Watrel v. Com., Dept. of Educ.

LARSEN, Justice,

concurring.

In view of the Findings of Fact made by the Board of Claims (Board), all of which are unchallenged by the appellant, and the conclusions of law based upon those findings of fact, I concur in affirming the order of the Commonwealth Court. The pertinent Findings of Fact made by the Board are as follows:

6. The settlement agreement and mutual release was negotiated by attorneys Killian [for appellant] and Donovan [for appellee].

14. Attorney Killian was a member of the Public School Employees’ Retirement Board from 1971 until 1980 and was familiar with the operations of the state retirement system.

16. Attorney Donovan made it clear to Attorney Killian that she was unfamiliar with the operations of the State Employees’ Retirement System, but that she would agree to any retirement plan that [appellant] could work out with the State Employees’ Retirement Board.

17. Attorney Donovan deferred to Attorney Killian’s experience with the state retirement systems (sic) and to his representations that the proposal was not unusual and had, in fact, been used in the past to effect the purchase of state employees’ retirement benefits.

18. Attorney Donovan agreed to accept [Appellant’s] retirement contribution and transmit it to the State Employees’ Retirement Board with the recommendation that it be accepted.

*72 19. Attorney Donovan never represented that the [Appellee] could guarantee that the state (sic) Employees’ Retirement Board would permit [Appellant’s] retirement benefits to vest.

20. Attorney Killian knew that the State Employees’ Board alone had the authority to determine whether [Appellant] would be permitted to vest in the state employees’ retirement system.

The relevant conclusions of law based upon the findings of fact are the following:

5. Pursuant to the retirement provisions of the Settlement Agreement and Mutual Release, the [Appellee’s] duties were to accept, transmit, and recommend [Appellant’s] retirement contribution to the State Employees’ Retirement Board.

6. When the [Appellee] received [Appellant’s] retirement contribution and forwarded it to the State Employees’ Retirement Board with the request that it be accepted, the Appellee fulfilled all its duties under the retirement provisions of the Settlement Agreement and Mutual Release.

Further, the appellant argues that the appellee should be estopped from refusing to accept his payment and grant retirement credit for the tenth year as contemplated by the Settlement Agreement. Estoppel is an equitable remedy that arises when by one’s acts, representations or silence, he induces another to believe that certain facts are true, and that other person reasonably relies on that belief to his prejudice. The gist of estoppel is a misrepresentation. Murphy v. Burke, 454 Pa. 391 , 311 A.2d 904 (1973). Considering the relevant Findings of Fact set forth above, there is no evidence of misrepresentation on the part of the appellee and no evidence of reasonable reliance by the appellant. On the contrary, the evidence shows that appellant relied on his own judgment in reaching an agreement with the appellee. This is further amplified by the following additional Finding of Fact:

25. [Appellant’s] check was transmitted by mail to the [Appellee] by Attorney Killian and was accompanied by *73 a letter to Attorney Donovan from Attorney Killian which read, in pertinent part:

T hope and trust that you will be able to effect the purchase of the tenth year of credited service in accordance with the terms of the agreement.’

The tone of this comment, contained in the letter from appellant’s attorney that accompanied appellant’s check tendered to appellee to purchase a tenth year in the retirement system, indicates that the appellant was not convinced that the appellee would be able to persuade the State Employees’ Retirement Board to “allow” such purchase. Under the circumstances as found by the Board, estoppel simply does not apply.

Additionally, appellant argues that equity and fairness demand that the appellant be granted the remedy he seeks because of the Retirement Board’s failure to accept his tenth-year retirement contribution and vest his pension. The appellant’s argument in this regard implies that he is left out in the cold without a vested pension. This impression, however, belies the facts in this case. The record shows that approximately twenty months after this claim was filed, the appellant was re-employed in the state college system and again became an “active member” in the retirement system. The Board of Claims found as facts that:

34. On May 21, 1979, [Appellant] became employed by East Stroudsburg State College and began contributing to the State Employees’ Retirement System.

35. Based on Attorney Killian’s recommendation, [Appellant] accepted employment at East Stroudsburg State College in order to become an active member of the state retirement system, and to purchase his tenth year of retirement credit.

36. In August of 1979, while employed at East Stroudsburg State College and while contributing to the retirement system, [Appellant] applied to purchase his non-state credit for the year of employment he then had at Dickinson State College, Dickinson, North Dakota.

*74 37. On February 29, 1980, the Secretary of the State Employees’ Retirement Board notified [Appellant], through counsel, that his application to purchase non-state credit was denied.

38. [Appellant] requested an administrative hearing on the State Employees’ Retirement Board’s decision. At that hearing, it was established that [Appellant’s] application to purchase retirement credit for non-state service was denied because Plaintiff had already been credited for his year of non-state service in North Dakota.

Based upon the foregoing, I concur.