she has independent
pension rights as a survivor annuitant under the Retirement Code. Section 5907(j)
of the Retirement Code provides, inter alia:

             A member who is eligible and elects to receive a reduced
             annuity under Option 1, 2, 3, or 4, shall nominate a
             beneficiary or a survivor annuitant, as the case may be, by
             written designation filed with the board at the time of his
             retirement.
71 Pa. C.S. § 5907(j). Mr. Cioppa elected Option 2 at the time of his retirement
and named Mrs. Cioppa as his survivor annuitant. That option provides for “[a]
joint and survivor annuity payable during the lifetime of the member with the full
amount of such annuity payable thereafter to his survivor annuitant, if living at his
death.” 71 Pa. C.S. § 5705(a)(2). Since nothing is payable to Cioppa during his
lifetime, the “full amount” would similarly be zero. Simply put, the option
provides for a reduced annuity to the member in exchange for continuation of that
annuity to his or her designated survivor for the survivor’s life, but where the
retired member has forfeited his right to an annuity, there is nothing to continue.
             In addition, as noted above, PEPFA unambiguously bars receipt of
“any retirement or benefit or payment of any kind” (except return of contributions),
not only to the member whose rights have been forfeited, but also to “any
beneficiary designated by [him]...” 43 P.S. § 1313 (a) (emphasis added). Mrs.
Cioppa correctly points out that under the Retirement Code, beneficiary and


                                         12
survivor annuitant are separately defined terms of art. However, PEPFA makes no
such distinction, but uses only the generic term “beneficiary,” and we must
conclude that the term is used in Section 3(a) in its ordinary sense to include any
person designated by the member to receive benefits upon his death. PEPFA is not
part of the Retirement Code and applies to other government entities with
governing laws that do not use the Retirement Code’s terms and definitions. We
believe that if the General Assembly had intended to carve out an exception to the
harsh terms of Section 3(a) solely for “survivor annuitants” it would have said so
explicitly.
              Moreover, and perhaps most important, both “beneficiaries” and
“survivor annuitants,” as those terms are used in the Retirement Code, are those
who receive payments as designated survivors upon the death of the member.
Under Options 2 and 3, the survivor receives continuation of the member’s
annuity; under other options, or upon the member’s death in state service, the
survivor receives a lump sum payment. It would be illogical to assume that the
legislature intended to forfeit the lump sum death benefits payable to
“beneficiaries,” but not the continuing annuities payable to “survivor annuitants.”
              Accordingly, we affirm the adjudication of the Board.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge




                                         13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ross C. Cioppa and Maureen Cioppa,      :
                       Petitioners      :
                                        :
                 v.                     :     No. 1219 C.D. 2014
                                        :
State Employees’ Retirement System,     :
                        Respondent      :


                                 ORDER


           AND NOW, this 3rd day of August, 2015, the order of the State
Employees’ Retirement Board in the above-captioned matter is hereby
AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ross C. Cioppa and Maureen                       :
Cioppa,                                          :
                                                 :
                        Petitioners              :
                                                 :
                 v.                              : No. 1219 C.D. 2014
                                                 : Argued: April 14, 2015
State Employees’ Retirement                      :
System,                                          :
                                                 :
                        Respondent               :



BEFORE:          HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

CONCURRING & DISSENTING OPINION
BY SENIOR JUDGE COLINS                                             FILED: August 3, 2015

                 I concur with the majority’s well-reasoned rulings upholding the
forfeiture of all of Mr. Cioppa’s rights to receive retirement benefits under the
Public Employee Pension Forfeiture Act (PEPFA),1 Article V, Section 16(b) of the
Pennsylvania Constitution, and Section 3352(a) of the Judicial Code. I dissent,
however, from the majority’s affirmance of the forfeiture of Mrs. Cioppa’s rights
as a survivor annuitant under his pension.



