Opinion

J. Esch v. PA Public School Employees' Retirement Board

Court
Commonwealth Court of Pennsylvania
Filed
Nov 22, 2024
Status
Published
On the bench
McCullough
Cited by
0 cases
Authority
More cited than 33.1%

discussing employer-funded pension benefits in the context of workers’ compensation awards

How later courts described this case

  • discussing employer-funded pension benefits in the context of workers’ compensation awards

Written by the judges who cited it.

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeanine Esch, :

Petitioner :

:

v. : No. 1319 C.D. 2023

:

Pennsylvania Public School : Argued: October 8, 2024

Employees’ Retirement Board, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BY JUDGE McCULLOUGH FILED: November 22, 2024

Jeanine Esch (Claimant) petitions for review of the October 25, 2023 order

of the Pennsylvania Public School Employees’ Retirement Board (Board) denying her

request to purchase credit with the Public School Employees’ Retirement System

(PSERS) for her out-of-state teaching service in Arizona pursuant to Section 8304(a)

of the Public School Employees’ Retirement Code (Code),1 as amended, 24 Pa. C.S.

§ 8304(a). After careful review, we affirm.

I. Facts and Procedural History

The relevant facts and procedural history of this case are as follows. In

August of 1986, Claimant moved from Pennsylvania to Arizona and began working as

a teacher for the Arizona State School for the Deaf and the Blind (Employer). Claimant

worked for Employer until 2001 and accumulated 12 years and 5 months of service

1

24 Pa. C.S. §§ 8101—8547.

with the Arizona State Retirement System (ASRS). During that time, Claimant paid

into ASRS with contributions deducted from her paycheck and Employer made

contributions to ASRS on her behalf. Claimant moved back to Pennsylvania in 2001

and began working for the Allegheny County Intermediate Unit as an itinerant teacher

of the deaf at Pine-Richland School District. She enrolled in PSERS in August of 2001

and remains an active, vested member.

In 2007, Claimant rolled over the entirety of her ASRS retirement account

into a 403(b) retirement savings account with PNC Bank and she thereafter sought to

purchase service credit from PSERS for the time she spent teaching in Arizona. PSERS

rejected Claimant’s request by letter dated September 11, 2018, stating in relevant part:

Under the [Code] you must withdraw your

contributions and interest from the out-of-state retirement

system without receiving any benefit based on the service

you have withdrawn. According to the information provided

by the [ASRS] you received a portion of employer

contributions as part of your withdrawal, which is considered

a benefit and renders you ineligible to purchase service at

PSERS.

(Reproduced Record (R.R.) at 10a.)

Claimant appealed the decision to the PSERS Executive Staff Review

Committee (Committee), which denied Claimant’s appeal by letter dated September 3,

2020, explaining:

The Committee denied your request. You were vested

in the [ASRS], and you were eligible to receive a retirement

benefit that was partially funded by your employer. When

you withdrew funds from ASRS, this represented the lifetime

benefit that you were entitled to receive for your public

school service rendered in Arizona. You are, therefore,

considered a retiree under the Arizona system and thus

ineligible to purchase credit for that service with PSERS. A

2

more detailed analysis of the law is included with this letter

as Attachment “A” for your use or that of your legal counsel.

(R.R. at 47a.) In turn, Exhibit “A” provides in pertinent part:

[The Code] provides that active members of PSERS

may purchase retirement credit for certain types of creditable

nonschool service provided the member “is not entitled to

receive, eligible to receive now or in the future, or is

receiving retirement benefits for such service” under a

retirement system administered and wholly or partially paid

for by any other governmental agency or a retirement

program approved by the employer. 24 Pa. C.S. § 8304(a).

(R.R. at 49a.)

Claimant appealed, and the Hearing Examiner held a hearing on June 8,

2022. After consideration of the parties’ post-hearing briefs, the Hearing Examiner

issued an Opinion and Recommendation on January 24, 2023, recommending that the

Board deny Claimant’s appeal. In doing so, he explained:

Pursuant to the Code, one of the prerequisites to

purchasing out-of-state service credit is that the member

seeking to purchase “[i]s not entitled to receive, eligible to

receive now or in the future, or is receiving retirement

benefits for such service under a retirement system

administered and wholly or partially paid for by any

other governmental agency or by any private employer,

or a retirement program. . . .” 24 Pa. C.S. § 8304.

As a general matter, an employer’s contributions to

an individual employee’s retirement account constitutes

a benefit received by that employee. 24 Pa. C.S. § 8304(a).

In plain English, the pot of money in that individual’s

retirement account has now increased because the employer

has contributed to it. The employee now has something of

value she otherwise would not, i.e., additional funds in the

retirement account, and those additional funds are provided

by the employer.

