J.J. O'Neill v. SERS

          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph J. O’Neill,                              :
                              Petitioner        :
                                                :
                       v.                       :   No. 1359 C.D. 2019
                                                :   Argued: September 17, 2020
State Employees’ Retirement System,             :
                        Respondent              :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: October 19, 2020


      Joseph J. O’Neill (Petitioner), a former judge on the Municipal Court of
Philadelphia County (municipal court), petitions for review of the September 3, 2019
Opinion and Order of the State Employees’ Retirement System (SERS) Board,
which denied Petitioner’s appeal from a determination of SERS that pursuant to the
Public Employee Pension Forfeiture Act,1 commonly referred to as Act 140,
Petitioner forfeited his pension benefit when he pled guilty to two counts of the same
federal crime. On appeal, Petitioner argues that the Board erred in concluding that
the federal crime to which Petitioner pled guilty is substantially the same as one of
the forfeiture-triggering crimes listed in Act 140. For the reasons that follow, we
affirm.

      1
          Act of July 8, 1978, P.L. 752, as amended, 43 P.S. §§ 1311-1315.
   I.         Factual Background and Procedure
        The parties jointly stipulated to the salient facts before a Hearing Officer, and
they are not in dispute. Petitioner became a member of SERS on November 14,
2007, by virtue of his commission as a judge on the municipal court. (Hearing
Officer Opinion (Op.) Finding of Fact (FOF) ¶ 1.) On March 11, 2016, Petitioner
was charged with two counts of making false statements to federal agents, a violation
of Section 1001 of Title 18 of the United States Code, 18 U.S.C. § 1001 (Section
1001),2 in the United States District Court for the Eastern District of Pennsylvania.
(Hearing Officer Op., FOF ¶ 2; Reproduced Record (R.R.) at 16a-24a.) The
indictment alleged as follows. On November 16, 2011, another judge on the
municipal court contacted Petitioner “by telephone and, in an ex parte
conversation[,] . . . requested favorable treatment for [a] defendant” in a case
scheduled to be heard by Petitioner that afternoon. (Indictment ¶¶ 16-17.) The FBI
began an investigation into the “circumstances surrounding the ex parte
conversation” between Petitioner and the other municipal court judge and as part of

        2
            Pursuant to Section 1001(a):

        [W]hoever, in any matter within the jurisdiction of the executive, legislative, or
        judicial branch of the Government of the United States, knowingly and willfully--

                 (1) falsifies, conceals, or covers up by trick, scheme, or device a material
                 fact;

                 (2) makes any materially false, fictitious, or fraudulent statement or
                 representation; or

                 (3) makes or uses any false writing or document knowing the same to
                 contain any materially false, fictitious, or fraudulent statement or entry;

        shall be fined under this title [or] imprisoned . . . .

18 U.S.C. § 1001(a).


                                                    2
that investigation, FBI agents interviewed Petitioner on September 19 and 20, 2012.
(Id. ¶¶ 22-23, 26.) During these two interviews, Petitioner was asked whether
anyone contacted him in advance of the November 16, 2011 hearing to ask him to
rule in a particular party’s favor. Petitioner “denied that any person had contacted
him and asked for a favor” and stated that “no one had asked him to ‘fix’ the”
November 16, 2011 hearing. (Id. ¶¶ 23, 26.) On May 26, 2016, Petitioner pled
guilty to two counts of violating Section 1001. (Hearing Officer Op., FOF ¶ 20;
R.R. at 68a-74a.) Effective the date of his guilty plea, Petitioner “terminated” his
commission as a judge on the municipal court. (Hearing Officer Op., FOF ¶ 22;
R.R. at 39a.)


   A. Application for Annuity
       After his termination from the municipal court, Petitioner submitted an
Application for Annuity with SERS. (Hearing Officer Op., FOF ¶ 24; R.R. at 40a-
45a.) By letter dated June 16, 2016, SERS informed Petitioner that pursuant to Act
140, Petitioner forfeited his pension benefit as of May 26, 2016, the date of his guilty
plea, and that he was only entitled to the monies he contributed while a member of
SERS, less any debts, fines, or restitution owed. (Hearing Officer Op., FOF ¶¶ 25-
26; R.R. at 3a-6a.) In its letter, SERS explained that pursuant to Section 3(a) of Act
140,

       no public official or public employee nor any beneficiary designated by
       such public official or public employee[3] 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

       3
         Section 2 of Act 140 defined “[p]ublic official” or “public employee” as “[a]ny person
who is elected or appointed to any public office or public employment including, justices, judges
and justices of the peace . . . .” Former 43 P.S. § 1312.


                                               3
       public official or public employee is convicted or pleads guilty or no
       defense to any crime related to public office or public employment.

(R.R. at 3a (quoting former 43 P.S. § 1313(a)).) SERS further explained that
Section 2 of Act 140, former 43 P.S. § 1312, defined the term “[c]rimes related to
public office or public employment” to include, inter alia, Section 4906 of the
Crimes Code, 18 Pa.C.S. § 4906 (Section 4906),4 which criminalizes giving false
reports to law enforcement, and any federal crime “substantially the same” as
Section 4906.5 (R.R. at 3a (quoting former 43 P.S. § 1312).) Upon review of
Petitioner’s record, SERS found that Petitioner was a public official when he pled
guilty to two counts of violating Section 1001 and that Section 1001 is a crime
related to public office or public employment because it is substantially the same as
Section 4906. (R.R. at 3a-6a.) As such, SERS concluded that pursuant to Act 140,


       4
           Section 4906, in relevant part, provides:

       (a) Falsely incriminating another.--Except as provided in subsection (c), a person
       who knowingly gives false information to any law enforcement officer with intent
       to implicate another commits a misdemeanor of the second degree.

