          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mary Jane Schneider,                    :
                         Petitioner     :
                                        :
                   v.                   :   No. 2196 C.D. 2015
                                        :   Submitted: March 11, 2016
Commonwealth of Pennsylvania,           :
Public School Employees’                :
Retirement Board,                       :
                       Respondent       :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                     FILED: July 14, 2016



      Mary Jane Schneider (Claimant), pro se, petitions for review of an Order of
the Public School Employees’ Retirement Board (Board) rejecting Claimant’s
request to purchase service and receive credit for 1.94 years of prior out-of-state
school service. Claimant argues that the Board erred when it determined that the
two years she spent teaching in Ohio through the Teacher Corps program was not
“school service” purchasable under the Public School Employees’ Retirement
Code (Retirement Code), 24 Pa. C.S. §§ 8101 - 8536. Discerning no error, we
affirm.
I.     Background
       Claimant retired on June 20, 2011, after teaching in Pennsylvania schools
from 1976 to 1980 and again from 1993 to 2011. (Board’s Op., Findings of Fact
(FOF) ¶¶ 57-58, 70.) Prior to retiring, Claimant submitted two applications with
the Public School Employees’ Retirement System (PSERS) to purchase out-of-
state service (together, “Application”) related to the time she taught at the Meigs
Local School District (MLSD) in Pomeroy, Ohio from 1974 to 1976. (Board Op.
at 2; FOF ¶¶ 71-72.) Claimant received her teaching certification in Ohio in April
1974 and taught full-time as a “teacher-intern” at the MLSD high school through
the federal Teacher Corps program from the fall of 1974 to the summer of 1976
while she was attending graduate school at Ohio University. (FOF ¶¶ 4, 7, 20.)
The Board made the following findings of fact regarding Claimant’s participation
in the Teacher Corps program.

       5. Beginning in July 1974, Claimant attended graduate school at
       Ohio University, seeking a master’s degree as a reading specialist.
       (N.T. 119-120)

       6. Claimant graduated in May 1976 with a Master’s Degree as a
       Reading Specialist. (N.T. 120, 151)

       7. In conjunction with her enrollment in graduate school at Ohio
       University, Claimant became an intern with Teacher Corps from 1974
       through 1976. (PSERS-1 at p. 4).

       8. The Teacher Corps program was created by federal statute,
       namely the Higher Education Act of 1965 (the “Act”),[1] for the

       1
         Higher Education Act of 1965, Title V, §§ 511-17, Pub. L. No. 89-329, 79 Stat. 1219,
1255 (1965). While Title V of the Higher Education Act of 1965 was never formally repealed,
the Teacher Corps program was dissolved and consolidated into a block grant program effective
October 1, 1982 pursuant to the Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35,
95 Stat. 357 (1981). See House Conference Report No. 97-208, H.R. Rep. No. 97-208, 733
                                                                             (Continued…)
                                             2
       purpose of “strengthen[ing] the educational opportunities available to
       children in areas having concentrations of low-income families and to
       encourage colleges and universities to broaden their programs of
       teacher preparation by . . . (2) attracting and training inexperienced
       teacher-interns who will be made available for teaching and inservice
       training to local educational agencies in such areas in teams led by an
       experienced teacher.” (P.L. 89-329, 79 Stat. 1219, at § 511(a))

       9. The Act authorized arrangements between the local educational
       agencies and institutions of higher learning to provide, among other
       things, “teaching teams, each of which . . . consist[ed] of an
       experienced teacher and a number of teacher-interns who, in addition
       to teaching duties, shall be afforded time by the local educational
       agency for a teacher-intern training program . . .” and for “institutions
       of higher education to provide training for teacher-interns while
       teaching in schools for local educational agencies . . . leading to a
       graduate degree.” (P.L. 89-329, 79 Stat. 1219, at §§ 513(a) and (b))

       10. The Act authorized a program to “recruit, select and enroll
       experienced teachers and inexperienced teacher-interns who have a
       bachelor’s degree or equivalent, in the Teacher Corps for periods of
       up to two years.” (P.L. 89-329, 79 Stat. 1219, at § 513(a)(1))

       11. The Act authorized “an arrangement made with a local
       educational agency . . . [to] provide for compensation . . . [to] a
       teacher-intern . . . at a rate which is equal to the lowest rate paid by
       such agency for teaching full time in the school system and grade to
       which the intern is assigned.” (P.L. 89-329, 79 Stat. 1219, at §
       514(a)(3))

       12. The Teacher Corps program through which Claimant worked as
       an intern was operated by Ohio University. (N.T. 137).