3

Notwithstanding the attendant constitutional issues

raised by Claimant, the present appeal hinges upon whether

Claimant’s withdrawal of money from her ASRS account - a

pot of money that included both employee and employer

contributions - and transferring it into a 403(b) plan with

PNC constitutes her receiving a “benefit” that was funded by

an out-of-state government entity, thereby precluding her

from purchasing the 12 years of Arizona service credit.

PSERS here correctly takes the position that Claimant

indeed received a government-funded retirement benefit

relating to her out-of-state service. At the moment Claimant

rolled the entirety of the ASRS retirement account into a

private PNC account, a government employer benefit i.e., the

employer’s contributions, immediately accrued to her

benefit. Even if another state’s retirement system or law

required a member to withdraw employer contributions, that

member is still receiving a “benefit” inasmuch as they have

those funds available to them for current and future use. 24

Pa. C.S. § 8304(a). Notwithstanding any Arizona law or

policy requiring persons similarly situated to Claimant to

withdraw employers’ contributions, the Board is bound to

adhere to its controlling Pennsylvania statutes - even if

Claimant believes it will lead to an unfair result to her . . . .

The instant the Arizona employer contributions left the

ASRS account, regardless of the funds’ final destination,

Claimant received an employer “benefit” and therefore is

disqualified pursuant to 24 Pa. C.S. § 8304 from purchasing

the corresponding service time.

....

Claimant also argues that because she rolled over her

ASRS account in 2007, she is not “eligible to receive now

or in the future, or is receiving retirement benefits for

such service” as contemplated in 24 Pa. C.S. § 8304. In

other words, Claimant is making a temporal argument

regarding the word “now” in 24 Pa. C.S. § 8304. She appears

to suggest that because she withdrew her employer

contributions in 2007, she is not “now,” as of the time of her

4

application to purchase out-of-state state service credit,

eligible to receive an employer benefit. Translated another

way: “Because I emptied the entirety of my ASRS retirement

account in 2007 and placed it in a non-ASRS account before

I applied with PSERS to purchase out-of-state credit, (i) I am

not “now” entitled to an employer benefit and/or (ii) I am

not entitled to an employer benefit in the future and/or (iii) I

am not currently receiving employer benefits.”

Such an interpretation of the Code is not only illogical

but, if adopted, would create a moral hazard to sidestep the

statutory guardrails in place by incentivizing those seeking

credit to drain their out-of-state retirement accounts of

employer contributions before submitting an application to

PSERS to purchase out-of-state credit. . . . Such an

interpretation would surely open the door to individuals

double-dipping and receiving out-of-state credit in ways the

General Assembly did not intend.

(R.R. at 480a-83a) (emphasis original; footnotes omitted).2

On October 25, 2023, the Board entered an Opinion and Order adopting

the Hearing Examiner’s Opinion and Recommendation as its own and denying

Claimant’s appeal. The Board added: “[T]he Hearing Examiner correctly concludes

that Section 8304(a) prohibits a member from receiving a benefit from both an out-of-

state retirement system and PSERS for the same service—a privilege that is not

available to members with only Pennsylvania public school service.” (R.R. at 469a)

(emphasis original). This appeal followed.

2

The Hearing Examiner did not address the constitutional issue raised by Claimant because

neither he nor the Board has the authority to rule on the claim. The Hearing Officer noted that the

issue was preserved for appellate review. (R.R. at 484a.)

5

II. Issues3

On appeal, Claimant contends that the Board ignored the plain language

of Section 8304(a) and she emphasizes that it is written only in the present and future

tense, rather than in the past tense. According to Claimant, this provision does not

apply to her prior receipt of the ASRS Employer contribution. Relying on this Court’s

decisions in Barcus v. State Employes’ Retirement Board, 463 A.2d 490 (Pa. Cmwlth.

1983), and Cook v. Public School Employees’ Retirement Board, 507 A.2d 911 (Pa.

Cmwlth. 1986), Claimant maintains that she is entitled to purchase credit for her

Arizona service with the PSERS system. (Claimant’s Br., at 24-42.) Alternatively,

Claimant challenges the constitutionality of Section 8304 by arguing that its terms

violate the dormant Commerce Clause of the United States Constitution. Id. at 43-50.

III. Discussion

A. Claimant’s Eligibility to Purchase Credit for Out-of-State Service

We begin by observing that the Board is charged with executing and

applying the Code, and its interpretation of its provisions should not be overturned

unless such construction is clearly erroneous. Mento v. Public School Employees’

Retirement System, 72 A.3d 809, 813 (Pa. Cmwlth. 2013). “An employee has only

those rights created by the [] Code, and none beyond it.” Id. Additionally, “PSERS is

bound to follow the intent of the General Assembly in administering the provisions of

the [] Code.” Id.