       (b) Fictitious reports.--Except as provided in subsection (c), a person commits a
       misdemeanor of the third degree if he:

                 (1) reports to law enforcement authorities an offense or other incident
                 within their concern knowing that it did not occur; or

                 (2) pretends to furnish such authorities with information relating to an
                 offense or incident when he knows he has no information relating to such
                 offense or incident.

18 Pa.C.S. § 4906(a)-(b).
        5
          Subsequent to these events, Act 140 was amended by the Act of March 28, 2019, P.L. 1,
which, among other things, expanded the list of state crimes for which one’s benefits could be
forfeited. This amendment does not change the inclusion of Section 4906 which remains a crime
related to public office or public employment as defined by Section 2 of Act 140.


                                                  4
Petitioner, while entitled to receive the monies he contributed while a member of
SERS, forfeited his pension benefit when he pled guilty to two counts of violating
Section 1001. (R.R. at 3a-6a.)
      Petitioner timely appealed the determination of SERS to the Board. On
August 4, 2016, SERS filed an Answer and a Motion to Dismiss Petitioner’s appeal
based upon this Court’s decision in Merlino v. Philadelphia Board of Pensions and
Retirement, 

916 A.2d 1231

(Pa. Cmwlth. 2007), wherein we held that Section 1001
and Section 4906 are substantially the same for purposes of Act 140. Petitioner filed
a response in opposition. By Opinion and Order dated June 2, 2017, the Board
denied the Motion to Dismiss, reasoning that Petitioner “raised sufficient legal and
factual arguments that merit the creation of a factual record in this appeal and a
recommendation on the applicable law by a hearing officer.” (Board June 2, 2017
Op. and Order at 1-2.) Accordingly, the Board directed that Petitioner’s appeal
should proceed to a hearing officer.


   B. Proceedings before the Hearing Officer
      The parties ultimately agreed that an evidentiary hearing before the Hearing
Officer was not necessary. Instead, the parties submitted stipulations of fact, joint
exhibits, and written briefs setting forth their respective arguments. After review of
the parties’ submissions, the Hearing Officer issued an Opinion and
Recommendation dated August 6, 2018. The Hearing Officer made findings of fact,
which are summarized, in relevant part, above. Upon review, the Hearing Officer
determined that Petitioner had been convicted of a crime related to public office or
public employment as Section 1001 is substantially the same as Section 4906. In
reaching this decision, the Hearing Officer found this Court’s decision in Merlino to



                                          5
be controlling. Accordingly, the Hearing Officer concluded that Petitioner forfeited
his pension benefit when he pled guilty to two counts of violating Section 1001 and
recommended the Board affirm the determination of SERS.


   C. Proceedings before the Board
      Petitioner filed exceptions to the Hearing Officer’s Opinion and
Recommendation. Petitioner’s exceptions challenged the Hearing Officer’s ultimate
conclusion that Petitioner forfeited his pension when he pled guilty to two counts of
violating Section 1001. Petitioner’s first two exceptions related to our decision in
Merlino. In his first exception, Petitioner argued, contrary to our holding in Merlino,
that Section 1001 is not substantially the same as Section 4906 because Section 4906
contains elements of proof that Section 1001 does not contain. In his second
exception, Petitioner argued that Merlino is factually distinguishable and should not
control his case. Petitioner asserted that when determining whether two crimes are
substantially the same for purposes of Act 140, the facts of an underlying conviction
should be considered in addition to the elements and mens rea of the crimes being
compared.    As support for his argument that the underlying facts should be
considered, Petitioner relied on our Supreme Court’s citation to Petition of Hughes,

532 A.2d 298

(Pa. 1987), in Shiomos v. State Employes’ Retirement Board, 

626 A.2d 158

(Pa. 1993). Petitioner submitted that a review of the facts of his underlying
conviction demonstrates that his conduct, while a violation of Section 1001, does
not violate Section 4906. As such, Petitioner argued that Merlino is factually




                                          6
distinguishable because the conduct of the petitioner in Merlino violated both
Section 1001 and Section 4906.6
       By Opinion and Order dated September 3, 2019, the Board denied Petitioner’s
exceptions to the Hearing Officer’s Opinion and Recommendation and confirmed
the forfeiture of Petitioner’s pension benefit. The Board accepted and adopted the
Opinion and Recommendation of the Hearing Officer, and supplemented that
determination with its own Opinion. Upon review, the Board agreed with the
Hearing Officer that Section 1001 and Section 4906 are substantially the same for
purposes of Act 140.
       In rejecting Petitioner’s first exception, the Board found that Petitioner
essentially argued that “the elements of a federal crime must be identical” to one of
the forfeiture-triggering state crimes listed in Act 140. (Board Sept. 3, 2019 Op. at
3.) Citing precedent from this Court, the Board concluded that two crimes need not
contain identical elements of proof to be substantially the same for purposes of Act
140, but rather two crimes are substantially the same if they “prohibit the same type
of behavior.” (Board Sept. 3, 2019 Op. at 3 (emphasis omitted).) The Board
determined that Section 1001 and Section 4906 prohibit the same type of behavior,
reporting false information to law enforcement, and, therefore, the two crimes at
issue are substantially the same. The Board further concluded that “the nature of
[Petitioner’s] misrepresentation to law enforcement does not affect the analysis
required to determine whether Act 140 applies” and, therefore, “[t]he fact that
[Petitioner’s] lie to the FBI involved his denial of impropriety as opposed to falsely
stating that something happened is a distinction without a difference for purposes of

       6
          In his exceptions, Petitioner also challenged certain findings of fact made by the Hearing
Officer, with which the Board agreed, and it revised certain findings of fact, which are not pertinent
to the issues before us.