       13. Claimant first became aware of the Teacher Corps program
       through John Mangieri, a professor at Ohio University and the head of
       the Teacher Corps program at Ohio University. (N.T. 136-137)



(1981) (Conf. Rep.) (“The Conference Agreement would limit appropriations for the Teacher
Corps to $22.5 million in fiscal year 1982. Effective October 1, 1982, the Teacher Corps would
be consolidated into the Block Grant”).

                                              3
14. The Teacher Corps program through Ohio University consisted
of three requirements to be performed by “teacher-interns:” (1) taking
courses in furtherance of a graduate degree with Ohio University, (2)
performing in-classroom instruction at MLSD, and (3) performing
community service. (PSERS-1 at p. 4, N.T. 135-136, 149-150)

15. Participation in the Teacher Corps program in which Claimant
took part was only open to Ohio University graduate students. (N.T.
138, 139-140)

16. Claimant was one of the twenty graduate students at Ohio
University who participated in the Teacher Corps program between
the summer of 1974 and the spring of 1976. (N.T. 137, 139, 215-216)

17. MLSD encompassed all grades from kindergarten through
twelfth grade. (N.T. 124)

18. When Claimant applied for the Teacher Corps program, she
interviewed with Dr. Mangieri and a group of teachers from MLSD.
(N.T. 137-138)

19. To take part in the Teacher Corps program, a student had to be at
the top of his or her class and have an undergraduate degree with a
teaching certification. (N.T. 137-138, 157, P.L. 89-329, 79 Stat. 1219,
at § 513(a)(1))

20. While Claimant was a graduate student at Ohio University, she
taught full-time at MLSD high school as a teacher-intern in the
Teacher Corps program, from the fall of 1974 until the summer of
1976. (N.T. 16-17, 29-30, 150-151)

21. Claimant had no prior teaching experience or classroom
instruction prior to graduate school other than her student teaching
experience while an undergraduate student. (N.T. 47, 118-120, 123,
209)

22. While in the Teacher Corps, Claimant taught reading in grades 9-
12 at MLSD. (N.T. 142)

23. Claimant’s team leader was Jeanne Bowen, an MLSD employee,
whose duties as team leader were for secondary education reading
teachers of grades 9-12 at MLSD. (N.T. 142, 144)

                                  4
24. Claimant’s direct supervisor at MLSD was Jeanne Bowen with
her next line of reporting to the principal of MLSD, James Diehl, who
was in charge of the entire high school. (N.T. 124-143, 160, 214)

25. While most reading specialist students earned their degree in a
single year, the twenty students selected to take part in the Teacher
Corps program were placed into a two-year track where professors
from Ohio University traveled to MLSD to hold graduate classes for
the Teacher Corps students on-site at MLSD. (N.T. 146-147)

26. Ohio University professors would teach Claimant and the other
teacher-interns the graduate reading courses at MLSD, with classes
usually occurring in the evening during the school year, and in the
summer. (N.T. 139-140, 146-147, 157-159, 216)

27. As part of the course work, these graduate classes specifically
employed the students’ teaching experiences at MLSD for case
studies, and required regular meetings with Dr. Mangieri to discuss
those teaching experiences as the students progressed through the
graduate program. (N.T. 147-148)

28. The graduate courses Claimant took through Ohio University at
MLSD after school hours and in the summer were for credit and to
fulfill the requirements to earn a graduate degree as a reading
specialist. (N.T. 48, 216)

29. Claimant would not have been paid if she failed to take graduate
courses at Ohio University. (N.T. 149-150)

30. Claimant performed required community service as a part of the
Teacher Corps program, where she visited families of students and did
parent involvement programs such as “make-it, take-it” workshops.
(N.T. 144)

31. Community service was a required part of Claimant’s
participation in the Teacher Corps program. (N.T. 144-145)

32. If Claimant did not perform the community service component,
she would not have been a part of the Teacher Corps program. (N.T.
144-145)