3

Our standard of review of the Board’s decision is limited to determining whether an error of

law was made, necessary findings of fact are supported by substantial evidence, or Claimant’s

constitutional rights were violated. Morris v. Public School Employes’ Retirement System, 538 A.2d

1385, 1389 (Pa. Cmwlth. 1988). To the extent that our review involves statutory interpretation, our

standard of review is de novo and our scope of review is plenary. Ghaderi v. State Board of

Osteopathic Medicine, 302 A.3d 240, 244 (Pa. Cmwlth. 2023). When interpreting a statute, our goal

is to ascertain and effectuate the General Assembly’s intent, and the plain language of a statute is, as

a general rule, the best indicator of that intent. Id.

6

Section 8304(a) of the Code governs a PSERS member’s request to

purchase credit for prior teaching service in another state. This provision, titled

“Creditable nonschool service,”4 states in relevant part:

(a) Eligibility.--An active member or a multiple service

member who is an active member of the State Employees’

Retirement System shall be eligible to receive . . . service

credit for creditable nonschool service . . . provided that he

is not entitled to receive, eligible to receive now or in the

future, or is receiving retirement benefits for such service

under a retirement system administered and wholly or

partially paid for by any other governmental agency or

by any private employer, or a retirement program approved

by the employer in accordance with section 8301(a)(1)

(relating to mandatory and optional membership), and further

provided that such service is certified by the previous

employer and the manner of payment of the amount due is

agreed upon by the member, the employer, and the board.

24 Pa. C.S. § 8304(a) (emphasis added).5

In assessing Claimant’s eligibility to purchase credit with PSERS, this

Court’s decision in Morris is instructive. The claimant in Morris was a public school

teacher and PSERS member who sought to purchase prior military service from the

4

“Creditable nonschool service” is defined in the Code as: “Service other than service as a

school employee for which an active member may obtain credit in the system.” 24 Pa. C.S. § 8102.

5

We note that the terms “retirement benefit” or “benefit” are not specifically defined in the

Code. See 24 Pa. C.S. § 8102. Other provisions of the Code reference the term “benefit” broadly, to

include annuities, lump sum payments, or “some other benefit which shall be certified by the actuary

to be actuarially equivalent to the maximum single life annuity[.]” 24 Pa. C.S. § 8345 (emphasis

added); see also 24 Pa. C.S. §§ 8407 (referring to lump sum payments), 8407 (refencing annuity “or

other form of payment”).

Our caselaw likewise interprets the term broadly, in that the Morris Court found that

a federal civil service pension is a retirement benefit. Morris, 538 A.2d at 1389; see also

Commonwealth v. Workers’ Compensation Appeal Board (Harvey), 993 A.2d 270, 281 (Pa. 2010)

(discussing employer-funded pension benefits in the context of workers’ compensation awards).

7

PSERS system. Morris, 538 A.2d at 1386. The Board found that the claimant was

ineligible to purchase credit for this service under Section 8304(a) of the Code because

he was then currently eligible to receive a retirement benefit from the federal

government for his prior military service, even though he had not applied for the federal

benefit. In affirming the Board’s decision that the claimant was disqualified from

purchasing PSERS credit, this Court stated that the obvious intent of the General

Assembly in enacting the restriction on eligibility for creditable nonschool service was

“to prevent individuals from receiving credit in two retirement systems for the

same service.” Id. at 1389.

Here, after working for approximately 12 years in the Arizona public

school system, Claimant withdrew the entirety of her contributions and interest from

ASRS, both those paid by herself and by her Employer, and rolled those funds into a

403(b) retirement account. Therefore, Claimant has already received the full value of

her retirement benefit for her 12 years of out-of-state service, and she continues to

receive the benefit of those funds to spend or invest as she deems appropriate. Under

the plain language of Section 8304(a), as interpreted by this Court in Morris, Claimant

cannot purchase credit for the same service that she rendered in Arizona with PSERS.

To hold otherwise would allow Claimant to circumvent the Code’s restriction on

receiving a duplicate benefit for the same period of service.

Claimant’s narrow focus on the tense of Section 8304’s statutory language

ignores the fact that she currently maintains custody over her withdrawn funds in a

403(b) retirement account and receives a benefit through custody and use of the funds.

It also disregards the “obvious intent” of the legislature to prevent individuals from

receiving credit in two retirement systems for the same service.