                                                  7
determining whether the federal crime is substantially similar to an enumerated Act
140 crime.” (Board Sept. 3, 2019 Op. at 3-4.)
       The Board also rejected Petitioner’s second exception, concluding that based
upon precedent from this Court, Act 140 “does not require that the facts of a
particular case be analyzed” when determining whether two crimes are substantially
the same. (Board Sept. 3, 2019 Op. at 4.) As such, the Board disagreed with
Petitioner’s attempts to factually distinguish Merlino. While the Pennsylvania
Supreme Court has not reviewed whether Section 1001 and Section 4906 are
substantially the same for purposes of Act 140, the Board concluded that until the
Supreme Court holds otherwise, Merlino is controlling. The Board analogized this
“to the situation . . . regarding the applicability of Act 140 to inchoate crimes.”
(Board Sept. 3, 2019 Op. at 5.) In doing so, the Board cited Luzerne County
Retirement Board v. Seacrist, 

988 A.2d 785

, 789 (Pa. Cmwlth. 2010), wherein we
held that the inchoate crimes of attempt, conspiracy, or solicitation to commit one of
the enumerated forfeiture-triggering state crimes in Act 140 results in “the same civil
consequences,” in terms of pension forfeiture, as the commission of one of the
enumerated forfeiture-triggering state crimes.
       Accordingly, the Board denied Claimant’s request to reverse the
determination of SERS. Thereafter, Petitioner filed the instant petition for review
with this Court.7




       7
         The issues presented in this case are questions of law. As such, our standard of review is
plenary. Heilbrunn v. State Employees’ Ret. Bd., 

108 A.3d 973

, 976 n.2 (Pa. Cmwlth. 2015).


                                                8
   II.      Parties’ Arguments
   A. Petitioner
         Petitioner presents the following three issues for our review: (1) whether the
Board erred in concluding that Section 1001 is substantially the same as Section
4906; (2) whether the Board erred when it relied upon Merlino and “by failing to
engage in the proper analysis to factually distinguish” Merlino; and (3) whether the
Board erred by failing to properly consider that our Supreme Court has not held that
Section 1001 is substantially the same as Section 4906 when the Board declined to
examine the underlying facts of Petitioner’s federal conviction. (Petitioner’s Brief
(Br.) at 4.) More specifically, Petitioner argues that, contrary to our holding in
Merlino, a textual analysis of Section 1001 and Section 4906 demonstrates that the
two crimes are not substantially the same for purposes of Act 140. Petitioner
submits that “a violation of [Section 4906] is always substantially the same as a
violation of [Section 1001]” but that “every violation of [Section 1001] is not
necessarily substantially the same as a violation of [Section 4906].” (Petitioner’s
Br. at 18-19 (emphasis omitted).) In other words, Section 1001 is broader than
Section 4906, which contains elements of proof that Section 1001 does not.
Specifically, Petitioner cites the fact that, unlike Section 1001, “in order to convict
a defendant under [S]ection 4906(a), the Commonwealth must prove that the
defendant knowingly gave false information to a law enforcement officer intending
to implicate another.” (Petitioner’s Br. at 19 (emphasis omitted).) Petitioner also
cites the fact that, unlike Section 1001, “[S]ection 4906(b) requires the
Commonwealth to prove that the defendant falsely reported an offense or incident
knowing it did not occur or the defendant pretended to furnish information about an
offense or incident about which he had no information.” (Petitioner’s Br. at 21.)



                                            9
Since conduct can violate Section 1001, without violating Section 4906, Petitioner
concludes the two crimes are not substantially the same for purposes of Act 140.
       Alternatively, Petitioner argues Merlino is factually distinguishable. As he
did before the Board, Petitioner contends that our Supreme Court’s citation to
Petition of Hughes in Shiomos indicates “that the underlying facts of a petitioner’s
federal conviction, in addition to the elements and mens rea of the crime, should be
considered when determining whether the offense is substantially the same” as one
of the forfeiture-triggering state crimes enumerated in Act 140. (Petitioner’s Br. at
30.) As further support that we should examine the underlying facts of his criminal
conviction, Petitioner cites Judge McCullough’s concurring opinion in Reilly v.
Luzerne County Retirement Board (Pa. Cmwlth., No. 2335 C.D. 2013, filed
September 29, 2014) (McCullough, J., concurring).8 Petitioner submits that, unlike
the petitioner in Merlino, whose conduct clearly violated Section 4906, Petitioner’s
conduct, while a crime under Section 1001, does not violate Section 4906 because
he never “sought to implicate anyone in a crime nor did he attempt to furnish
evidence of a crime that he knew he did not possess.” (Petitioner’s Br. at 19.) As
such, Petitioner argues that “Merlino should be limited in its application and should
not apply to the instant matter.” (Petitioner’s Br. at 19.)
       Additionally, Petitioner argues the Board erred by not properly considering
that our Supreme Court has not held that Section 1001 and Section 4906 are
substantially the same.        Petitioner “submits the Board improperly relied upon
Seacrist” to support its conclusion that Merlino is controlling, “as the facts [of
Seacrist] are distinguishable and the issues are not the same.” (Petitioner’s Br. at

       8
         Pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
126(b), and Section 414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a),
unreported panel decisions of this Court may be cited for their persuasive value.


                                               10
29.) Since the Supreme Court has not addressed whether Section 1001 and Section
4906 are substantially the same, Petitioner argues the issue is “unresolved” and
“should be analyzed on a case[-]by[-]case basis by reviewing all of the facts and
circumstances thoroughly.” (Petitioner’s Br. at 29.)
        Accordingly, Petitioner requests that we reverse the Board’s September 3,
2019 Order.


