O'Neill, J., Aplt. v. SERS

[J-1-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

JOSEPH J. O'NEILL, : No. 25 EAP 2021
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered on
: October 19, 2020 at 1359 CD 2019
v. : affirming the Order entered on
: September 3, 2019 by the
: Pennsylvania State Employees'
STATE EMPLOYEES' RETIREMENT : Retirement Board at No. 2016-06.
SYSTEM, :
: SUBMITTED: March 8, 2022
Appellee :

OPINION

JUSTICE TODD DECIDED: August 16, 2022
Pennsylvania’s Public Employee Pension Forfeiture Act (“Act 140”)1 mandates the

forfeiture of the pension of a public official or public employee when he or she is convicted

of certain Pennsylvania crimes related to public office or public employment, or is

convicted of federal offenses that are “substantially the same” as the forfeit-triggering

state crimes. 43 P.S. §§ 1312, 1313. We granted discretionary review to consider

whether a federal conviction for false statements to a federal agent, 18 U.S.C. § 1001

(“Section 1001”), is “substantially the same” as the Pennsylvania crime of false reports to

law enforcement authorities, 18 Pa.C.S. § 4906 (“Section 4906”), for purposes of Act 140.

For the reasons that follow, we conclude that the two offenses are not “substantially the

1 Act of July 8, 1978, P.L. 752, No. 140, 43 P.S. §§ 1311-1315.
same,” and, thus, the Commonwealth Court erred in affirming the forfeiture of the pension

of Appellant, former Municipal Court of Philadelphia County Judge Joseph O’Neill.2

Appellant became a member of the State Employees Retirement System

(‘SERS”)3 on November 14, 2007, by virtue of his commission as a judge on the Municipal

Court of Philadelphia County. On March 11, 2016, Appellant was charged in the United

States District Court for the Eastern District of Pennsylvania with two counts of making

false statements to federal agents in violation of Section 1001, and was ultimately indicted

for this offense. The indictment alleged that, on November 16, 2011, another judge on

the municipal court, Judge Joseph Walters, Jr., telephoned Appellant and requested

favorable treatment for a defendant, Samuel Kuttab, in a case scheduled to be heard by

Appellant that afternoon. Specifically, it was alleged that Judge Walters asked Appellant

to take a “hard look” at the case, and stated that Kuttab was “my guy.” Stipulations of

Fact of State Employees’ Retirement Board, at 1. That same day, Appellant heard

evidence presented in the case, and ruled in favor of Kuttab. Id.

Unbeknownst to Appellant or Judge Walters, the FBI was investigating the

relationship between Judge Walters and Kuttab, a politically-active businessperson, and

had placed a wiretap on their telephones. As part of the investigation, the FBI looked into

the circumstances surrounding the conversation between Judge Walters and Appellant.

FBI agents interviewed Appellant on September 19 and 20, 2012. During the first

interview, the agents asked Appellant whether anyone contacted him in advance of the

November 16, 2011 hearing to ask him to rule in any particular party's favor. Id. Appellant

2Subsequent to the events described below, Act 140 was amended to expand the list of
Pennsylvania crimes that could trigger a pension forfeiture. See Act of March 28, 2019,
P.L. 1, No. 1.
3 SERS is the administrative arm of the State Employees’ Retirement Board (“Board”).
While this matter is captioned as O’Neill v. SERS, it is the Board’s order that is under
review.

[J-1-2022] - 2
denied any such contact and emphasized that he would have remembered if someone

contacted him about the case. Id. In a second interview, when asked by FBI agents if,

before the hearing, anyone told Appellant that the defendant at that hearing was his

“friend,” Appellant responded that it “did not happen.” Id. Thereafter, on May 26, 2016,

Appellant pled guilty to two counts of violating Section 1001 and resigned from his

commission as a judge on the municipal court.

A week after his resignation from the municipal court, on June 3, 2016, Appellant

submitted an application for annuity with SERS in which he sought an immediate lump

sum payment of his pension. By letter dated June 16, 2016, SERS informed Appellant

that, pursuant to Act 140, he had forfeited his pension benefit as of the date of his guilty

plea to Section 1001, and that he was entitled only to the monies he contributed while a

member of SERS, less any debts, fines, or restitution ordered at the time of sentencing.

In its letter, SERS explained that, 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 or payment
of any kind except a return of the contribution paid into any
pension fund without interest, if such a 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).
SERS Letter, 6/16/16 at 1. SERS further explained that Section 2 of Act 140 defined the

phrase “[c]rimes related to public office or public employment” to include, inter alia,

Section 4906 of the Crimes Code, which criminalizes giving false reports to law

enforcement, and any federal crime “substantially the same” as Section 4906. 43 P.S. §

1312.4 Upon review of Appellant’s record, SERS found that Appellant was a public official

4 Section 1001, false statements to a federal agent, provides:

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when he pled guilty to two counts of violating Section 1001, and that Section 1001 is

“substantially the same” as Section 4906. As such, SERS concluded that Appellant

forfeited his pension benefit when he pled guilty to two counts of violating Section 1001.

