Opinion
No. 266 C.D. 2012
03-06-2013
Marc Hummel, Appellant v. Board of Pensions and Retirement
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Marc Hummel (Hummel) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) affirming the decision of the Philadelphia Board of Pensions and Retirement (Pension Board) finding that Hummel was not entitled to purchase pension service credit for the period of August 2006 through February 2008 during which he was not in active service with the City of Philadelphia (City). For the reasons that follow, we affirm.
Hummel began working for the City's Board of Revision of Taxes (BRT) on February 10, 1980, and most recently held the position of Real Property Evaluator II. After investigators for the City's Inspector General witnessed Hummel at a tavern he owned on three consecutive days in July 2006 during City work hours, the BRT terminated Hummel's employment, effective August 21, 2006. Pursuant to his union's collective bargaining agreement, Hummel filed a grievance which, after being denied, was submitted to arbitration. The Arbitrator, concluding that Hummel was "stealing time" but noting his years of service to the City and the fact that the Inspector General's surveillance was limited to just three days, found no just cause for Hummel's termination and issued the following award:
The grievance is sustained in part and denied in part, consistent with the foregoing opinion. The City is ordered to offer [Hummel] immediate reinstatement to his former position; to restore full seniority to him; and to adjust his personnel records to reflect this revised discipline. No back pay is awarded.(Supplemental Reproduced Record (S.R.R.) at 22). Hummel resumed his employment with the BRT in February 2008.
In November 2009, Hummel filed an application with the Pension Board seeking to purchase service credit for the period he did not work between August 2006 and February 2008 due to his termination. The Pension Board denied the application, explaining:
It should be noted that the arbitration award ordered you to be reinstated without back pay. An award of back pay would have given you pension credit for that period. Unfortunately, in the absence of such an award, there is no provision in the Retirement Code to permit you to purchase pension credit for your period of dismissal, except where specifically court ordered or permitted under Section 22-801 through Section 22-805 of the Public Employees' Retirement Code.(S.R.R. at 24). After the Pension Board denied his initial appeal, Hummel requested a hearing before the Pension Board. After the hearing, a panel of the Pension Board recommended that the application be denied, which the Pension Board adopted. Hummel then appealed to the trial court, arguing that the Pension Board violated his employment contract with the City by refusing to permit him to purchase credit, and that the Arbitrator's award implicitly authorized him to purchase the time because it reinstated him with "full seniority." The trial court rejected both arguments and affirmed the Pension Board's decision. This appeal followed.
At the hearing, the panel agreed to keep the record open for an additional 60 days so that Hummel could seek clarification from the Arbitrator on the issue of Hummel's ability to purchase service credit for the period in question. At the end of that 60-day period, Hummel requested an additional 90-day extension, which the Pension Board granted. Ultimately, Hummel was unable to obtain such clarification, as the Arbitrator notified him that he lacked jurisdiction to revisit the matter without the City's consent.
Our scope of review, where the trial court takes no additional evidence, is limited to determining whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact were supported by substantial evidence. Tiller v. City of Philadelphia Board of Pensions and Retirement, 806 A.2d 477, 478 n.4 (Pa. Cmwlth. 2002).
On appeal, Hummel again argues that the arbitration award's directive that the City restore "full seniority" to him and "adjust his personnel records to reflect this revised discipline" implicitly authorizes him to purchase pension service credit for the period of August 2006 through February 2008. He contends that such language indicates that the Arbitrator's "objective was to make the appellant whole." (Appellant's Brief at 10).
Pension Board Regulation 3.6 provides:
Upon receipt of any court order, Civil Service Commission Order, arbitration award, collective bargaining agreement, settlement, or the like that provides for reinstatement of a separated employee, the Board's staff shall review the document to determine the effect on the employee's pension rights. Where such a document either implicitly or explicitly provides for retroactive pension service credit for a period for which the employee either made no contributions or received a refund of the contributions but is silent on the terms of the employee repaying such contributions, the Board shall bill the employee, by letter sent by certified mail, for the respective contributions.Philadelphia Board of Pensions and Retirement, Regulation No. 3.6 (emphasis added).
