Opinion

J.E. Lebron v. PSERB

Court: Commonwealth Court of Pennsylvania
Filed: Oct 30, 2020
Status: Published
On the bench: Covey, J.
Cited by: 0 cases
Authority: More cited than 13.1%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jose E. Lebron, :

Petitioner :

v. :

Public School Employees’ :

Retirement Board, : No. 1265 C.D. 2019

Respondent : Argued: September 15, 2020

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY

JUDGE COVEY FILED: October 30, 2020

Jose E. Lebron (Dr. Lebron) petitions this Court for review of the Public

School Employees’ Retirement Board’s (Board) August 16, 20191 order denying his

request for post-retirement employment without annuity loss and an adjustment

waiver, and affirming the Public School Employees’ Retirement System’s (PSERS)

determination that Dr. Lebron shall repay retirement benefits.2 Dr. Lebron presents

four issues for this Court’s review: (1) whether the Board’s refusal to enact

regulations concerning emergency/personnel shortage returns to employment

pursuant to Section 8346(b) of the Public School Employees’ Retirement Code

(Retirement Code), 24 Pa.C.S. § 8346(b) (also known as Act 63 of 2004, or Act

2004-63), or to issue a written policy notifying PSERS retirees of the standards for

same, deprived Dr. Lebron of his due process rights; (2) whether the Board erred by

shifting the burden of establishing an emergency or personnel shortage to Dr. Lebron,

Although the Board’s Opinion and Order was dated August 9, 2019, it was mailed on

August 16, 2019.

The Board also denied Dr. Lebron’s request for oral argument.

when evidence concerning the same is in the possession of the School District of

Philadelphia’s (SDP) agent, ASPIRA, Inc. of Pennsylvania (ASPIRA), or PSERS; (3)

whether the Board erred by not accepting ASPIRA’s judgment that an emergency or

shortage of appropriate personnel existed; and (4) whether the Board erred by

determining that Dr. Lebron did not qualify for the hardship exception under Section

8303.1 of the Retirement Code, 24 Pa.C.S. § 8303.1. After review, we affirm in part,

reverse in part, and vacate and remand in part.

Facts

The facts of this case are largely undisputed. Dr. Lebron began

employment with the SDP as a teacher in 1970. He became a PSERS member in

1973. See Reproduced Record (R.R.) at 127a, 134a. The SDP employed Dr. Lebron

as a principal from October 1983 until he retired, effective July 1, 2007.

Section 8346 of the Retirement Code states, in relevant part:

(a) General rule.--If an annuitant returns to school service .

. . , any annuity payable to him under this part shall cease

effective upon the date of his return to school service . . . .

(a.1) Return of benefits.--In the event an annuitant whose

annuity from the system ceases pursuant to this section

receives any annuity payment . . . on or after the date of his

return to school service . . . , the annuitant shall return to the

[B]oard the amount so received from the system plus

statutory interest. . . .

....

(b) Return to school service during emergency.--When,

in the judgment of the employer, an emergency creates an

increase in the work load such that there is serious

impairment of service to the public or in the event of a

shortage of appropriate subject certified teachers or other

personnel, an annuitant or participant receiving distributions

may be returned to school service for a period not to extend

beyond the school year during which the emergency or

shortage occurs, without loss of his annuity or distributions,

provided that the annuitant meets the conditions set forth in

subsection (b.2) [(relating to age and breaks in service)].

The annuitant or participant receiving distributions shall not

be entitled to earn any credited service, and no contributions

may be made to the fund or the trust by the annuitant or

participant receiving distributions, the employer or the

Commonwealth on account of such employment. Such

service shall not be subject to member or participant

contributions or be eligible for qualification as creditable

school service or for participation in the plan, mandatory

pickup participant contributions, voluntary contributions or

employer defined contributions.

24 Pa.C.S. § 8346.3 Section 8102 of the Retirement Code defines “[s]chool year” as

“[t]he 12-month period which the governmental entity uses for purposes of

administration regardless of the actual time during which a member renders service.”

24 Pa.C.S. § 8102. Section 211.3(g) of the Board’s Regulations states: “For the

purpose of the Retirement Code, the school year commences on July 1 and ends on

June 30 of the following year.” 22 Pa. Code § 211.3(g).

Thus, when a PSERS annuitant returns to work in the public schools

pursuant to Section 8346(b) of the Retirement Code (i.e., for emergency or shortage

of appropriate personnel during a school year), his/her PSERS annuity distributions

continue uninterrupted. See R.R. at 181a, 206a. If an annuitant’s return to service is

not for reasons of emergency or shortage of appropriate personnel, and/or exceeds the

subject school year, his/her PSERS annuity distributions must cease. See R.R. at

181a.

On July 19, 2004, PSERS published on its website an explanation of

how “Act [63 of] 2004[] Affects Retirees Working After Retirement.” R.R. at 421a-

424a. Although Dr. Lebron does not recall if he specifically reviewed that

Section 8346(b.1) of the Retirement Code also authorizes a PSERS member to return to

public school service in an extracurricular position without losing retirement benefits. See 24

Pa.C.S. § 8346(b.1).

publication, he admitted that, as a PSERS member and SDP principal, he was more or

less familiar with the Retirement Code, and understood that there were consequences

to working in public schools after retirement; in particular, that there were limited

exceptions for returning to service, and such return could not exceed one school year.

See R.R. at 128a-129a, 134a, 139a.

On June 28, 2007, Dr. Lebron attended a PSERS retirement exit

counseling session, during which the retirement counselor reviewed, and Dr. Lebron

acknowledged his understanding, that he could work in the public schools and still

collect his retirement benefits only if there was an emergency or shortage of

appropriate personnel and the period of time was limited to one school year, which

was from July 1 through June 30 of the following year. See R.R. at 98a, 130a-132a,

206a; Dr. Lebron Br. App. A, Board Op., Findings of Fact (FOFs) 6-8. That same

day, Dr. Lebron submitted his application to PSERS to retire effective July 1, 2007

(Retirement Application). In the Retirement Application, Dr. Lebron certified to

PSERS his understanding that he was prohibited from working in a Pennsylvania

public school while simultaneously collecting his monthly annuity, except pursuant to

Act 63 of 2004. See R.R. at 132a-133a; FOF 10.

By September 6, 2007 Initial Benefit Letter, PSERS notified Dr. Lebron

that his monthly gross benefit would be $6,925.08, and included the following notice:

EMPLOYMENT AFTER RETIREMENT

Passed on July 4, 2004, Act 2004-63 permits a PSERS

retiree to be employed by a Pennsylvania public school in

emergency, shortage of personnel, and extracurricular

situations without loss of the retiree’s monthly benefit.

The law defines an emergency/shortage of personnel

situation as ‘[w]hen, in the judgment of the employer, an

emergency creates an increase in the work load such that

there is serious impairment of service to the public or in the

event of a shortage of appropriate subject certified teachers

or other personnel.’ . . .

Both emergency and shortage of personnel situations are

restricted to a period not to extend beyond the school year

during which the emergency or shortage occurs. . . .

In all situations, a member may not contribute, earn any

credited service, nor have the Commonwealth or employer

contribute on account of such employment.

If a retiree returns to service that does not qualify under Act

2004-63, he or she must advise their [sic] employer of the

prior service and should also send a letter to PSERS. This

letter should include the retiree’s return to service date so

that the member’s pension may be stopped before an

overpayment occurs.

R.R. at 369a (emphasis in original); FOF 13. Dr. Lebron testified that he read and

understood the September 6, 2007 Initial Benefit Letter and the notice. See R.R. at

135a-136a, 184a; FOF 14.

By April 15, 2009 Finalized Benefit Letter, PSERS informed Dr. Lebron

that his finalized gross monthly benefit was $7,703.08, and included the following:

EMPLOYMENT AFTER RETIREMENT

If you return to work, it is your responsibility to notify the

employer that you are a PSERS retiree.

Act 2004-63 permits a PSERS retiree to be employed by a

Pennsylvania public school (including charter schools) in an

emergency or shortage of personnel and extracurricular

situations (certain conditions apply) without loss of the

retiree’s monthly benefit.

Employers must determine that an emergency or shortage

exists and make a ‘good faith’ effort to hire non-retirees

first. Please refer to your Retired Member Handbook

[(Handbook)] or PSERS’ [w]eb[site] for detailed

information.

If a retiree’s return to service does not qualify under Act

2004-63, the retiree should immediately send a letter to

PSERS. This letter should include the retiree’s return to

service date so that the retiree’s monthly benefit may be

stopped before an overpayment occurs.

R.R. at 373a (emphasis in original); FOF 16. Dr. Lebron testified that he saw and

understood the April 15, 2009 Finalized Benefit Letter and the post-retirement

employment explanation. See R.R. at 136a-137a, 185a-186a; FOF 17.

Dr. Lebron also testified that he received and read PSERS’ Handbook,

which explained, in relevant part:

Returning to School Service After Retirement

Act 2004-63 expanded the period of time and conditions

under which PSERS retirees may return to Pennsylvania

public school employment without loss of their monthly

retirement benefit. This law specifically defines the ability

of a PSERS retiree to be employed by a Pennsylvania

public school in an emergency, shortage of personnel, and

extracurricular situations. Public schools include charter

schools . . . .

If you retired under a regular retirement benefit, you

may return to Pennsylvania public school employment

under the following conditions.

Employment Due to Emergency or Shortage of

Personnel -

• Whenever a school employer determines there has

been an increase in workload that creates a serious

impairement [sic] of service to the public or there is a

shortage of personnel, a retiree may return to

Pennsylvania school service for a period not to

extend beyond the school year during which the

emergency or shortage occurs.

The employer makes the determination that these elements

have been satisfied. Employers are expected to first

make a ‘good faith’ effort to secure non-retired school

personnel. PSERS, however, reserves the right to review

an employer’s determination that a qualifying emergency or

shortage exists.

....

It is your responsibility to notify the employer that you

are a PSERS retiree.

....

If you do return to service under any circumstances other

than the provisions covered by Act 2004-63, you must

advise your employer that you are a PSERS retiree. You

should also send a letter to PSERS including the return to

service date so your pension may be stopped before an

overpayment occurs.

R.R. at 407a-408a (Handbook pp. 31-32) (emphasis in original); FOF 19. Dr. Lebron

testified that he read and understood that portion of the Handbook. See R.R. at 138a-

139a, 186a; FOF 20.

From 2008 through 2015, PSERS sent newsletters to its retired

members, including Dr. Lebron, two to three times per year, all of which were

available to members on PSERS’ website, and ten of which contained articles about

returning to service (see R.R. at 140a-141a, 225a-226a, 230a; FOF 76): Summer 2008

(see R.R. at 461a; FOF 24); Summer 2009 (see R.R. at 467a-469a; FOF 28); Fall

2009 (see R.R. at 472a-474a; FOF 30); Fall 2010 (see R.R. at 484a-486a; FOF 32);

Summer 2011 (see R.R. at 492a; FOF 59); Fall 2011 (see R.R. at 503a-505a; FOF

60); Vol 2. 2013 (see R.R. at 509a; FOF 71); Vol. 1 2014 (see R.R. at 512a-513a;

FOF 72); Vol. 3 2014 (see R.R. at 527a; FOF 73); Vo1. 1 2015 (see R.R. at 538a;

FOF 75). Dr. Lebron testified that he read most of those newsletters.4 See R.R. at

140a-141a.

Similar information was available on PSERS’ website. In particular, in July 2008, PSERS

also published a pamphlet entitled, Let’s Talk About Returning to School Service After Retirement

(Publication #9660), which was available to members in print and on PSERS’ website. See R.R. at

139a, 187a-188a, 425a-440a; FOFs 25, 76. In addition, the Summer 2011 newsletter notified

recipients of a publication – PSERS Return to Service Guidelines and Clarifications (Publication

#9682) – then available in print and on PSERS’ website. See R.R. at 139a, 188a-189a, 492a; FOFs

58, 76; see also R.R. at 441a-455a. Although PSERS made this information available to Dr.

Lebron, he does not recall reviewing those publications on the website. See R.R. at 139a-140a.

Between September 2007 and June 2011, Dr. Lebron served as principal in six post-

retirement positions within the SDP for emergency/shortage of appropriate personnel reasons, each

for less than one school year: (1) from September to December 2007 (Microsoft High School of the

Future, sudden principal resignation); (2) January to June 2008 (Middle Years Alternative School

ASPIRA is a non-profit corporation that provides non-academic

management services (such as operations and human resources) to charter schools.5

See R.R. at 73a, FOF 35. In 2011, the SDP’s Assistant Superintendent, Evelyn

Nuñez (Dr. Nuñez), was ASPIRA’s Chief Academic Officer.6 See R.R. at 51a-53a,

72a; FOF 38.