Appellant appealed this determination to the Board.

[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. Section 4906, Pennsylvania’s crime of false reports to law enforcement
authorities, 18 Pa.C.S. § 4906, provides in relevant part:
(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.

[J-1-2022] - 4
 Initially, the Board appointed a hearing officer for the development of a factual

record; however, as Appellant and SERS found a hearing to be unnecessary, they

submitted stipulations of fact, joint exhibits, and written briefs setting forth their respective

arguments. Thereafter, the hearing officer issued a decision in which she determined

that Appellant had been convicted of a crime related to public office or public employment,

and that Section 1001 was substantially the same as Section 4906. In reaching this

conclusion, the hearing officer found dispositive the Commonwealth Court's decision in

Merlino v. Philadelphia Board of Pensions and Retirement, 916 A.2d 1231 (Pa. Cmwlth.

2007) (holding Section 1001 to be substantially the same as Section 4906 for purposes

of Act 140). Accordingly, the hearing officer concluded that Appellant forfeited his pension

benefit when he pled guilty to two counts of violating Section 1001 and recommended

that the Board affirm SERS’s forfeiture determination. Appellant filed exceptions to the

hearing officer’s recommendation with the Board.

Before the Board, Appellant argued, contrary to the Commonwealth Court’s

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.

Additionally, Appellant contended that Merlino was factually distinguishable and should

not control his case. According to Appellant, 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 a comparison of the elements, including the mens

rea, of the crimes. Appellant claimed that his conduct, while a violation of Section 1001,

did not violate Section 4906. As such, Appellant maintained that Merlino was factually

distinguishable because the conduct of the individual in Merlino violated both Section

1001 and Section 4906.

[J-1-2022] - 5
 The Board denied Appellant’s exceptions and confirmed the forfeiture of his

pension benefit, agreeing with the hearing officer that Section 1001 and Section 4906 are

substantially the same for purposes of Act 140. In re: Account of Joseph J. O’Neill, Docket

No. 2016-06 (SERB filed September 3, 2019). In rejecting Appellant's exceptions, the

Board first found that Appellant was essentially arguing that “the elements of a federal

crime must be identical” to one of the forfeiture-triggering state crimes listed in Act 140.

Id. at 3. To the contrary, citing precedent from the Commonwealth 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.” Id. (emphasis original). 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 were

substantially the same.

In so concluding, the Board rejected Appellant’s assertion that the federal crime

was not substantially the same as Section 4906 because the federal crime entailed

denying to the FBI that he was contacted regarding the case before him, as opposed to

reporting an event that did not actually occur as required by Section 4906. Id.

Specifically, the Board reasoned that “the nature of [Appellant's] misrepresentation to law

enforcement does not affect the analysis required to determine whether Act 140 applies”

and, thus, “[t]he fact that [Appellant'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 determining whether the federal crime is substantially similar to an

enumerated Act 140 crime.” Id. at 3-4. The Board also rejected Appellant's exception in

which he maintained that the hearing officer improperly failed to consider the facts

underlying the offenses. The Board reasoned that Act 140 does not require that the facts

[J-1-2022] - 6
of a particular case be analyzed when determining whether two crimes are substantially

the same. As such, the Board disagreed with Appellant's attempts to factually distinguish

Merlino. While recognizing that our Court had not reviewed whether Section 1001 and

Section 4906 are substantially the same for purposes of Act 140, the Board concluded

that Merlino was controlling.5 Accordingly, the Board denied Appellant's request to

reverse the determination of SERS. Appellant appealed to the Commonwealth Court.

A three-judge panel of the Commonwealth Court unanimously affirmed in an

unpublished decision. O’Neill v. State Employees’ Retirement System, 2020 WL

6129169, 241 A.3d 117 (Pa. Cmwlth. 2020) (table). The court began its analysis by

recognizing that the purpose of Act 140 is to deter criminal conduct in public employment

by requiring a forfeiture of pension benefits to which a public official or public employee

would otherwise be entitled. The court also recognized that pension forfeiture is not

favored and, thus, that pension forfeiture statutes are to be strictly construed.

The court focused upon Section 2 of Act 140, which defines “[c]rimes related to

public office or public employment” to include “all criminal offenses as set forth in Federal

law ... substantially the same as the crimes enumerated herein,” which include Section

4906. O’Neill, 2020 WL 6129169, at *6 (quoting 43 P.S. § 1312) (emphasis original).

Noting that Act 140 does not define the phrase “substantially the same,” the court

observed that, in interpreting that phrase, it has compared the two crimes at issue, i.e.,

their elements, including mens rea. Id. (citing Roche v. State Employes’ Retirement

Board, 731 A.2d 640 (Pa. Cmwlth. 1999)).

