Golebieski v. Public School Employees Retirement Board , 161 Pa. Commw. 127 ( 1993 )

SMITH, Judge.

William J. Golebieski (Claimant) petitions for review of the January 27, 1993 order of the Public School Employees’ Retirement Board (Board) denying his request to purchase service credit for the period from August 1,1955 through September 7, 1960, and dismissing his appeal from the determination of the Public School Employees’ Retirement System (PSERS). The issue raised for this Court’s review is whether Claimant is entitled to purchase PSERS retirement credit for the period in question during which his responsibilities included teaching physical and health education classes in the Johnson-burg Area School District (School District) while employed and paid by a private employer.

The following are the facts as stipulated to by the parties and adopted by the Board. Claimant had been intermittently employed by the New York and Pennsylvania Paper Company, Inc. (Paper Company), now Penn-tech Papers, Inc., from 1940 through 1960. During the 1955 through 1960 period in question, Claimant held the title of recreation director and was in charge of the community center, which was owned by the Paper Company. Claimant also taught physical education and health education in the school district during this period. However, there is no payroll record of Claimant’s service in the School District for this period, he was not enrolled in PSERS, and he accordingly did not receive credit for this service. Claimant retired from service with the Pine-Richland School District in June 1989 with approximately 25.92 years of service credit.

Claimant’s duties for the period at issue included teaching physical education to boys from the School District’s elementary and secondary schools; teaching health education at the high school; and teaching physical education for the Holy Rosary Parochial School, which was not part of the School District. The physical education classes were taught at the community center owned by the Paper Company, except for some classes which were taught at the elementary school. Students attended classes taught by Claimant at the community center because the School District’s gym facilities were inadequate. Claimant reported students’ grades and was required to follow a class schedule and curriculum established by the School District. In addition to the classes he taught, Claimant supervised various sports and/or recreational activities for the community center and from at least 1958 through 1960, was responsible for maintaining the community center building. Claimant was paid entirely by the Paper Company.

In August 1977, while an active member of PSERS, Claimant applied to purchase service credit for the five school years from 1955 through 1960. On July 7, 1988, Claimant again requested that he be permitted to purchase credit for the period at issue, which PSERS denied on July 29, 1988. Claimant sought an administrative appeal and the parties stipulated to the facts in lieu of an evidentiary hearing. Based upon the stipulated facts, the hearing examiner recommended a finding in favor of Claimant. On appeal, the Board rejected the hearing examiner’s recommendation and found that the service credit Claimant sought to purchase was not considered “previous school service” under the Public School Employees’ Retirement Code (Retirement Code), 24 Pa.C.S. §§ 8101-8534, because Claimant was compensated entirely by a private entity and therefore was not providing service as a school employee as that term is defined by the Retirement Code.¹

Claimant argues that his service for the School District during the years 1955 through 1960 constituted creditable school service. The Retirement Code permits PSERS members to purchase service credit and receive eligibility points for qualifying previous public school service. 24 Pa.C.S. § 8303(c). The term “previous school service” is defined in Section 8102 as service which is rendered as a school employee including service rendered in any summer school conducted by a school district of this Commonwealth prior to the member’s most recent entrance into the system. Further, a “school employee” is defined in Section 8102 as any person who is engaged in work relating to a public school for any governmental entity and is receiving regular remuneration for work performed as an officer, administrator or employee excluding, however, any independent contractor or a person compensated on a fee basis.

The term “governmental entity” is defined in Section 8102 as a board of school directors or board of public education, intermediate unit board of directors, area vocational-technical board, governing board of any agency or authority created by them, and the Commonwealth. Finally, an “employer” is defined under the Retirement Code as:

Any governmental entity directly responsible for the employment and payment of the school employee and charged with the responsibility of providing public education within this Commonwealth, including but not limited to: State-owned colleges and universities, the Pennsylvania State University, community colleges, area vocational-technical schools, intermediate units, the State Board of Education, Scotland School for Veterans’ Children, Thaddeus Stevens State School of Technology, and the. Pennsylvania State Oral School for the Deaf.

Therefore, in order to fall within the definition of school employee, the member seeking credit must show that he or she is engaged in work relating to a public school for a governmental entity and is receiving remuneration as an officer, administrator, or employee.