In April 2011, the SDP contracted with ASPIRA to operate Olney High

School in North Philadelphia as a charter school – Olney Charter High School

(Olney).7 See FOFs 36-37. At that time, the state considered Olney a particularly

dangerous, underperforming school. See R.R. at 53a-54a; FOF 36. Olney was a

Renaissance school, which means it was run by a School Advisory Council (SAC)

that made recommendations regarding staffing. See R.R. at 55a. Olney’s SAC

preferred and requested a bilingual African-American or Latino with high school

principal experience, familiar with the City of Philadelphia, to be Olney’s principal in

for the Humanities, principal retired mid-year); (3) September 2008 to June 2009 (Germantown

High School, interim principal special assignment); (4) October 2009 to February 2010 (Kensington

Creative & Performing Arts High School, principal on maternity leave); (5) February to June 2010

(Lawton Elementary School, principal retired mid-year); (6) August 2010 to June 2011 (Randolph

Career Academy, principal died). See R.R. at 146a-147a, 149a-156a; FOFs 22-23, 26, 29, 31, 33-

34. Dr. Lebron did not inform PSERS about any of those positions. See R.R. at 147a, 150a-153a,

155a; FOFs 22-23, 26, 29, 31, 34. Accordingly, Dr. Lebron received a salary from the SDP and

collected his monthly annuity payments from PSERS during those assignments. See 156a-157a;

FOF 34.

Dr. Lebron was a member of ASPIRA’s Board of Directors from approximately 1983 to

1988 or 1989, which was before ASPIRA managed charter schools. See R.R. at 52a-53a, 160a-

161a, 174a-175a.

ASPIRA employed Dr. Nuñez from 2002 to 2013. See R.R. at 52a, 70a, 96a, 109a.

Olney had approximately 1,600 students and required between 130 and 200 staff. See R.R.

at 67a, 106a.

By March 16, 2012 approval, PSERS accepted Olney as a PSERS employer, and its

employees became PSERS members, effective July 1, 2011. See R.R. at 72a-73a, 224a-225a, 227a-

228a; FOF 57. The Board explained in its brief to this Court that because “Olney was not a PSERS

participating employer until July 1, 2011[,] . . . the Board determined Dr. Lebron returned [to

service] on July 1, 2011, not [on] his actual start date of June 27, 2011. ([Board Op. at] 28).”

Board Br. at 14 n.3.

order to be aligned with the student demographic.8 See R.R. at 55a-56a, 81a-82a;

FOF 40.

When ASPIRA acquired the Olney contract, its hiring team9

immediately offered the Olney principal job to Olney’s then-principal, who declined

the position.10 See R.R. at 56a-57a, 81a; FOF 42. ASPIRA next offered the position

to another SDP principal, Debbie Corella (Corella), who also declined. See R.R. at

57a, 81a; FOF 43. Thereafter, ASPIRA interviewed candidates who submitted

resumes, but the candidates did not have principal or high school experience, or they

did not otherwise meet the SAC’s criteria. See R.R. at 57a-58a, 81a-82a; FOF 44.

In May 2011, ASPIRA contacted Dr. Lebron, who was well-known in

the community, and asked him to interview for the Olney principal position. See R.R.

at 57a-58a, 80a-81a, 91a, 101a-102a, 157a-163a, 171a-172a; FOF 45. At the

interview with the hiring team, Dr. Lebron informed ASPIRA that he was

retired, and declared that the only way he could accept the position was if ASPIRA

notified PSERS and obtained approval. See R.R. at 58a-59a, 64a, 102a-104a, 143a,

159a-162a, 171a-172a; FOF 47. ASPIRA’s hiring team agreed that the Chief

Operating Officer and the Human Resources Director would notify PSERS regarding

Dr. Lebron’s return to service. See R.R. at 64a-65a.

On May 23, 2011, ASPIRA contracted with Dr. Lebron to be Olney’s

principal from June 27, 2011 to August 17, 2012,11 during which time he would

ASPIRA was open to hiring someone who was not bilingual, if necessary. See R.R. at 82a;

FOF 40.

ASPIRA’s hiring team consisted of its high-level administrative staff, including: Chief

Executive Officer Alfredo Calderon, Chief Financial Officer Murray Roseman, Chief Operating

Officer Orlando Rendon, Human Resources Director Marisol Morales, Curriculum Instruction

Director Susan Ostrich, and Dr. Nuñez. See R.R. at 58a, 101a-102a; FOF 46.

Olney’s former principal’s name is not contained in the record before this Court.

Dr. Lebron’s 2011-2012 contract included the contract term, his annualized salary, the

requirement that he maintain a satisfactory performance rating, health, dental, and short- and long-

term disability plan information, and also referenced his eligibility to participate in PSERS. See

R.R. at 102a, 163a-165a; FOF 52.

mentor two assistant principals with the goal that one of those individuals would

become principal in June 2012.12 See R.R. at 66a-67a, 90a, 102a, 104a-105a, 107a,

164a-165a; FOFs 52, 54, 56, 61. Dr. Lebron’s 2011-2012 contract with ASPIRA did

not reference an emergency or shortage of appropriate personnel. See R.R. at 165a.

ASPIRA sent the other Olney principal candidates rejection letters

wherein it informed them that, although their “‘skills and qualifications were

excellent,’ it had ‘chosen to hire another candidate for the position.’” R.R. at 5a; see

also R.R. at 78a-80a, 211a-213a, 217a-220a; FOFs 55, 86.

After the 2011-2012 school year, the criteria for Olney’s principal

remained the same, and ASPIRA determined that neither of Olney’s assistant

principals were ready to assume the principal role. See R.R. at 68a, 71a, 89a, 108a-

109a; FOFs 62, 67. After ASPIRA advertised Dr. Lebron’s position and did not

receive any resumes, it offered the principal position to Dr. Lebron for the 2012-2013

school year (i.e., July 1, 2012 to June 30, 2013), and he again contracted with

ASPIRA under the condition that it notify and obtain PSERS’ approval.13 See R.R. at

68a-69a, 92a, 109a, 166a-168a; FOFs 63-64. Dr. Lebron’s 2012-2013 contract with

ASPIRA did not mention an emergency or shortage of personnel. See R.R. at 166a;

FOF 65.

At the end of the 2012-2013 school year, both assistant principals

resigned, and Dr. Nuñez’s predecessor, Dr. Lucilla Paramo (Dr. Paramo), offered Dr.

Lebron the position for the 2013-2014 school year with two new assistant principals,

and Dr. Lebron accepted the offer for the contract term August 1, 2013 to July 31,

2014.14 See R.R. at 70a, 109a-111a; FOFs 68-69. After neither of the two assistant

The assistant principals were not bilingual. See R.R. at 89a.

With the exception of the contract term and salary, Dr. Lebron’s 2012-2013 contract was

substantially similar to his 2011-2012 contract. See R.R. at 69a, 166a; FOF 64.

With the exception of the contract term, Dr. Lebron’s 2013-2014 contract was

substantially similar to his previous ASPIRA contracts. See R.R. at 111a, 166a-167a; FOF 69.

principals were able to assume Dr. Lebron’s role, ASPIRA contracted with Dr.

Lebron for the 2014-2015 school year.15 See R.R. at 113a-114a, 168a-169a; FOF 74.

ASPIRA terminated Dr. Lebron’s position as Olney’s principal on June 25, 2015.

See R.R. at 169a-170a; FOF 77.

Dr. Lebron never sought PSERS’ approval to return to work as Olney’s

principal, or confirmed that ASPIRA or the SDP did so. See R.R. at 162a-163a; FOF

78. Neither ASPIRA nor the SDP ever sought approval from or notified PSERS of

Dr. Lebron’s return to service as Olney’s principal. See R.R. at 225a; FOF 79. No

retirement deductions were taken from Dr. Lebron’s pay while he worked at Olney,

nor did ASPIRA pay its employer share. See R.R. at 174a, 200a; FOFs 80, 90.

In April 2015, based on information ASPIRA sought from PSERS about

PSERS’ annuitants employed in its charter schools whose PSERS’ contributions were

not being withheld, PSERS learned that Dr. Lebron was working at Olney. See R.R.

at 191a-197a, 208a-209a; FOF 82. PSERS sent its standard request to ASPIRA

(copied to Dr. Lebron) for information about the nature of Dr. Lebron’s employment,

in particular, proof of the steps it took to secure a non-annuitant for the Olney

principal job each year. See R.R. at 189a-192a; FOFs 83-84. ASPIRA responded

that it regarded Dr. Lebron as an emergency hire for the subject school years;

however, based on ASPIRA’s documentation, PSERS determined that Dr. Lebron

had been working at Olney in a non-emergency capacity. See R.R. at 197a-198a,

210a.

By September 1, 2015 letter, PSERS’ Retirement Administrator, Troy

Peechatka (Peechatka), notified Dr. Lebron of PSERS’ determination that Dr. Lebron

returned to active employment with the SDP on July 1, 2011, and that it would

discontinue Dr. Lebron’s retirement benefits as of September 30, 2015, and

Dr. Lebron’s 2014-2015 contract was substantially similar to his previous ASPIRA

contracts. See R.R. at 113a-114a, 168a-169a; FOF 74.

recalculate the debits and credits on his account as a result of his active

employment.16 See R.R. at 1a-2a, 198a-199a, 210a-211a; FOFs 86-87. Peechatka

explained:

ASPIRA [] represented that it recruited and interviewed

numerous candidates prior to the start of the 2011-2012

school year for the principal and co-principal position[s] but

advised the candidates that, although their ‘skills and

qualifications were excellent,’ it had ‘chosen to hire another

candidate for the position.’ The basis of an emergency

employment when choosing a retiree over a non-retiree is

that a qualified applicant is sought rather than the best

qualified. Voluntarily choosing not to hire a qualified non-

annuitant, regardless of the reason, does not establish a

shortage of personnel that exempts you from the return to

service provisions in the Retirement Code.

R.R. at 5a; see also R.R. at 210a-211a; FOFs 86-87. PSERS determined from

ASPIRA’s rejection letters to the 2011 candidates that ASPIRA considered the other

candidates’ skills and qualifications excellent. See R.R. at 211a-213a; FOF 55.

On October 1, 2015, Dr. Lebron appealed from the September 1, 2015

determination to PSERS’ Executive Staff Review Committee (ESRC), requesting that

PSERS consider him in service at Olney for the 2011-2012 school year through June

30, 2015, pursuant to Section 8346(b) of the Retirement Code, stating that he was the

only candidate ASPIRA could find with the special skills and experience needed at

Olney, that ASPIRA hired him on an emergency basis for the 2011-2012, 2012-2013,

2013-2014 and 2014-2015 school years, and that he believed he was employed at

Olney in accordance with Section 8346(b) of the Retirement Code. See R.R. at 3a-6a,

203a; FOF 88.

Beginning on August 19, 2015, and continuing through the July 11, 2018 hearing, the

SDP employed Dr. Lebron as principal of Kensington High School. See R.R. at 97a-98a, 170a,

202a; FOF 85. On October 26, 2015, the SDP reported to PSERS that Dr. Lebron had returned to

service, which triggered PSERS to stop his annuity payments and begin crediting his return as an

active member. See R.R. at 201a-202a, 204a; FOF 85.

Dr. Lebron argued:

The [ESRC] should grant the relief requested because the

law specifies that the emergency determination is to be

made ‘in the judgment of the employer.’ There is no

properly promulgated regulation supporting [] PSERS[’]

position in this matter. The court cases only authorize

PSERS to reverse that determination in situations

tantamount to fraud on the part of the employer. (Baillie v.

[Pub. Sch. Emps.’ Ret. Bd.], 9[9]3 A.2d 9[4]4 ([Pa.]

Cmwlth. 2010)). Additionally, even assuming arguendo

some validity to [] PSERS[’] position, this would be a

proper case for relief under [Section 8303.1 of the

Retirement Code].

R.R. at 4a. Dr. Lebron also requested copies of all information that ASPIRA

provided to PSERS regarding his Olney employment. See R.R. at 4a.