33. Teachers at MLSD who were not a part of the Teacher Corps
program were not required to do community service. (N.T. 145)
                                 5
34. Claimant would not have been paid if she failed to perform the
community service required for the Teacher Corps program. (N.T.
145)

35. Claimant’s salary was not negotiated when she taught at MLSD.
(N.T. 140)

36. The salary for all twenty graduate students who were teacher-
interns at MLSD under the auspices of the Teacher Corps program
was set by the Act, which required that “a teacher-intern shall be
compensated at a rate which is equal to the lowest rate paid by such
agency for teaching full time in the school system and grade to which
the intern was assigned.” (N.T. 140, P.L. 89-329, 79 Stat. 1219, at §
514(a)(3))

37. Claimant’s salary was a similar salary to that of a first year
teacher. (N.T. 37, 148)

38. Claimant’s salary at MLSD was paid by federal grant monies
from the Teacher Corps program. (N.T. 149, 160-161, PSERS-3)

39. The federal grant monies from the Teacher Corps program were
given to MLSD, then combined with MLSD funds, with checks issued
by MLSD to the teacher-interns based on the federal grant monies and
not MLSD’s own funds. (N.T. 25-26, 30-31, 109, 148-149, 160-162,
PSERS-3)

40. Claimant’s salary at MLSD was not a part of a financial aid
package, institution waiver or housing waiver. (N.T. 38-39)

41. Following her graduation from Ohio University with a master’s
degree, Claimant did not obtain employment with MLSD. (N.T. 151)

42. If Claimant had not done all of the requirements of the Teacher
Corps program she would not have been paid. (N.T. 149-150)

43. Claimant did not have a contract with MLSD. (N.T. 140)

44. Claimant did not have a contract with the Teacher Corps
program. (N.T. 140)



                                 6
45. Claimant’s teaching service at MLSD through the Teacher Corps
program was for two years. (N.T. 140-141, P.L. 89-329, 79 Stat.
1219, at § 513(a)(1))

46. Claimant was required to remain with the Teacher Corps program
for two years. (N.T. 140-141, P.L. 89-329, 79 Stat. 1219, at §
513(a)(1))

47. Claimant did not receive health insurance from MLSD or Ohio
University. (N.T. 141)

48. The only benefits received by Claimant while at MLSD were
“vacation, holiday and sick days.” (N.T. 219-222)

49. Claimant received no information from MLSD concerning
contributing to the State Teachers’ Retirement System of Ohio
(“STRSO”). (N.T. 141).

50. Claimant was not part of a teachers’ union while at MLSD. (N.T.
141)

51. Claimant’s time in the Teacher Corps program ended with her
earning a graduate degree from Ohio University as a reading
specialist. (N.T. 151)

52. Upon the completion of her internship with the Teacher Corps
program, Claimant does not recall being reimbursed for any unused
sick time or vacation/personal time. (N.T. 220-221)

53. Claimant’s plan after graduate school was to find a job. (N.T.
120)

54. Claimant was the head coach for girls’ basketball and the
assistant coach for girls’ track at MLSD while she participated in the
Teacher Corps program. (N.T. 107, 122, 155)

