I am sorry, Honeyboy, but I don't believe that there have been any
successful lawsuits against PSERS. I can only find ONE case where the
public/private issue has been tried, and that is a 1994 case from the
Commonwealth Court. I am inserting the entire text of the case for
your review - BUT PLEASE NOTE THE DISSENTING OPINION which I believe
supports your position.
Can I help any further?
Weisstho-ga
QUOTE:
CORNELIUS V. CAIN, CHRISTOPHER P. DWYER, HOWARD J. SIMON, Petitioners
v. PUBLIC SCHOOL EMPLOYES' RETIREMENT SYSTEM, Respondent
No. 96 C.D. 1994
COMMONWEALTH COURT OF PENNSYLVANIA, 651 A.2d 660 (1994)
OPINION BY JUDGE McGINLEY
Cornelius V. Cain, Christopher P. Dwyer and Howard J. Simon
(Petitioners) appeal the December 14, 1993, order of the Public School
Employees' Retirement Board (Board) which denied their requests to
purchase service credit in the Public School Employees' Retirement
System (PSERS) for teaching and administrative service they performed
at the Main Line School (Main Line) and Hall Manor School (Hall Manor)
which are approved private schools. We affirm.
Between 1968 and 1978, Cornelius Cain worked at Main Line as a
teacher, assistant principal and principal. After leaving Main Line,
Cain became a member of PSERS.
Between 1971 and 1978, Christopher Dwyer worked at Main Line as a
teacher and administrative assistant. Dwyer also taught at Hall Manor
from 1983 through 1987. Dwyer, likewise became a member of PSERS.
Between 1968 and 1978, Howard Simon worked at Main Line as a teacher
and administrator. After leaving Main Line, he also became a member of
PSERS. None of the Petitioners were participating in PSERS during
their employment with Main Line or Hall Manor.
On October 7, 1988, Dwyer and Cain requested permission to purchase
credit in PSERS for their service at Main Line and Hall Manor. This
request was denied, and Cain and Dwyer appealed. Simon, who also
requested retirement credit for his service at Main Line, was included
in the appeal.
During the relevant periods of time, both Main Line and Hall Manor
functioned as approved private schools. The Department of Education
(DOE) partially reimburses approved private schools for expenses
incurred in educating "exceptional" students from local school
districts. Approved private schools must meet the rest of their
expenses through fund-raising and tuition payments. Neither the
Commonwealth, local school districts, nor any governmental entity pays
for or provides benefits for the employees of approved private
schools.
Petitioners raise one issue for this Court's review. Are they entitled
to purchase PSERS retirement credit for their past employment with
Main Line and Hall Manor approved private schools? They seek to
purchase credit for their "previous school service" pursuant to the
Public School Employes' Retirement Code (Retirement Code), 24 Pa.C.S.
§ § 8101-8534. Specifically, Section 8303(c) of the Retirement Code
reads: "Purchase of previous creditable service.-Every active member
of the system or a multiple service member of the State Employees'
Retirement System on or after the effective date of this part may
purchase credit and receive eligibility points as a member of Class
T-C for previous school service . . . ." 24 Pa.C.S. § 8303(c).
Petitioners allege that their service at Main Line and Manor Hall
qualifies as "previous school service." Section 8102 of the Retirement
Code defines the term "previous school service" as "service rendered
as a school employee including service in any summer school conducted
by a school district of the Commonwealth prior to the member's most
recent entrance in the system." n1 (emphasis added). Cain's most
recent entrance into PSERS took place in 1978, Dwyer's most recent
entrance was in 1987, and Simon's most recent entrance was in 1978.
Therefore, as members of PSERS Petitioners are permitted to purchase
retirement credit for their service at Main Line and Hall Manor if
they rendered that service as "school employees."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -
n1 The term "system" as used in the Retirement Code refers to PSERS.
See 24 Pa.C.S. § 8102 for the definition of "System."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -
Section 8102 of the Retirement Code defines "school employee" as "any
person engaged in work relating to a public school for any
governmental entity and for which work he is receiving regular
remuneration as an officer, administrator or employee excluding,
however, any independent contractor or a person compensated on a fee
basis." (emphasis added). 24 Pa.C.S. § 8102.
Therefore, to qualify as "school employees" Petitioners must show that
their service at Main Line and/or Hall Manor: 1) was related to a
"public school" and 2) was rendered for a "governmental entity."
Section 8102 of the Retirement Code defines "public school" as "any or
all classes or schools within this Commonwealth conducted under the
order and superintendence of the Department of Education [DOE]
including, but not limited to: all educational classes of any employer
charged with the responsibility of public education within this
Commonwealth . . . ." (emphasis added). 24 Pa.C.S. § 8102.
Unlike "public schools," approved private schools such as Main Line
and Hall Manor are subject only to regulation by DOE rather than to
the "order and superintendence" of that agency. DOE regulates private
educational institutions like approved private schools pursuant to the
Private Academic Schools Act (Act), 24 P.S. § § 6701-6721. n2 Section
6702 of the Act defines the term "private academic school" in
pertinent part as "a school maintained, or classes conducted, for the
purpose of offering instruction for a consideration, profit or tuition
. . . the purpose of which is to educate an individual generally or
specifically or to prepare an individual for more advanced study . . .