In that regard, the Commonwealth Court found Merlino to be dispositive. Therein,

it held that Section 1001 and Section 4906 both required that a false statement be

5Appellant raised other exceptions before the Board with which the Board agreed, but
which are not relevant to the issues before our Court.

[J-1-2022] - 7
knowingly made to law enforcement and that these statutes were “substantially the same”

for purposes of Act 140. Additionally, the court noted that, in Merlino, it did not consider

the underlying facts, but compared only the elements of the two crimes, including their

required mens rea. Id. at *8 (citing Merlino; DiLacqua v. City of Philadelphia, Board of

Pensions & Retirement, 83 A.3d 302 (Pa. Cmwlth. 2014)).

Applying Merlino, the Commonwealth Court rejected Appellant’s contention that

the two statutory provisions needed to be, in essence, identical. Indeed, the court opined

that Appellant’s argument ignored the word “substantially,” rendering it surplusage and

contrary to the principle of statutory construction that courts must construe every statute,

if possible, “to give effect to all of its provisions so that none are rendered mere

surplusage.” Id. at *10. The Commonwealth Court found that the elements of proof,

including the mens rea, of the two crimes need not be identical to be “substantially the

same,” but, rather, the two crimes need only “target the same behavior.” Id. (citing

Scarantino v. Public School Employees’ Retirement Board, 68 A.3d 375 (Pa. Cmwlth.

2013)). As both statutes require a false statement be knowingly made to law enforcement

authorities, the court determined that Section 1001 and Section 4906 were substantially

the same for purposes of Act 140.

We granted allocatur to consider whether Section 1001 and Section 4906 are

“substantially the same” for purposes of Act 140.6 As Appellant raises a pure question of

6The issues, as set forth in our order granting allocatur, are mere sub-arguments of this
primary issue:
(1) Whether the Commonwealth Court erred in holding that
[Appellant] forfeited his pension under the Public Employee
Pension Forfeiture Act 140 by determining that the federal
offense to which he pled guilty, 18 U.S.C. § 1001, was
substantially the same as the Pennsylvania state offenses
defined in 18 Pa.C.S. §§ 4906(a) and 4906(b)[.]

[J-1-2022] - 8
law involving statutory interpretation, our scope of review is plenary, and our standard of

review is de novo. Commonwealth v. Foster, 214 A.3d 1240, 1247 (Pa. 2019);

Commonwealth v. McClintic, 909 A.2d 1241, 1245 (Pa. 2006).

Emphasizing that Act 140 must be strictly construed, Appellant first argues before

us that the individual elements of each crime must be considered in determining whether

Section 1001 and Section 4906 are substantially the same. Specifically, Appellant

compares the language of Section 1001 that broadly criminalizes the making of a

knowingly false material statement to the government with Section 4906’s more specific

language criminalizing only certain false statements to law enforcement officers ―

specifically, those: (1) intending to implicate another; (2) regarding an offense or incident

that did not occur; or (3) pretending to furnish information relating to an offense or incident

when the speaker knows he has no information relating to such offense or incident. 18

Pa.C.S. § 4906(a), (b)(1) and (b)(2). While Section 1001 broadly criminalizes any false

statement, including his statement to the FBI, Appellant argues Section 4906 does not

criminalize the same communication ― that is, it does not apply to an individual who

merely denies committing a crime. Appellant’s Brief at 13, 25-26. Therefore, Appellant

submits that, based upon a comparison of their elements, the two statutes are not

substantially the same. Related thereto, Appellant emphasizes that Section 4906

(2) Whether the Commonwealth Court erred when it relied
upon unsound law in Merlino v. Philadelphia Board of
Pensions and Retirement, 916 A.2d 1231 (Pa. [Cmwlth.]
2007) by failing to engage in the proper analysis to factually
distinguish Merlino[.]
(3) Whether the Commonwealth Court erred when it failed to
properly consider that this Honorable Court has not held that
18 U.S.C. § 1001 is substantially the same as 18 Pa.C.S. §
4906 when it declined to examine the underlying facts of
[Appellant's] federal conviction[.]
O'Neill v. State Employees' Retirement System, 260 A.3d 80 (Pa. 2021) (order).

[J-1-2022] - 9
requires a false statement to a law enforcement officer, whereas Section 1001 more

broadly criminalizes a false statement to any government agency, or even to a third-party

governmental contractor, which, according to Appellant, demonstrates that the two

statutes target different behavior. In sum, Appellant maintains that a federal crime cannot

be “substantially the same” as a state crime under Act 140 if the federal offense does not

contain an element specifically required to be proven to convict under the Pennsylvania

crime, or if the state crime targets different behavior than the federal crime.