1
    Act of July 8, 1978, P.L. 752, No. 140, as amended, 43 P.S. §§ 1311-1315.
                Mrs. Cioppa has rights in Mr. Cioppa’s pension as a survivor
annuitant under the State Employees’ Retirement Code (Retirement Code).2
Section 5907(j) of the Retirement Code provides:

                A member who is eligible and elects to receive a reduced
                annuity under Option 1, 2, 3, or 4, shall nominate a
                beneficiary or a survivor annuitant, as the case may be, by
                written designation filed with the board at the time of his
                retirement. A member who has elected Option 1 may change
                his designated beneficiary at any time. A member having
                designated a survivor annuitant at the time of retirement shall
                not be permitted to nominate a new survivor annuitant unless
                such survivor annuitant predeceases him or unless the member
                is awarded a divorce or becomes married subsequent to the
                election of the option. In such cases, the annuitant shall have
                the right to reelect an option and to nominate a beneficiary or
                a new survivor annuitant and to have his annuity recomputed
                to be actuarially equivalent as of the date of recomputation to
                the annuity in effect immediately prior to the recomputation.
                In no other case shall a benefit plan be changed by an
                annuitant.
71 Pa. C.S. § 5907(j) (emphasis added). Mr. Cioppa elected Option 2 at the time
of his retirement and named Mrs. Cioppa as his survivor annuitant in December
2011, prior to his guilty plea and the forfeiture. (Board Opinion at 8; Hearing
Officer F.F. ¶11; Docket No. 2012-29 Joint Stipulation ¶11, R.R. at 47a.) Mrs.
Cioppa therefore has rights to future payment under the pension that cannot be
revoked or altered at will by her husband. Indeed, SERS in its August 2012 letter
to Mrs. Cioppa expressly recognized that she had an “entitlement to receive




2
    71 Pa. C.S. §§ 5101-5956.

                                         JGC-2
benefits from Mr. Cioppa’s retirement account” as his designated survivor
annuitant. (Docket No. 2012-29 Joint Ex. 4, R.R. at 69a.)3
               The effect of forfeiture on a spouse’s rights in a public official’s
pension is an issue of first impression. PEPFA, Article V, Section 16(b) of the
Constitution and Section 3352(a) of the Judicial Code do not provide that all rights
under the wrongdoer’s pension are extinguished or that the pension itself is
forfeited or extinguished. Rather than voiding the pension itself, these forfeiture
statutes and constitutional provision prohibit payment of pension benefits to certain
persons. Section 3(a) of PEPFA provides:

               Notwithstanding any other provision of law, no public official
               or public employee nor any beneficiary designated by such
               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

3
  Mrs. Cioppa also argues that she has a “marital interest” in her husband’s pension. A spouse
has a marital property interest in a pension that is recognized in equitable distribution in the
event of a divorce, and provides for alternate payees pursuant to domestic relations orders.
Glancey v. State Employees’ Retirement Board, 610 A.2d 15, 25 (Pa. 1992); Titler v. State
Employees’ Retirement Board, 768 A.2d 899, 901 (Pa. Cmwlth. 2001); 71 Pa. C.S. § 5953(a)(3);
71 Pa. C.S. § 5953.1. That, however, does not give a spouse of a SERS member any enforceable
interest in the member’s pension or right to receive benefits prior to a divorce. Titler, 768 A.2d
at 901 (estranged spouse had no right to pension death benefits where no divorce was final and
no domestic relations order had been issued and Retirement Code permitted member to freely
revoke her beneficiary status because “[i]n order for a spouse to acquire an interest in a
member’s retirement account, a Board approved [domestic relations order] must be issued
through the divorce proceedings”); Hoffman v. State Employees’ Retirement Board, 743 A.2d
1014, 1017-18 (Pa. Cmwlth. 2000) (en banc) (denial of pension death benefits to estranged
spouse who had not yet divorced did not deprive her of property right because equitable
distribution of marital property requires a divorce). Mrs. Cioppa’s only rights in her husband’s
pension that can survive the forfeiture of his pension rights are therefore her rights as a survivor
annuitant.

