K. Guss v. City of Philadelphia Bd. of Pensions & Retirement ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Karen Guss, :
Appellant :
:
v. :
:
City of Philadelphia Board of : No. 46 C.D. 2019
Pensions and Retirement : Submitted: June 12, 2020
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 6, 2020
Karen Guss (Guss) appeals, pro se, from the Philadelphia County
Common Pleas Court’s (trial court) December 3, 2018 order denying her appeal from
the City of Philadelphia (City) Board of Pensions and Retirement’s (Board) January
25, 2018 decision. Guss presents three issues for this Court’s review: (1) whether the
trial court erred when it denied Guss’s appeal because the Board enforced a deadline
against Guss without notice and contrary to legislative intent that employees receive
actual notice; (2) whether the trial court erred by holding that the Board’s attempt to
notify Guss met due process requirements; and (3) whether the trial court erred by
holding that the Board’s findings were based on substantial evidence. After review,
we affirm.
The City employed Guss as an Assistant City Solicitor from 2001 to
2005. See Findings of the Board, August 31, 2018, Board Finding of Fact (FOF) No.
3. Guss was a member of Pension Plan Y during her employment. See id. Guss left
City employment on July 30, 2005. See FOF No. 14. By August 26, 2005 letter, the
Board advised Guss that she could pay monies to finalize her purchase of service
credit to vest in Plan Y. See FOF No. 14. Guss did not respond to the letter. Id. By
October 25, 2005 letter, the Board explained Guss’s options given that Guss was
separated from City employment. See FOF No. 16. The Board informed Guss that
she could withdraw her contributions or leave them in the retirement system until she
reached retirement age. See FOF No. 16. In November 2005, having received no
response to its earlier letters, the Board sent Guss a third letter informing her she
could withdraw her contributions by completing the form enclosed with the letter.
See FOF No. 17. The letter notified Guss that she could withdraw her pension
contributions but, if she did, she may not be able to reenter Plan Y at a later date. See
id. Guss returned the necessary forms withdrawing her contributions. See FOF No.
18.
On January 19, 2016, Guss rejoined City employment and, because she
had withdrawn her pension contributions, pursuant to Sections 22-104(2), 22-201(2)
and (5) and 22-203(1)(a) of the Philadelphia Public Employees Retirement Code
(Code),1 she was immediately placed in Plan 10 rather than Plan Y. See FOF Nos.
20, 22. Pursuant to Section 22-201(5) of the Code, returning employees have the
opportunity to opt out of Plan 10 and into Plan Y within 30 days of employment, but
the Code does not explicitly require that employees be notified of that option.
1
Phila. Pub. Employees Ret. Code §§ 22-104(2), 22-201(2), (5), 22-203(1)(a).
All references [to the Code, herein,] are taken from the published
version of the Philadelphia Code available at the time of Guss’s
rehire[,] Philadelphia Code, 11th ed., 2016 (‘This Eleventh Edition of
the Philadelphia Code includes all ordinances passed by Council
through the end of its 2012-2015 term and is current through March
2016.’), as this is the version of the Code Guss relied upon in making
her argument regarding her understanding of her membership in Plan
Y[.]
FOF No. 1, n.2.
2
Notwithstanding, on March 22, 2016, the Board sent three items to Guss’s home
address of record. See FOF No. 23. The first item was a cover letter and packet
describing the varying pension plans (Plan Packet). See id. The cover letter was
entitled “IMPORTANT PENSION MEMBERSHIP INFORMATION,” and informed Guss
that, “[i]n the near future you will receive a Summary Plan Description for your
reference in which various benefits of your plan [are] explained. For more detailed
information, or to view the full [Code], please visit us at [phila.gov_website].” FOF
No. 24; Reproduced Record (R.R.) at 14a (Cover Letter). The enclosed Plan Packet
was titled “Plan 87,” and the words “Municipal Plan Y, Elected Plan L, Police Plan
B, Fire Plan A” appeared in the lower left corner. R.R. at 28a. The first page of the
Plan Packet described Plan Y as covering “All Civil Service-Exempt, Appointed, and
Non-represented employees . . . hired or rehired after January 8, 1987.” R.R. at 29a.
The other two items the Board mailed on March 22, 2016 (one sent by certified mail,
the other by First-Class Mail to her home address) were copies of the same letter
containing a summary plan description informing Guss that she was in Plan 10, and
offering her the opportunity to opt out of Plan 10 and into Plan Y within 30 days of
the letter’s mailing date. See R.R. at 15a (Opt-Out Letter). Guss did not opt out of
Plan 10 or otherwise respond to the Opt-Out Letter.
In January 2017, Guss contacted the Board requesting information about
purchasing prior years of public service. See FOF No. 29. In its response, the Board
referenced that Guss was in Plan 10. See id. On January 4, 2017, Guss responded
indicating that she wished to appeal from her placement in Plan 10, claiming she had
been previously unaware she was in Plan 10. See FOF No. 30. On January 4, 2017,
the Board administratively denied Guss’s request to switch from Plan 10 to Plan Y.
