        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John C. Gondek,                          :
                      Petitioner         :
                                         :
              v.                         : No. 1594 C.D. 2016
                                         : Submitted: January 27, 2017
Pennsylvania Municipal                   :
Retirement Board,                        :
                                         :
                      Respondent         :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                       FILED: March 30, 2017

              John C. Gondek (Petitioner) petitions, pro se, for review of an order
of the Pennsylvania Municipal Retirement Board (Board) that held that he was not
entitled to retirement benefits because he did not satisfy the vesting requirement of
his municipal employer’s Pennsylvania Municipal Retirement System (PMRS)
pension plan. We affirm.
              The following facts on which the Board’s decision was based are
undisputed.        Petitioner was hired by Antrim Township (Township) as the
Township Manager on December 3, 1985. (Record Item (R. Item) 9, Board
Opinion and Order Finding of Fact (F.F.) ¶7; R. Item 7, PMRS Motion for
Summary Judgment Undisputed Fact ¶1 & Petitioner’s Application for PMRS
Membership.)1          In January 1989, the Township entered into a Municipal
Employees Pension Plan Agreement with the Board (PMRS Agreement) under
Article IV of the Pennsylvania Municipal Retirement Law (PMRL)2 and enacted
an ordinance joining PMRS effective January 1, 1989. (R. Item 9, Board Opinion
and Order F.F. ¶¶1-2; R. Item 7, PMRS Motion for Summary Judgment
Undisputed Fact ¶¶2, 4, Ordinance 186 & PMRS Agreement.) The Township
ordinance made membership in PMRS mandatory for all permanent Township
employees and terminated the Township’s existing pension program as of the
effective date of PMRS membership. (R. Item 7, Ordinance 186 §§ II, VI.) The
Township ordinance provided that “[c]redit for prior service” for existing
Township employees “is granted for each year or partial year thereof that the
member was employed by the Township from original date of hire.” (Id. § III.)
The PMRS Agreement required that Township employees have five years of
“credited service” to vest their rights to annuity benefits and provided that
“credited service” was calculated from the date that the employee was hired by the
Township. (R. Item 7, PMRS Agreement ¶¶1, 10.)
                Petitioner participated in the Township’s pension program before his
January 1, 1989 enrollment in PMRS. (R. Item 9, Board Opinion and Order F.F.
¶10; R. Item 8, Petitioner’s Response to PMRS Motion for Summary Judgment.)
On May 22, 1990, 4 years and 171 days after he was originally hired by the
Township, Petitioner terminated his employment with the Township. (R. Item 9,
Board Opinion and Order F.F. ¶11; R. Item 7, PMRS Motion for Summary

1
 Petitioner did not deny any of the facts set forth by PMRS in its motion for summary judgment.
(R. Item 8, Petitioner’s Response to PMRS Motion for Summary Judgment.)
2
    Act of February 1, 1974, P.L. 34, as amended, 53 P.S. §§ 881.101–881.501.


                                                2
Judgment Undisputed Fact ¶9.) Petitioner filed an Application for Retirement
Benefits with PMRS in 2014, after he reached the age of 65, with respect to his
employment with the Township. (R. Item 9, Board Opinion and Order F.F. ¶13; R.
Item 7, Application for Retirement Benefits.)         PMRS denied Petitioner’s
application on the ground that he had less than five years of credited service. (R.
Item 9, Board Opinion and Order F.F. ¶¶14, 16; R. Item 7, 5/14/14, 7/14/14 PMRS
Denial Letters.)
             Petitioner appealed this determination to the Board, asserting that he
was entitled to a whole year of credited service for each of the six years in which
he worked for the Township, the years 1985 through 1990, and that he therefore
satisfied the five-year minimum for vesting. PMRS moved for summary judgment
on the grounds that the facts concerning the Township’s ordinance, the PMRS
Agreement, and Petitioner’s employment with the Township were undisputed, and
that under the PMRS Agreement and the PMRL, Petitioner was entitled to only
credit for the portion of years 1985 and 1990 that he worked for the Township.
Petitioner in response stated that he was “in agreement with” the facts on which
PMRS’s motion was based, but contended that the Township had given him credit
for 1985 under its pre-1989 annuity plan and that he was led to believe that he
would retain all credit from that plan when he enrolled in PMRS. (R. Item 8,
Petitioner’s Response to PMRS Motion for Summary Judgment.)            The Board
granted PMRS’s motion for summary judgment and held that Petitioner was
entitled to service credit only for the parts of years 1985 and 1990 that he worked
for the Township and had only 4.575342 years of credited service, below the five