   B. The Board
        Noting that this case does not present an issue of first impression, the Board
“submits that the analysis of this case need go no further” than a review of Merlino
because that case “compel[s] the conclusion that” Section 1001 is substantially the
same as Section 4906 for purposes of Act 140. (Board’s Br. at 15.) Nevertheless,
the Board addressed Petitioner’s arguments. The Board disagrees with Petitioner’s
conclusion that Section 1001 and Section 4906 are not substantially the same for
purposes of Act 140. The Board describes Petitioner’s argument as essentially
requiring the elements of proof to be identical for the two crimes to be considered
substantially the same. Citing decisions of this Court, the Board asserts that the two
“statutes’ elements need not align perfectly for the two crimes to be substantially the
same” but are substantially the same if the two crimes target the same behavior.
(Board’s Br. at 23 (internal quotations omitted).) The Board argues, citing Merlino
and Commonwealth v. McFadden, 

850 A.2d 1290

(Pa. Super. 2004), that “[t]he
elements and mens rea of both crimes [at issue here] make it illegal to knowingly lie
to law enforcement.” (Board’s Br. at 21.) Since Section 1001 and Section 4906
target the same behavior, the Board concludes the two crimes are substantially the
same.



                                          11
       The Board also disagrees with Petitioner’s assertion that we should look to
the underlying facts of a public official’s or public employee’s criminal conviction,
in addition to the elements and mens rea of the two crimes at issue, to determine
whether the two crimes are substantially the same. The Board contends that while
“the facts are critical to the crimes charged and ultimately, to the conviction or pleas,
they are not and should not be part of the [] Board’s analysis.” (Board’s Br. at 26.)
According to the Board, a “federal crime either is substantially the same as a state
crime or it is not. It is the crime itself, not the underlying facts[,] that matter.” (Id.
at 24.) Further, the Board argues that it is not in a position to examine the underlying
facts of a public official’s or public employee’s criminal conviction. The Board
asserts that it

       is not involved in the public official[’s] or public employee’s criminal
       prosecution. It has no say whatsoever in the crime that is charged and
       does not have the opportunity to consider the credibility of the criminal
       defendant or the weight to be given any of the evidence. It plays no
       role in plea negotiations. If the record is sealed, the [] Board might only
       have knowledge of the facts set forth in the charging documents.

(Id. at 26.) Since the underlying facts of Petitioner’s criminal conviction should not
be examined, the Board disagrees with Petitioner’s attempt to distinguish Merlino.
       The Board also disagrees with Petitioner’s argument that since our Supreme
Court has not reviewed whether Section 1001 and Section 4906 are substantially the
same, Merlino should not control. The Board stands by its analogy to the situation
regarding inchoate crimes and its citation to Seacrist. The Board contends stare
decisis requires us to apply Merlino because our Supreme Court has not overruled
that case and because Petitioner has not presented us with a compelling reason to
revisit the holding in that case. If the Court was to set aside Merlino and examine
the issue on a case-by-case basis, the Board suggests that “public pension plan

                                           12
administrators and participants” will be left with “an absence of predictability and
consistency,” which will result in inconsistent pension forfeiture decisions. (Board’s
Br. at 32.)
      Accordingly, the Board concludes that Merlino is controlling and “compel[s]
the conclusion that [Petitioner] forfeited his pension.” (Board’s Br. at 27.) As such,
the Board asks us to affirm its September 3, 2019 Order.


   III.   Pension Forfeiture
      We begin with a review of Act 140. “The purpose of . . . Act [140] 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.” 

Seacrist, 988 A.2d at 787

. That being said, “[p]ension forfeiture is not favored and, thus,
pension forfeiture statutes are strictly construed.” Wiggins v. Phila. Bd. of Pensions
& Ret., 

114 A.3d 66

, 72 (Pa. Cmwlth. 2015). As set forth above, pursuant to Section
3(a) of Act 140:

      [N]o 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 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.

Former 43 P.S. § 1313(a) (emphasis added). Section 2 of Act 140 defined the term
“[c]rimes related to public office or public employment,” in relevant part, to include
“Section 4906 (relating to false reports to law enforcement authorities)” and “all
criminal offenses as set forth in Federal law . . . substantially the same as the crimes
enumerated herein,” which include Section 4906. Former 43 P.S. § 1312 (emphasis
added). Act 140 does not define the phrase “substantially the same.” In Roche v.

                                          13
State Employes’ Retirement Board, 

731 A.2d 640

(Pa. Cmwlth. 1999), this Court
interpreted the phrase “substantially the same,” as used in Act 140’s definition of
crimes related to public office or public employment, for the first time. We
concluded that when determining whether a federal crime is substantially the same
as one of the forfeiture-triggering state crimes listed in Act 140, it is necessary to
compare the two crimes at issue, including a comparison of the elements and mens
rea. 