See FOF No. 32. By January 30, 2017 letter, Guss appealed to the Board from the
Board’s administrative denial. See FOF No. 34. In her appeal letter, Guss explained
that she had no notice she would be placed in Plan 10 and that she believed she was
3
in Plan Y. See FOF No. 35. Guss acknowledged receipt of the Plan Packet sent to
her home address, but denied she had received the Opt-Out Letter sent to the same
address. See FOF No. 36.
On February 27, 2017, the Board notified Guss that it had denied her
request to opt into Plan Y because she had not opted out of Plan 10 within 30 days of
the March 22, 2016 letter’s mailing date. See FOF No. 38. Guss appealed from the
Board’s decision and a hearing was held on October 11, 2017. See FOF Nos. 39, 44.
At the hearing, Guss admitted receiving the Plan Packet and
accompanying letter, but claimed she did not receive the Opt-Out Letter either by
First-Class Mail or certified mail. See FOF No. 57. She explained that, based upon
her reading of the Code, she believed she was in Plan Y. See FOF No. 49. Guss also
stated that her paystub had the notation “Y10,” which she assumed meant she was in
Plan Y. See FOF No. 56.
A Board employee credibly testified regarding the mailings and the
Board’s mailing process. See FOF No. 78. He stated that the Board had mailed the
Plan Packet and two copies of the Opt-Out Letter (sent by First-Class and certified
mail). See FOF Nos. 58-59. The Board offered the United States (U.S.) Postal
Service tracking information for the Opt-Out Letter sent by certified mail, reflecting
that notice to pick up the certified letter had been left at Guss’s home. See FOF No.
60. On January 25, 2018, the Board denied Guss’s appeal, determining that both the
Plan Packet and the Opt-Out Letter were delivered by First-Class Mail, and the
certified mail copy of the Opt-Out Letter was delivered, but Guss did not pick it up.
See FOF Nos. 79-81. Further, the Board found Guss not to be credible. See FOF No.
77. The Board also found that Guss was familiar with Board procedures and Code
requirements and, in the past, had failed to timely respond to time-sensitive
documents. See FOF Nos. 85-86. In addition, the Board found that Guss had read
and understood the November 2005 letter informing her that, if she withdrew her
4
pension contributions, she might not be in the same plan if she was rehired. See FOF
No. 87. The Board also found that Guss, as an attorney with previous City
employment, had “substantial knowledge of the [] Code, and an understanding of the
opt[-]out requirement included therein.” FOF Nos. 89-90. Based thereon, the Board
denied Guss’s appeal. Guss appealed to the trial court, which affirmed the Board’s
decision. Guss appealed to this Court.2
Initially, when the City hired Guss in 2016, Section 22-104(2) of the
Code stated, in pertinent part:
Plan Y includes all current and former municipal employees
of the City [that is, those] who are not members of Plan A,
Plan B, [or] Plan [J as defined in this Section,] who are
appointed on or after January 8, 1987. Plan Y is a plan
within Municipal Division New.
Plan 10 includes (i) certain employees hired or rehired
on or after January 1, 2010, subject to election under
Section 22-201(5) [of the Code]; and (ii) certain electing
employees; all as set forth in [Sections] 22-201(5) and
[]22-206 [of the Code].
Code § 22-104(2) (emphasis added).
Section 22-201 of the Code provided:
(2) Employees first hired on or after January 8, 1987. All
employees who are hired, rehired, or first elected on or after
January 8, 1987, shall be members of Plan A, Plan B, Plan
L, or Plan Y of the Retirement System, except to the extent
that they are afforded other options pursuant to [Section]
22-203 [of the Code] (Membership After Reemployment)
or are Police or Fire employees covered by subsection (3) or
(5), or are municipal employees covered by subsection
(4) or (5), or are elected officials covered by subsection (5).
Of these employees:
2
“Our scope of review is limited to determining whether the Board violated any
constitutional rights, whether its decision was in accordance with the law, or whether its findings of
fact were not supported by substantial evidence.” Hinkle v. City of Phila., 881 A.2d 22, 24 n.3 (Pa.
Cmwlth. 2005).
5
(a) All Municipal Employees are members of Plan Y
which covers members of the Municipal Division New as
soon as they are employed by the City . . . .
....
(5) Employees [first] hired or assuming elected office on or
after January 1, 2010. All employees who
....
(d) are municipal employees not represented by a union
or are elected officials;
and who
....
(ii) are hired or rehired or first elected [on or
after the date] set out below are members of
Plan 10 immediately upon employment by the
City or upon taking office, except to the extent
that they are afforded other options pursuant to
[Section] 22-203 [of the Code] (Membership
After Reemployment) or unless, within thirty
(30) days of employment, the employee (except
an employee who either (.1) is represented by
Lodge No. 5 of the [Fraternal Order of Police]
and is an employee of the Register of Wills or
(.2) is a guard represented by [AFSCME District
Council 33]) makes an irrevocable election to
become a member of Plan A or B or Y or L, as
applicable.