However, as the trial court recognized, Hummel's argument was expressly rejected by this Court in Martorano v. Philadelphia Board of Pensions and Retirement, 940 A.2d 598 (Pa. Cmwlth. 2008). In that case, Martorano was terminated from his position with the City but the trial court ultimately reinstated him "without loss of seniority" and remanded the case to the Civil Service Commission to address the issue of back pay. On remand, the Civil Service Commission ruled that Martorano was not entitled to receive back pay. Martorano subsequently applied to the Pension Board to purchase service credit for the period prior to his reinstatement, arguing that the phrase "without loss of seniority" in the trial court's order implicitly authorized him to do so. In rejecting Martorano's argument, we held:
There is nothing in the Retirement Code or Pension Board Regulations that ties pension rights or benefits to seniority. They are distinct concepts. The concept of
seniority "is not a complicated one. The fundamental principle...is that employee rights and benefits increase with length of service." ... Seniority, however, "only has meaning when applied to employment rights, such as furlough or promotion."...Id. at 602 (emphasis added).
In reinstating Martorano to employment without any "loss of seniority," [the trial court judge] allowed Martorano to recapture his pre-termination time for purposes of furlough or promotion decisions. The right to purchase credit, however, is tied to active service, and Martorano was not working for the period of time for which he seeks pension credit. Martorano has offered no support for his contention that reinstatement of his seniority gave him the right to purchase credit for service he never rendered to the City.
Here, as in Martorano, Hummel was reinstated with full seniority but without back pay, and the Pension Board held that such an award did not implicitly provide for retroactive pension service credit. Hummel attempts to distinguish this case from Martorano by claiming that he is being denied pension service credit for the period in question solely because of the City's "mistake" of terminating his employment, whereas in Martorano, the denial of pension credit was based upon a settlement agreement in which Martorano agreed not to contest the pension credit issue. However, this argument is without merit. Contrary to Hummel's assertions that the City "made a mistake" in terminating his employment and that the Arbitrator's "objective was to make the appellant whole," the Arbitrator clearly determined that Hummel was at fault, which is reflected by his acknowledgement that Hummel was "stealing time" and by his explicit denial of a back pay award. Had the Arbitrator concluded that the City's termination of Hummel's employment was entirely without merit and that Hummel should be "made whole," he presumably would have awarded Hummel back pay. The Pension Board's determination that the award did not implicitly authorize Hummel to purchase pension service credit pursuant to Pension Board Regulation No. 3.6 was reasonable and was correctly affirmed by the trial court.
"Well-settled precedent establishes that courts defer to an administrative agency's interpretation of its own regulations unless that interpretation is unreasonable." Department of Environmental Protection v. North American Refractories Company, 791 A.2d 461, 464 (Pa. Cmwlth. 2002).
Hummel also suggests in his brief that because the City refused to allow the Arbitrator to clarify his decision regarding the pension credit issue, the City should not have been allowed to presume that the Arbitrator was aware of the Martorano decision and we should infer that the Arbitrator intended to award him pension service credit. However, the fact that the Arbitrator did not provide subsequent clarification to Hummel on the pension credit issue is immaterial because the language of the arbitration award clearly demonstrates that he did not intend to "make the appellant whole."
Hummel also contends that the City's refusal to permit him to purchase pension credit from August 2006 through February 2008 violated his employment contract and, in the interest of equity, he should be allowed to pay into the pension fund for the period he was not working for the City. However, this argument also fails. "As a creature of statute, the Pension Board can exercise only those duties given to it by the legislature." Martorano, 940 A.2d at 601. "Accordingly, the Board has no authority to grant equitable relief in contravention of the statutory mandates of the Retirement Code." Id. As the trial court explained, Hummel's contract argument is misplaced because the Board does not have the power to adjudicate or remedy legal claims sounding in contract, and although "the ability to participate in a pension system may be part of an employment contract, the pension system itself is administered according to the relevant regulations and statutory provisions." (March 8, 2012 Trial Court Opinion at 4).
Accordingly, the order of the trial court is affirmed.
Finally, Hummel argues that the Philadelphia Public Employees' Retirement Code (Code) has no provision authorizing the City to deny him his right to participate in the pension system. Specifically, he points to Chapter 22-1300 of the Code, which provides that the City can only deny an employee the right to a pension if the employee waives the right or is disqualified for committing a crime or misconduct. Hummel did not raise that argument before the trial court, so we will not address it. Even if we did, we would reject the argument because this case does not involve the denial of a pension. --------
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 6th day of March, 2013, the order of the Court of Common Pleas of Philadelphia County, dated December 29, 2011, at February Term 2011, No. 4146, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge