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CHARLES W. ZIMMERMAN v. COMMONWEALTH PENNSYLVANIA (03/10/87)

decided: March 10, 1987.

CHARLES W. ZIMMERMAN, M.D., APPELLEE,
v.
COMMONWEALTH OF PENNSYLVANIA, PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, APPELLANT



Appeal from the Order of the Commonwealth Court entered On March 19, 1985, at 2267 C.D. 1983, reversing the Order of the Public School Employes' Retirement Board dated August 4, 1983. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Mcdermott

[ 513 Pa. Page 561]

OPINION

For more than 35 years Charles W. Zimmerman, M.D. has been the school physician for the Wilkinsburg School District. He has served with skill and care, and is doubtless part of the school memories of several generations. In 1979 the school board sought to place his service under the Public School Employes' Retirement System (PSERS). When his eligibility was denied, he appealed to the Public School Employes' Retirement Board. They adopted the recommendations of the Hearing Examiner who had found

[ 513 Pa. Page 562]

    that Dr. Zimmerman was in fact an ineligible independent contractor. He appealed to the Commonwealth Court, and they reversed. Zimmerman v. Commonwealth of Pennsylvania, Public School Employes' Retirement Board, 88 Pa. Commw. 289, 489 A.2d 951 (1985). We, unhappily, cannot agree with the Commonwealth Court.

Membership in PSERS is mandatory for all full-time employees. Part-time employees are exempt from mandatory participation, but may opt to join the system:

(a) Mandatory membership. Membership in the system shall be mandatory as of the effective date of employment for all school employees except the following:

(4) Any part-time school employee who has an individual retirement account pursuant to the Federal Act of September 2, 1974 (Public Law 93-406, 88 Stat. 829), known as the "Employee Retirement Income Security Act of 1974" [29 U.S.C. § 1001 et seq. ]

(c) Optional membership. The school employees categorized in subsection (a)(3) and, if otherwise eligible, subsection (a)(4) shall have the right to elect membership in the system. Once such election is exercised, membership shall commence from the original date of eligibility and shall continue until the termination of such service.

24 Pa.C.S. §§ 8301(a); (c).*fn1

To elect membership under section 8301(c) appellee must qualify as a "school employee" which is defined as: "Any person engaged in work relating to a public school for any governmental entity and for which work he is receiving regular remuneration as an officer, administrator or employee excluding, however, any independent contractor or a person compensated on a fee basis." 24 Pa.C.S. § 8102.

Hence, the issue narrows to whether appellee is an employee or an ...


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