Roche, 731 A.2d at 646-48

. Since Roche, this Court has consistently held that
“when determining whether a state crime and a federal crime are substantially the
same for the purposes of . . . Act [140], this Court must compare the elements of the
two crimes including the required mens rea.” DiLacqua v. City of Phila., Bd. of
Pensions & Ret., 

83 A.3d 302

, 310 (Pa. Cmwlth. 2014) (emphasis in original).
      In the present matter, the parties do not contest that Petitioner was a public
employee or public official when he pled guilty to two counts of violating Section
1001. Rather, the parties contest whether Petitioner pled guilty to a “[c]rime[]
related to public office or public employment,” as that phrase was defined in Section
2 of Act 140. More specifically, the parties contest whether Section 1001 is
substantially the same as Section 4906, which is an enumerated offense within Act
140’s definition of crimes related to public office or public employment.
      Petitioner pled guilty to violating Section 1001(a), which provides:

      [W]hoever, in any matter within the jurisdiction of the executive,
      legislative, or judicial branch of the Government of the United States,
      knowingly and willfully--

             (1) falsifies, conceals, or covers up by trick, scheme, or device a
             material fact;

             (2) makes any materially false, fictitious, or fraudulent statement
             or representation; or



                                         14
             (3) makes or uses any false writing or document knowing the
             same to contain any materially false, fictitious, or fraudulent
             statement or entry;

      shall be fined under this title [or] imprisoned . . . .

18 U.S.C. § 1001(a). We must compare Section 1001 to Section 4906 to determine
whether they are substantially the same for purposes of Act 140. Section 4906, in
relevant part, provides:

      (a)     Falsely incriminating another.--Except as provided in
      subsection (c), a person who knowingly gives false information to any
      law enforcement officer with intent to implicate another commits a
      misdemeanor of the second degree.

      (b) Fictitious reports.--Except as provided in subsection (c), a person
      commits a misdemeanor of the third degree if he:

             (1) reports to law enforcement authorities an offense or other
             incident within their concern knowing that it did not occur; or

             (2) pretends to furnish such authorities with information relating
             to an offense or incident when he knows he has no information
             relating to such offense or incident.

18 Pa.C.S. § 4906(a)-(b).
      This Court addressed whether a petitioner’s conviction under Section 1001
was substantially the same as Section 4906 for purposes of Act 140 in Merlino. The
petitioner in Merlino worked as a police officer in Philadelphia, which qualified him
for a city pension. During his employment as a police officer, the petitioner was
involved in a drug investigation, wherein two boxes thought to contain drugs were
seized. The petitioner and another officer

      took the boxes to the canine unit where a drug dog responded positively
      for the presence of drugs. [The petitioner] stated to the officer
      preparing a[n] . . . [i]nvestigative [r]eport that the dog had sniffed the


                                           15
      boxes inside the truck. A search warrant was then obtained and police
      found 23 kilograms of cocaine. The federal government took over the
      investigation, and an Assistant U.S. Attorney met with [the petitioner]
      on January 5, 2004[,] to prepare for trial. [The petitioner] answered
      “yes” when questioned whether the dog “hit” on the boxes inside the
      truck, when in fact that statement was false and eventually led to a
      dismissal of the indictment related to the investigation. [The petitioner]
      pled guilty in July 2004 to one count of making a false statement to a
      federal agency under [Section 1001] and was sentenced to serve
      eighteen months of probation and to pay a $500 fine.

Merlino, 916 A.2d at 1233

. Thereafter, the petitioner submitted an application for
pension benefits. The Philadelphia Board of Pensions and Retirement determined
that the petitioner was a public employee or public official when he pled guilty to
violating Section 1001 and that a violation of Section 1001 is a crime related to
public office or public employment because it is substantially the same as Section
4906. 

Merlino, 916 A.2d at 1233

. As such, the Philadelphia Board of Pensions and
Retirement denied the petitioner’s application for pension benefits, concluding, in
relevant part, that the petitioner forfeited his pension benefit pursuant to Act 140
when he pled guilty to violating Section 1001.         The petitioner appealed that
determination to the Court of Common Pleas of Philadelphia County, which
affirmed. The petitioner then appealed to this Court arguing, in relevant part, that
Section 1001 is not substantially the same as Section 4906 “because there is no
evidence that he made an untruthful accusation or falsely incriminated anyone . . . .”

Merlino, 916 A.2d at 1235

. We compared Section 1001 and Section 4906 and
concluded that “[b]oth statutes require a false statement knowingly made to law
enforcement authorities.” 

Merlino, 916 A.2d at 1236

. As such, we held that Section
1001 is substantially the same as Section 4906 for purposes of Act 140. 

Merlino, 916 A.2d at 1236

.




                                         16
      We subsequently found our decision in Merlino precedential on this issue in
Reilly. Reilly was the elected Clerk of Courts for Luzerne County. By virtue of that
position, Reilly became a member of the Luzerne County Employees’ Retirement
System. While in office as Clerk of Courts, Reilly was charged with violating
Section 1001. Reilly’s criminal information alleged that he represented to “FBI
Special Agents that he never received any money from another person other than a
one-time campaign contribution of $200 when in truth, as he then well knew, he had
received more than three payments of money from that other person.” Reilly, slip
op. at 2. Reilly eventually pled guilty to violating Section 1001. Thereafter, the
Luzerne County Employees’ Retirement System Board voted to deny Reilly’s
pension benefit. Reilly initiated a declaratory judgment action in the Court of
Common Pleas of Luzerne County requesting that court “to declare that because he
was not convicted of a crime related to public office or public employment, he was
entitled to receive his retirement benefits.” Reilly, slip op. at 3. The common pleas
court determined that Section 1001 is substantially the same as Section 4906 and,
therefore, Reilly had been convicted of a crime related to public office or public
employment. Reilly appealed to this Court, arguing that the common pleas court
erred when it determined that Section 1001 and Section 4906 are substantially the
same. In doing so, Reilly attempted to distinguish Merlino by asserting that the
conduct that led to him being charged with violating Section 1001 did not violate
Section 4906. Reilly submitted that

      he was convicted because he made a statement to FBI agents
      concerning the number of campaign contributions he received from an
      individual during his campaigns when he ran for State Representative
      and Clerk of Courts for Luzerne County. He did not try to implicate
      another individual, did not try to report an offense, and did not furnish
      information concerning an offense and had no information concerning
      any offense.