55. Claimant was not required to be a coach of any sport to be a part
of the Teacher Corps program. (N.T. 156, 163)

56. Claimant received no scholarships, grants or financial aid to
attend graduate school. (N.T. 122)


                                  7
(FOF ¶¶ 4-56 (alterations in original) (footnote omitted).)
       PSERS notified Claimant by letter dated May 20, 2011, that it had denied
Claimant’s Application. (Id. at ¶ 87.) Claimant appealed the denial of her request
to the Executive Staff Review Committee (ESRC) of PSERS by letter dated June
13, 2011. (Id. at ¶ 91.) The ESRC denied Claimant’s appeal on the grounds
Claimant’s work with the MLSD was not in the context of an employer-employee
relationship and that the STRSO indicated that the service does not qualify for
service for participation in STRSO. (Letter from ESRC to Claimant, March 5,
2013, PSERS-6, C.R. at Item 12; FOF ¶ 94.) Claimant subsequently filed a timely
Appeal and Request for Administrative Hearing with the Board. (FOF ¶ 95.)
       Hearings were held before a Hearing Examiner on August 27, 2014 and
November 13, 2014, where Claimant and Steven Wolf, Retirement Administrator
over the purchase of service refunds for PSERS, testified.2 Prior to the first
hearing, Claimant “submitted a document to PSERS purporting to show that, as of
May 2013, STRSO now permitted Claimant to purchase 1.94 years of service with
MLSD.” (Id. at ¶ 96.) While PSERS initially objected to the consideration of the
document by the Hearing Examiner, the parties stipulated at the November 13,
2014 hearing that STRSO would certify to two years of service, which means that
Claimant’s service in Ohio met the one-year of service requirement of receiving
out-of-state service pursuant to Section 8304(c) of the Retirement Code, 24 Pa.
C.S. § 8304(c).3 (Hr’g Tr., November 13, 2014, at 320-21, C.R. at Item 12.) The

       2
          The transcript of the August 27, 2014 hearing can be found at Item 11 of the Certified
Record. The transcript of the November 13, 2014 hearing can be found at Item 12 of the
Certified Record.
        3
          Pursuant to Section 8304(c) of the Retirement Code, 24 Pa. C.S. § 8304(c), school
service in a public school of another state can only be credited if the service was conducted for at
least one school year.

                                                 8
remaining issue before the Hearing Examiner was whether the service conducted in
Ohio through the Teacher Corps program is of the type that is purchasable under
Section 8303 of the Retirement Code, 24 Pa. C.S. § 8303. The Hearing Examiner
issued an Opinion and Recommendation on July 6, 2015, concluding that
Claimant’s service at the MLSD through the Teacher Corps program was “school
service” and recommended that the Board grant her request to purchase 1.94 years
of out-of-state service. (Hearing Examiner Recommendation at 38-39.)
      PSERS filed a brief on exceptions asking the Board to reject the Hearing
Examiner’s Opinion and Recommendation and find that the service Claimant
performed through the Teacher Corps program was not purchasable for service
credit. (PSERS’ Br. on Exceptions at 5-6, C.R. at Item 22.) Claimant filed a
responsive brief but did not file her own exceptions. (Claimant’s Br. in Response
to PSERS’ Br. on Exceptions at 1, C.R. at Item 23.) PSERS argued that the
Hearing Examiner misunderstood the relationship between Claimant and MLSD
when it concluded that Claimant’s service was school service.      According to
PSERS, Claimant was a graduate student taking part in a program directly tied to
her studies, not an employee of the school. (PSERS’ Br. on Exceptions at 15.)
Claimant argued in response that she was a certified teacher when she worked at
MLSD and taking classes in the evening with Ohio University did not render her
any less of a teacher. (Claimant’s Br. in Response to PSERS’ Br. on Exceptions at
1.) Claimant contended that “it is the substance of the work that defines one’s
employment, not the administrative detail.” (Id.)




                                         9
II.   Board Decision
      The Board independently reviewed the entire record and the briefs filed by
the parties and concluded that Claimant was ineligible to purchase out-of-state
service credit for the time she spent working at the MLSD under the purview of the
Teacher Corps program. The Board first reviewed the relevant provisions of the
Retirement Code and its interpretation thereof through PSERS’ Business Rules and
relevant precedent. According to the Board,

             An active member of PSERS may purchase credit and receive
      eligibility points toward retirement for previous creditable or
      noncreditable “school service” under [Section 8303(c) and (d) of the
      Retirement Code,] 24 Pa.C.S. § 8303(c)[,] (d). [Section 8102] of [t]he
      Retirement Code defines “school service” as “[s]ervice rendered as a
      school employee.” 24 Pa.C.S. § 8102. It defines “school employee”
      as “[a]ny 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. . . .” Id.
      ....
      Consistent with the Pennsylvania Supreme Court’s analysis in
      Simmonds v. State Employees’ Retirement System, 696 A.2d 801 (Pa.
      1997), PSERS employs the rule that if service is to fall within the
      definition of “school service,” and therefore entitled to service credit
      under the Retirement Code, the person who provides it must be an
      employee in the bargained-for exchange that exists in typical
      employment relationships.
       ....
      [T]he Commonwealth Court expanded on the Supreme Court’s
      determination in Simmonds, ruling that Simmonds “sends a clear
      message that a court must examine the purpose of the program” in
      which a student is enrolled to determine if the student is an employee
      within the meaning of the Retirement Code. [Donovan v. State
      Employes’ Retirement System, 701 A.2d 310, 313 (Pa. Cmwlth.
      1997).]