Additionally, Appellant contends that the Commonwealth Court’s reliance upon

Merlino, in which the court found the two statutes to be substantially the same, fails for

the same reason, as Section 1001 does not require that a false statement be made to law

enforcement. Appellant stresses that the facts underlying Merlino were significantly

different from those sub judice, as the police officer in that decision falsified an

investigative report under Section 4906 as part of a drug investigation to implicate a

suspect and knew that the drug dog sniff at issue did not occur. Contrary to the facts in

Merlino, Appellant emphasizes that the facts underlying his federal conviction make clear

that his conduct would not constitute a crime under Section 4906. Appellant contends

that he was merely untruthful to the FBI agents resulting in his conviction under Section

1001 and that he did not engage in the additional conduct necessary for a conviction

under 4906. Thus, according to Appellant, these factual differences preclude the two

statutes from being deemed substantially the same.

Appellee SERS counters that Section 1001 is “substantially the same” as the

Pennsylvania forfeiture crime of false reports to law enforcement authorities in Section

4906. While not defined in Act 140, Appellee submits that the phrase has been

interpreted in Merlino, as well as other Commonwealth Court decisions, including

Scarantino, supra (focusing on the underlying behavior at issue and rejecting the

[J-1-2022] - 10
argument that the crimes must be essentially or fundamentally identical to the state

crime). Appellee rejects Appellant’s contention that the underlying facts of the individual’s

case are relevant, as determining whether certain facts support a conviction under

Section 4906 would place courts in the role of a jury. Appellee points out that the purpose

of Act 140 is to provide specific and meaningful consequences for public employees and

officials who commit crimes through their public employment or office, and in doing so

targets the type of behavior that would trigger forfeiture.

Emphasizing the Statutory Construction Act’s dictate of giving effect to all of a

statute’s provisions, Appellee maintains that the word “substantially” must be given effect,

and to accept that the statutes must be identical would subvert that mandate. Here, both

Section 1001 and Section 4906 require a false statement knowingly made to law

enforcement authorities, i.e., at their heart, both statutes criminalize the act of lying to

government authorities. Thus, Appellee eschews Appellant’s argument that the proper

analysis is to compare the statutes line-by-line and to apply them to the facts of the case

as being unreasonable and inconsistent with legislative intent. Indeed, Appellee submits

that Appellant’s interpretation of the law completely disregards a public official’s duty of

faithful performance.

Appellee further submits that the lower tribunals appropriately relied upon Merlino.

According to Appellee, the Merlino court correctly focused on the elements of the federal

and state crimes, including the required mens rea, in holding that both Section 1001 and

Section 4906 required a false statement knowingly made to law enforcement authorities,

and, as a result, the two crimes were substantially the same. Indeed, because Merlino

was so clear in this regard, Appellee in this matter initially moved to dismiss Appellant’s

appeal to the Board solely on that basis.7

7 The Board denied this request.

[J-1-2022] - 11
 Finally, Appellee maintains that the Commonwealth Court correctly declined to

speculate that our Court would reject Merlino and properly followed that decision under

principles of stare decisis. In doing so, Appellee asserts that re-assessing whether a

federal crime is substantially the same as an Act 140 state crime on a case-by-case basis,

by looking at the underlying facts, would “obliterate the evenhandedness, predictability,

consistency, and certainty in the law that stare decisis provides,” Appellee’s Brief at 27,

and would result in some officials forfeiting their pensions for committing a particular crime

while allowing others to avoid forfeiture, despite committing essentially the same crime.

Finally, and related thereto, Appellee points to the value of certainty for pension

administrators in rendering evenhanded, predictable, and consistent determinations

regarding pension forfeiture.

Before turning to the relevant legal analysis in determining whether Section 1001

and Section 4906 are “substantially the same,” we believe it helpful to set forth some

background regarding pension forfeiture under Act 140. The statute requires three

elements to be satisfied for the forfeiture of a public pension. First, the individual must be

a “public official” or a “public employee.” 43 P.S. § 1312. Second, the individual must be

convicted of, or plead guilty or no defense to, a forfeiture-triggering crime. Id. § 1313(a).

Third, the crime must have been committed through the individual’s public office or public

employment, or committed when the public office or public employment placed the person

in a position to commit the crime. Id. §§ 1312, 1313(a). Forfeiture-triggering crimes

include all state crimes enumerated in Id. § 1312 ― of which Section 4906 is one ― and

“all criminal offenses as set forth in Federal law . . . substantially the same as the crimes

enumerated herein.” Id. § 1312.