                                         17
Reilly, slip op. at 11. We rejected this argument, stating that “[t]his Court does not
examine the particular facts underlying the federal conviction when determining
whether a federal crime and state crime are substantially the same,” but rather when
examining whether two crimes are substantially the same for purposes of Act 140,
we “must compare the elements of the two crimes including the required mens rea.”
Reilly, slip op. at 11 (quoting 

DiLacqua, 83 A.3d at 310

) (emphasis in original). We
concluded that we were bound by Merlino and affirmed the common pleas court’s
decision.
      Judge McCullough wrote separately in a concurring opinion in Reilly,
highlighting that, in contrast to the conduct in Merlino, she did not find Reilly’s
conduct to “fall squarely within the language of Section 4906(b)(1).” Reilly, slip op.
at 1 (McCullough, J., concurring). She explained:

      In contrast to the facts of Merlino, Reilly did not report an offense to
      law enforcement officers knowing that it had not occurred. In fact, his
      conduct was quite the opposite; in denying that he received more than
      one campaign contribution from another person, Reilly denied
      knowledge of an offense. Section 4906(b)(1) does not on its face apply
      to an individual who denies committing a crime of which he is accused,
      nor does it apply to a failure to supply relevant information during an
      investigation. Rather, [S]ection 4906(b)(1) only states that it is a crime
      to knowingly report an offense that has not taken place.

Reilly, slip op. at 3 (McCullough, J., concurring). She “would conclude that [Section
1001(a)(2)] is not substantially the same as the crime set forth in section 4906(b)(1).”
Reilly, slip op. at 5 (McCullough, J., concurring).              Notwithstanding her
disagreement, however, Judge McCullough “recognize[d] that Merlino control[led]
the outcome” and concurred in the result reached by the majority. Reilly, slip op. at
5 (McCullough, J., concurring).



                                          18
   IV.      Analysis
      In the present matter, Petitioner’s arguments focus on our decision in Merlino
and why that case should not control the outcome of the present appeal. Petitioner
submits that the Board erred in relying on Merlino and asserts, contrary to our
holding in that case, Section 1001 and Section 4906 are not substantially the same
for purposes of Act 140. Alternatively, Petitioner submits that Merlino is factually
distinguishable from this case and, therefore, is not controlling.


   A. Whether the Board erred in relying on Merlino as controlling precedent.9
      Petitioner argues that Merlino was wrongly decided because Section 1001 and
Section 4906 are not substantially the same and, therefore, should not be followed.
Further, Petitioner argues that because “[t]he Pennsylvania Supreme Court has not
issued a holding or adopted a specific standard to apply in determining whether”
Section 1001 is substantially the same as Section 4906, this issue “should be
analyzed on a case[-]by[-]case basis.” (Petitioner’s Br. at 29.) However, Petitioner’s
argument discounts the role of stare decisis. Absent an en banc decision from this
Court or a decision from our Supreme Court overruling Merlino, we are bound by
Merlino and its progeny. Crocker v. Workers’ Comp. Appeal Bd. (Ga. Pac. LLC),

225 A.3d 1201

, 1210 (Pa. Cmwlth. 2020) (quoting Pries v. Workers’ Comp. Appeal
Bd. (Verizon Pa.), 

903 A.2d 136

, 144 (Pa. Cmwlth. 2006)). The Board analogized
this to the situation involving inchoate crimes, citing Seacrist. Petitioner argues “the
facts [of Seacrist] are distinguishable and the issues are not the same.” (Petitioner’s
Br. at 29.) However, the Board cited Seacrist, not as substantive support that Section
1001 and Section 4906 are substantially the same, but to make its point that reported


      9
          We have reordered Petitioner’s arguments for ease of discussion.


                                               19
decisions from this Court are controlling precedent until the Supreme Court holds
otherwise. As we recognized in Reilly, Merlino is controlling precedent absent an
en banc decision from this Court overturning Merlino or until our Supreme Court
holds otherwise. Reilly, slip op. at 11-12. Therefore, we cannot conclude that the
Board erred in relying on Merlino and Reilly.


   B. Whether Section 1001 and Section 4906 are substantially the same for
      purposes of Act 140.
      Petitioner argues that the two crimes at issue here are not substantially the
same for purposes of Act 140. Petitioner calls our attention to the differences
between Section 1001 and Section 4906. In doing so, Petitioner argues that Section
4906(a), “is not substantially the same as an offense pursuant to [Section 1001]
because” Section 4906(a) requires the Commonwealth to “prove that a defendant
knowingly gave false information to a law enforcement officer, intending to
implicate another.” (Petitioner’s Br. at 19 (emphasis omitted).) As to Section
4906(b)(1), which criminalizes reporting “to law enforcement authorities an offense
or other incident . . . knowing that it did not occur,” 18 Pa.C.S. § 4906(b)(1),
Petitioner argues

      Section 4906(b)(1) does not, on its face, apply to an individual who
      denies committing a crime of which he is accused, nor does it apply to
      a failure to supply relevant information during an investigation. Rather,
      [S]ection 4906(b)(1) only states that it is a crime to knowingly report
      an offense that has not taken place.




                                         20
(Petitioner’s Br. at 22 (emphasis in original).) However, Petitioner interprets Section
4906(b) narrower than have the courts of this Commonwealth. On this point, we
find the Superior Court’s decision in McFadden instructive.10
       In that case, a police officer in Philadelphia was accused of sending an
inappropriate message over her patrol car’s computer. When first questioned by her
superiors, the police officer denied that she sent the message; however, the police
officer later admitted to sending the message. The police officer was convicted by
a jury of, among other things, “making a false report to law enforcement,” in
violation of Section 4906(b), and the trial court denied her subsequent motion for
arrest of judgment. 