(Board Op. at 16-18 (fifth, sixth, and seventh alteration in original).)



                                          10
      Consistent with Simmonds and Donovan, the Board next assessed the
purpose of the Teacher Corps program and concluded:

      The Act had two stated purposes. While the language of the Act did
      speak to helping meet the needs of underserved school districts, it
      equally discussed a desire to train inexperienced teachers.
      Undoubtedly school districts such as MLSD that took part in this
      program were understandably concerned more with their staffing than
      with the education of the teacher-interns. Claimant, however, was a
      teacher-intern – and the Act was clear that, at least regarding the
      “teacher-interns,” the focus of the program was on training
      inexperienced individuals to become better teachers. . . . Claimant’s
      entire participation in the program, including her in-classroom
      instruction at MLSD, consisted of training – either through hands-on
      experience in the classroom or through coursework specifically
      tailored to the program.

(Id. at 21-22 (emphasis in original).)
      The Board further concluded that Claimant’s tenure at MLSD was that of a
student, not a teacher. (Id. at 24.) In support of this conclusion, the Board pointed
to the fact that Claimant was placed at MLSD by the Teacher Corps program and
that Claimant did not have a contract with MLSD. (Id. at 23.) The Board further
noted that Claimant was paid with federal grant money and did not receive
employment benefits other than sick and vacation days. (Id.) Finally, the Board
found it to be especially relevant that in order to participate in the Teacher Corps
program, Claimant was required to take courses through Ohio University and
perform community service in addition to teaching in the classroom.             (Id.)
According to the Board:

      Claimant testified that graduate studies at Ohio University, in-
      classroom instruction and community service were not optional, and if
      she failed to perform any of the three activities, she would not have
      been paid. Tying Claimant’s compensation to all three requirements
      of her participation in this Teacher Corps program, including two
      requirements that had nothing to do with MLSD, exemplify the fact
                                         11
       that Claimant was not in the same position as any other full-time
       teacher at MLSD during that time, as she has argued, and therefore
       did not have a bargained-for exchange typically present in an
       employment relationship. Instead, Claimant was a student taking part
       in a program offered by her graduate school.

(Id. at 24 (citation omitted) (emphasis in original).) Accordingly, the Board denied
Claimant’s request to purchase 1.94 years of service. Claimant now petitions this
Court for review.4


III.   Claimant’s Appeal
       On appeal, Claimant argues that the Board erred by: (1) misunderstanding
the purpose and function of the Teacher Corps program; (2) misapplying the
Supreme Court’s holding in Simmonds and this Court’s holding in Donovan to
conclude that her work was not purchasable service; and (3) interpreting the
relevant provision of the Retirement Code through Business Rule POS-2008-01
(Business Rule), which was in effect at the time of Claimant’s Application, when
the Business Rule is inapplicable to the facts of her case, and even if the Business
Rule is applicable, it was misapplied.
       Section 8303 of the Retirement Code permits active members of PSERS to
purchase “credit and receive eligibility points” toward retirement for previous
creditable (Section 8303(c)) and noncreditable (Section 8303(d)) school service.
24 Pa. C.S. § 8303(c), (d). “School service” is defined by Section 8102 of the
Retirement Code as “[s]ervice rendered as a school employee.” 24 Pa. C.S. §


       4
        Our review of the final adjudication of an administrative board is limited to determining
“whether the board committed an error of law, whether constitutional rights were violated, or
whether necessary factual findings are supported by substantial evidence.” Dowler v. Pub. Sch.
Employes’ Ret. Bd., 620 A.2d 639, 642 (Pa. Cmwlth. 1993).