There is no dispute that Appellant met the first two elements for an Act 140

forfeiture: he was a public official and his criminal act of lying to FBI agents regarding his

[J-1-2022] - 12
ex parte conversation with Judge Walters was related to his public office. Thus, the only

question before our Court is whether Appellant’s conviction of the federal offense found

at Section 1001 was “substantially the same” as the state forfeiture-trigger crime found at

Section 4906.

Our interpretation of Act 140 and the phrase “substantially the same” is guided by

the foundational principles set forth in the Statutory Construction Act, 1 Pa.C.S. §§ 1501

et seq., which has as its paramount tenet that “[t]he object of our interpretation and

construction of statutes is to ascertain and effectuate the intention of the General

Assembly.” Id. § 1921(a). As we have oft repeated, “[t]he General Assembly's intent is

best expressed through the plain language of the statute.” Commonwealth v. Brown, 981

A.2d 893, 897 (Pa. 2009); Commonwealth v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009).

Therefore, when the terms of a statute are clear and unambiguous, they will be given

effect consistent with their plain and common meaning. 1 Pa.C.S. § 1921(b);

Commonwealth v. Kelley, 801 A.2d 551, 554 (Pa. 2002). We ascertain the plain meaning

of a statute by ascribing to its particular words and phrases the meaning which they have

acquired through their common and approved usage, and in context. 1 Pa.C.S. § 1903.

Only in instances where the words of a statute are not explicit, or are ambiguous, do we

consider the construction factors enumerated in 1 Pa.C.S. § 1921(c). McCoy, 962 A.2d

at 1166; Commonwealth v. Fithian, 961 A.2d 66, 74 (Pa. 2008); see also 1 Pa.C.S. §

1921(b) (“When the words of a statute are clear and free from all ambiguity, the letter of

it is not to be disregarded under the pretext of pursuing its spirit.”).

Concomitant with these considerations, the Statutory Construction Act sets forth

certain presumptions which are to be applied when ascertaining legislative intent. In

particular, when interpreting a statutory provision, we must presume that the legislature

does not intend a result that is unreasonable, absurd, or impossible of execution, 1

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Pa.C.S. § 1922(1), and intends the entirety of the statute to be certain, id. § 1922(2).

Additionally, our Court has stressed that pension forfeiture is disfavored in the law, and,

thus, Act 140 must be strictly construed. See Mazzo v. Board of Pensions and

Retirement, 611 A.2d 193, 196-97 (Pa. 1992); see generally In re Fisher’s Estate, 276

A.2d 516, 519 (Pa. 1971).

Finally, we observe that the parties and lower tribunals did not have the benefit of

our recent unanimous decision, authored by Justice Mundy, in A.L. v. Pennsylvania State

Police, 274 A.3d 1228 (Pa. 2022), in which we analyzed a claim similar to the one

Appellant presents herein. Our decision in A.L. sets forth the applicable analytical

framework to be employed in this appeal. Therefore, an in-depth review of that decision

is beneficial.

In A.L., our Court confronted the question of whether the crime of sexual assault

as defined under the Uniform Code of Military Justice was “comparable” to sexual assault

as defined under the Pennsylvania Crimes Code, so as to require A.L. to register for life

as a sex offender. A.L., while in the Navy, had intercourse with the adult victim when her

ability to consent was impaired by alcohol. He was convicted of sexual assault under the

Uniform Code of Military Justice, which defines the offense, in relevant part, as:

“commit[ting] a sexual act upon another person when the other person is incapable of

consenting . . . due to . . . impairment by any drug, intoxicant, or other similar substance,

and that condition is known or reasonably should be known by the person[.]” Id. at 1230

(quoting 10 U.S.C. § 920(b)(3)(A)) (emphasis original)).

After his discharge from the Navy, A.L. relocated to Pennsylvania, where he

registered as a sex offender under Megan's Law IV, also referred to as the Sexual

Offender Registration and Notification Act (“SORNA”). 42 Pa.C.S. § 9799.13. As

explained by our Court, SORNA sets forth a three-tier classification system appearing in

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Subchapter H of the Sentencing Code to specify the duration of a sex offender's

registration requirements. Each tier lists predicate offenses defined under Pennsylvania's

Crimes Code, and each tier states that “comparable” military offenses are also included

in that tier. A.L., 274 A.3d at 1230.

The question before our Court was whether A.L.’s conviction under 10 U.S.C. §

920(b)(3)(A) was “comparable” to sexual assault as defined by 18 Pa.C.S. § 3124.1, and

more specifically, whether, when comparing a military criminal offense to a Crimes Code

offense, the reviewing agency ― the Pennsylvania State Police (“PSP”) ― was required

to ensure that all of the elements of the crimes, including their mens rea, were equivalent.

As part of our analysis, we clarified the nomenclature regarding the two offenses.

Specifically, the military criminal offense, i.e., the out-of-state offense, was referred to as

the “offense of conviction;” the Pennsylvania in-state offense was labeled the “reference

offense.” A.L., 274 A.3d at 1232.

