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VIRGINIA E. LUCKHARDT v. COMMONWEALTH PENNSYLVANIA (05/20/83)

decided: May 20, 1983.

VIRGINIA E. LUCKHARDT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYEES' RETIREMENT BOARD, RESPONDENT



Appeal from the Order of the State Employees' Retirement Board in the case of In the Matter of: Virginia E. Luckhardt, S.S. No. 19832-4527, dated January 27, 1982.

COUNSEL

Paul H. Titus, with him, Susan A. Gromis, Titus, Marcus & Shapira, for petitioner.

Marsha V. Mills, Assistant Chief Counsel, for respondent.

Judges Blatt, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 74 Pa. Commw. Page 394]

Virginia E. Luckhardt (Petitioner) filed a claim with the State Employees' Retirement Board (Board) for additional credit entitlement for state service for the period from April 6, 1976 until February 5, 1980*fn1

[ 74 Pa. Commw. Page 395]

    during which period of time Petitioner alleges she was employed as a librarian by California State College (College).*fn2 The matter was referred by the Board to a hearing examiner for an evidentiary hearing. Sometime after the hearing, on a date unknown to the Petitioner, the hearing examiner filed an opinion recommending to the Board that the Petitioner be credited with the additional time for the period from April 6, 1976 through September 24, 1979. Without further argument or hearing and apparently without giving the Petitioner a copy of the hearing examiner's opinion, the Board filed its own opinion denying Petitioner any additional credit for state time.

Petitioner contends to us that the Board reached its conclusion in this matter in violation of the general rules of administrative practice and procedure*fn3 made applicable to proceedings before the Board by its own regulations*fn4 and in violation of Section 504 of the Administrative Agency Law (Law), 2 Pa. C.S. § 504. Petitioner also argues that the Board's findings are not supported by substantial evidence.

In its brief to this Court, the Board did not address the alleged procedural deficiencies but limited itself to the issue of substantial evidence. The Board does not deny that a copy of the examiner's report was not furnished to the parties nor does it deny that no opportunity was given to counsel to file briefs or present oral argument to the Board.

[ 74 Pa. Commw. Page 3961]

Pa. Code § 35.207 provides that:

All proposed reports shall be filed with the office of the agency, which shall serve copies thereof upon all parties and staff counsel, whose appearances have been entered pursuant to § 31.24 ...


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