It is the phrase “relating to a public school” upon which the hearing examiner focused in his opinion. The hearing examiner concluded that Claimant was a school employee because he was engaged, at least in part during the relevant period, in work relating to a public school. However, the Board correctly noted that the hearing examiner’s error was that he did not fully consider the remainder of the definition, in particular the phrase “for any governmental entity.” A private employer such as the Paper Company is not a governmental entity. As stated by the Board: “In common parlance to “work for’ someone is to enter into an employment relationship with that person, in the sense of providing services in exchange for compensation.” Board Opinion, p. 9. Although the School District established the class schedule and curriculum for Claimant to follow, such actions do not rise to the level of an employment relationship, specifically where Claimant was paid solely by the Paper Company and had significant other duties as a Paper Company employee which were not related to the School District.² Under this analysis, the School District clearly does not fall within the definition of employer because it was not directly responsible for Claimant’s employment and payment of compensation.

Claimant asserts that the statute does not specifically require that remuneration must come from the School District. Claimant contends that the legislative intent behind the provision at issue is unclear and in such instances, pension statutes are to be liberally construed in favor of the pensioner. See Panko v. Public School Employees’ Retirement System, 89 Pa.Commonwealth Ct. 419, 492 A.2d 805 (1985). However, that the statute does not specify that the remuneration must come directly from the School District is of no moment when the sections referred to above, read in pari materia, demonstrate that Claimant was not in an employment relationship with the School District as that term is defined in the Retirement Code.

Were this Court to apply Claimant’s analysis, one who performs service of any kind which is related to a public school, regardless of who actually pays for the service, would be eligible to purchase service credit. The implications of such a construction are readily imaginable and patently untenable. The retirement fund is dependent upon funding from the Commonwealth, the employer, and the school employee. In addition to providing funding, the employer has duties to fulfill such as reporting compensation and changes in employment status or classification. Where a private entity is the employer, there is no accountability to the Board.

Furthermore, this Court need not look beyond the current statutory provisions to determine legislative intent. Claimant contends that a review of previous versions of the Retirement Code reveals the legislature’s intent that a school employee be permitted to receive remuneration from sources other than the school district. However, resort to indicia of legislative intent such as legislative history and former law is inappropriate where, as here, a statute’s language is clear and unambiguous. Philadelphia Suburban Corp. v. Commonwealth, 144 Pa.Commonwealth Ct. 410, 601 A.2d 893 (1992).

Finally, this Court rejects Claimant’s argument that it should apply the analysis set forth in Surowski v. Public School Employes’ Retirement System, 78 Pa.Commonwealth Ct. 490, 467 A.2d 1373 (1983), in which this Court reversed a Board determination that a claimant was an independent contractor rather than an employee of a school district. In Surowski, the school district paid the claimant’s salary and had control over his activities, and this Court accordingly evaluated a number of factors that must be considered in determining whether a relationship is one of employee-employer or independent contractor. Under the facts in the present matter, such an analysis is unnecessary because it is undisputed that Claimant was not compensated by a governmental entity, but rather by a private company. As the Board stated in its opinion, only when the individual is paid by a government entity is it necessary to determine if he or she may have been an independent contractor or an employee.

Construction of a statute by those charged with its execution and application is entitled to great weight and should not be disregarded or overturned except for cogent reasons, and unless it is clear that such construction is erroneous. Spicer v. Department of Public Welfare, 58 Pa.Commonwealth Ct. 558, 428 A.2d 1008 (1981). Specifically, the Board is charged with execution and application of the Retirement Code and is entitled to deference in its interpretation. Panko. Finding no error in the Board’s decision, its order is affirmed.

ORDER

AND NOW, this 30th day of December, 1993, the order of the Public School Employees’ Retirement Board is affirmed.

1 . This Court’s scope of review of the Board's order is limited to determining whether the Board committed an error of law, whether constitutional rights were violated, or whether necessary factual findings are supported by substantial evidence. Laurito v. Public School Employes’ Retirement Board, 146 Pa. Commonwealth Ct. 514, 606 A.2d 609 (1992).

2 . As noted by the Board, some of the non-School District duties included teaching classes for the Holy Rosary Parochial School, supervising the adult recreational program and the community playground, and maintaining the community center building.