Our Court determined that, in gauging offense similarity or equivalency, the

favored analysis has generally been accomplished by comparing the elements of the out-

of-state offense with those of the in-state offense. If the elements are the same, or if the

offense of conviction is narrower than the reference offense – meaning it captures a

subset of the conduct of the reference offense – the two are comparable. If, however, the

offense of conviction defines the crime in terms of alternative elements, the question

becomes whether the offense of conviction was based on the same elements as defined

under the Pennsylvania statute. Id. at 1233.

We explained that this approach of comparing offenses has been endorsed by the

United States Supreme Court, often in the context of the Armed Career Criminal Act, 18

U.S.C. § 924, and, in surveying that jurisprudence, noted that, in certain circumstances,

the Supreme Court compares the elements of the reference offense (referred to as the

[J-1-2022] - 15
“generic” crime) with the elements of the offense of conviction (referred to as the

“predicate” offense, and usually the conviction at the state level) ― a method referred to

as the “categorical approach.” Id. at 1234 (citing Taylor v. United States, 495 U.S. 575,

602 (1990)). Under this approach, the sentencing court does not focus on the particular

facts underlying the offense of conviction, as to do so could entail an “elaborate factfinding

process” that would be impractical, including where the conviction was based on a guilty

plea. Id. (citing Taylor, 495 U.S. at 601). We observed that the high Court articulated

three reasons for choosing this approach: Congress made the sentence enhancement

dependent on “convictions” not actions; any effort at fact-finding for sentencing purposes

would be problematic under the Sixth Amendment; and “daunting” difficulties and

inequities would arise from a sentencing court's effort at belated fact-finding based on

aged documents, especially when their content is subject to interpretation. Id. (citing

Descamps v. United States, 570 U.S. 254, 272 (2013)).

However, our Court also noted that the Supreme Court has consistently

recognized that some state offenses are defined by a “divisible” statute, meaning the

statute gives alternative elements, usually phrased in the disjunctive, that could make up

the offense. Id. In such cases, the Court has approved what it calls the “modified

categorical approach,” allowing the sentencing court to “consult a limited class of

documents” from the conviction record, such as indictments and jury instructions, to

determine the alternative element, and, thus, the alternative crime, of which the defendant

was previously found guilty. Id. (citing Descamps, 570 U.S. at 257). Assuming the

sentencing court can, in fact, determine from that limited set of documents the specific

alternative crime of which the defendant was convicted, the court “can then do what the

categorical approach demands: compare the elements of the crime of conviction

(including the alternative element used in the case) with the elements of the generic

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[reference] crime.” Id. at 1235 (quoting Descamps, 570 U.S. at 257). Thus, under the

United States Supreme Court’s categorical approach, the act of comparing offenses

focuses on the elements, rather than the facts, of a crime. Our Court embraced the

categorical approach in A.L., noting that SORNA registration was based upon prior

convictions as opposed to prior actions, and any attempt by PSP to engage in fact-finding

relative to the particular circumstances of the underlying offense (outside of reference to

a limited set of documents in the conviction record) could result in the types of inequities

identified by the Supreme Court, as well as ad hoc and inconsistent outcomes.

Particularly relevant for the appeal sub judice, the A.L. Court engaged in a statutory

construction analysis in which we attempted to discern the “loose and subjective” term

“comparable.” Id. at 1236. In doing so, we pointed to the General Assembly’s embrace

of the concept of “similarity” in various legal arenas, including its use of the phrase

“substantially the same” in the area of pension forfeiture:

To express the concept of similarity in these arenas, the
legislative body has used different adjectives such as
“equivalent,” “similar,” “essentially similar,” “comparable,” and
“substantially the same.” See 18 Pa.C.S. § 6105(b)
(encompassing “equivalent” offenses in relation to firearms
possession); 75 Pa.C.S. § 1611(d) (including “similar”
convictions relative to commercial driver's licenses); id. §
1611(h) (superseded) (referencing “essentially similar”
offenses relative to commercial driver's licenses); 5 Pa.C.S. §
3304(c) (embracing “comparable” offenses as to athlete-
agent certification); 75 Pa.C.S. § 3731(e)(1)(iii) (superseded)
(referring to “equivalent” offenses for repeat-DUI sentencing);
42 Pa.C.S. § 9714(g) (defining crime of violence to subsume
“equivalent” crimes under prior Pennsylvania law or in another
jurisdiction); 43 P.S. § 1312 (basing pension forfeiture on
“substantially the same” extra-jurisdictional offenses).

Id.