By determination dated November 5, 2015, PSERS informed Dr. Lebron

that it had removed his name from its annuitant payroll and re-enrolled him as an

active, contributing PSERS member, and directed him to repay, within 30 days, the

$378,686.00 in retirement benefits he received between July 1, 2011 and August 31,

2015.17 See R.R. at 124a, 199a-201a, 334a; FOF 89. On November 24, 2015, Dr.

Lebron appealed from PSERS’ repayment notice to the ESRC. See FOF 92.

On August 16, 2016, the ESRC denied Dr. Lebron’s request that PSERS

consider his service at Olney for the subject period as in accordance with Section

8346(b) of the Retirement Code, stating that although ASPIRA claims his

employment as Olney’s principal was an emergency, ASPIRA failed to show it made

a bona fide effort to hire a non-retired employee for the position. See R.R. at 7a-14a;

PSERS did not credit Dr. Lebron with service for the time ASPIRA employed him

because ASPIRA did not provide the salary and service information PSERS requested. See R.R. at

200a; FOF 91. However, PSERS will credit Dr. Lebron for those service years if it receives the

necessary documentation. See R.R. at 200a; FOF 91. ASPIRA will also owe its employer share of

the contribution, plus interest for each year ASPIRA did not submit it to PSERS. See R.R. at 200a;

FOF 90.

FOF 93. Although the ESRC was authorized to seek additional information from Dr.

Lebron, it did not do so. See R.R. at 216a.

On September 14, 2016, Dr. Lebron appealed from the ESRC’s denial to

the Board, requested a hearing, and again asked for “all of the information that

ASPIRA ha[d] provided to [] PSERS or the ESRC pertaining to [his] service

beginning June 27, 2011.” R.R. at 19a; see also R.R. at 15a-24a; FOF 94.

On October 4, 2016, PSERS filed an answer to Dr. Lebron’s appeal,18

and therein objected to Dr. Lebron’s document request on the basis that “there is no

formal discovery under the General Rules of Administrative Practice and Procedure

[(GRAPP)], 1 Pa. Code §[§] 31.1[-35.251].”19 R.R. at 32a; see also R.R. at 25a-40a;

FOF 95. Nearly three years after his initial request, and just weeks before the

hearing, PSERS supplied Dr. Lebron with the requested documents in mid-June 2018.

See R.R. at 291a, 307a. A hearing was held before a Board-appointed hearing

examiner (Hearing Examiner) on July 11, 2018. See R.R. at 41a-232a; FOF 96.

At the hearing, Dr. Nuñez testified that, before ASPIRA acquired the

Olney contract, ASPIRA had publicized that it was competing for the contract and

advertised the principal position. See R.R. at 56a-57a, 76a-77a. Dr. Nuñez claimed

that ASPIRA’s advertising for the Olney principal position consisted of internal

According to the Board:

By letter dated October 12, 2016, the [Board’s] Appeal Docket Clerk

notified [ASPIRA] of [Dr. Lebron’s] appeal and explained that

ASPIRA may elect to participate as an intervenor because[,] as [Dr.

Lebron’s] former employer, ASPIRA may have a financial interest in

the appeal. The Appeal Docket Clerk’s letter directed ASPIRA to file

a petition to intervene no later than October 24, 2016. ASPIRA did

not file a petition to intervene.

Board Op. at 2.

“[A]s ‘a general rule, discovery as provided by the rules of civil procedure are not

available in administrative proceedings.’” C.S. v. Dep’t of Human Servs., Bureau of Hearings &

Appeals, 184 A.3d 600, 606 (Pa. Cmwlth. 2018) (quoting Pa. Bankers Ass’n v. Pa. Dep’t of

Banking, 981 A.2d 975, 997 n.18 (Pa. Cmwlth. 2009)).

emails (LISTSERV) to school employees, posts on PAREAP (a Pennsylvania

teaching job website), ASPIRA’s website and social media pages, and notices in The

Philadelphia Inquirer and at local universities. See R.R. at 82a-87a. Dr. Nuñez

recalled that she assisted ASPIRA in hiring principals for its other charter schools for

the 2011-2012 and 2012-2013 school years. See R.R. at 92a-93a.

Dr. Nuñez described that the new principal’s duties at Olney beginning

June 2011 entailed overseeing construction to combine two school buildings,

interviewing and hiring nearly 200 employees, and researching publishing companies

and obtaining academic resource materials for the 2011-2012 school year. See R.R.

at 67a-68a; FOF 41. She explained that all of this work created the greatest sense of

urgency because it had to be done within two months, and the number of candidates

with experience running high schools had declined. See R.R. at 71a; FOF 48. Dr.

Nuñez declared that the hiring team relied on Dr. Lebron’s representations about the

process of employing him as a retiree and the hiring team appointed the Chief

Operating Officer and the Human Resources Director to follow up with PSERS. See

R.R. at 65a.

Dr. Lebron testified that, after he informed the hiring team at his May

2011 interview that he could not accept the job as Olney’s principal for the 2011-

2012 school year unless ASPIRA deemed it an emergency hire, “[the hiring team]

indicated -- since it was an emergency they [sic] were going to be contacting

PSERS,” and he assumed ASPIRA did so. R.R. at 162a; see also R.R. at 103a-104a,

161a-162a, 171a-172a; FOFs 47, 49. Dr. Lebron did not recall thereafter asking

ASPIRA’s hiring team if it had contacted PSERS, nor did he seek anything in writing

to that effect. See R.R. at 162a-163a. He further recognized that his contract for the

2011-2012 school year referenced that he was eligible to participate in PSERS but, in

light of his representations at his interview, he did not consider that form language

applicable to him. See R.R. at 165a. Dr. Lebron acknowledged that the contract did

not reference an emergency or shortage of appropriate personnel. See R.R. at 165a;

FOF 53. The same was true for his 2012-2013, 2013-2014 and 2014-2015 school

year contracts. See R.R. at 166a-169a; FOFs 65, 70, 74.

Dr. Lebron began work under his contract on June 27, 2011, to make

Olney fully operational by: coordinating building upgrades; identifying, interviewing

and hiring approximately 125 teachers and staff; establishing procedures; developing

community relationships; creating safety protocols; and researching curriculum

materials. See R.R. at 104a-106a; FOF 56. Dr. Lebron explained that, during the

course of his contract, he was also responsible for training the two assistant principals

to eventually run Olney. See R.R. at 107a.

Dr. Lebron testified that he understood his initial Olney employment

would be for the 2011-2012 school year but, in light of the continued growth and

development of Olney during that year, neither assistant principal was ready to take

over, and ASPIRA was unable to find a replacement for him, so he agreed to remain

on for the 2012-2013 school year, subject to PSERS’ continued approval. See R.R. at

108a-109a; FOF 63. He recounted that Dr. Paramo approached him in 2013 about

staying on for the 2013-2014 school year, and he was satisfied with her

representations that he was still needed. See R.R. at 109a-111a; FOF 68. Dr. Lebron

recalled that the same situation occurred relative to the 2014-2015 school year,

because the new assistant principals assigned for the 2013-2014 school year were

unable to accept the principalship for the 2014-2015 school year. See R.R. at 113a-

114a; FOF 74.

Dr. Lebron acknowledged that he had read and understood the return to

service restrictions presented to him by the retirement counselor in June 2007, in his

September 6, 2007 Initial Benefit Letter, in his April 15, 2009 Finalized Benefit

Letter, in the Handbook, and in the newsletters he read. See R.R. at 131a-132a, 136a-

141a. Dr. Lebron attested:

Q Did you believe you were responsible for submitting a

letter to PSERS for your post[-]retirement employment?

A I didn’t think so.

Q Did you believe that you were responsible to have your

employer do that?

A I think so, yes.

Q . . . . Did you understand that your employer may have to

document the basis for your emergency?

A Yes.

Q Did you ever ask ASPIRA to keep documentation

regarding your employment?

A I mentioned it to the [hiring team] that day, you [sic] got

to get the clearance in order for me to be employed,

clearance from PSERS.

R.R. at 142a-143a. Dr. Lebron admitted that he did not tell PSERS that he was

returning to service. See R.R. at 146a; FOF 78. He understood that it was his

employer’s responsibility to notify PSERS and, since ASPIRA told him it would take

care of contacting PSERS, he did not think he had anything further to do in that

regard. See R.R. at 172a-173a; FOF 78. Dr. Lebron represented that repaying the

$378,686.00 in retirement benefits he received between July 1, 2011 and August 31,

2015, “would wipe [him] out”; he did not have the money to repay PSERS. R.R. at

125a; see also R.R. at 124a.

Peechatka testified that his job responsibilities include examining

whether an annuitant has returned to service in an approved capacity (i.e., whether the

employment meets one of the Retirement Code’s post-retirement exceptions). See

R.R. at 176a-178a, 181a-182a. He explained relative to the personnel shortage

exception that, when an employer has unsuccessfully attempted to secure a non-

retiree for a position, it is permitted to use an annuitant for as long as the shortage

lasts for that school year. See R.R. at 179a. He added that “the Retirement Code

does not address the best qualified, only the shortage.” R.R. at 179a; see also R.R. at

210a-211a. Peechatka stated that, when investigating personnel shortage cases,

PSERS looks at evidence of good faith steps the employer took to secure a non-

annuitant, including documentation of employer outreach by job postings,

professional journals, headhunters and other methods. See R.R. at 180a, 210a.

Peechatka further expressed that an annuitant can serve in an emergency

capacity for as long as the emergency lasts during the school year, and a sudden,

unexpected increase in workload that the current school staff is not able to handle, in

addition to its regular duties, constitutes an emergency. See R.R. at 180a. He

described that, if an emergency goes beyond the school year, PSERS would need to

see proof of the steps the employer took throughout the school year to secure a non-

annuitant before it would approve an emergency hire for another year. See R.R. at

181a. Peechatka declared that an annuitant may not continue working in an

emergency capacity to train his/her replacement. See R.R. at 181a. Peechatka

recalled reviewing Dr. Lebron’s case and determining, based on ASPIRA’s

documentation, that Dr. Lebron returned to service in a non-approved capacity. See

R.R. at 179a.

When Peechatka was asked: “Is there a form for PSERS retirees

returning in an emergency capacity?” he replied: “No, there’s not.” R.R. at 205a.

When asked: “Why not?” Peechatka responded: “I don’t have an answer for that.”

R.R. at 205a. Peechatka acknowledged that Dr. Lebron’s September 6, 2007 Initial

Benefit Letter, his April 15, 2009 Finalized Benefit Letter and the Handbook do not

specify that Dr. Lebron had an affirmative obligation under Section 8346(b) of the

Retirement Code to do anything if he returned to work in an emergency capacity; but,

rather, only if he returned to service in a position that was not an emergency. See

R.R. at 207a-208a. Peechatka reported that, based upon the documentation that

ASPIRA provided to PSERS, including the other candidates’ resumes and rejection

letters, ASPIRA could have hired any of them in Dr. Lebron’s place. See R.R. at

211a-213a, 217a-220a. Peechatka stated, however, that ASPIRA did not submit its

original job posting, so PSERS was not aware of what ASPIRA listed as the specific

requirements for the position. See R.R. at 213a-216a. To Peechatka’s knowledge,

neither ASPIRA nor the SDP sought PSERS’ approval for Dr. Lebron to return to

service at any time before April 2015. See R.R. at 225a.

On November 29, 2018, after the parties filed post-hearing briefs,20 the

Hearing Examiner issued an Opinion and Recommendation that the Board should

affirm PSERS’ November 5, 2015 repayment letter because: Dr. Lebron was afforded

due process; because Dr. Lebron failed to demonstrate by a preponderance of the

evidence that his service as Olney’s principal for the subject school years was due to

an emergency or personnel shortage, the Board should deny his claim that he was

exempt from loss of annuity under Section 8346(b) of the Retirement Code; and,

because Dr. Lebron failed to prove by a preponderance of the evidence that he

satisfied the four prongs of Section 8303.1 of the Retirement Code, the Board should

deny his adjustment waiver request. See Dr. Lebron Br. App. B, Hearing Examiner

Recommendation at 1.

On December 31, 2018, Dr. Lebron filed a Brief on Exceptions and

requested oral argument before the Board. See R.R. at 301a-312a. Dr. Lebron

specifically excepted on the following bases: (1) he was the latest victim of the

Board’s failure to promulgate and adopt rules and regulations pursuant to Section

8502(h) of the Retirement Code, 24 Pa.C.S. § 8502(h), concerning annuitant

emergency/personnel shortage returns to employment; (2) PSERS’ basis for

determining an invalid return to service under Section 8346(b) of the Retirement

Code was not supported by substantial evidence; (3) PSERS is not authorized to

See R.R. at 233a-299a; FOF 97.

review a school employer’s judgment that it has an emergency situation; and (4)

PSERS’ position that he did not meet the hardship test under Section 8303.1(a)(1) of

the Retirement Code is specious. See R.R. at 302a-311a.