                                               12
8102. A “school employee” is defined by Section 8102 of the Retirement Code as
“[a]ny 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.” Id. School service in a public school of
another state can only be credited if the service was conducted for at least one
school year. Section 8304(b) and (c) of the Retirement Code, 24 Pa. C.S. §
8304(b), (c). The Board interpreted Section 8303 according to PSERS’ Business
Rule and relevant precedent. (Board Op. at 16-17.) The Business Rule provided,
in relevant part:

      Purchase of Service Eligibility: Student wage positions
      Service should not be automatically denied because the member was a
      student at the time the service was rendered. Following are the
      guidelines to be used to determine if a member is eligible to purchase
      service rendered while a student at a university or state college. Note
      - no one bullet point is dispositive; all information will be considered
      in rendering determinations of eligibility.

      Student service should be approved if:
      - The position was not available to students only but was open to
         any qualified person
      - The relationship was employer/employee and was not
         teacher/student
      - The service was not part of the students’ curriculum
      - The member has detailed Social Security earnings (the Office of
         the Governor as the employer is equally valid as having listed the
         State System of Higher Education, or the University, or State
         College itself as the employer of record.)

      Student service should be denied if:
      - The position was part of a financial aid package.
      - The member received a tuition waiver for the employment
      - The service was part of the student’s curriculum
      - The member received academic credit for the employment

                                        13
       - The employment was only available to students, and no one from
         the outside workforce could fill the position in the absence of
         student applicants for the position(s)
       - The position is that of a Graduate Assistant or a Resident Assistant

       The member has the responsibility to provide proof of the position
       type. Such proof may come from the employer, or may be supplied
       by the member from [the member’s] collection of employment history
       documents.


(Business Rule POS-2008-01, Ex. PSERS-A, C.R. at Item 13 (emphasis in
original).)
       The above interpretation of the Retirement Code has been adopted by the
Board. “It is well settled that” the Board’s construction of the Retirement Code in
both its Business Rules and decisions “is entitled to great weight and should not be
disregarded or overturned except for cogent reasons, and unless it is clear that such
construction is clearly erroneous.” Kirsch v. Pub. Sch. Employees’ Ret. Bd., 929
A.2d 663, 668 (Pa. Cmwlth. 2007), aff’d, 985 A.2d 671 (Pa. 2009).


       A.     Teacher Corps Program
       Claimant first argues that determining whether a student is an employee
within the meaning of the Retirement Code requires an assessment of the purpose
of the program in which the student is enrolled. Claimant contends that the
Teacher Corps was intended “‘to strengthen the educational opportunities available
to children in areas having concentrations of low-income families’” and that her
work was focused on teaching these children.        (Claimant’s Br. at 3 (quoting
Section 511 of the Act, P.L. 89-329, 79 Stat. 1219, 1255, at § 511(a)).)
       Claimant is correct that determining whether a student is an employee under
the Retirement Code requires an assessment of the purpose of the work performed.

                                         14
Simmonds, 696 A.2d at 803. While we agree with Claimant that strengthening
educational opportunities of students in underserved communities was one of the
purposes of the Teacher Corps program, Claimant omits the other, equally
important, purpose of the program as detailed in the Act itself. The Act states two
purposes:   (1) increasing educational opportunities available to children in
underserved communities; and (2) “encourag[ing] colleges and universities to
broaden their programs of teacher preparation by . . . attracting and training
inexperienced teacher-interns who will be made available for teaching and
inservice training to local educational agencies in such areas in teams led by an
experienced teacher.” Section 511(a) of the Act, P.L. 89-329, 79 Stat. 1219, 1255,
at § 511(a). The Board correctly explained the Teacher Corps program as follows:

      The Act authorized arrangements between the local educational
      agencies and institutions of higher learning to provide, among other
      things, “teaching teams, each of which . . . consist[ed] of an
      experienced teacher and a number of teacher-interns who, in addition
      to teaching duties, shall be afforded time by the local educational
      agency for a teacher-intern training program . . .” and for “institutions
      of higher education to provide training for teacher-interns while
      teaching in schools for local educational agencies . . . leading to a
      graduate degree.” Id. at §§ 513(a) and (b) (emphasis added). The
      Act permitted enrollment in the program for up to two years, failing to
      mandate or discuss placement of its teacher-interns in full-time
      positions following the completion of the program. Id. at § 513(a)(1).