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 Noting that phrases such as “comparable” “equivalent,” and “similar” are

undefined, the A.L. Court turned to consider the word “comparable” and its “common and

approved” usage. Id. (quoting 1 Pa.C.S. § 1903(a)). Finding the dictionary definitions of

the term “comparable” to have a variety of possible meanings, we determined the word

to be ambiguous, warranting consideration of certain of the factors set forth in the

Statutory Construction Act. Id. at 1237. Specifically, our Court considered the occasion

and necessity for this aspect of the statute, the mischief to be remedied, and the object

to be attained. See 1 Pa.C.S. § 1921(c)(1), (3), (4). We found these to be straightforward:

“to avoid any unfairness or harm to the public that would result if an offender were treated

more leniently due to the fortuity that his or her prior conviction arose in a different

jurisdiction.” A.L., 274 A.3d at 1237. Turning to other statutory construction factors, such

as the consequences of a particular interpretation, 1 Pa.C.S. § 1921(c)(6), and the

presumption that the General Assembly did not intend an unreasonable result, see id. §

1922(1), we considered the alternative of a loose comparison of offenses, but rejected

this as allowing ad hoc comparisons which could result in the disparate treatment of

similarly situated persons, and the potential that consideration of vague sentences could

devolve into “guesswork and intuition” possibly running afoul of due process

considerations. A.L., 274 A.3d at 1237 (quoting State v. Wetrich, 412 P.3d 984, 991 (Kan.

2018)).

Thus, “to remove guesswork, inconsistency, and ad hoc agency decision-making,

to promote the legislative focus on prior convictions rather than prior actions, and to

foreclose the type of ‘daunting’ difficulties and potential unfairness” associated with the

review of the underlying facts of the conviction, our Court in A.L. held that the categorical

approach was to be applied in ascertaining whether a prior extra-jurisdictional offense is

“comparable” or “equivalent” for purposes of SORNA. Id. at 1237-38. This categorical

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approach looks at “all elements of the offenses being compared, including scienter.” Id.

at 1238. Ultimately, we determined that, because the military statute sets forth two

crimes, with differing mens rea, and because it could not be determined which mens rea

A.L. was found to have possessed, the military statute “criminalize[d] a broader swath of

conduct” than the predicate Pennsylvania offense defined by the Crimes Code, and, thus,

the military offense was not “comparable” to sexual assault under 18 Pa.C.S. § 3124.1

for purposes of SORNA. A.L., 274 A.3d at 1239-40. We find that the analysis set forth

in A.L. directly informs our analysis in the present appeal.

Consistent with the approach taken in A.L., we first turn to the relevant language

of Act 140. As noted above, Section 2 of Act 140 lists certain crimes that are “related to

public office or public employment” and includes “all criminal offenses as set forth in

Federal law . . . substantially the same as the crimes enumerated herein.” 43 P.S. §

1312.

The phrase “substantially the same,” the meaning of which is the sole issue before

our Court, is not defined. Although not defined, this omission does not ipso facto render

the phrase ambiguous. Rather, as noted above, the Statutory Construction Act instructs

the judiciary to interpret terms according to their common and approved usage. 1 Pa.C.S.

§ 1903. To discern the legislative meaning of words and phrases, our Court has on

numerous occasions engaged in an examination of dictionary definitions. See, e.g.,

Bruno v. Erie Insurance Co., 106 A.3d 48, 75 (Pa. 2014) (offering that, in determining a

term’s meaning, it is proper to consult dictionaries); Fogle v. Malvern Courts, Inc., 722

A.2d 680, 682 (Pa. 1999) (approving of use of dictionaries to determine common and

approved usage of a term).

Dictionary definitions of the terms “substantially” and “same” as used in this context

reveal a largely consistent meaning, including those from around 1978 when Act 140 was

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enacted.8 For instance, Black’s Law Dictionary defines the term “substantially” as

“[e]ssentially; without material qualification; in the main; in substance; materially.” Black’s

Law Dictionary 1281 (5th Edition 1979). Similarly, an on-line dictionary defines

“substantially” as “in a basic or essential way; fundamentally.” Dictionary.com, available

at https://www.dictionary.com/browse/substantially. The Cambridge Dictionary defines

the term as “to a large degree.” Cambridge Dictionary, available at

https://dictionary.cambridge.org/us/dictionary/english/substantially. Similarly, another

dictionary provides its meaning as “very much; a lot.” Oxford Learners Dictionaries,

available at

https://www.oxfordlearnersdictionaries.com/us/definition/english/substantially. Finally,

the Britannica Dictionary defines “substantially” as both “very much: a lot” and “almost

completely.” Britannica Dictionary, available at

https://www.britannica.com/dictionary/substantially.

As to the meaning of the term “same,” Webster’s New Collegiate Dictionary defines

the word as “resembling in every relevant respect” and “conforming in every respect –

used with as.” Webster’s New Collegiate Dictionary 1014 (1980); see also Merriam-

Webster Dictionary, available at https://www.merriam-webster.com/dictionary/same.