." 24 P.S. § 6702. Approved private schools such as Main Line and
Hall Manor fit within this definition and are distinct from "public
schools."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -
n2 Act of January 28, 1988, P.L. 24.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -
For instance, while private schools are subject to comprehensive
regulations they are not subject to the "order and superintendence" of
DOE. In Trotz v. Commonwealth of Pennsylvania, Public School
Employees' Retirement Board, 90 Pa. Commonwealth Ct. 388, 495 A.2d 650
(1985), this Court determined that state regulation is not sufficient
to confer public school status upon a privately organized and
administered school. Main Line and Hall Manor are simply not "public
schools" as defined by the Retirement Code. To adopt Petitioners'
position would mean that nearly all private school employees may
assert public school employee status if they become members of PSERS.
The intent of the legislature in enacting this Retirement Code
provision was to authorize public school employees to purchase credit
for their previous public school service, not for their private school
service.
Furthermore, according to the Public School Code of 1949 which
authorizes the utilization of approved private schools for the
education of "exceptional" children, the institutions at issue in this
case are not "public schools." n3 In fact, the use of approved private
schools for this purpose is discretionary. Approved private schools
are merely one option that a public school district may utilize in
educating "exceptional" children. The relevant statutes and
regulations do not mandate the existence or use of approved private
schools.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -
n3 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 13-1372(3).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -
Petitioners' employment at Main Line and Hall Manor was not work
related to a "public school" nor was it work rendered for a
"governmental entity." Section 8102 of the Retirement Code defines
"governmental entity" as follows: "board of school directors, board of
public education, intermediate unit board of directors, area
vocational-technical board, any governing board of any agency or
authority created by them, and the Commonwealth." 24 Pa.C.S. 8102.
Main Line and Hall Manor do not meet this definition.
In order to fall within the definition of "school employee" for the
purposes of obtaining retirement credit, a member of PSERS must show
that he or she was engaged in work relating to a "public school" for a
"governmental entity." Golebieski v. Public School Employees'
Retirement Board, 161 Pa. Commonwealth Ct. 127, 636 A.2d 268 (1993).
We agree with the Board that Petitioners' employment at Main Line and
Hall Manor was not work creditable to a "public school" and that they
were not "school employees" as defined by the Retirement Code. Neither
Main Line nor Hall Manor are "public schools" or "governmental
entities" as the government defines those terms. Consequently,
Petitioners cannot purchase credit towards retirement for their past
service with these institutions. The Board's order is affirmed.
BERNARD L. McGINLEY, Judge
DISSENT:
BY SENIOR JUDGE DELLA PORTA
I respectfully dissent. Under present mandatory education law, n1 all
children between the ages of six and twenty-one, n2 are mandated to
attend public education school until graduation from high school,
regardless of who runs the school. At the same time, government-run
schools, generally referred to as "public schools," have the
obligation to provide elementary and secondary education to all
children unless they attend other authorized schools. This means that
all properly licensed schools, government and non-government, perform
the public function of providing public education to all children
within mandatory requirement age. This makes every teacher in every
such school a school employee rendering a public service.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -
n1 Public School Code of 1949, Act of March 10, 1949, P.L. 30, as
amended, 24 P.S. § § 1-101 - 27-2702.
n2 24 P.S. § 13 - 1301.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -
Part of the Public School Code is the Retirement Code which gives to
any teacher the right to purchase credit "for previous school
service." n3 School service is defined as service rendered as a
"school employee," which in turn is defined as any "person engaged in
work related to a public school for any government entity and for
which work he is receiving regular remuneration as ... an employee,
excluding, however, any independent contractor or a person compensated
on a fee basis." n4 The retirement Code also defines public school as
"any or all classes or schools within this Commonwealth conducted
under the order and superintendence of the Department of Education
including but not limited to: all educational classes of any employer
charged with the responsibility of public education ...." n5
(Emphasis added.)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -
n3 24 Pa.C.S. § 8303(c).
n4 24 Pa.C.S. § 8102.
n5 24 Pa.C.S. § 8102.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -
Clearly, these definitions indicate that the purpose and scope of the
Public School Code is to provide all our children with the best
education available by "any employer," whether we call it government
or non-government, public or non-public. The name is not important,
what they accomplish is.
To that end, statutory construction would require us to give the Code
and all its definition, the widest interpretation to accomplish this
desired end. In this very area of purchasing credit for previous
service we have interpreted it so widely as to allow the purchase of
time in the military service, which has nothing whatsoever to do with
school service. How much more appropriate and legally indicated it
would be to allow these Claimants to purchase credit for previous
school service which they rendered by providing public education to
children which the government had the obligation to provide but was
not qualified or equipped to do. For the benefit of all children, such
teachers and their schools should be encouraged and provided this kind
of benefit because of the important and much needed service they
render to the "public schools", as well as to the children themselves.
All of the cases cited by the majority are distinguishable on the
facts and, therefore, not precedential for the instant case.
I would, therefore, reverse the order of the Board and direct it to
permit Claimants to purchase credit for their previous school service.
ARMAND DELLA PORTA, Senior Judge |
