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MARVIN F. BARCKLEY v. COMMONWEALTH PENNSYLVANIA (11/13/89)

decided: November 13, 1989.

MARVIN F. BARCKLEY, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT BOARD, RESPONDENT



Appeal from PETITION FOR REVIEW, (STATE EMPLOYES' RETIREMENT BOARD).

COUNSEL

Daniel J. Menniti, Mechancsburg, for petitioner.

Richard D. Michlovitz, with him, Abbott A. Leban, Chief Counsel, Harrisburg, for respondent.

Barry and Smith, JJ., and Barbieri, Senior Judge.

Author: Smith

[ 129 Pa. Commw. Page 485]

Marvin F. Barckley (Petitioner) seeks review of a decision of the State Employees' Retirement Board (Board) which concluded that Petitioner was not entitled to credit in the State Employees' Retirement System for his service at Kansas State University (KSU). The Board's decision is reversed.

Petitioner is currently employed at Shippensburg University as a lithographic press operator II and has been so employed since June 13, 1983. Petitioner was employed by KSU in Manhattan, Kansas from January 8, 1968 to October 1, 1979 in the positions of pressman apprentice, bookbinder, print shop technician, pressman and lithographer. Upon termination of his employment at KSU, Petitioner, a member of the Kansas Public Employees' Retirement System, withdrew his donations of $4,758.03. On September 5, 1986, Petitioner requested the Board to permit him to purchase the service rendered at KSU. On October 27, 1986, Petitioner was informed that his request was rejected because his service at KSU did not qualify for a service purchase under Section 5304(c)(3) of the State Employees'

[ 129 Pa. Commw. Page 486]

Retirement Code (Code), 71 Pa.C.S. ยง 5304(c)(3). Board Findings of Fact, No. 11.

On November 5, 1986 Petitioner filed an appeal. In lieu of submitting evidence at the administrative hearing, the attorneys for both Petitioner and the Board agreed that there was no factual dispute in this case and therefore stipulated to a series of facts. The hearing examiner recommended that Petitioner's request for purchase of out-of-state service be denied under Section 5304(c)(3). In affirming the denial, the Board concluded that Petitioner's present position (lithographic press operator) did not fall within the qualifying services of administrator, teacher or instructor.

The issue before this Court*fn1 is whether Section 5304(c)(3) permits persons of active membership in the Public School Employees' Retirement System other than an administrator, teacher or instructor in the field of education to purchase credit for service as an officer or employee of the Department of Education of another state. Section 5304(c)(3) states that:

Creditable non-state service credit shall be limited to:

(3) service in any public school or public educational institution in any state other than this Commonwealth or in any territory or area under the jurisdiction of the United States; or service as an administrator, teacher, or instructor in the field of education for any agency or department of the government of the United States, whether or not such area was under the jurisdiction of the United States, the total of such service not exceeding the lesser of ten years or the number of years of active membership in the system, as an ...


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