On January 18, 2019, PSERS filed a letter brief in lieu of a brief

opposing Dr. Lebron’s exceptions, wherein it responded that: (1) Dr. Lebron failed to

cite any legal authority for his claim that the Board’s failure to promulgate rules and

regulations is a basis for relief and ignores the existence of the Baillie Court’s

contrary ruling that PSERS is authorized to review a school employer’s use of an

annuitant; (2) Dr. Lebron failed to except to any specific finding of fact; (3) this

Court’s Baillie and Volpe v. Public School Employees’ Retirement Board (Pa.

Cmwlth. No. 1837 C.D. 2016, filed October 24, 2017)21 decisions authorized PSERS

to review ASPIRA’s judgment that an emergency existed; and (4) Dr. Lebron failed

to prove that he met the requirements for a waiver under Section 8303.1 of the

Retirement Code. See R.R. at 313a-318a.

On August 16, 2019, the Board denied Dr. Lebron’s request for oral

argument; denied his request that his post-retirement employment as Olney’s

principal during the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school years

be deemed an acceptable return to service without loss of annuity under Section

8346(b) of the Retirement Code; denied his waiver request; and affirmed PSERS’

November 5, 2015 repayment letter. See Board Op. at 44. Dr. Lebron appealed to

this Court.22

This Court acknowledges that its unreported memorandum opinions may only be cited

“for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth

Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Volpe is cited herein for its

persuasive value.

This Court’s scope of review of the Board’s opinion and order is limited to determining

whether substantial evidence supported the Board’s necessary findings of fact, whether the Board

violated constitutional rights, or whether the Board committed an error of law. See Robertson v. Pa.

Pub. Sch. Emps.’ Ret. Sys., 162 A.3d 569 (Pa. Cmwlth. 2017); see also Hairston-Brown v. Pub. Sch.

Emps.’ Ret. Bd., 78 A.3d 720 (Pa. Cmwlth. 2013). “Substantial evidence is such relevant evidence

Discussion

Dr. Lebron argues that the Board’s refusal to enact regulations deprived

him of his due process rights, that the Board erred by shifting the burden of proof to

him, and that the Board ignored ASPIRA’s judgment that an emergency or shortage

of appropriate personnel existed. The crux of Dr. Lebron’s appeal is that, since he

did all that PSERS required of him, he should not be penalized for returning to

service at Olney for the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school

years in the face of ASPIRA’s determination that there was an emergency/shortage of

appropriate personnel.

Section 8346(b) of the Retirement Code states, in pertinent part:

When, in the judgment of the employer, an emergency

creates an increase in the work load such that there is

serious impairment of service to the public or in the event

of a shortage of appropriate subject certified teachers or

other personnel, an annuitant or participant receiving

distributions may be returned to school service for a

period not to extend beyond the school year during

which the emergency or shortage occurs, without loss of

his annuity or distributions[.]

24 Pa.C.S. § 8346(b) (bold and italic emphasis added). That provision expressly

authorizes the public school employer to judge whether circumstances are sufficient

to hire an annuitant without affecting the annuitant’s retirement benefits. Section

8346(b) of the Retirement Code does not specify that PSERS can review the

employer’s determination.

However, in Baillie, this Court expounded:

Section 8521[(e)] of the Retirement Code provides that

PSERS and its Board ‘stand in a fiduciary relationship to

the members of the system regarding the investments and

disbursements of any of the moneys of the fund.’ 24

as a reasonable mind might accept as adequate to support a conclusion.” Hairston-Brown, 78 A.3d

at 727 (quotation marks omitted).

Pa.C.S. § 8521(e). PSERS is responsible for the ‘uniform

administration’ of the public school employees’ retirement

system. 24 Pa.C.S. § 8502(h). To that end, PSERS’

interpretation of the Retirement Code should not be

overturned unless it is clear that such construction is

erroneous. In addition, Section 8534(b) of the Retirement

Code requires PSERS to correct all intentional or

unintentional errors in members’ accounts.[23] In other

words, PSERS has the duty to correct errors made by

public school employers and to make actuarial adjustments

to an individual member’s benefit payments. . . .

. . . PSERS would breach its fiduciary duty if it allowed

a member to receive an annuity after returning to school

service under circumstances that do not constitute an

‘emergency.’ [The public school employer] made the

initial determination that an emergency existed; however,

the final decision for matters affecting disbursements to

annuitants must rest with PSERS. Otherwise, public

school employers would have the final say in matters that

have statewide implication and can affect the solvency of

the fund. Accordingly, we hold that PSERS has the

authority to review whether a public employer’s

decision to return a retired employee to work was, in

fact, done on the basis of an emergency as defined in

Section 8346(b) of the Retirement Code.

Baillie, 993 A.2d at 949-50 (emphasis added; citation and footnotes omitted);24 see

also Volpe. Although the statute does not so specify, in the Baillie Court’s ruling that

Section 8534(b) of the Retirement Code provides, in relevant part:

Should any change or mistake in records result in any member . . .

receiving from the system or plan more or less than he would have

been entitled to receive had the records been correct, then regardless

of the intentional or unintentional nature of the error and upon the

discovery of such error, the [B]oard shall correct the error and if the

error affects contributions to or payments from the system, then so far

as practicable shall adjust the payments which may be made for and

to such person in such a manner that the actuarial equivalent of the

benefit to which he was correctly entitled shall be paid.

24 Pa.C.S. § 8534(b).

Although Baillie is factually distinguishable from the instant matter, these rules of law are

nevertheless controlling here.

PSERS was authorized to review ASPIRA’s determination that Dr. Lebron’s return to

service met the emergency/shortage of appropriate personnel exceptions in Section

8346(b) of the Retirement Code, it noted that in order for PSERS to uphold its

fiduciary duty in administering the Retirement Code, it must determine that the

employer properly exercised its judgment.

Moreover, “[t]he law is clear that the Board is the ultimate finder of fact

and arbiter of witness credibility. As long as the Board’s factual findings are

supported by substantial evidence those findings are conclusive on appeal.” White v.

Pub. Sch. Emps.’ Ret. Bd., 11 A.3d 1, 7 (Pa. Cmwlth. 2010) (citation omitted).

1. Regulations

Although Section 8502(h) of the Retirement Code directs the Board that

it “shall . . . adopt and promulgate rules and regulations for the uniform

administration of the system[,]” 24 Pa.C.S. § 8502(h) (emphasis added), the Board

has not done so. Dr. Lebron contends that the Board’s failure to promulgate

regulations violated his due process rights. However, Dr. Lebron did not proffer, and

this Court has not found, any case law declaring that an administrative agency’s

failure to promulgate regulations creates legal rights in an individual. Accordingly,

despite that regulations would provide for “uniform administration” and make the

parties’ rights and responsibilities under Section 8346(b) of the Retirement Code

clearer, the Board’s failure to promulgate regulations did not deprive Dr. Lebron of

his due process rights.25

Notwithstanding, this Court strongly urges the Board to perform its ministerial duty to

“adopt and promulgate . . . [rules and] regulations[,]” 24 Pa.C.S. § 8502(h), to avoid similar future

litigation.

2. Burden of Proof

Dr. Lebron argues that the Board erred by shifting the burden of

establishing an emergency/shortage of appropriate personnel to him, when evidence

concerning the same was in ASPIRA’s or PSERS’ possession.

This Court has held relative to Board cases:

[I]t is well-established that the party who maintains the

existence of certain facts . . . must prove those facts by a

preponderance of the evidence. Wingert v. State Emp[s.’]

Ret[.] B[d.], . . . 589 A.2d 269, 271 ([Pa. Cmwlth.] 1991);

Samuel J. Lansberry, Inc. v. P[a.] Pub[.] Util[.] Comm[’n], .

. . 578 A.2d 600, 602 ([Pa. Cmwlth.] 1990). A

preponderance of the evidence is ‘such proof as leads the

fact-finder . . . to find that the existence of a contested fact

is more probable than its nonexistence.’ Sigafoos v. P[a.]

B[d.] of Prob[.] [&] Parole, . . . 503 A.2d 1076, 1079 ([Pa.

Cmwlth.] 1986).

Hamilton v. Pa. State Emps.’ Ret. Bd., 194 A.3d 1147, 1154-55 (Pa. Cmwlth. 2018).

In the instant matter, the Board misinterprets that Dr. Lebron is the only party

maintaining the existence of the operative facts and, thus, he had the sole burden of

proof.

Section 8346(b) of the Retirement Code expressly states that it is

applicable “[w]hen, in the judgment of [ASPIRA,]” Dr. Lebron’s return to service at

Olney for the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school years was

due to an emergency or shortage of appropriate personnel.26 24 Pa.C.S. § 8346(b)

The notices included with Dr. Lebron’s September 6, 2007 Initial Benefit Letter, April 15,

2009 Finalized Benefit Letter, and the Handbook confirmed that, whether an emergency or shortage

exists is determined by the retiree’s employer. See 24 Pa.C.S. § 8346(b); see also R.R. at 369a,

373a, 407a; FOFs 13, 16, 19. The notice in his April 15, 2009 Finalized Benefit Letter and the

Handbook further clarified that, before hiring an annuitant, the employer must first make a good

faith effort to hire a non-annuitant. See R.R. at 373a, 407a; FOFs 16, 19. The Handbook added:

“PSERS . . . reserves the right to review an employer’s determination that a qualifying emergency

or shortage exists.” R.R. at 407a (emphasis added); FOF 19. Although Dr. Lebron does not recall

reading it, PSERS’ Return to Service Guidelines and Clarifications on PSERS’ website details what

(emphasis added). This Court in Baillie held that when the employer has determined

the existence of an emergency or personnel shortage, PSERS may review the

employer’s determination. In addition, Peechatka declared that, in these cases,

PSERS examines evidence of the good faith steps the employer took to secure a non-

annuitant. Further, PSERS sent its information request concerning the nature of Dr.

Lebron’s employment as Olney’s principal to ASPIRA, and the Board found: “PSERS

had not received satisfactory documentation from ASPIRA[.]”27 FOF 86 (emphasis

added). Finally, for nearly three years, Dr. Lebron repeatedly asked PSERS for

copies of the documents ASPIRA provided in response to PSERS’ request, but

PSERS responded that he was not entitled to discovery.28

Moreover, Peechatka and the Board acknowledged that Dr. Lebron had

no affirmative obligation to notify PSERS or seek permission to return to work in

accordance with Section 8346(b) of the Retirement Code. Notwithstanding, the

Board declared that Dr. Lebron had the burden of proof because he had knowledge or

was put on notice that his return to service was not justified under Section 8346(b) of

the Retirement Code.

The Board reasoned:

[Dr. Lebron] received [the Handbook], which he read and

reviewed. In particular, [Dr. Lebron] read the portions of

[the Handbook] about returning to service after retirement,

the statements that[:] ‘PSERS, however, reserves the right

to review an employer’s determination that a qualifying

emergency or shortage exists,’[;] ‘[i]t is your

information may be required from the employer to prove that an emergency or personnel shortage

existed. See R.R. at 447a.

Although PSERS copied Dr. Lebron on the request, it was not addressed to him.

PSERS eventually supplied Dr. Lebron with ASPIRA’s documents approximately four

weeks before the hearing, which afforded him little time to seek additional information. This Court

does not countenance PSERS’ three-year delay in granting Dr. Lebron’s request until one month

before the July 2018 hearing, thereby affording Dr. Lebron insufficient time between mid-June

2018 and the hearing to follow up or subpoena additional information under GRAPP.

responsibility to notify the employer that you are a

PSERS retiree,’[;] and[,] ‘[i]f you do return to service

under any circumstances other than the provisions covered

by Act 2004-63, you must advise your employer that you

are a PSERS retiree. You should also send a letter to

PSERS including the return to service date so your pension

may be stopped before an overpayment occurs.’ Exhibit

PSERS-5 (emphasis added).

[Dr. Lebron] read and understood these statements, clearly

gaining the knowledge that he may have returned to service

in error, but he took no steps to inform PSERS to secure

the cessation of his pension before an overpayment

occurred. Additionally, despite this notice and this

knowledge, [Dr. Lebron] made no inquiries to see if

PSERS had reviewed ASPIRA’s determination that [Dr.