                                         3
years of credited service required for vesting under the PMRS Agreement. This
appeal followed.3
              The Board correctly held that Petitioner had less than five years of
credited service and did not satisfy the vesting requirement for PMRS retirement
benefits. The Township enrolled in PMRS under Article IV of PMRL. (R. Item 7,
Ordinance 186 § I & PMRS Agreement at 1.) Article IV of PMRL provides that
the contract between the municipality and PMRS shall set forth and determine the
requirements for benefits, including the prior service credit that employees receive
for their work for the municipality before it joined PMRS and the period of
municipal employment required to vest the right to benefits. Sections 402, 403,
and 410(a) of PMRL, 53 P.S. §§ 881.402, 881.403, 881.410(a).                    The PMRS
Agreement provides that “[a]fter five (5) years of credited service, a member may
vest.” (R. Item 7, PMRS Agreement ¶10.) The PMRS Agreement provides:

              Credited service shall accrue from the member’s date of hire
              so long as there is continuous, uninterrupted employment to
              the municipality. Credited service time earned prior to the
              enrollment of the Township into the System shall be known as
              prior service.
              No credited service shall be granted for time employed in a
              status other than an active employee of the municipality
              excluding credit for purchased military service, reinstatement
              of previous service or service earned and credited under the
              portability section of this agreement (Section 11 [governing
              credit for employment with other municipalities that have
              joined PMRS]).


3
  This Court’s review of the Board’s decision is limited to determining whether constitutional
rights were violated, whether an error of law was committed, or whether the necessary findings
of fact are supported by substantial evidence. Paupst v. Pennsylvania Municipal Retirement
Board, 788 A.2d 1067 n.1 (Pa. Cmwlth. 2001).


                                              4
(Id. ¶1) (emphasis added). In addition, the Township ordinance states that the
credit that existing Township employees receive for their pre-PMRS service is the
number of years and partial years that they were “employed by the Township from
original date of hire.” (R. Item 7, Ordinance 186 § III.) Petitioner’s credited
service for 1985 is therefore limited to the 28 days after his December 3, 1985 date
of hire, his credited service for 1990 is limited to the 143 days that he worked for
the Township before he left its employ, and he is not entitled to a full year credit
for either year. See Hoerner v. Public School Employees’ Retirement Board, 684
A.2d 112, 118 (Pa. 1996) (credited service is limited to “the time period where the
employee actually engaged in work for” the employer).
               Petitioner does not dispute that the Board correctly concluded that he
did not work for the Township for five full years. Rather, he argues that he is
entitled to a full year of credit for 1985 on equitable grounds because he was
placed in the Township’s 1985 annuity program and was allegedly led to believe
that he would get credit for that year along with years 1986 through 1988 when he
was enrolled as a member of PMRS. This argument fails for two reasons. First,
neither PMRS nor the Board has the power to alter an employee’s PMRS benefit
rights on equitable grounds. Orlandi v. Pennsylvania Municipal Retirement Board,
(Pa. Cmwlth., No. 2355 C.D. 2011, filed Oct. 11, 2012), slip op. at 7-8, 2012 WL
8704640 at *3;4 see also Barringer v. State Employees’ Retirement Board, 987
A.2d 163, 165 (Pa. Cmwlth. 2009); Martorano v. Philadelphia Board of Pensions
and Retirement, 940 A.2d 598, 601 (Pa. Cmwlth. 2008); Finnegan v. Public School



4
  Because it is an unreported decision, this opinion is not binding precedent, but is considered by
the Court for its persuasive value. 210 Pa. Code § 69.414(a).


                                                5
Employes’ Retirement Board, 560 A.2d 848, 850-51 (Pa. Cmwlth. 1989), aff’d
without op., 591 A.2d 1053 (Pa. 1991).
             Second, Petitioner did not introduce any evidence before the Board
that showed that inaccurate representations were made to him or that he had any
reasonable basis to believe that he would receive a full year of credited service for
1985 from PMRS. The only representations that Petitioner claims were made were
that employees would retain the pension credit that they had under the Township’s
pre-PMRS pension plan. Petitioner, however, did not introduce any documents in
the record showing the rights that he had under that pension plan or that he was
granted a full year of credit under that pension plan. There was therefore no
evidence that he was denied the pension credit that he alleges that he was
promised. Moreover, the language of the PMRS Agreement was clear that credited
service was limited to the time that employees worked for the Township and
Petitioner knew that he worked only 28 days in 1985.              Reliance on any
representation that Petitioner would receive PMRS credited service for a full year
for 1985 would thus be unreasonable and could not support equitable relief. See
Hughes v. Public School Employes’ Retirement Board, 662 A.2d 701, 706 (Pa.
Cmwlth. 1995) (retiree could not prove elements of estoppel because he knew how
long he worked for government employer and therefore could not reasonably rely
on misstatement of his service credit).
             For the foregoing reasons, we affirm.



                                     _________________ ____________________
                                     JAMES GARDNER COLINS, Senior Judge



                                          6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John C. Gondek,                     :
                  Petitioner        :
                                    :
           v.                       : No. 1594 C.D. 2016
                                    :
Pennsylvania Municipal              :
Retirement Board,                   :
                                    :
                  Respondent        :



                               ORDER


           AND NOW, this 30th day of March, 2017, the order of the
Pennsylvania Municipal Retirement Board is AFFIRMED.




                                __________ ___________________________
                                JAMES GARDNER COLINS, Senior Judge
