Sinkman v. State Employees' Retirement Board

CONCURRING OPINION BY

Judge FRIEDMAN.

I reluctantly concur. Like the majority, I conclude that the State Employees’ Retirement Board’s (Board) interpretation of the State Employees’ Retirement Code (Code)1 as requiring members who want to purchase credit for prior state service to purchase all such service is not clearly erroneous. I write separately, however, to express my belief that the language of the Code does not compel such an interpretation and to voice my concern with the inequity imposed by such a reading of the Code.

This case of first impression presents a unique set of facts that likely was never contemplated by the legislature when it enacted the Code’s buy-back provisions. Susan Shinkman (Claimant) worked for the Commonwealth on three different occasions. She first became a member of the State Employees’ Retirement System (SERS) by virtue of her initial state employment in April 1976. When she left in October 1979, after earning 3.8181 years of credited state service, she withdrew her contributions and interest from her SERS account. From 1984 until 1991, Claimant was employed by the City of Philadelphia (City) and participated in the City’s pension plan. Before leaving that employment, Claimant exercised the option provided by the City plan to purchase service credit for her initial period of state employment and, thereby, accrued the ten years required to vest in the City plan.2 Claimant rejoined SERS in January 1992 but terminated this second period of state service in January 1995, after earning 3.1136 years of credited service, again withdrawing the contribution and interest from her SERS account. Claimant became a SERS member for a third time in May 2003, when she was re-employed by the Commonwealth.

Upon her return, Claimant sought to repurchase her two prior periods of state service, and SERS approved the request. However, when the City informed Claimant that she could not receive credit for state service under the City pension plan if she obtained credit for it in SERS, Claimant asked to purchase SERS credit only for her period of prior state service not credited by the City. SERS denied Claimant’s request. Relying on the General Assembly’s reference to “total State service” in subsection 5504(a) of the Code, 71 Pa. C.S. § 5504(a),3 SERS informed Claimant *619that, if she wants to purchase any of her previous state service, she is obligated to purchase all of it.

This interpretation of subsection 5504(a) of the Code has been upheld by the Board and, as I previously acknowledged, such an interpretation is not clearly erroneous and, thus, must be affirmed by this court. McCormack v. State Employees’ Retirement Board, 844 A.2d 619 (Pa.Cmwlth. 2004). However, while subsection 5504(a) sets forth “[t]he contributions to be paid ... for credit for total previous State service,” 71 Pa.C.S. § 5504(a), it does not preclude members from seeking to restore less than total state service, if that is what they choose to do. In fact, SERS itself observes that, while the Code does not expressly authorize a partial purchase of service credit, it also does not expressly prohibit it. (Board op. at 18; R.R. at 172a.) Thus, I submit that this ambiguous statutory provision could have been interpreted to permit Claimant’s requested purchase and that such an interpretation would have been equally valid.

Alternatively, SERS could have interpreted Claimant’s request as a repurchase of the total of her remaining prior state service, i.e., the period of service not otherwise being utilized toward a City pension, at the time of her reentry into SERS in 2003. In this way, SERS would have given meaning to the statutory language and applied its “all or nothing” rule, thereby avoiding an interpretation that would authorize incremental purchases or allow employees to pick and choose which years of prior service they want to repurchase.

Although the Board is not permitted to circumvent the express language of the Code, it must liberally administer the retirement system in favor of the members of the system. Beardsley v. State Employes’ Retirement Board, 691 A.2d 1016 (Pa.Cmwlth.1997). A statute designed to confer a benefit on employees should be liberally construed consistent with its intended purpose. Gault v. Public School Employes’ Retirement Board, 720 A.2d 1090 (Pa.Cmwlth.1998). Here, the Code confers a benefit on members by providing a mechanism by which they may purchase prior service, and Claimant had a legitimate expectation that she would be able to apply all her years of state service toward her state pension. To this end, she was willing to return accumulated deductions sufficient to cover the entire period of prior state service not applied to the City’s pension plan. I believe she should have been entitled to do so.

However, when presented with this matter of first impression, SERS chose to interpret the governing statutory provision in a manner that is disadvantageous to the employee it is intended to benefit. Although constrained to defer to the Board’s interpretation, I feel that it is contrary to the intent behind the pension provisions and, frankly, is unjust.

. 71 Pa.C.S. §§ 5101-5956.

. Upon turning 55, Claimant began to receive her monthly pension from the City.

. Section 5504 of the Code governs member contributions for the purchase of credit for previous state service, and subsection (a) provides:

(a) Amount of contributions for service in other than Class G through N. — The contributions to be paid by an active member or eligible school employee for credit for total previous State service other than service in Class G, Class H, Class I, Class J, Class K, Class L, Class M and Class N or to become a full coverage member shall be sufficient to provide an amount equal to the regular and additional accumulated deductions which would have been standing to the credit of the member for such service had regular and additional member contributions been made with full coverage in the class of service and at the rate of contribution applicable during such period of previous service and had his regular and additional accumulated deductions been credited with statutory interest during all periods of subsequent State and school service up to the date of purchase.

*61971 Pa.C.S. § 5504(a) (emphasis added).