Lebron’s] post-retirement return to employment had

occurred in a bona fide emergency or shortage of other

personnel. Based on these occurrences, he had knowledge

or notice of a possible error before ever accepting the

position at Olney in 2011. Therefore, he could have taken

action to preserve his benefits long prior to PSERS[] ever

learning of his return to work in 2015 and then notifying

[Dr. Lebron] of the need to make the adjustment to his

annuity required by the Retirement Code.

Board Op. at 38-39 (emphasis added). The Board also asserted that PSERS’ other

instructions put Dr. Lebron on notice to confirm that PSERS approved of his post-

retirement return to service before accepting the Olney principalship. See Board Op.

at 37-38. In making these determinations, the Board erroneously imposed a duty on

Dr. Lebron to report his return to service to PSERS and get PSERS’ approval even

though Section 8346(b) of the Retirement Code does not require the same. See

Volpe.

PSERS has issued various policy statements explaining what it interprets

as its members’ responsibilities under Section 8346(b) of the Retirement Code. “The

value of a statement of policy is that it communicates, in advance of a discrete agency

action, how the agency interprets a law and intends to give it effect.” Borough of

Bedford v. Dep’t of Envtl. Prot., 972 A.2d 53, 61-62 (Pa. Cmwlth. 2009).

Here, Dr. Lebron attended retirement counseling and admitted he read

and understood, at a minimum, the notices of PSERS’ policy included with the

September 6, 2007 Initial Benefit Letter, the April 15, 2009 Finalized Benefit Letter,

and the Handbook. The notices in Dr. Lebron’s April 15, 2009 Finalized Benefit

Letter and the Handbook directed that it is the annuitant’s responsibility “to notify

the employer that [he is] a PSERS retiree[,]” R.R. at 373a, 408a (emphasis added);

FOFs 16, 19, which he did. The notices in Dr. Lebron’s September 6, 2007 Initial

Benefit Letter, the April 15, 2009 Finalized Benefit Letter, and the Handbook stated

that if his return to service did not qualify under Section 8346(b) of the

Retirement Code (i.e., he returned to work in circumstances other than for an

emergency or personnel shortage), he “should” also send a letter to PSERS. R.R. at

369a, 373a, 408(a) (bold and italic emphasis added); FOFs 13, 16, 19. Thus, as

Peechatka confirmed, based upon the wording in Section 8346(b) of the Retirement

Code and the PSERS’ policy statements, Dr. Lebron was not required to notify

PSERS that he was returning to service in an emergency or shortage of

appropriate personnel capacity in 2011, and the Board agreed (“[Dr. Lebron] had

no positive duty under the Retirement Code to notify PSERS of his return to school

service[.]” Board Op. at 40); see also Volpe. Thus, the Board’s imposition of a duty

on Dr. Lebron is without support in the statute and the record.

In Volpe, the Board similarly acknowledged that the Retirement Code

did not impose a positive duty on retirees to notify PSERS of a return to school

service in emergency or shortage of appropriate personnel circumstances. Volpe was

employed by the SDP as a Subsidies Technical Assistant (handling the SDP’s

financial operations) until he retired in July 1998. Because the SDP’s staff could not

handle Volpe’s former duties, the SDP asked him to return to work two days per

week for the 1998-1999 school year. Volpe accepted and worked part-time for the

SDP while collecting his pension. Volpe had received retirement counseling about

the effect of returning to service and also received and read PSERS’ 2000 Handbook.

Despite the SDP’s claims that it was trying to train Volpe’s replacement, the trainees

left for one reason or another. And, after PSERS informed the SDP in 2008 that it

needed to make a bona fide effort to hire qualified non-annuitants rather than hire

better-qualified retirees, the SDP advertised Volpe’s position for a few days each

year.29 Volpe applied for the job and was hired each year until 2012. In November

2012, PSERS notified Volpe that his employment did not satisfy the exceptions in

Section 8346(b) of the Retirement Code, and ordered him to repay nearly $70,000.00

in retirement benefits and uncredited service.30 On appeal, the Board agreed that

Volpe failed to produce evidence that an emergency or shortage of appropriate

personnel existed from 1998 until 2012 while he continued to collect his annuity

payments, and that Volpe had a duty to report his return to service to PSERS. On

further appeal, this Court disagreed.

The Volpe Court found that Volpe notified the SDP of his retirement

status, but concluded that, since there was no statutory requirement, administrative

regulation, or policy statement that required or even advised Volpe to inform PSERS

that he returned to school service under Section 8346(b) of the Retirement Code, the

Board improperly imposed an implied duty on Volpe to notify PSERS of his return to

service no matter the circumstances. The Volpe Court also declared that the Board’s

reliance on the Handbook’s reservation of rights in light of the other evidence did not

support the Board’s conclusion that Volpe knew or was on notice that the SDP had

Clearly, the SDP was aware of its responsibilities when hiring an annuitant well before

ASPIRA hired Dr. Lebron on its behalf.

Volpe retired again when PSERS undertook the 2012 investigation. Upon his retirement,

PSERS’ adjustment reduced his monthly retirement benefit by approximately 60%.

erroneously determined that an emergency existed justifying Volpe’s return to school

service while collecting his annuity payments.

The Volpe Court reasoned:

PSERS’[] action in advising [Volpe] only to tell [the] SDP

upon his return to school service that he is a PSERS retiree,

but then penalizing him by taking a portion of his pension

when he failed to do more, is arbitrary. PSERS created a

gap in communication when it advised [Volpe] to tell [the]

SDP that he is a PSERS retiree but then did not advise

either [Volpe] or [the] SDP to report his return to school

service to PSERS. PSERS could have readily filled this

gap. The State Employees’ Retirement Code, which

governs the retirement of state employees and officers,

contains a provision similar to that of Section 8346(b) of the

Retirement Code. See Section 5706(a.1) of the State

Employees’ Retirement Code, 71 Pa. C.S. § 5706(a.1).

Similar to Section 8346(b) of the Retirement Code, Section

5706(a.1) of the State Employees’ Retirement Code permits

a former state employee to return to State service without

jeopardizing his or her pension if there is an emergency.

Pursuant to Section 5706(a.1) of the State Employees’

Retirement Code, the Governor has issued Management

Directive 515.20 establishing ‘policy, responsibilities, and

procedures for reemployment of persons retired from

commonwealth service.’ ([See] Management Directive

515.20 Amended (July 20, 2015).) Management Directive

515.20(7.a.) clarifies that when an agency ‘[d]etermines that

an emergency requires the temporary reemployment of an

annuitant,’ the agency must complete a form with certain

information about the annuitant, forward that form to the

Office of Administration for approval, which must then

forward the form and justification to the State Employees’

Retirement System (SERS). (Id.) Here, PSERS could have

advised either the annuitant or the school district to inform

PSERS about the hiring of a retiree, so PSERS could then

review to see if a true emergency existed. PSERS does not

lack the statutory authority to do so given that it has the

right to inspect school district’s employment records, and

school districts have a corresponding duty to comply.

Sections 8502(f) and 8506(b) of the Retirement Code, 24

Pa.C.S. §§ 8502(f), 8506(b). Alternatively, PSERS could

have required preapproval before a school district hired a

PSERS retiree, as it did with other annuitants that [the] SDP

hired. . . . However, PSERS did not communicate to

either [Volpe] or [the SDP] that one or the other was to

notify it of the hiring of a retiree or to require

preapproval.

. . . . [Volpe] complied with the only advisory PSERS gave

him. [The] SDP knew that [he] was a PSERS retiree.

Thereafter, [Volpe] did not receive any notice from

PSERS indicating that it disagreed with [the] SDP’s

determination or that his return to service would affect

his pension. Under these circumstances, it was not

unreasonable for [Volpe] to assume that [the] SDP had

passed along to PSERS the information that [Volpe] was a

PSERS retiree who had returned to school service. It would

make little sense for an annuitant to communicate to his

employer that he was a PSERS retiree who had returned to

service if the employer was not going to pass that

information along to PSERS.

Slip op. at 23-25 (emphasis added; footnote omitted).

Applying the Volpe Court’s reasoning in the instant matter,31 and based

on the statute and PSERS’ instructions to retirees, this Court concludes that, where

The Board had the benefit of this Court’s Volpe decision when it issued its August 2019

order in the instant matter. However, the Board claims that this case is distinguishable from Volpe

because

[i]n this case, PSERS informed [Dr. Lebron] that he should send a

letter to PSERS directly if he was working in a capacity that did not

fit a return to service exception, including the one-year limitation, to

avoid any overpayment of annuity. The gap in communication that

the Commonwealth Court found in Volpe does not exist in this case

between PSERS and [Dr. Lebron].

Board Op. at 40 (record citations omitted). Despite that Dr. Lebron had the benefit of more than

PSERS’ Handbook, and Section 8346(b) of the Retirement Code which now allows a return to

service of up to one school year (as opposed to the 95-day restriction in Volpe), the same

communication gap that created Volpe’s situation now affects Dr. Lebron. Accordingly, Volpe is

instructive and persuasive here.

Dr. Lebron had a reasonable belief that he returned to service in accordance with

Section 8346(b) of the Retirement Code, his only duty was to notify ASPIRA that he

was a PSERS retiree.32 Accordingly, Dr. Lebron’s only burden was to prove that

he had a reasonable belief his return to service was in accordance with Section

8346(b) of the Retirement Code and that he notified ASPIRA he was a PSERS

retiree.

Despite that Section 8346(b) of the Retirement Code and PSERS’ policy

statements place the onus on the employer to determine that a shortage of appropriate

personnel exists, and PSERS created the communication gap, the Board

place[d] the consequences of [ASPIRA’s/the SDP’s

purported] statutory violations at the doorstep of [Dr.

Lebron]. When governmental entities fail to carry out

mandatory statutory duties, however, the result of that

failure should not be laid at the feet of a person who is

entitled to be the recipient of that duty. Rather, justice and

fairness require that the person protected by the statute, here

[Dr. Lebron], be given the opportunity to take advantage of

the statutory right conferred upon h[im.33]

Higgins v. Pub. Sch. Emps.’ Ret. Sys., 736 A.2d 745, 750 (Pa. Cmwlth. 1999); see

also Larsen v. State Emps.’ Ret. Sys., 22 A.3d 316 (Pa. Cmwlth. 2011); Mullen v.

Dubois Area Sch. Dist., 259 A.2d 877, 880-81 (Pa. 1969) (“The burden of complying

with the statute rests with the school [employer, here ASPIRA/the SDP]; should they

Considering what occurred in Volpe and the instant case, regardless of PSERS’ policy

statements and notices, it would certainly behoove an annuitant in these circumstances to notify

PSERS of a return to service regardless of whether Section 8346(b) of the Retirement Code

exceptions are implicated and, perhaps, seek PSERS’ express approval or an advisory opinion, to

avoid these unfortunate circumstances. This Court also urges PSERS to consider changing its

policy, developing a written procedure, or promulgating regulations to avoid similar future litigation

or, at the very least, more clearly apprise its members of the potential risks highlighted in Baillie,

Volpe and the instant decision.

Dr. Lebron is protected by Section 8346(b) of the Retirement Code. That provision

conferred upon Dr. Lebron the statutory right to simultaneously receive his annuity payments and a

salary as an incentive to assist a public school where the school has determined it has an

emergency/shortage of appropriate personnel.

fail to conduct their business as required, the consequences ought to lie at [their]

door, not at the door of their victims. They must not be permitted to advantage

themselves of their own failures to the detriment of their employees.”).

Under the unique circumstances where the statute and PSERS’

instructions did not put Dr. Lebron on notice that he would have the burden of

proving that ASPIRA faced an emergency/shortage of appropriate personnel during

the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school years, he did not

participate in nor was he privy to ASPIRA’s decision-making, and he did not have

access to documentation or other evidence of ASPIRA’s efforts to hire a non-

annuitant, thereby placing him completely at the mercy of an independent third party

not obliged to give him information, or even participate in these proceedings,34 the

Board erred by imposing the burden solely on Dr. Lebron to prove that his return to

service was in accordance with Section 8346(b) of the Retirement Code.35

Recently, in a case involving criminal law, th[e

Pennsylvania Supreme] Court explained that[] ‘[t]he

function of a standard of proof, as that concept is embodied

in the Due Process Clause [of the United States

Constitution] and in the realm of factfinding, is to instruct

the factfinder concerning the degree of confidence our

society thinks he should have in the correctness of factual

conclusions for a particular type of adjudication. While the

risk of error in a particular adjudication does not vary

depending on the standard of proof adopted, the burden

allocates that risk between the parties.’ [Commonwealth v.]

