Gierschick v. State Employees' Retirement Board

733 A.2d 29, 1999 Pa. Commw. LEXIS 513
CourtCommonwealth Court of Pennsylvania
DecidedJune 23, 1999
StatusPublished
Cited by6 cases

This text of 733 A.2d 29 (Gierschick v. State Employees' Retirement Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gierschick v. State Employees' Retirement Board, 733 A.2d 29, 1999 Pa. Commw. LEXIS 513 (Pa. Ct. App. 1999).

Opinions

RODGERS, Senior Judge.

Joseph W. Gierschick, Jr. (Claimant) petitions for review of a State Employees’ Retirement Board’s (Board) order that required him to forfeit his retirement benefits pursuant to the Public Employee Pension Forfeiture Act (Act 140)1 earned up to and including the date of his guilty plea [31]*31for committing perjury before a federal grand jury. We affirm.

The facts of this case, as set forth by the State Employees’ Retirement System. (SERS) hearing examiner, are as follows. When he started work in June 1981 as a corrections officer with the Department of Corrections at Graterford State Correctional Institution (Graterford), Claimant became a member of the SERS. As a result of a prison inmate riot at the Camp Hill Prison, on November 6, 1989, several Camp Hill inmates were transferred to Graterford. Claimant was asked to videotape the inmates as they exited the transfer bus and entered Graterford. Claimant stated he believed that he had videotaped the last prisoners leaving the bus, but the next day learned that prison guards had allegedly assaulted some of those prisoners. A month later, Claimant, without counsel, was questioned by the state police about the assault. In March 1991, Claimant appeared, without counsel, before a federal grand jury and repeated his testimony that he believed he had videotaped the last prisoners to leave the bus. Claimant’s testimony was critical since the timing of the alleged assault was significant to the credibility and veracity of the prisoners’ testimony.

In October 1991, the federal grand jury indicted Claimant for perjury. Claimant’s indictment was consolidated with those of the prison guards charged with the assault. Claimant engaged counsel, and, on that counsel’s advice and in exchange for a probationary sentence, pled guilty to the perjury charge on January 11, 1998. Claimant stated he so pled rather than risk a conviction and possible jail time should he be convicted with the prison guards. Counsel assured Claimant that a guilty plea would not affect his retirement account. Claimant never testified at the trial of the prison guards, who were found not guilty. On April 21, 1994, Claimant was fined two thousand dollars and sentenced to three years probation for his perjury conviction.

As a result of his conviction, Claimant was suspended and later discharged from Commonwealth employment. He filed a grievance through his union, which went to arbitration. The arbitrator ordered Claimant be returned to his former position, noting that Claimant was not involved in beating any inmates but was only videotaping their leaving the bus. The arbitrator stated that he weighed Claimant’s guilty plea in light of the illness of Claimant’s wife and the prosecutor’s promise of a lighter sentence. The Commonwealth did not appeal the arbitrator’s reinstatement decision.

In an April 24, 1995, letter, SERS notified Claimant that it had learned of his guilty plea and subsequent conviction and informed Claimant that his total credited state service was forfeited as of the day after his conviction, April 22,1994. Claimant appealed that decision and requested a formal hearing. A SERS hearing examiner heard testimony and made recommendations based on his findings of fact and conclusions of law. The hearing examiner concluded that Claimant’s guilty plea was related to his public employment making Claimant’s benefits subject to forfeiture under Act 140. Claimant appealed the hearing examiner’s decision to the Board.

Before the Board, Claimant again argued that, although he pled guilty to perjury, the provisions of Act 140 did not apply to him. The Board disagreed and found Claimant pled guilty to a crime related to public office or public employment, and further concluded its decision concerning Claimant’s pension benefits was not restricted by the union arbitrator’s determination. The Board decided the crime to which Claimant pled guilty, 18 U.S.C. § 1628, False Declarations Before Grand Jury or Court, is substantially similar to the enumerated Pennsylvania crime of perjury, Section 4902 of the Crimes Code, 18 Pa.C.S. § 4902, and thus triggered a forfeiture of pension benefits under Act 140. The Board ordered that Claimant’s retire[32]*32ment benefits earned up to and including the date of his guilty plea be forfeited.

Claimant appeals to this Court,2 again asserting that his plea of guilty to perjury was not a crime relating to his public office or employment and thus Section 3(a) of Act 1403 did not apply to him. Claimant further argues SERS is collaterally es-topped from challenging what Claimant contends is the arbitrator’s finding that his guilty plea and conviction were not causally related to his employment.4

Section 3(a) of Act 140 provides that:
[N]o public official or public employe ... 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.

A crime related to public office or public employment includes a list of enumerated Pennsylvania crimes, as well as federal crimes that are substantially the same as those on the Pennsylvania list.5 The crime must be committed by such a public official or employee when that employee’s public employment places him in a position to commit the crime. Shiomos v. State Employes’ Retirement Board, 533 Pa. 588, 626 A.2d 158 (1993).

Claimant argues it was the Commonwealth’s burden to prove that there was a logical' or temporal relationship between his plea of guilty and his work at Grater-ford. He claims there is no assertion that he did anything wrong within the scope of his employment as a Graterford guard. Rather, he asserts that the purported false testimony arose as a result of his “being caught up in the criminal justice system.” He repeats that the arbitrator found that his plea and conviction were related to the circumstances of his getting ready for trial in January 1993. Consequently, Claimant argues his crime was not related to his public office or public employment. We disagree.

Claimant has the burden of proof establishing his position. Shoemaker v. State Employes’ Retirement Board, 688 A.2d 751 (Pa.Cmwlth.1997), petition for allowance of appeal denied, 548 Pa. 676, 698 A.2d 597 (1997). Because no reported appellate decisions answer whether perjured testimony about one’s conduct during one’s performance of public employment duties is a crime related to public office or public employment, this Court must look at the standard rules of statutory construction, i.e., the occasion and necessity for the statute, the mischief to be remedied, the object to be attained, the consequences of a particular interpretation, as well as other administrative interpretations.6 Furthermore, the words and phrases in a statute are to be construed according to their common meaning and accepted usage,7 and it is unlikely the General Assembly intend[33]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

D.B. Townsend v. Northampton Twp.
Commonwealth Court of Pennsylvania, 2024
R.W. Como v. PSERB
Commonwealth Court of Pennsylvania, 2023
Merlino v. Philadelphia Board of Pensions & Retirement
916 A.2d 1231 (Commonwealth Court of Pennsylvania, 2007)
Commonwealth, Public School Employes' Retirement Board v. Matthews
806 A.2d 971 (Commonwealth Court of Pennsylvania, 2002)
Orenshaw v. Springfield Township
736 A.2d 44 (Commonwealth Court of Pennsylvania, 1999)
Gierschick v. State Employees' Retirement Board
733 A.2d 29 (Commonwealth Court of Pennsylvania, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
733 A.2d 29, 1999 Pa. Commw. LEXIS 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gierschick-v-state-employees-retirement-board-pacommwct-1999.