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             interest, if such public official or public employee is convicted
             or pleads guilty or no defense to any crime related to public
             office or public employment.


43 P.S. § 1313(a) (emphasis added). Article V, Section 16(b) of the Pennsylvania
Constitution provides that

             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 or under
             Article VI, 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) (emphasis added). Section 3352(a) of the Judicial Code
likewise provides that “[n]o salary, retirement benefit or other compensation shall
be paid to any judge or magisterial district judge who is suspended or removed
from office under section 18 of Article V or under Article VI of the Constitution of
Pennsylvania.” 42 Pa. C.S. § 3352(a) (emphasis added).
             The intent to prohibit pension payments to particular individuals,
rather than extinguishing the pension itself is confirmed by another section of
PEPFA. Section 4 of PEPFA provides that where the public official’s criminal
conduct has caused monetary loss to the government, the government is entitled to
a restitution order and “[t]he retirement board, administrator of the pension fund or
employer of the defendant, upon being served with a copy of the [restitution] order,
shall pay over all such pension benefits, contributions or other benefits to the
extent necessary to satisfy the order of restitution.” 43 P.S. § 1314(a), (b), (d)

                                       JGC-4
(emphasis added). If the effect of forfeiture was the extinguishment of the pension
in its entirety, this restitution would be substantially diminished and reduced to
payment of the public official’s unforfeited contributions, contrary to the language
of Section 4(d) that “all such pension benefits” shall be available to provide
restitution. The unpublished opinion in Kenney v. City of Wilkes-Barre Police
Pension Fund, (Pa. Cmwlth. No. 1334 C.D. 2009, filed February 3, 2010), 2010
WL 9512681, relied on by SERS, does not support its contention that forfeiture
automatically extinguishes all rights of third parties under the pension. Kenney did
not involve forfeiture; rather, the question was whether a domestic relations order
could alter a pension contract to require survivor rights in favor of an ex-spouse
where the pension contract did not provide for such survivor rights. Slip op. at 3,
2010 WL 9512681 at *1.
            Nothing in the language of Article V, Section 16(b) of the
Constitution nor Section 3352(a) of the Judicial Code suggests any intent to bar a
spouse’s or other third party’s rights to pension benefits. The language of both of
these provisions prohibits only payment of pension benefits to the individual who
has abused a judicial office, not payment to any other persons under that
individual’s pension. Mrs. Cioppa’s benefits as a survivor annuitant not only are
not payments to the individual who abused his judicial office, they are not even
payable to her until he is dead. Mrs. Cioppa’s rights as her husband’s survivor
annuitant are therefore not forfeited under Article V, Section 16(b) of the
Constitution and Section 3352(a) of the Judicial Code.
            The issue of whether PEPFA bars Mrs. Cioppa’s rights as a survivor
annuitant is a closer question. PEPFA prohibits payment of pension benefits to
both the “public official or public employee” and “any beneficiary designated by
                                      JGC-5
such public official or public employee.” 43 P.S. § 1313(a). While a survivor
annuitant is not a “beneficiary” under the Retirement Code, 71 Pa. C.S. § 5102,
PEPFA is not part of the Retirement Code and applies to other government entities
with retirement statutes that do not use the Retirement Code’s terms and
definitions. PEPFA does not define the term “beneficiary.” A survivor annuitant
designation under the Retirement Code, however, is also different from an ordinary
beneficiary designation in that it is not freely revocable. As is discussed above,
once the member has designated a survivor annuitant, he has parted with the ability
to change his mind and designate a different person to receive those benefits. 71
Pa. C.S. § 5907(j). An existing survivor annuitant designation cannot therefore be
changed by the public employee after conviction of a crime or after forfeiture to
evade the consequences of the forfeiture. Moreover, the benefits received by a
survivor annuitant cannot be used to support the public official who breached the
public’s trust and thereby nullify the forfeiture, as benefits are paid to the survivor
annuitant only after the criminal public official is no longer alive.
             The critical question is whether it was the General Assembly’s intent
by the phrase “any beneficiary designated by such public official or public
employee” to deny payment of pension benefits to all individuals who have
existing rights to payment of benefits under a wrongdoer’s pension, regardless of
their lack of involvement in the wrongdoing and regardless of whether benefits
paid to them could be used to support the wrongdoer. In construing this language,
we must keep in mind that pension forfeiture is not favored and that pension
forfeiture statutes are therefore strictly construed. Mazzo v. Board of Pensions and
Retirement of the City of Philadelphia, 611 A.2d 193, 196-97 (Pa. 1992); Wiggins


