J.E. Lebron v. PSERB

<p>IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jose E. Lebron, : Petitioner : : v. : : Public School Employees’ : Retirement Board, : No. 1265 C.D. 2019 Respondent : Argued: September 15, 2020 BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge OPINION BY JUDGE COVEY FILED: October 30, 2020 Jose E. Lebron (Dr. Lebron) petitions this Court for review of the Public School Employees’ Retirement Board’s (Board) August 16, 20191 order denying his request for post-retirement employment without annuity loss and an adjustment waiver, and affirming the Public School Employees’ Retirement System’s (PSERS) determination that Dr. Lebron shall repay retirement benefits.2 Dr. Lebron presents four issues for this Court’s review: (1) whether the Board’s refusal to enact regulations concerning emergency/personnel shortage returns to employment pursuant to Section 8346(b) of the Public School Employees’ Retirement Code (Retirement Code), 24 Pa.C.S. § 8346(b) (also known as Act 63 of 2004, or Act 2004-63), or to issue a written policy notifying PSERS retirees of the standards for same, deprived Dr. Lebron of his due process rights; (2) whether the Board erred by shifting the burden of establishing an emergency or personnel shortage to Dr. Lebron, 1 Although the Board’s Opinion and Order was dated August 9, 2019, it was mailed on August 16, 2019. 2 The Board also denied Dr. Lebron’s request for oral argument. when evidence concerning the same is in the possession of the School District of Philadelphia’s (SDP) agent, ASPIRA, Inc. of Pennsylvania (ASPIRA), or PSERS; (3) whether the Board erred by not accepting ASPIRA’s judgment that an emergency or shortage of appropriate personnel existed; and (4) whether the Board erred by determining that Dr. Lebron did not qualify for the hardship exception under Section 8303.1 of the Retirement Code, 24 Pa.C.S. § 8303.1. After review, we affirm in part, reverse in part, and vacate and remand in part. Facts The facts of this case are largely undisputed. Dr. Lebron began employment with the SDP as a teacher in 1970. He became a PSERS member in 1973. See Reproduced Record (R.R.) at 127a, 134a. The SDP employed Dr. Lebron as a principal from October 1983 until he retired, effective July 1, 2007. Section 8346 of the Retirement Code states, in relevant part: (a) General rule.--If an annuitant returns to school service . . . , any annuity payable to him under this part shall cease effective upon the date of his return to school service . . . . (a.1) Return of benefits.--In the event an annuitant whose annuity from the system ceases pursuant to this section receives any annuity payment . . . on or after the date of his return to school service . . . , the annuitant shall return to the [B]oard the amount so received from the system plus statutory interest. . . . .... (b) Return to school service during emergency.--When, in the judgment of the employer, an emergency creates an increase in the work load ...</p><br>
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