McFadden, 850 A.2d at 1292

. On appeal to the Superior Court,
the police officer argued that “the trial court erred in denying her motion to arrest
judgment because the evidence was insufficient as a matter of law to sustain her
conviction of making a false report to law enforcement authorities and unauthorized
use of a computer.”

Id. at 1291.

Upon review of the false report to law enforcement
violation, the Superior Court observed that the evidence at trial established that the
police officer sent the message at issue over her patrol car computer and that she
“lied to her superiors when questioned about the message, claiming that she knew
nothing about it.”

Id. at 1294.

The Superior Court concluded that “[t]his evidence
was more than sufficient to sustain a conviction for making false reports” under
Section 4906(b). 

McFadden, 850 A.2d at 1294

.
       Petitioner further argues that “the Board erred when it concluded that the
elements” of Section 1001 and Section 4906 “do not need to be identical” and need
only prohibit the same type of behavior. (Petitioner’s Br. at 22.) However, Section

       10
         Although not binding on this Court, we may look to Superior Court decisions for
guidance when they address analogous issues. A.S. v. Pa. State Police, 

87 A.3d 914

, 919 n.9 (Pa.
Cmwlth. 2014).


                                              21
2 of Act 140 defined the term “[c]rimes related to public office or public
employment” to include any federal crimes that are “substantially the same” as one
of the forfeiture-triggering state crimes specifically listed therein. Former 43 P.S
§ 1312 (emphasis added). Petitioner’s argument ignores the word “substantially,”
making it surplusage, and reads Act 140 as requiring a federal crime to contain the
identical elements of proof as one of the enumerated state crimes for those two
crimes to be substantially the same. Pursuant to the rules of statutory construction,
“[t]he courts must construe every statute, if possible, to give effect to all of its
provisions so that none are rendered mere surplusage.”           White v. Assocs. in
Counseling & Child Guidance, Inc., 

767 A.2d 638

, 642 (Pa. Cmwlth. 2001) (citing
Sections 1921(a) and 1922(2) of the Statutory Construction Act of 1972, 1 Pa.C.S.
§§ 1921(a), 1922(2)). Had the legislature intended a federal crime to be considered
“substantially the same” as one of the forfeiture-triggering state crimes listed in Act
140 only if the federal crime at issue is identical to one of the state crimes, the
legislature could have used “the same as,” “identical,” or a synonym thereof instead
of the word “substantially,” and it did not.
        In Scarantino v. Public School Employees’ Retirement Board, 

68 A.3d 375

(Pa. Cmwlth. 2013), we rejected an argument similar to the one Petitioner advances
here.   The petitioner in Scarantino argued, as relevant here, “that the proper
interpretation of the phrase [‘substantially the same’] requires that the federal crime
must be essentially or fundamentally identical to” one of the forfeiture-triggering
state crimes listed in Act 140 for the federal offense to be a crime related to public
office or public 

employment. 68 A.3d at 379

. We disagreed and concluded that the
elements of proof and mens rea of two crimes need not be identical to be
substantially the same; rather two crimes are substantially the same if the two crimes



                                          22
“target the same behavior.”

Id. at 381.

As we stated in Merlino, upon review of the
mens rea and elements of Section 1001 and Section 4906, it is clear that “[b]oth
statutes require a false statement knowingly made to law enforcement authorities”
and, therefore, Section 1001 and Section 4906 are substantially the same for
purposes of Act 140. 

Merlino, 916 A.2d at 1236

; see also 

McFadden, 850 A.2d at 1294

.


   C. Whether Merlino is factually distinguishable from the present matter.
        Alternatively, Petitioner argues that Merlino is factually distinguishable from
the present matter and should not control the decision here. Citing our Supreme
Court’s citation to Petition of Hughes in Shiomos, Petitioner submits that we should
consider the facts underlying his conviction, in addition to the mens rea and elements
of the crimes at issue, when considering whether Section 1001 and Section 4906 are
substantially the same. Petitioner asserts that unlike the petitioner in Merlino, his
conduct, while a crime under Section 1001, does not violate Section 4906.
Essentially, Petitioner contends that a federal crime cannot be substantially the same
as one of the forfeiture-triggering state crimes listed in Act 140 unless that official’s
or employee’s conduct leading to the federal conviction also violates one of the
forfeiture-triggering state crimes.
        There is no statutory support or controlling precedent to support Petitioner’s
argument that we must examine the facts underlying a federal conviction when
determining whether a federal crime is substantially the same as one of the forfeiture-
triggering state crimes. In the case of a federal conviction, Act 140’s definition of
“[c]rimes related to public office or public employment” requires us to examine the
federal crime at issue and compare that crime to one of the listed forfeiture-



                                           23
triggering state crimes to determine if the two crimes are substantially the same.
As stated above, we have consistently held that, when determining whether two
statutes are substantially the same, we must “compare the elements of the two crimes
including the required mens rea.” 

DiLacqua, 83 A.3d at 310

(emphasis in original).
Thus, when comparing two crimes to determine if they are substantially the same,
the focus is on the text of the statutes, not the facts of the underlying federal
conviction. As the Board succinctly stated, a “federal crime either is substantially
the same as a state crime or it is not. It is the crime itself, not the underlying facts
that matter.” (Board’s Br. at 24.)
      In Reilly, this Court rejected the exact argument Petitioner makes here. Like
Petitioner, Reilly attempted to factually distinguish Merlino arguing that while his
conduct is a crime under Section 1001, his conduct did not violate Section 4906. We
rejected this argument, concluding that “[t]his Court does not examine the particular
facts underlying the federal conviction when determining whether a federal crime
and state crime are substantially the same.” Reilly, slip op. at 11. While, as
Petitioner points out, Judge McCullough individually would conclude that Reilly’s
conduct did not violate Section 4906(b)(1), she nonetheless concurred with the result
reached by the majority, recognizing that Merlino is controlling.           Further, in
DiLacqua, like in Reilly, we held that when considering whether a federal crime is
substantially the same as one of the state forfeiture-triggering crimes “the particular
facts underlying the federal conviction do not determine” whether those crimes are
substantially the same. 

DiLacqua, 83 A.3d at 310

.
      Our Supreme Court’s citation to Petition of Hughes in Shiomos does not
support Petitioner’s contention that we should consider the facts underlying his
conviction, in addition to the mens rea and elements of the crimes at issue, when



                                          24
considering whether two crimes are substantially the same for purposes of Act 140.
In Shiomos, the appellant, a former judge on the Court of Common Pleas of
Philadelphia County, asserted an as-applied constitutional challenge of Act 140. The
appellant was convicted of two counts of extortion under the Hobbs Act, 18 U.S.C.
§ 1951. Although the appellant did not dispute that the federal crime of which he
was convicted was substantially the same as one of the forfeiture-triggering state
crimes listed in Act 140, our Supreme Court, without examining the underlying facts
of the appellant’s conviction, citing Petition of Hughes, concluded that it was.

Shiomos, 626 A.2d at 161

. Specifically, the Court concluded that the appellant’s
Hobbs Act violation was equivalent to a violation of Section 4701 of the Crimes
Code, 18 Pa.C.S. § 4701 (Section 4701), which criminalizes bribery in official and
political matters.
      In Petition of Hughes, our Supreme Court considered whether

      Article II, Section 7 of the Pennsylvania Constitution, which prohibits
      those who have been convicted of “infamous crimes” from holding
      public office in Pennsylvania, should be applied to bar the election of a
      candidate for public office who was convicted in federal court of
      conspiracy to obstruct interstate commerce in violation of the Hobbs
      

Act. 532 A.2d at 299

. Article II, section 7 of the Pennsylvania Constitution provides that
“[n]o person hereafter convicted of embezzlement of public moneys, bribery, perjury
or other infamous crime, shall be eligible to the General Assembly, or capable of
holding any office of trust or profit in this Commonwealth.” PA. CONST. art. II, § 7.
The Court stated that “the facts underlying [the candidate’s] conviction is relevant
. . . in considering whether his conviction was for an ‘infamous’ crime within the
meaning of Article II, Section 7.” Petition of 

Hughes, 532 A.2d at 301

. The Court



                                         25
determined that the facts underlying the candidate’s “federal conviction would
constitute a violation of” Section 4701.

Id. It is clear

from a review of Shiomos that our Supreme Court cited Petition of
Hughes, not for the notion that the facts underlying a criminal conviction must be
examined when determining whether two crimes are substantially the same for
purposes of Act 140, but rather in support of its conclusion that a particular Hobbs
Act violation is equivalent to a violation of Section 4701. The Supreme Court did
not examine the facts underlying the appellant’s criminal conviction in Shiomos, and
the Supreme Court in its citation to Petition of Hughes made no indication that the
underlying facts of a criminal conviction should be considered when determining
whether two crimes are substantially the same. Accordingly, based on our consistent
precedent, we cannot accept Petitioner’s attempts to factually distinguish Merlino.
      Finally, we agree with the Board that neither SERS, the Board, nor this Court
are in a position to reweigh the evidence against public officials or public employees
convicted of federal crimes to determine whether their conduct also violates one of
the forfeiture-triggering state crimes.   If we were required to examine public
officials’ or public employees’ underlying convictions to determine whether their
conduct also violates one of the forfeiture-triggering state crimes, we would
essentially be determining the public officials’ or public employees’ guilt, which is
not our function. Nor are we in the position to do so with the limited record before
us. In summary, determining whether two statutes are substantially the same
requires us to examine the text of the two statutes, not the underlying facts of a
public officials’ or public employees’ criminal conviction, and, therefore, we will
not examine the underlying facts of Petitioner’s criminal conviction.




                                          26
   V. Conclusion
      Pursuant to Section 3 of Act 140, the pension benefit of a public official or
public employee is forfeited when that official or employee is convicted of a crime
related to public office or public employment. Former 43 P.S. § 1313(a). Section 2
of Act 140 defined the term “[c]rimes related to public office or public employment”
to include any federal crime substantially the same as one of the enumerated
forfeiture-triggering state crimes; Section 4906 is one of these enumerated crimes.
Former 43 P.S. § 1312. Petitioner, a former judge on the municipal court, was
convicted of violating Section 1001. Pursuant to Merlino and Reilly, Section 1001
is substantially the same as Section 4906 for purposes of Act 140. Thus, Petitioner
forfeited his pension benefit when he pled guilty to violating Section 1001.
Accordingly, we affirm the decision of the Board holding likewise.


                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge

Judge Ceisler did not participate in the decision in this case.




                                          27
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph J. O’Neill,                        :
                          Petitioner      :
                                          :
                     v.                   :   No. 1359 C.D. 2019
                                          :
State Employees’ Retirement System,       :
                        Respondent        :


                                       ORDER


      NOW, October 19, 2020, the Order of the State Employees’ Retirement
System Board dated September 3, 2019, is hereby AFFIRMED.



                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
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