Appeal from the Order of the Public School Employees' Retirement Board, in case of In Re: Claim of Sidney Morris, S.S. No. 008-10-7293.
Glen R. Morris, for petitioner.
Nicholas Joseph Marcucci, Assistant Counsel, for respondent.
Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Senior Judge Kalish.
[ 114 Pa. Commw. Page 371]
Sidney Morris (Petitioner) appeals from an order of the Pennsylvania Public School Employees' Retirement Board (Board) denying his appeal to retain credit in the Public School Employees' Retirement System (System) for his military service because he is eligible to receive a retirement benefit for his military service in the form of a federal civil service pension pursuant to 5 U.S.C. §§ 8331-8351.
The facts in this case are not in dispute. Petitioner was employed by the federal government in the following positions for the indicated periods of time: Immigration Naturalization Service -- October 30, 1940 to September 20, 1942 and February 21, 1946 to September 13, 1946; United States Postal Service -- September 16, 1946 to October 21, 1952; Department of Health, Education and Welfare -- October 11, 1955 to March 2, 1956; Internal Revenue Service -- July 11, 1966 to July 31, 1967. From September 29, 1942 to February 21, 1946, Petitioner served in the United States Army (3.42 years). When Petitioner left his employment with the Postal Service in 1952, he withdrew all his retirement contributions.
Petitioner taught school in Pennsylvania and was a member of the System from September 1968 through September 1971 and from October 1973 until at least the time of the hearing on his appeal, held June 12,
[ 114 Pa. Commw. Page 3721985]
.*fn1 In 1977, Petitioner applied for and was permitted to buy credit in the System for his 3.42 years of military service at the rate of $102.81 for 36 months (total $3701.52) pursuant to section 8304 of the Public School Employees' Retirement Code (Code), as amended, 24 Pa. C. S. § 8304.*fn2
In January 1984, the System notified Petitioner that it was possible that he was not eligible for benefits from the System for his 3.42 years of military service because he was entitled to receive a benefit from the federal government, in the form of a federal civil service pension, for the same service.*fn3 The System informed Petitioner
[ 114 Pa. Commw. Page 373]
that his $3701.52 contribution for the service credit, with interest, would be returned to him. On April 23, 1985, the System officially notified Petitioner that he was not entitled to purchase service credit in the System for his military service. Petitioner appealed this determination to the Board.
At the June 12, 1985 hearing, Petitioner testified that although eligible by age and length of service to receive a federal civil service pension, he had not applied for it, and that if he did apply, he would have to repurchase the contributions he withdrew in 1952 in order to receive the pension. N.T. at 11. If Petitioner were to apply for a federal civil service pension, the amount he would receive would be based on length of service which could include his 3.42 years of military service. See 5 U.S.C. § 8332(c)(1). The System submitted documentation which showed that Petitioner would receive approximately $145 per month in retirement benefits if he were able to purchase credit in the service for his military service. Petitioner testified that the difference the 3.42 years of military service would make in his federal civil service pension was $23 per month. N.T. at 5.
The hearing officer, in his proposed adjudication, concluded that Petitioner was "not currently entitled to receive, eligible to receive, now or in the future, and is not receiving retirement benefits for his military service under another retirement system." He recommended that Petitioner be allowed to retain his military service credit. The System filed exceptions to the hearing officer's proposed adjudication.
The Board did not accept the hearing officer's recommendation. The Board concluded that Petitioner was "currently eligible to receive a retirement benefit for
[ 114 Pa. Commw. Page 374]
his military service" and, therefore, was "ineligible to purchase credit for said military service under section 8304(a) of the Public School Employees' Retirement Code, 24 Pa. C. S. § 8304(a)." Additionally, the Board concluded that the legislature "had a rational basis for declining to provide a duplicate benefit to those currently eligible to receive the same benefit from another retirement system." The Board denied Petitioner's appeal to retain credit in the System for his military service.
On appeal to this court, Petitioner asserts that the Board erred as a matter of law in concluding that he was currently eligible to receive a retirement benefit for his military service from another retirement system. Alternatively, he contends that even if he is currently eligible, "various widely-held constitutional provisions would mandate that either the administration of the statute or the statute itself be held unconstitutional." Petitioner's brief at 4. Our scope of review is limited to determining whether an error of law was made, ...