                                        JGC-6
v. Philadelphia Bd. of Pensions and Retirement, 114 A.3d 66, 72 (Pa. Cmwlth.
2015) (en banc).
            The purpose of PEPFA is to deter commission of crimes by public
officials and employees and promote accountability by preventing the public
official or employee who committed a crime from receiving the benefit of a
taxpayer-funded pension. Commonwealth v. Abraham, 62 A.3d 343, 348-49, 351-
52 (Pa. 2012); Luzerne County Retirement Board v. Seacrist, 988 A.2d 785, 787
(Pa. Cmwlth. 2010). In Abraham, our Supreme Court analyzed the purpose of
PEPFA in detail in determining whether forfeiture was a direct or collateral
consequence of a guilty plea. The Court concluded that “the discussion on PEPFA
when it was pending as a bill demonstrates its aim of preventing those who violate
the public’s trust from receiving the benefit of a taxpayer-funded pension,” and
that PEPFA is aimed at ensuring and promoting accountability by “preventing
those who violate the public’s trust from receiving a benefit funded by the public.”
62 A.3d at 349, 352 (emphasis added). See also Seacrist, 988 A.2d at 787 (“The
purpose of the … Act is to deter criminal conduct in public employment by
causing a forfeiture of pension benefits to which a public official or public
employee would otherwise be entitled”).
            That purpose of denying taxpayer funded benefits to those who have
committed wrongdoing in public office does not show any intent to deny payments
to persons who neither committed nor benefitted from the wrongdoing where the
funds they would receive cannot be used to benefit or support the wrongdoer.
Construing the phrase “beneficiary designated by such public official or public
employee” narrowly, as we must, I would hold that it is intended to deny the
wrongdoer himself all benefits and rights that he had under the pension, including
                                      JGC-7
his ability to bestow rights in his pension on others and avoid the consequences of
forfeiture by transferring his rights to others. So construed, Section 3(a) of PEPFA
does not include an already designated survivor annuitant over whose rights the
wrongdoer no longer has control and who cannot receive benefits during the
wrongdoer’s lifetime.
             This construction does not permit a wrongdoer who has stolen funds
or caused monetary loss to the government to shelter pension benefits from the
government’s restitution rights. The pension rights of a survivor annuitant or
divorced spouse remain fully subject to and subordinate to the government’s right
to recover its losses under Section 4(d) of PEPFA. 43 P.S. § 1314(d) (requiring
that retirement board “shall pay over all such pension benefits, contributions or
other benefits to the extent necessary to satisfy [an] order of restitution”); see also
Marshall v. State Employees’ Retirement System, 887 A.2d 351, 357-61 (Pa.
Cmwlth. 2005).      There is no issue here, however, of monetary harm to the
government or restitution that would reduce or negate Mrs. Cioppa’s survivor
annuitant rights.
             I would therefore reverse the order of the State Employees’
Retirement Board insofar as it directed the forfeiture of Mrs. Cioppa’s rights as
survivor annuitant under Mr. Cioppa’s pension.




                                        ____________________________________
                                        JAMES GARDNER COLINS, Senior Judge




                                        JGC-8
