dissenting.
I respectfully dissent.
The majority correctly notes that the question in this case centers on whether Shafer must establish that he was an employee of an agency or department of the United States government in order to purchase the non-state credit under section 5304(c)(3) of the State Employees’ Retirement Code (Code), 71 Pa.C.S. § 5304(c)(3). The majority also correctly concludes that the disposition of this case is controlled by our opinion in Kapilian v. State Employes’ Retirement System, 144 Pa.Cmwlth. 80, 600 A.2d 698 (1991). However, my reading of the Code and Kapilian compels a different result.
Prior to the 1991 amendments,1 section 5304 of the Code provided, in pertinent part:
(a) Eligibility. — An active member or a multiple service member who is a school employee and an active member of the Public School Employees’ Retirement System shall be eligible for Class A service credit for creditable nonstate service as set forth in subsection [ (c) ]....
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(c) Limitations on nonstate service.— Creditable nonstate service credit shall be limited to:
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(3) service in any public school or public educational institution in any state other than this Commonwealth or in any territory or area under the jurisdiction of the United States; or service as an administrator, teacher, or instructor in the field of education for any agency or department of the government of the United States, whether or not such area was under the jurisdiction of the United States....
In Kapilian, the board did not permit Kapilian’s purchase of nonstate service credit under section 5304(c)(3), for service he rendered as a graduate assistant at the University of Illinois. Kapilian, 600 A.2d at 699. In so doing, the board had concluded that Kapilian was not an “employee” at the time of the service because he was a student and the services he provided were incidental to his status as a student. Id. On appeal to this court, Kapilian claimed that the Code did not impose limitations on the type of service or require full-time employment status in order to qualify for the purchase of nonstate service credit under section 5304(c)(3). Id.
In reversing the board’s decision, we held that the pre-amendment Code made no distinction regarding employees whose employment was contingent upon their status as students. Id. at 700. We found that the pre-amendment Code only required that Ka-pilian provide service in a public education institution in another state in order to be eligible to purchase nonstate service credit. Id. Therefore, we concluded that “[sjection 5304(c)(3) gives Kapilian the right to purchase nonstate service credit for his employment at [the University of Illinois].” Id.
In that case, Kapilian’s aggregate workload as a graduate assistant only amounted to 75% of a full load. Id. Finding that he was entitled to purchase nonstate service credit, we noted that there was no statutory basis for concluding that creditable nonstate service is broader in scope than creditable instate service. Id. Therefore, we stated that “[w]e must determine whether any limitations on credit would be imposed upon an employee in Kapilian’s employment situation if his services had been provided in Pennsylvania.” Id. We concluded that he would only have been credited with a fractional portion of his time served if the services had been provided in Pennsylvania. Id. As a result, we stated that:
we cannot interpret [section 5304(c)(3) ] so broadly that nonstate service would entitle an employee to more benefits or privileges than instate service. Therefore, because a Pennsylvania employee with Kapilian’s circumstances would be eligible for only a proportional amount of credited service, Kapilian is entitled to purchase only a like proportional amount.
Id.
In reversing the decision of the board in the present case, the majority concludes that:
*1214[t]he Kapilian court’s interpretation of Section 5304(c)(3) of the Retirement Code does not require that an employment relationship must exist between the petitioner and the school entity or, as in this case, the United States government or one of its agencies. Service as an administrator, teacher or instructor is paramount.
At 1212.
I must disagree. The fact that Kapilian was employed by the University of Illinois on a part-time basis was a critical factor in our disposition of that case. Kapilian, 600 A.2d at 700. Our decision in Kapilian simply cannot be read to mean that an employment relationship need not exist before nonstate service can be credited under section 5304(c)(3) of the Code. Rather, I believe that both Kapilian and the Code require an employment relationship in order for a party to receive nonstate service credit under section 5304(c)(3).
In the instant case, the board made the following relevant findings of fact:
7. By letter dated July 28, 1978, [Shafer] was notified by the [United States] International Communication Agency that he had been selected to receive a Fulbright-Hays grant under the [Mutual Educational and Cultural Exchange Act of 1961, 22 U.S.C. §§ 2451-2460] to lecture in American Literature at Ain Shams University [in Cairo, Egypt].
8. Enclosed with the July 28, 1978 letter, among other documents, was a document entitled “International Communication Agency; United States Government Grant Authorization” (“Grant Authorization”). The Grant Authorization incorporated by reference a separate document entitled “Terms and Conditions of Fulbright-Hays Grant” (“Terms and Conditions”).
9. The Grant Authorization indicated on its face:
‘A person accepting such a grant is not by virtue thereof an official or employee of the International Communication Agency or other agency of the Government of the United States of America, or of an agency of the Government of the host country.’
10.When [Shafer] accepted the grant, he signed a statement on the “Terms and Conditions” document which stated “I accept the award and agree to abide by the conditions of the grant as specified in the attached ‘Terms and Conditions of Award.’ ”
Board Opinion at 2-3.
In its decision, the board noted that the way in which the parties designate their relationship in a contract is not necessarily controlling, but it is a factor appropriately considered in determining whether an employer-employee relationship exists, citing Zimmerman v. Public School Employes’ Retirement Board, 513 Pa. 560, 522 A.2d 43 (1987). Board Opinion at 21. The board also noted that a signed contract is presumed to express the intent of its signatories, citing Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Id. Relying on the Grant Authorization and other facts of record, the board concluded that Shafer had failed to meet his burden of proof that he was an employee of the federal government so as to be able to purchase non-state credit under section 5304(c)(3). Board Opinion at 26-27.
On appeal, this court’s scope of review is to determine whether constitutional rights were violated, an error of law was committed or necessary findings of fact are not supported by substantial evidence. Estate of McGovern. Because none of the foregoing are present in this case, I would affirm the decision of the board regarding Shafer’s eligibility to purchase nonstate service credit under section 5304(c)(3).
. Both parties agree that the pre-amendment Code applies in this case.