Consistent therewith, dictionary.com defines “same” as “identical with what is about to be

or has just been mentioned” and “being one or identical though having different names,

aspects, etc.” Dictionary.com, available at https://www.dictionary.com/browse/same.

8 In defining a statutory term, we strive to determine its meaning at the time the General
Assembly enacted the legislation. See Wisconsin Central Ltd. v. United States, 138 S.Ct.
2067, 2074 (2018). “After all, if judges could freely invest old statutory terms with new
meanings, this Court would risk amending legislation outside the ‘single, finely wrought
and exhaustively considered, procedure’ the Constitution commands.” New Prime Inc. v.
Oliveira, 139 S. Ct. 532, 535 (2019) (citing INS v. Chadha, 462 U.S. 919 (1983)). Because
of the consistent dictionary definitions of the terms “substantially” and “same” over the
last 40 years, we have no such concerns in this matter.

[J-1-2022] - 20
Finally, the Cambridge Dictionary defines the word “same” as “exactly like another or each

other.” Cambridge Dictionary, available at

https://dictionary.cambridge.org/us/dictionary/english/same.

Based upon the consistent usages described above, we find the phrase

“substantially the same” to be unambiguous, and hold that it means identical or essentially

identical. Additionally, as in A.L., because forfeiture under Act 140 is premised on

whether an individual has been convicted or pled guilty to certain crimes, and as any

attempt by Appellee to engage in fact-finding relative to the particular circumstances of

the underlying offenses could result in disparate treatment of similarly-situated individuals

and decisions that rely on the availability of criminal records, we find the categorical

approach’s focus on the elements, rather than the facts, of a crime, to be the proper

analysis under Act 140 ― warranting a comparison solely of the elements of the offenses,

including scienter. Thus, in order to find two offenses “substantially the same” for

purposes of pension forfeiture, we must examine their elements and assess whether they

are identical or essentially identical.9

With this analytical construct in hand, we turn to the crimes at issue in this matter,

which we quote again for ease of discussion. Appellant was convicted of the federal

crime of false statements to a federal agent, 18 U.S.C. § 1001. Section 1001 provides in

relevant part:

[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;

9 Such an interpretation is also consistent with the principle that pension forfeiture is
disfavored in the law, and, thus, that Act 140 must be strictly construed. See Mazzo, 611
A.2d at 196-97; see generally In re Fisher’s Estate, 276 A.2d at 519.

[J-1-2022] - 21
 (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 ....

Id.

Section 4906, Pennsylvania’s crime of false reports to law enforcement authorities,

18 Pa.C.S. § 4906, provides in relevant part:

(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.

Id.

As is plain from a review of the two crimes, the elements are not identical or

essentially identical. Indeed, Section 1001 is much broader than Section 4906. Section

4906 sets forth, in essence, three distinct crimes that include elements that are not

required for a conviction under Section 1001: knowingly giving false information to a law

enforcement officer with intent to implicate another; reporting to law enforcement

authorities an offense or other incident within their concern knowing that it did not occur;

or furnishing law enforcement with information relating to an offense or incident when the

individual knows he has no information relating to such offense or incident. 18 Pa.C.S. §

[J-1-2022] - 22
4906 (a), (b)(1), and (b)(2). While Section 1001 broadly criminalizes any false statement

given to government authorities, such as Appellant’s denial of criminal conduct to the FBI,

Section 4906 does not apply to an individual who merely makes a false statement or

denies committing a crime; rather, it requires a falsehood and something more: an intent

to implicate another; or contrived knowledge about a crime or incident. This being the

case, the two offenses are not identical or essentially identical, and, thus, Appellant’s

guilty plea to Section 1001 did not trigger pension forfeiture under Act 140. The lower

court erred in concluding otherwise.

We must address one other aspect of the Commonwealth Court’s analysis. In

relying on Merlino and its progeny, the court correctly explained that a forfeiture analysis

under Act 140 required a comparison of the elements, including scienter, of the crimes at

issue. O’Neill, 2020 WL 6129169, at *6-8; Merlino, 916 A.2d at 1236. However, in

engaging in such an analysis, the Court also considered, more broadly, whether the

offenses targeted the same behavior. See O’Neill, 2020 WL 6129169, at *10 (“two crimes

are substantially the same if the two crimes ‘target the same behavior’”). To the extent

lower court decisions have deviated from a comparison of the elements, including

scienter, of the offenses at issue to determine if they are “substantially the same,” we

hereby disapprove such analysis.

Accordingly, for all these reasons, we reverse the order of the Commonwealth

Court finding Section 1001 and Section 4906 to be “substantially the same.”

Order reversed. Jurisdiction relinquished.

Chief Justice Baer and Justices Donohue, Dougherty, Wecht, Mundy and Brobson

join the opinion.

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