(Board Op. at 20-21 (emphasis in original).) Because the Teacher Corps program,
at least as it pertained to Claimant, was inextricably linked to the pursuit of a
graduate degree, we agree with the Board’s interpretation of the Act and conclude
that the purpose of the Teacher Corps program is to both serve disadvantaged
communities and to train teacher-interns who already have a bachelor’s degree and
are pursuing a graduate degree.
                                         15
       B.     Application of Simmonds and Donovan
       Claimant next contends that the Board misapplied the Supreme Court’s
decision in Simmonds and this Court’s decision in Donovan in concluding that the
time she spent with Teacher Corps program was not purchasable under the
Retirement Code. In Simmonds, the Pennsylvania Supreme Court addressed a
claim by a medical resident at the Milton S. Hershey Medical Center of
Pennsylvania State University (Medical Center) seeking a certification in
oncology. Simmonds, 696 A.2d at 801.5 The resident provided patient care for 50
to 60 hours per week under the supervision of an attending Medical Center
physician. Id. at 802. The resident received a small stipend of $16,932.00 to cover
her expenses and received employee benefits, though the benefits were less
generous than those received by other Medical Center physicians. Id. at 802 & n.3.
After completing her residency, the resident became an assistant professor at the
Medical Center, “enrolled in the State Employes’ Retirement System (SERS),” and
sought to purchase state credit for the one year of service she performed at the
Medical Center as a resident.          Id. at 802.     SERS and the State Employes’
Retirement Board (SERB) denied the claimant’s request. Id. This Court reversed,
holding that medical residents were state employees.                 Id.   On appeal, the
Pennsylvania Supreme Court reversed and reinstated SERB’s decision.                      The
Supreme Court’s holding relied upon its understanding of the purpose of the
resident’s work at the Medical Center. According to the Court:




       5
          This Court may utilize cases interpreting the State Employees’ Retirement Code when
interpreting similar provisions of the Retirement Code. Krill v. Pub. Sch. Employes’ Ret. Bd.,
713 A.2d 132, 134 n.3 (Pa. Cmwlth. 1998).

                                             16
             [Medical residents] are not primarily seeking monetary
             gain, but rather are attempting to fulfill educational
             requirements, either to initially practice medicine, or
             obtain certain specialties in the medical field. . . . .

      [Phila. Ass’n of Interns & Residents v. Albert Einstein Med. Ctr., 369
      A.2d 711, 714 (Pa. 1976)].

      We agree with Appellants and find that this reasoning is equally
      applicable to the question of whether medical interns are employees
      pursuant to the Retirement Code. Here, Appellee was enrolled in an
      accredited educational program to obtain certification in the sub-
      specialty of oncology. The services rendered by Appellee were not
      structured solely to meet the hospital’s needs but rather were to ensure
      that Appellee obtained the education and training required by the
      accrediting organization as a prerequisite to her certification. The
      stipend of $16,932.00 in exchange for the extensive medical services
      Appellee provided is clearly not the bargained-for exchange that
      exists in typical employment relationships.

Id. at 803-04 (footnote omitted).
      Shortly after the Supreme Court issued its decision in Simmonds, this Court
in Donovan addressed an appeal of a SERB decision denying a member’s request
to purchase credit for the time he attended the United States Military Academy at
West Point (Academy) as a cadet. The claimant there attended the Academy for
four years and obtained a bachelor’s degree and was subsequently “commissioned
as a second lieutenant in the United States Army.” Donovan, 701 A.2d at 311. We
applied the Supreme Court’s holding in Simmonds by assessing the purpose of the
claimant’s time spent at the Academy. Id. at 313. We held that the claimant’s time
was not purchasable because it “served an educational purpose so that he could
take his place as a member of the active military service in a position as a
commissioned officer. Without his bachelor’s degree from the Academy, [the



