Serving a life sentence for murdering his wife, retired Scranton police Sgt. Michael Serge collects an annual pension of more than $38,000.

A convicted arsonist, former Scranton firefighter Thomas Gervasi receives a $36,000-plus a year pension.

The payments, which began in 1997 for Mr. Serge and in 2001 for Mr. Gervasi, have long frustrated members of the city's pension boards.

They did not stop the payouts, however, because the state's pension forfeiture law does not apply to either man, pension board solicitor Larry Durkin said.

Mr. Gervasi, who owes more than $140,000 in restitution and court costs from his criminal case, has also benefited from other laws that protect pension benefits from being used to pay financial judgments. To date,he has not paid any restitution, which is owed to the county, state and victims of the fire, court records show.

The forfeiture law, enacted in 1978, allows for forfeiture of a pension if the employee uses his or her public position to commit any of 23 specified crimes. The crimes deal primarily with financial misdeeds, including theft and bribery, and abuse of power, such as official oppression, committed during the course of the worker's employment.

While murder and arson are certainly serious crimes, Mr. Durkin said they are not among the specific crimes outlined in the forfeiture law. Furthermore, Mr. Gervasi and Mr. Serge were convicted of their crimes after they retired. The forfeiture law only applies if the person used their position to commit the offense.

Mr. Serge was convicted of first-degree murder in February 2002, for the Jan. 15, 2001 shooting death of his wife, Jennifer. He received a monthly pension of $3,242 , or $38,904 annually, in 2012, the latest year for which data was available. He exhausted all his appeals and is serving his sentence at the State Correctional Institution at Albion.

In his case, the city also looked into ending his pension based on a provision within the city code that allows the pension board to revoke the pension of any police officer who, after retirement, is convicted of a felony. Mr. Durkin determined the ordinance is unenforceable because the pension forfeiture act trumps it.

"He was convicted of one of the worst crimes there is, but it is not one of the crimes under the state's pension forfeiture act," Mr. Durkin said. "There is a pecking order in the law. At the bottom of the list are municipal laws."

Mr. Gervasi was convicted in December 2011, of arson and several related offenses in connection with the June 17, 2008 fire that started in a garage at 1021 Mark Ave. The blaze spread to an adjacent apartment building he owned, displacing 14 tenants. He is now serving his sentence of five to 10 years at the State Correctional Institution at Smithfield.

Two state appellate courts upheld his conviction. He continues to maintain his innocence and has an appeal pending before Lackawanna County Court under the state's post conviction collateral relief act — a statute that allows a defendant to claim new grounds for appeal, most often for ineffective assistance of counsel.

Mr. Gervasi is no stranger to controversy. His disability payments previously came under scrutiny in 2002, after he was videotaped racing stock cars while collecting his disability pension and receiving workers' compensation. The city was able to modify his workers' compensation payment, but it could not touch his pension.

A firefighter for eight years, Mr. Gervasi received a monthly $2,330 disability pension from the firefighter's fund in 2012. He also got $693 a month from the nonuniform pension fund for the 22 years he worked for the Department of Public Works. That brings his total annual pension to $36,276.

Pittston criminal defense attorney Michael Butera, who has handled many pension forfeiture cases, said he understands the public will be outraged that convicted criminals are collecting public pensions. However, the pension forfeiture law is written to punish people only if they use their public employment to commit crimes.

Mr. Gervasi's and Mr. Serge's cases are no different than someone employed in the private sector who commits a crime, he said. That person would not be subject to losing his or her pension, he said, so why should public employees face that punishment if their crime was not related to their employment?

"You are taking away something a person who may have worked 20, 30 or 40 years for the government earned," Mr. Butera said. "It's like being punished twice: you are sent to jail, and now you are going to lose your pension on top of that? That's not fair either."

Mr. Gervasi's pension is also protected from any financial levies that might be lodged to pay the restitution he owes, Mr. Butera said.

Court records show Mr. Gervasi owes $130,887 in restitution to insurance companies and several tenants of the building who lost their belongings in the fire. He also owes $9,460 in court costs, for a total of $140,347.

Most pensions are exempt from any type of financial levy, Mr. Butera said. The idea is to protect retirees, many of whom receive minimal to modest pensions, to ensure they have enough money to survive. As with any law, it also protects people who may not be deserving of that protection.

"We all read about the spectacular pensions of $5,000 a month, but the reality is the vast majority of pensions people get are less than $1,000 a month. At the end of the month, after they pay their bare necessities, they have nothing left," Mr. Butera said. "The pension law is aimed at protecting those people, not those who collect a spectacular pension."

Public outcry over several recent high-profile cases, including former Penn State football coach Jerry Sandusky, has helped fuel efforts to alter the pension law to include more crimes. An arbitrator recently ruled Mr. Sandusky, who was convicted of multiple counts of rape for abusing 10 young boys, is entitled to collect a nearly $5,000 monthly pension because his crimes were committed before the forfeiture law was modified to include certain sexual assault charges.

Several bills introduced in the Pennsylvania Legislature last year, including House Bill 136, sought to amend the pension forfeiture law to include more offenses, including violent crimes. The bill never made it to the floor for a vote, however. It is not known whether the bill will be re-introduced.

State Sen. John Yudichak, D-14, Plymouth Twp., said the Legislature should re-examine the law. He would support giving judges more power in deciding if a pension should be subject to forfeiture.

"In egregious cases, judges should have that power," he said.

State Rep. Marty Flynn, D-113, Scranton,said he also understands the public's desire to preclude convicted criminals from receiving public pensions. However, the legislature needs to analyze carefully the situation, he said, as there are many legal and constitutional issues to be considered, as well as the impact on the retirees' family.

"People who are retired earned that benefit, and have families," Mr. Flynn said. "You have to be careful. It's not just that person you are hurting. You are also hurting their family."

Contact the writer:

tbesecker@timesshamrock.com