Sanchez, 36 A.3d [24,] 65 [(Pa. 2011)] (citations omitted). .

. . A more stringent burden of production and persuasion

imposes a higher risk of an erroneous decision on the party

upon which the burden rests. Thus, shifting the burden of

proof onto a defendant places the risk of an erroneous

Dr. Nuñez’s testimony was only available to Dr. Lebron because ASPIRA no longer

employed Dr. Nuñez and she agreed to testify on his behalf. She did not have access to ASPIRA’s

records. See R.R. at 96a.

Where PSERS’ interpretation of the Retirement Code is clearly erroneous, it may be

overturned. Baillie.

decision upon the defendant. The determination of whether

such a shift is suitable rests . . . primarily on considerations

of whether the shift vindicates the public policy at issue. In

addition, we consider difficulties of adducing evidence to

prove a negative, the parties’ relative access to evidence,

and whether placing the burden of proof on one party is

necessary to help enforce a further right, constitutional or

otherwise. See Sanchez, 36 A.3d at 67.

Tincher v. Omega Flex, Inc., 104 A.3d 328, 408-09 (Pa. 2014).

Here, notwithstanding that Dr. Lebron did not have the burden to prove

that ASPIRA faced an emergency/shortage of appropriate personnel for the subject

school years, because Dr. Lebron reaped the benefit of simultaneously collecting his

annuity and a salary, and he faced the potential of having to return retirement benefits

he received that were not in accordance with Section 8346(b) of the Retirement Code,

he had to have a reasonable belief that his return to service complied with Section

8346(b) of the Retirement Code. Therefore, this Court rules that Dr. Lebron had the

burden to prove that he had a reasonable basis to believe his return to service

for each school year complied with Section 8346(b) of the Retirement Code and

that he notified ASPIRA he was an annuitant. Once Dr. Lebron met his burden,

the burden shifted to PSERS to prove either that ASPIRA did not exercise its

judgment under Section 8346(b) of the Retirement Code, or that ASPIRA’s

judgment in employing Dr. Lebron during each of those years was not based on

an emergency or a shortage of appropriate personnel. Consequently, both Dr.

Lebron and PSERS had a burden of proof.

3. ASPIRA’s Judgment

According to Section 8346(b) of the Retirement Code, Dr. Lebron could

return to service, collect a salary, and still receive his retirement annuity if, in

ASPIRA’s/the SDP’s judgment: (1) there was “an emergency [that] create[d] an

increase in the work load such that there [was] serious impairment of service to the

public or [there was] a shortage of appropriate . . . personnel,” and (2) his service

did not exceed the school year during which the emergency or personnel shortage

occurred. 24 Pa.C.S. § 8346(b) (emphasis added).

Dr. Lebron asserts that the Board erred by ignoring ASPIRA’s

determination that he returned to service at Olney for the 2011-2012, 2012-2013,

2013-2014 and 2014-2015 school years pursuant to the emergency/shortage of

appropriate personnel exception under Section 8346(b) of the Retirement Code.36

Because Dr. Lebron relied upon ASPIRA’s representations that there were no other

suitable non-annuitant candidates for Olney’s principal position, rather than an

emergency, this Court will examine whether Dr. Lebron’s return to service

qualified under Section 8346(b) of the Retirement Code’s shortage of appropriate

personnel exception.37 Further,

our duty on review is to determine whether the [Board’s]

findings [we]re supported by substantial evidence. The

finding[s] needed to support a decision in [PSERS’] favor

[we]re that (1) [there was no shortage of appropriate

In response to Dr. Lebron’s request for argument on his exceptions, the Board referenced

“Section 201.12 of the Board’s [R]egulations, 22 Pa. Code § 201.[1]2 [reserved],” making GRAPP

applicable to Board proceedings. Section 35.214 of GRAPP authorizes the Board to conduct oral

argument on exceptions. See 1 Pa. Code § 35.214. However, the Board concluded: “The Board

does not believe that oral argument is necessary in helping the Board understand and resolve the

issues and, therefore, denies [Dr. Lebron’s] request.” Board Op. at 2. The Board did not err by

denying oral argument.

Dr. Lebron repeatedly refers to ASPIRA invoking the emergency exception under Section

8346(b) of the Retirement Code. In order for that specific exception to apply, ASPIRA had to

establish that “an emergency create[d] an increase in the work load such that there [was] serious

impairment of service to the public[.]” 24 Pa.C.S. § 8346(b). Further, the Volpe Court accepted the

Board’s interpretation that an emergency was “sudden, unexpected, unforeseen and require[d]

immediate action.” Slip op. at 10 (adopting and quoting the hearing examiner’s definition).

However, neither ASPIRA nor Dr. Lebron provided evidence to PSERS or the Board that an

increased workload seriously impaired ASPIRA’s/SDP’s service to the public, or they faced

sudden, unexpected, unforeseen circumstances that required immediate action, thereby creating an

emergency. Accordingly, like the Board, see Board Op. at 27, this Court will review whether the

Board erred by concluding that there was insufficient evidence to support ASPIRA’s claim that Dr.

Lebron’s employment was permissible due to a shortage of appropriate personnel.

personnel during the subject school years, and/or (2) Dr.

Lebron’s return to service exceeded the school years during

which the personnel shortages occurred. See 24 Pa.C.S. §

8346(b).]

S. Hills Health Sys. v. Dep’t of Pub. Welfare, 510 A.2d 934, 936 (Pa. Cmwlth. 1986).

a. Shortage of Appropriate Personnel

Dr. Lebron had to demonstrate that he had a reasonable basis to believe

that his return to service for each of the 2011-2012, 2012-2013, 2013-2014 and 2014-

2015 school years was due to a shortage of appropriate personnel. Thereafter,

“[s]ince [PSERS] assert[ed] [that ASPIRA did not face a shortage of appropriate

personnel for the subject school years], [PSERS] had the burden of proving [the

same].” Id. at 935; see also Baillie; Wingert.

As stated previously, when investigating shortage of appropriate

personnel cases, PSERS looks at evidence of good faith steps the employer took to

secure a non-annuitant for the position. Peechatka pronounced that “the Retirement

Code does not address the best qualified, only the shortage.” R.R. at 179a.

Notwithstanding, Section 8346(b) of the Retirement Code expressly references “a

shortage of appropriate . . . personnel[.]” 24 Pa.C.S. § 8346(b) (emphasis added).

Here, PSERS directed ASPIRA to provide any and all evidence of its

efforts to hire non-annuitants for the subject school years. Unfortunately, ASPIRA

did not submit its original job postings or advertisements, so PSERS could not

determine what ASPIRA listed as the specific requirements for the position.

ASPIRA provided only the other 2011 candidates’ resumes and the rejection letters in

which ASPIRA informed them that, although their “‘skills and qualifications were

excellent,’ it had ‘chosen to hire another candidate for the position.’” R.R. at 5a. The

only other evidence available to Dr. Lebron was Dr. Nuñez’s testimony.

Dr. Nuñez testified that Dr. Lebron’s employment as Olney’s principal

for the 2011-2012 and 2012-2013 school years was necessitated by a shortage of

appropriate personnel, and that ASPIRA made a bona fide effort to locate and hire

non-annuitants that met SAC’s criteria before contracting with Dr. Lebron. However,

the Board found Dr. Nuñez’s testimony in that regard not credible.

The Board’s credibility determination stemmed, in part, from ASPIRA’s

financial interest in the outcome of this matter. In particular, the Board concluded

that ASPIRA stands to “incur debt with PSERS due to PSERS’ determination,

because ASPIRA will owe its employer share of contributions for each year of [Dr.

Lebron’s] employment, plus interest for each year that the employer’s contribution

[w]as not [] received[.]” Board Op. at 31. The Board also declared that Dr. Nuñez

“may bear some responsibility for ASPIRA’s hiring of [Dr. Lebron] without clearing

it with PSERS, so she has a motive to be other than frank on this point.” Board Op.

at 31. However, there is no record evidence that Dr. Nuñez bore any individual

responsibility for hiring Dr. Lebron or any of ASPIRA’s other principals, and she was

no longer an ASPIRA employee when she gave her testimony in July 11, 2018 (more

than five years after she left ASPIRA).

In addition, the Board declared that “[i]t is also impossible to credit [Dr.

Nuñez’s] testimony so long after the fact[.]” Board Op. at 31. Although it is

common knowledge that the passage of time can affect a witness’s memory, the

Board does not cite to, and this Court did not locate, any legal basis for the Board’s

conclusion that the mere passage of time itself supports a finding that Dr. Nuñez’s

testimony was not credible. There is nothing in the record to support a finding that

time affected Dr. Nuñez’s memory. This Court is also perplexed by the Board’s

utilization of a double standard in declaring the passage of time fatal to Dr. Nuñez’s

credibility without reaching the same conclusion regarding Dr. Lebron’s testimony.

See R.J.W. v. Dep’t of Human Servs., 139 A.3d 270 (Pa. Cmwlth. 2016); see also A.P.

v. Dep’t of Pub. Welfare, 98 A.3d 736 (Pa. Cmwlth. 2014). Moreover, where PSERS

is authorized to and could have created a system in which it would have discovered

Dr. Lebron’s situation much sooner or, perhaps, avoided the circumstances

altogether,38 the Board’s reliance on the passage of time to discredit testimony is self-

serving and disingenuous.

The Board also found Dr. Nuñez’s testimony “general[ly] unreliab[le],”

Board Op. at 32, because she represented that ASPIRA’s hiring team relied on Dr.

Lebron to tell it how to return him to service, but Dr. Lebron testified that was not the

case. However, reading the testimony in context, what Dr. Nuñez said was that the

hiring team relied on Dr. Lebron’s representations about the process of employing

him as a retiree and, after Dr. Lebron informed the hiring team that it must contact

PSERS and the hiring team discussed it, the hiring team appointed the Chief

Operating Officer and the Human Resources Director to follow up with PSERS. See

R.R. at 65a. That testimony is entirely consistent with Dr. Lebron’s testimony that,

after he informed the hiring team at his May 2011 interview that he could not accept

the Olney principal job unless it was an emergency hire and must be cleared with

PSERS, the hiring team represented that it would contact PSERS. See R.R. at 162a.

Because the testimony is not contradictory, the Board’s conclusion that Dr. Nuñez’s

testimony was generally unreliable on that basis was flawed.

This Court has held:

An appellate court may not reweigh the evidence or make

credibility determinations. Leon E. Wintermyer, Inc. v.

Workers’ Comp[.] Appeal B[d.] (Marlowe), . . . 812 A.2d

478, 487-88 ([Pa.] 2002). However, an appellate court

may ‘overturn a credibility determination if it is

arbitrary and capricious or so fundamentally dependent

PSERS could create a SERS-like system in which the employer must notify PSERS every

time an annuitant returns to service, or its own process whereby an annuitant and the employer shall

notify PSERS and/or obtain pre-approval any time an annuitant returns to work.

on a misapprehension of material facts, or so otherwise

flawed, as to render it irrational.’ Agostino v. T[wp.] of

Collier, 968 A.2d 258, 263-64 (Pa. Cmwlth. 2009). A fact

finder capriciously disregards evidence ‘when there is a

willful and deliberate disregard of competent testimony and

relevant evidence which one of ordinary intelligence could

not possibly have avoided in reaching a result.’ Id. at 264

(quoting Arena v. Packaging Sys[.] Corp[.], . . . 507 A.2d

18, 20 ([Pa.] 1986)).

Spencer v. City of Reading Charter Bd., 97 A.3d 834, 842 (Pa. Cmwlth. 2014)

(emphasis added; footnote omitted). This Court finds the Board’s credibility

determinations flawed and evident of the Board’s effort to justify its decision without

record or legal support.

Further, several findings the Board made to reach its conclusion that

ASPIRA did not employ Dr. Lebron at Olney for the 2011-2012, 2012-2013, 2013-

2014 and 2014-2015 school years because of shortages of appropriate personnel were

not supported by substantial evidence. See White.

Specifically, the Board declared that “there is no evidence that when

ASPIRA hired [Dr. Lebron] . . . , ASPIRA had determined the principal position at

Olney to be unfillable due to a shortage of other personnel.” Board Op. at 29. That is

not the standard. Rather, Section 8346(b) of the Retirement Code requires “a

shortage of appropriate . . . personnel” for the exception to apply. 24 Pa.C.S. §

8346(b) (emphasis added). Notwithstanding, the Board concluded that there was not

a personnel shortage that required ASPIRA to hire Dr. Lebron, because Dr. Nuñez

“had two years of experience in the SDP as a principal, 13 years of experience as a

superintendent or chief academic officer in the charter school sector, and 11 years of

experience as a teacher in the SDP . . . , she had started four other [ASPIRA] charter

schools and was the founding principal of ASPIRA’s second charter school[,]”

Board Op. at 30, and could have done the job.