                                        17
claimant’s] commissioned officer status upon entry into active military service
would not have been assured.” Id.
        Claimant argues that her case differs from Simmonds, and should lead to a
contrary holding. Claimant argues that unlike her, the claimant in Simmonds: (1)
did not attend school at night in addition to her day job; (2) needed the program to
receive a certification; (3) was paid less than a market rate; and (4) participated in
the residency program at the Medical Center solely to obtain a certification, and
her primary motive was to teach. Similarly, Claimant contends that the factual
differences between her case and Donovan should lead to a different result.
According to Claimant, the claimant in Donovan sought to purchase the time he
was actually in school at the Academy, not the time he worked outside of his class
time.
        Based on the facts in this case as found by the Board and the language of the
Act, we agree with the Board that Claimant’s role within MLSD is analogous to
the claimant’s role at the Medical Center in Simmonds. Like the claimant in
Simmonds, Claimant here already had a basic certification to engage in her career,
and enrolled in a program to obtain specialized training – here, a reading specialty
through Ohio University, and in Simmonds, an oncology certification. Further,
Claimant’s compensation was set by statute and paid entirely by a federal grant,
indicating that, like the claimant in Simmonds, there was no bargained-for
exchange between employer and employee. Also like the claimant in Simmonds
who spent her time at the Medical Center treating patients under the supervision of
a physician, Claimant here spent her time at MLSD teaching under the supervision
of another teacher. In both Simmonds and here, the work performed served two
purposes: first, benefiting the population and institution the student served; and


                                          18
second, furthering the claimant’s educational goals. We therefore conclude that
the Board did not err in determining that the purpose of Claimant’s participation in
the Teacher Corps program was educational and did not include the bargained-for
exchange typically present in an employment relationship.
      As in both Simmonds and Donovan, the purpose of the program at issue here
was primarily educational. The fact that Claimant’s subjective primary intent in
joining the Teacher Corps program may have been to teach is not dispositive when
the purpose of the Teacher Corps program includes providing educational
opportunities to Claimant, and Claimant’s relationship with MLSD was not that of
an employer-employee. Thus, we observe no error in the Board’s application of
rules of law discussed in Simmonds and Donovan to the facts in this case.


      C.    The Board’s Interpretation through the Business Rule
      Finally, Claimant argues that the Board should not have applied the Business
Rule because it does not apply to her case, and even if it does apply, she should be
considered an employee under the Business Rule.
      We disagree that the Board should have not utilized the Business Rule. The
Business Rule applies to situations where a claimant was a student at the time the
service was rendered. There is no dispute that Claimant was a graduate student
while she was teaching at MLSD under the purview of the Teacher Corps program
and we concluded above that, based on the language of the Act, Claimant’s
teaching at MLSD was directly linked to her studies at Ohio University.
      Further, we see no error in the Board’s application of the Business Rule.
The Board stated:



                                        19
      Consistent with the Pennsylvania Supreme Court’s analysis in
      Simmonds . . . , PSERS employs the [Business Rule] that if service is
      to fall within the definition of “school service,” and therefore entitled
      to service credit under the Retirement Code, the person who provides
      it must be an employee in the bargained-for exchange that exists in
      typical employment relationships.

(Board Op. at 17.)     The above passage, the only time the Business Rule is
mentioned in the Board’s analysis, notes that the relevant Business Rule is
consistent with Simmonds in that the touchstone of the analysis focuses on the
presence of a bargained-for exchange between the employer and the claimant.
Relevant to this case, the Business Rule states that service should be denied if “the
service was part of the student’s curriculum,” or if “the employment was only
available to students.” (Business Rule POS-2008-01, Ex. PSERS-A, C.R. at Item
13.) The Board found that Claimant’s service at MLSD was related to her studies
and that Claimant could not have taught at MLSD through the Teacher Corps
program if she was not also a student and did not attend evening and summer
classes. (FOF ¶¶ 25-29.) Because we conclude above that the Board did not err by
concluding that Claimant is not eligible to purchase credit pursuant to Simmonds
and Donovan, the Board’s interpretation of the Retirement Code through PSERS’
Business Rule is not clearly erroneous.




                                          20
IV.   Conclusion
      For the foregoing reasons, the Order of the Board is affirmed.6




                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge




      6
         Due to our disposition, we need not address the Board’s request that we strike
Claimant’s proposed findings of fact and conclusions of law from her brief.

                                          21
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mary Jane Schneider,                  :
                       Petitioner     :
                                      :
                 v.                   :   No. 2196 C.D. 2015
                                      :
Commonwealth of Pennsylvania,         :
Public School Employees’              :
Retirement Board,                     :
                       Respondent     :



                                    ORDER


     NOW, July 14, 2016, the Order of the Public School Employees’ Retirement
Board, entered in the above-captioned matter, is hereby AFFIRMED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