8

Claimant’s reliance on Barcus and Cook to support her position that she

is entitled to purchase PSERS credit is misplaced. The Barcus and Cook Courts

interpreted this statutory requirement6 in cases involving Pennsylvania public school

teachers who had previously taught in California public schools. These teachers had

each withdrawn their own contributions, and not any employer contributed funds,

from the California State Teachers’ Retirement System and sought to purchase credit

for their out-of-state service with PSERS. The Board determined the teachers were

disqualified from purchasing credit, reasoning that they would be able to qualify for

retirement benefits for their time in the California public school system if they returned

to California, secured employment in a California public school, and repurchased credit

for the previously served time. This Court reversed because the facts showed that the

teachers could only become eligible in the future to receive the California retirement

benefit if a number of speculative, contingent events occurred. Under these

circumstances, we concluded the teachers were entitled to purchase credit for their out-

of-state teaching service with PSERS. Barcus, 463 A.2d at 49; Cook, 507 A.2d at 913.

The facts of the instant case are readily distinguishable, in that Claimant

has already received the benefit of her Arizona Employer’s government-funded

contributions. Unlike the claimants in Barcus and Cook, Claimant need not take any

further action to receive her full Arizona retirement benefit, let alone move back to

Arizona to resume her teaching career. In sharp contrast, the claimants in Barcus and

Cook had received no retirement benefits at all from their California employers,

whereas here, Claimant has received the funds and continues to receive the benefits of

her investment. Claimant’s argument to the contrary merits no relief.

6

The Cook Court interpreted Section 8304(a) of the Code and applied the holding in Barcus,

where this Court interpreted nearly identical language contained in Section 5304(b) of the State

Employees’ Retirement Code, 71 Pa. C.S. § 5304(b).

9

B. Constitutionality of Section 8304

Claimant next contends that Section 8304 of the Code violates the

dormant Commerce Clause of the United State Constitution because it discriminates

against PSERS members who previously taught in the Arizona school system by failing

to provide them with any method of purchasing out-of-state credit with PSERS.

According to Claimant, Section 8304 promotes protectionism, fails to regulate

evenhandedly, and imposes an unconstitutional burden on interstate commerce.

(Claimant’s Br., at 28, 43-50.)

Initially, we observe the burden of proving a statutory provision is

unconstitutional rests on its challenger, as “a statute is presumed constitutional, and the

burden of proving otherwise is heavy.” Morris, 538 A.2d at 1389. The Commerce

Clause to the United States Constitution provides: “The Congress shall have Power . .

. To regulate Commerce . . . among the several States[.]” U.S. Const. art. I, § 8, cl. 3.

“While the Commerce Clause is an express grant of power to Congress, the United

States Supreme Court has consistently held that the language also contains a negative

command, known as the dormant Commerce Clause, which prohibits certain state

[action] even when Congress has failed to legislate on the subject.” Zilka v. Tax

Revenue Board City of Philadelphia, 304 A.3d 1153, 1155 (Pa. 2023). Under the

dormant Commerce Clause, a state may not place itself in a position of economic

isolation or erect barriers against interstate trade by “discriminating against articles of

commerce coming from outside the State unless there is some reason, apart from their

origin, to treat them differently.” Lewis v. BT Investment Managers, Inc., 447 U.S. 27,

36 (1980) (emphasis added).

Here, Claimant’s dormant Commerce Clause argument is tenuous, at best,

as she is not an article of commerce subject to regulation by the United States Congress.

10

Instead, she is a Pennsylvania public school teacher, is a member of PSERS and is

subject to the same rules as every other PSERS member. Additionally, Claimant has

established no rational connection between her inability to purchase PSERS credit and

any burden on interstate commerce.

Insofar as Claimant maintains Section 8304(a) discriminates against

former Arizona teachers who move to Pennsylvania, we disagree. Instead, we agree

with the Board’s assessment that Claimant’s interpretation of the Code would permit

those who taught out-of-state to receive “a benefit from both an out-of-state retirement

system and PSERS for the same service—a privilege that is not available to

members with only Pennsylvania public school service.” (R.R. at 469a) (emphasis

added). Under these circumstances, we find that Claimant failed to meet her heavy

burden of proving that Section 8304 is unconstitutional. Morris, 538 A.2d at 1389.7

________________________________

PATRICIA A. McCULLOUGH, Judge

Senior Judge Leadbetter dissents.

7

We note that this Court has already considered and found meritless arguments that Section

8304(a) is unconstitutional as violative of the due process, equal protection, and supremacy clauses

of the United States Constitution. Morris, 538 A.2d at 1389-91.

11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeanine Esch, :

Petitioner :

:

v. : No. 1319 C.D. 2023

:

Pennsylvania Public School :

Employees’ Retirement Board, :

Respondent :

ORDER

AND NOW, this 22nd day of November, 2024, the Public School

Employees’ Retirement Board’s October 25, 2023 order is hereby affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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