However, the fact that Dr. Nuñez participated in hiring principals for

ASPIRA’s other charter schools for the 2011-2012 and 2012-2013 school years is not

relevant to whether there was a shortage of appropriate personnel to be Olney’s

principal for the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school years.

Although there may have been principal candidates for other schools, PSERS

presented no evidence of whether those candidates were “appropriate . . . personnel”

under the circumstances. 24 Pa.C.S. § 8346(b). In addition, there is no record

evidence that the other charter schools for which Dr. Nuñez hired principals were

high schools, let alone new charter schools intended to rehabilitate a notoriously at-

risk student body, or whose appropriate candidates included bilingual, African-

American, or Latino persons with high school principal experience familiar with the

City of Philadelphia, to be aligned with the at-risk student demographic.

Accordingly, the Board improperly reached its conclusion based on that evidence.

The Board also spontaneously concluded that, in light of Dr. Nuñez’s

qualifications, she could have undertaken the preparation for Olney’s 2011-2012

school year while ASPIRA continued to search for a non-annuitant to be principal

and, thus, ASPIRA did not exhaust all efforts before hiring Dr. Lebron. The Board

clarified:

If the evidence establishes . . . that a school

employer has a back-up plan to fill the vacancy with

another existing employee, even if only temporarily,

that fact does support a finding that a shortage did

not exist that would support hiring a PSERS retiree.

It contradicts an argument that the employer had no

choice but to stop recruiting efforts for the vacancy

and hire a retiree. In this case, Dr. Nu[ñ]ez testified

that she believed she would have been the back-up

plan. . . . This testimony is not the basis for th[e]

Board’s conclusion that [Dr. Lebron] failed to meet

his burden of proving that a shortage of other

personnel existed in May 2011, but it does lend

support to that conclusion because it shows that

ASPIRA had not exhausted its perceived options

prior to hiring [Dr. Lebron].

Board Op. at 30-31 n.2. The Board added that “there were five other ASPIRA

employees involved in the hiring process[.]” Board Op. at 30-31.

The Board clearly disregarded Dr. Nuñez’s testimony that, although she

had a principal certificate, was bilingual, and was familiar with charter schools, her

experience was in primary education (grades K through 8) and she would not have

accepted the position. The Board further assumed, without record support, that Dr.

Nuñez and/or the rest of ASPIRA’s hiring team of high-level administrative staff had

the requisite time, skills, and resources to oversee Olney’s construction, interview and

hire nearly 200 employees, and research publishing companies and obtain academic

resource materials for the 2011-2012 school year. Even if they did, the Board

improperly imposed an implied duty on ASPIRA to hire its employees out to the SDP

when it cannot immediately locate non-annuitant candidates to fill the SDP’s job

openings. Accordingly, the Board’s findings are without any record basis.

The Board also relied upon the 2011 Olney candidate rejection letters to

support its conclusion that, since there were non-annuitant candidates ASPIRA could

have hired instead of Dr. Lebron, Dr. Lebron’s return to service as Olney’s principal

did not meet the requirements of Section 8346(b) of the Retirement Code. In those

letters, ASPIRA informed the candidates that, although their “‘skills and

qualifications were excellent,’ it had ‘chosen to hire another candidate for the

position.’” R.R. at 5a. The letters do not support the Board’s conclusion. As stated

above, Section 8346(b) of the Retirement Code requires a shortage of “appropriate . .

. personnel” for the personnel shortage exception to apply. 24 Pa.C.S. § 8346(b)

(emphasis added). The statutory language clearly reveals that ASPIRA could seek

more than just warm bodies for the job. Certainly, a pro forma letter politely

rejecting candidates, who lacked high school and principal experience, for the task of

reforming an at-risk school is not credible evidence that any of those candidates were

“appropriate . . . personnel” for the Olney principalship, particularly during the first

year. Id. Accordingly, the record does not support the Board’s finding.

The Board further concluded that Dr. Lebron’s acceptance of the Olney

principalship for the 2011-2012 and 2012-2013 school years subject to ASPIRA

notifying PSERS that he returned to work, when he did not place that same proviso

on his six post-retirement positions within the SDP between September 2007 and

June 2011, “is a strong indicator that [Dr. Lebron] understood his return to work at

Olney to be different from all of his prior returns, [] supporting the finding that

ASPIRA initially offered him the position without [] referring to the shortage of other

personnel exception.” Board Op. at 30. In reaching that conclusion, the Board

stated: “[Dr. Lebron], in his prior returns to work under the other personnel shortage

exception . . . had never sought PSERS’ approval.” Id.

This Court agrees that Dr. Lebron never sought approval for those

assignments, and further acknowledges the record evidence that Dr. Lebron’s returns

to service from September to December 2007 at Microsoft High School of the Future

(due to a sudden principal resignation) and from September 2008 to June 2009 at

Germantown High School (when he and another veteran principal were asked to

temporarily run a persistently dangerous school) were emergency assignments.39 See

R.R. at 146a-148a, 151a-152a. However, contrary to the Board’s conclusion, Dr.

Lebron did not testify that his other four assignments were due to

emergency/shortages of appropriate personnel. See R.R. at 149a-150a, 152a-156a.

Moreover, since Dr. Lebron was never asked whether he accepted those post-

retirement positions conditioned on the SDP notifying PSERS, the Board could not

Dr. Lebron testified that the SDP informed him that his return to service from September

to December 2007 at Microsoft High School of the Future had been cleared with PSERS. See R.R.

at 147a-148a.

know that those instances differed from his Olney principalship job offer in that

manner. Further, as stated above, to the extent Dr. Lebron reasonably believed that

any of his post-retirement assignments were due to an emergency/shortage of

appropriate personnel under Section 8346(b) of the Retirement Code, he was not

obligated to report his return to service to PSERS. Rather, he understood the

employer had the duty to report his return to service to PSERS, if necessary. Dr.

Lebron handled his Olney employment in the same fashion. Accordingly, there is no

record support for the Board’s conclusion that Dr. Lebron’s actions relative to his

post-retirement returns to service before Olney are “a strong indicator that [Dr.

Lebron] understood his return to work at Olney to be different from all of his prior

returns[.]” Board Op. at 30.

The Board also asserted that Dr. Lebron’s Olney contracts for the 2011-

2012, 2012-2013, 2013-2014 and 2014-2015 school years are a “strong indicator”

that Dr. Lebron was not hired based on a personnel shortage pursuant to Section

8346(b) of the Retirement Code. Board Op. at 32. Specifically, the Board relies on

the fact that those contracts did not reference personnel shortages and did reference

that he was eligible to participate in PSERS as if he was not an annuitant. However,

the contracts contained ASPIRA’s standard employment language, including the

PSERS contribution language in the same paragraph with other employer-provided

benefits. See R.R. at 95a-96a. Dr. Lebron expressed his understanding that the

PSERS participation language did not apply to him. See R.R. at 165a-166a. The

Board’s interpretations of the above facts and conclusions it drew therefrom are not

based on record evidence and, in fact, are contradicted by Dr. Lebron’s testimony that

the Board found to be credible.

Further, Section 8346(b) of the Retirement Code does not mandate that

the reason for hiring be expressly stated in the employment contract. In fact, there’s

no requirement that Dr. Lebron execute a contract in emergency/shortage of

appropriate personnel circumstances for post-retirement employment to qualify under

Section 8346(b) of the Retirement Code. Although Dr. Lebron entered into a contract

for his September 2008 to June 2009 employment at Germantown High School, the

SDP did not give him a contract for his September to December 2007 employment at

Microsoft High School of the Future, for his October 2009 to February 2010

employment at Kensington Creative & Performing Arts High School, for his

February to June 2010 employment at Lawton Elementary School, or for his August

2010 to June 2011 employment at Randolph Career Academy. See R.R. at 147a,

151a-156a. Under the circumstances, there is no record support for the Board’s

finding that Dr. Lebron’s contracts were a “strong indicator” that Dr. Lebron was not

hired based on a shortage of appropriate personnel. Because the above factual

findings were not supported by substantial evidence, they are not conclusive on

appeal. See White.

Finally, the Board repeatedly referenced that ASPIRA did not notify

PSERS of Dr. Lebron’s return to service as Olney’s principal or “clear[] it with

PSERS[,]” as if ASPIRA had a duty to do so. Board Op. at 31; see also FOFs 78-79.

However, notwithstanding Dr. Lebron’s understanding and/or representations to the

contrary throughout this proceeding, neither Section 8346(b) of the Retirement Code

nor PSERS’ instructions required ASPIRA/the SDP to notify PSERS when, in its

judgment, an emergency or shortage of appropriate personnel existed, and there was

no statutory or common law requirement that ASPIRA seek pre-approval for Dr.

Lebron’s return to service under any circumstances. See Volpe. The Board erred as a

matter of law by concluding otherwise. This Court may overturn PSERS’ erroneous

interpretation of the Retirement Code. Baillie.

The Board credited testimony that Dr. Lebron informed ASPIRA he was

a retiree in 2011, and that he expressly conditioned his acceptance of ASPIRA’s job

offers for the 2011-2012 and 2012-2013 school years on ASPIRA notifying PSERS,

if necessary. Dr. Lebron “did not receive any notice from PSERS indicating that it

disagreed with [ASPIRA’s] determination or that his return to service would affect

his pension.” Volpe, slip op. at 24. And, ASPIRA did not deduct PSERS

contributions from Dr. Lebron’s salary during that time.

The Board concluded that “there is no evidence in the record whatsoever

about what efforts, if any, ASPIRA/[the SDP] made to locate a non-annuitant for the

Olney principalship for [the 2013-2014 and 2014-2015] school years.” Board Op. at

33. This Court acknowledges that there is little record evidence of ASPIRA’s

purported shortage of appropriate personnel for those years. However, Dr. Lebron

did not have the burden of proving that was the case, he did not participate in nor was

he privy to ASPIRA’s decision making, and he did not have access to documentation

or other evidence of ASPIRA’s efforts to hire a non-annuitant. Dr. Lebron’s only

burden was to show that he had a reasonable belief that ASPIRA had a shortage of

appropriate personnel for each of those school years, and that he notified ASPIRA he

was a retiree.

The record is clear that, when ASPIRA offered Dr. Lebron the Olney

principalship job for the 2013-2014 and 2014-2015 school years, ASPIRA was aware

he was a retiree and “it was [reasonable] for [Dr. Lebron] to assume that [ASPIRA]

had passed along to PSERS the information that [Dr. Lebron] was a PSERS retiree

who had returned to school service[,]” if necessary. Volpe, slip op. at 24. Like the

first two contracts, Dr. Lebron “did not receive any notice from PSERS indicating

that it disagreed with [ASPIRA’s] determination or that his return to service would

affect his pension[,]” id., and ASPIRA did not deduct PSERS contributions from Dr.

Lebron’s salary during the latter contract terms. Although Dr. Lebron testified he

was satisfied with Dr. Paramo’s representations that he was still needed for the 2013-

2014 and 2014-2015 school years, see R.R. at 109a-111a, 113a-114a; FOFs 68, 74,

that vague testimony alone was insufficient to satisfy his burden of proving he had a

reasonable belief that ASPIRA was experiencing shortages of appropriate personnel

for those school years.

Moreover, the Board did not make a specific finding or conclude that

there was not a shortage of appropriate personnel in those years. Rather, the Board’s

holding is based on its conclusion that Dr. Lebron’s evidence did not compel it to find

that ASPIRA needed Dr. Lebron for the 2013-2014 and 2014-2015 school years due

to a shortage of appropriate personnel. Because the issue here is whether, in

ASPIRA’s/the SDP’s judgment, there was a shortage of appropriate personnel, that

there was little to no record evidence of “what efforts, if any, [they] made to locate a

non-annuitant for the Olney principalship for [the 2013-2014 and 2014-2015] school

years[,]” Board Op. at 33, “should not be laid at the feet of [Dr. Lebron.]” Higgins,

736 A.2d at 750.

Based on the foregoing, the record evidence supported that Dr. Lebron

reasonably believed ASPIRA had the requisite shortages of appropriate personnel

under Section 8346(b) of the Retirement Code for the 2011-2012 and 2012-2013

school years and that he communicated to ASPIRA that he was a retiree. The record

evidence also supported that ASPIRA exercised its judgment and properly

determined that Dr. Lebron’s returns to service for those school years were

necessitated by shortages of appropriate personnel. That being the case, as the Board

readily admits, neither Dr. Lebron nor ASPIRA was required to notify PSERS or seek

its approval for Dr. Lebron’s return to service for those years.40 Accordingly, Dr.

