Simmonds v. State Employees' Retirement System

PELLEGRINI, Judge,

dissenting.

I respectfully dissent. I disagree with the majority’s holding that a resident physician, enrolled in a graduate medical program in order to qualify for board certification in a specialized field, is a state employee of the Pennsylvania State University Medical Center for purposes of the State Employee’s Retirement System, and may purchase the proportional amount of “retirement” time spent enrolled in that program.

The relevant facts are as follows: Claimant, after becoming a licensed physician, chose to enroll in a graduate medical program in order to meet a requirement for certification by the American Board of Internal Medicine in the field of medical oncology. As a participant in the one-year program (from July 1, 1980 through June 30, 1981), she was considered a Resident Physician VI by the Medical Center. She worked under a state-issued “graduate training license” which was valid .only for the period of the residency, rather than under her general license to practice. Claimant did not pay tuition and received a stipend and some fringe benefits for the residency.

All parties agree that “state service,” for which a member may purchase credit, is “service rendered as a state employee,” and state employee is defined as “any person ... employed by the state government of the Commonwealth ... including The Pennsylvania State University.” Section 5102 of the State Employees’ Retirement Code, 71 Pa. C.S. § 5102. “Employee” or “employed” are *308the operative words of the applicable statute, however no definition is set forth in the Code. Therefore, as a non-technical term, “employee” is to be construed as its common and approved usage. Section 1903 of the Statutory Construction Act of 1972,1 Pa.C.S. § 1903. Webster’s Dictionary defines employee as “one who is employed by another,” and employ as “to make use of (someone).” Webster’s Ninth New Collegiate Dictionary 408 (1989).

I do not believe a person who is enrolled in a program for the purpose of meeting educational requirements and for training fits within the common usage of the term “employee.” A person who is a student, whose primary goal is education, is not hired by the Medical Center in the same way that employees are hired. Instead that person comes to the Medical Center seeking enrollment in a program primarily for his or her advancement. The Medical Center, for its part, in furtherance of its teaching mission, provides a course of study through training experience and practical exercises so that Claimant can be a Board-certified internist.

Not to discount the care that Claimant provided to the outpatients she saw, those patients were provided to her by the Medical Center for her education in that field and the care she provided to the patients was a necessary outcome of the educational situation. If the Medical Center desired to employ an internist in oncology for that same period of time, a very different relationship would have been established. The primary purpose of the relationship would have been “to make use of’ Claimant to further the Medical Center’s purposes, not to provide her with any training. Because any medical care that she gave was but an incidental aspect of the graduate medical training, Claimant is not an “employee” of the Medical Center.1 Accordingly, I would affirm the order of the Board.

DOYLE, J., joins in this dissent.

. To the extent that Kapilian v. State Employes' Retirement System, 144 Pa.Commonwealth Ct. 80, 600 A.2d 698 (1991), petition for allowance of appeal denied, 530 Pa. 656, 608 A.2d 31 (1992), is applicable, I would reverse.