Lebron was entitled to simultaneously collect his salary as Olney’s principal and

receive his retirement annuity pursuant to Section 8346(b) of the Retirement Code for

This statement is consistent with the Board’s conclusion that Dr. Lebron similarly relied

on his 2007 to 2011 post-retirement employers to determine that those assignments were

necessitated by emergencies/shortages of appropriate personnel in accordance with Section 8346(b)

of the Retirement Code.

the 2011-2012 and 2012-2013 school years, and the Board erred by concluding

otherwise.

The same cannot be said for the 2013-2014 and 2014-2015 school years.

There was insufficient record evidence for the Board to conclude whether Dr. Lebron

reasonably believed ASPIRA had the requisite shortage of appropriate personnel

under Section 8346(b) of the Retirement Code for the 2013-2014 and 2014-2015

school years, and whether ASPIRA properly exercised its judgment, or ASPIRA’s

judgment in employing Dr. Lebron during those years was based on a shortage of

appropriate personnel. Accordingly, this matter is remanded to the Board to afford

Dr. Lebron adequate means and time to obtain evidence,41 and for the Board to

thereafter conduct a hearing at which Dr. Lebron will have the opportunity to prove

he had a reasonable belief that his returns to service for the 2013-2014 and 2014-2015

school years were due to shortages of appropriate personnel. If Dr. Lebron meets his

burden, then PSERS has the burden to prove for the 2013-2014 and 2014-2015 school

years either that ASPIRA did not exercise its judgment, or that ASPIRA’s judgment

in employing Dr. Lebron during those years was not based on a shortage of

appropriate personnel. The Court’s remand is limited to the 2013-2014 and 2014-

2015 school years.

b. Exceeded the School Year

Section 8346(b) of the Retirement Code also limits an annuitant’s return

to service to a school year. See 24 Pa.C.S. § 8346(b). Dr. Lebron was aware that the

GRAPP allows Dr. Lebron to obtain subpoenas from the Board to compel the production

of documentary evidence and witness testimony, see 1 Pa. Code § 35.142, and to take depositions in

lieu of hearing testimony, if necessary. See 1 Pa. Code § 35.145. In addition to GRAPP, the

Board’s rules specifically contemplate the use of subpoenas to compel testimony. See 22 Pa. Code

§ 201.7. Therefore, Dr. Lebron could subpoena ASPIRA’s and PSERS’ records, and ASPIRA or

other witnesses who could shed light on ASPIRA’s hiring decisions for the 2013-2014 and 2014-

2015 school years.

school year was from July 1 of one calendar year to June 30 of the following year.

Dr. Lebron’s 2012-2013 contract term was from July 1, 2012 to June 30, 2013. Thus,

Dr. Lebron was entitled to collect his salary and receive his retirement annuity during

the 2012-2013 school year as prescribed in Section 8346(b) of the Retirement Code.

Dr. Lebron’s 2011-2012 contract term was from June 27, 2011 to August

17, 2012. Because Section 8346(b) of the Retirement Code restricted Dr. Lebron’s

return to service for 2011-2012 to one school year (i.e., July 1 to June 30), Dr. Lebron

was only entitled to collect his salary and receive his retirement annuity between July

1, 2011 and June 30, 2012. He was not permitted to collect his salary and receive his

retirement annuity for dates outside that range, except, as the Board acknowledged,

“the portion of [Dr. Lebron’s] first contract prior to that date [(i.e., June 27 to June

30, 2011)] may be discounted[,]” Board Op. at 28, because ASPIRA did not

participate with PSERS until July 1, 2011.

Thus, Dr. Lebron was not entitled to the retirement benefits he received

for the 48 days from July 1 to August 17, 2012 that extended beyond the 2011-2012

school year. Accordingly, we remand this matter to the Board for it to recalculate

what Dr. Lebron owes, allowing adjustments only for the 48 days that exceeded the

2011-2012 school year.

In addition, if the Board determines, after a hearing, that Dr. Lebron had

a reasonable belief his returns to service for the 2013-2014 and/or 2014-2015 school

years were in accordance with Section 8346(b) of the Retirement Code, and PSERS

fails to prove either that ASPIRA did not exercise its judgment or that ASPIRA’s

judgment in employing Dr. Lebron during those years was not based on a shortage of

appropriate personnel, then Dr. Lebron would be entitled to retain the retirement

annuity he received during those school years (i.e., from July 1, 2013 to June 30,

2014, and/or from July 1, 2014 to June 30, 2015). Dr. Lebron would not be entitled

to, and would have to repay, the retirement benefits he received for the 31 days (from

July 1 to July 31, 2014) that extended beyond the 2013-2014 school year. In that

event, the Board shall further recalculate Dr. Lebron’s repayment accordingly.

4. Waiver

Lastly, Dr. Lebron contends that the Board erred by determining that he

did not qualify for the hardship exception under Section 8303.1 of the Retirement

Code. That Section states:

Upon appeal by an affected member, beneficiary or

survivor annuitant, the [B]oard may waive an adjustment or

any portion of an adjustment made under [S]ection 8534(b)

[of the Retirement Code] (relating to fraud and adjustment

of errors) if in the opinion of the [B]oard or the [B]oard’s

designated representative:

(1) the adjustment . . . will cause undue hardship to

the member . . . ;

(2) the adjustment was not the result of erroneous

information supplied by the member . . . ;

(3) the member had no knowledge or notice of the

error before adjustment was made, and the member .

. . took action with respect to [his] benefits based on

erroneous information provided by the system; and

(4) the member . . . had no reasonable grounds to

believe the erroneous information was incorrect

before the adjustment was made.

24 Pa.C.S. § 8303.1(a). This Court has declared that “[a c]laimant must satisfy all

four provisions of this waiver-of-adjustment provision in order to qualify.” White, 11

A.3d at 6; see also Volpe.

Where, as here, the Board agreed that Dr. Lebron “technically satisfie[d]

the second prong of . . . [S]ection 8303.1(a)[ of the Retirement Code,]” insofar as the

adjustment to Dr. Lebron’s retirement benefits was not caused by any erroneous

information he supplied to PSERS, this Court need only address the first, third and

fourth waiver requirements.

Since Dr. Lebron’s exceptions did not specifically challenge the Board’s

conclusions as to the third and fourth waiver requirements, he waived such

challenges. See 1 Pa. Code § 35.213 (“Objections to any part of a proposed report

which is not the subject of exceptions may not thereafter be raised . . . and shall be

deemed to have been waived.”); see also Volpe; Hairston-Brown v. Pub. Sch. Emps.’

Ret. Bd., 78 A.3d 720 (Pa. Cmwlth. 2013); Baillie. Because the Board concluded that

Dr. Lebron did not satisfy the third and fourth requirements of Section 8303.1 of the

Retirement Code, he is not entitled to a waiver. See White.

Conclusion

Based on the foregoing, this Court holds that the Board did not deprive

Dr. Lebron of his due process rights by not promulgating regulations or granting oral

argument on his exceptions, and the Board properly concluded that Dr. Lebron is not

entitled to a waiver under Section 8303.1(a) of the Retirement Code.

However, the Board erred by placing the burden of proving shortages of

appropriate personnel on Dr. Lebron, and by concluding that no shortage of

appropriate personnel existed for the 2011-2012 and 2012-2013 school years.

Because the record evidence demonstrates that Dr. Lebron had a reasonable belief

that ASPIRA was experiencing a shortage of appropriate personnel for the 2011-2012

and 2012-2013 school years, that he informed ASPIRA he was a retiree, and that

ASPIRA properly exercised its judgment in employing Dr. Lebron during those years

because of the shortage of appropriate personnel, neither Dr. Lebron nor ASPIRA

was obligated to notify PSERS of Dr. Lebron’s employment, Dr. Lebron was entitled

to simultaneously collect his salary as Olney’s principal and receive his retirement

annuity pursuant to Section 8346(b) of the Retirement Code for the 2011-2012 and

2012-2013 school years, but only between July 1, 2011 and June 30, 2012 for the

2011-2012 school year. Accordingly, this Court reverses the portion of the Board’s

order denying Dr. Lebron’s request that his post-retirement employment with

ASPIRA for the 2011-2012 and 2012-2013 school years be deemed a permissible

return to school service under Section 8346(b) of the Retirement Code. This Court

vacates the portion of the Board’s order directing Dr. Lebron to repay retirement

benefits as detailed in PSERS’ November 5, 2015 letter. Rather, Dr. Lebron is

directed to repay only those retirement benefits he received for the 48 days that

extended beyond the 2011-2012 school year. This matter is remanded to the Board to

recalculate what Dr. Lebron owes consistent with this Opinion.

In addition, this Court vacates the portion of the Board’s order denying

Dr. Lebron’s request that his post-retirement employment with ASPIRA for the 2013-

2014 and 2014-2015 school years be deemed a permissible return to school service

under Section 8346(b) of the Retirement Code. The record is clear that Dr. Lebron

notified ASPIRA that he was a retiree on at least two occasions. The Court remands

this matter to the Board to allow Dr. Lebron sufficient time to obtain subpoenas from

the Board to compel the production of documentary evidence and witness testimony,

including from ASPIRA and PSERS, and depositions in lieu of hearing testimony, if

necessary. Thereafter, the Board shall conduct a hearing at which Dr. Lebron has the

opportunity to prove he had a reasonable belief that his returns to service for the

2013-2014 and/or 2014-2015 school years were due to shortages of appropriate

personnel. If Dr. Lebron meets his burden, then PSERS has the burden to prove

either that ASPIRA did not exercise its judgment, or that ASPIRA’s judgment in

employing Dr. Lebron during those school years was not based on a shortage of

appropriate personnel. If necessary, the Board shall further recalculate Dr. Lebron’s

repayment accordingly.

___________________________

ANNE E. COVEY, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jose E. Lebron, :

Petitioner :

v. :

Public School Employees’ :

Retirement Board, : No. 1265 C.D. 2019

Respondent :

ORDER

AND NOW, this 30th day of October, 2020, this Court AFFIRMS the

portions of the Public School Employees’ Retirement Board’s (Board) order dated

August 9, 2019 (mailed August 16, 2019) denying Jose E. Lebron’s (Dr. Lebron)

request for oral argument, and a waiver pursuant to Section 8303.1(a) of the

Retirement Code, 24 Pa.C.S. § 8303.1(a).

FURTHER, this Court REVERSES the portion of the Board’s order

denying Dr. Lebron’s request that his post-retirement employment with ASPIRA, Inc.

of Pennsylvania (ASPIRA)/the School District of Philadelphia for the 2011-2012 and

2012-2013 school years be deemed a permissible return to school service under

Section 8346(b) of the Retirement Code, 24 Pa.C.S. § 8346(b).

FURTHER, this Court VACATES the portion of the Board’s order

directing Dr. Lebron to repay retirement benefits as detailed in the Public School

Employees’ Retirement System’s (PSERS) November 5, 2015 letter. Rather, Dr.

Lebron is directed to repay only those retirement benefits he received for the 48 days

that extended beyond the 2011-2012 school year. This Court REMANDS the matter

to the Board for an adjustment recalculation consistent with this Opinion.

FURTHER, this Court VACATES the portion of the Board’s order

denying Dr. Lebron’s request that his post-retirement employment with ASPIRA for

the 2013-2014 and 2014-2015 school years be deemed a permissible return to school

service under Section 8346(b) of the Retirement Code, and REMANDS this matter to

the Board to allow Dr. Lebron sufficient time to obtain evidence in accordance with

this Opinion, and for the Board to thereafter conduct a hearing at which Dr. Lebron

has the opportunity to prove he had a reasonable belief that his returns to service for

the 2013-2014 and/or 2014-2015 school years were due to shortages of appropriate

personnel. If Dr. Lebron meets his burden, then PSERS has the burden to prove

either that ASPIRA did not exercise its judgment, or that ASPIRA’s judgment in

employing Dr. Lebron during those school years was not based on a shortage of

appropriate personnel. The Board shall further recalculate Dr. Lebron’s repayment

accordingly.

Jurisdiction is relinquished.

___________________________

ANNE E. COVEY, Judge

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