Code § 22-201 (emphasis added).3
Guss first argues that the Board improperly enforced a 30-day deadline
against her without notice and contrary to legislative intent that employees receive
3
Section 22-203(1)(a) of the Code stated, in relevant part:
(1) Reemployment on or after January 8, 1987.
(a) Except as provided in paragraph (b) of this subsection, all
separated employees who become reemployed by the City on or
after January 8, 1987 become subject to the provisions of Plan A,
Plan B, Plan L, Plan Y, [or] Plan 10.
Code § 22-203(1)(a).
6
actual notice prior to the running of the 30-day response period.4 Specifically, Guss
contends:
[T]he [Code] provide[s] in relevant part that new or rehired
employees . . . are members of Plan 10 immediately upon
employment by the City . . . unless, within thirty (30) days
of employment, the employee . . . makes an irrevocable
election to become a member of . . . Plan Y. [] Code § []
22-201(2)(a)(5)(ii). Giving meaning, as the principles of
statutory construction require, to each word in the
provision, it is immediately apparent that the 30 days begin
‘at employment’ because ‘at employment’ is when City
employees are typically given information about their
benefits and benefit options. The intent of the [Code] is
that employees have notice of the opportunity and of the
timeframe for availing themselves of it; the bill does not
contemplate a scenario in which the 30[-]day window for
electing Plan Y is slammed shut without an employee
ever having known it was open.
Guss Br. at 15-16 (emphasis added). Guss expounds:
There is no statute or regulation establishing, or even
providing notice of, the Board’s substitution of mailing for
actual notice at employment and of the draconian
consequences the Board imposed on employees unfortunate
enough not to receive their mail.
The Board acted without authority and contrary to law
when it overrode [Guss’s] opportunity, granted by
ordinance, to choose a pension plan within 30 days of
receiving actual notice at employment, and instead
substituted its own deadline of 30-days from a randomly-
timed and unreceived mailing[].
4
Because Guss did not raise the issue of whether the Board properly determined that she
was in Plan 10 in the Statement of the Questions Involved portion of her brief to this Court, that
issue is waived. See Metrick v. Civil Serv. Comm’n, 687 A.2d 26 (Pa. Cmwlth. 1996) (issues not
raised in an appellant’s statement of questions involved or fairly suggested thereby are waived on
appeal).
7
Guss Br. at 18 (emphasis added). Guss does not point to any language requiring the
Board to provide actual notice of the 30-day election window. In fact, there is no
Code language requiring such notification.
In Cardella v. Public School Employees’ Retirement Board, 827 A.2d
1277 (Pa. Cmwlth. 2003), this Court addressed an administrative body’s notification
obligations where, as in the instant matter, the relevant statute did not contain an
actual notice requirement:
With regard to this notice issue, several recent cases are
important. In Higgins v. Public School Employes’
Retirement System, 736 A.2d 745 (Pa. Cmwlth. 1999), this
Court held that where a section of the [Public School
Employees’] Retirement Code [(Retirement Code), 24
Pa.C.S. §§ 8101-8535,] mandated that newly hired
employees be given notice within [30] days of beginning
employment of their option to elect ‘multiple service’,
thereby enabling the employee to receive credit for prior
state employment, notice by [F]irst[-C]lass [M]ail to the
employee’s last know[n] address was required. Because the
employee was never provided with this proper notice, we
reversed the order of the [Public School Employees’
Retirement] Board [(School Retirement Board)] and
ordered that the employee be granted multiple service
membership in the retirement system. However, in Trakes
v. Public School Employes’ Retirement System, 768 A.2d
357 (Pa. Cmwlth. 2001), . . . we distinguished Higgins. In
Trakes, the employee argued that the [School Retirement]
Board erroneously denied her benefits application because
she was not given proper notice of the requirement to apply
for disability benefits while she was classified as an inactive
member during the statutory two-year period. The
employee cited Higgins for the proposition that [the
Pennsylvania Public School Employees’ Retirement System
(PSERS)] was required to provide her with notice by
[F]irst[-C]lass [M]ail. In rejecting the employee’s
argument, we held that[]
we agree with the Board that Higgins is
distinguishable from the situation in [the
claimant’s] case. Higgins involved a specific
8
provision of the Retirement Code . . . which
expressly requires that PSERS notify former
[State Employees’ Retirement System]
members of their right to elect multiple service
membership upon gaining PSERS membership
through public school employment. This Court
concluded in Higgins that bulk mailings were
not sufficient to comply with this specific
statutory requirement to notify members of
their right to elect multiple service. The
Retirement Code does not contain an
equivalent provision requiring that PSERS
specifically notify its members of the two-
year restriction on their inactive member
status as set forth in [Section 8102 of the
Retirement Code, 24 Pa.C.S. § 8102]. If [the
claimant’s] approach were followed to its
logical conclusion[,] PSERS would be
required to provide separate written notice
regarding each provision in the Retirement
Code that could have an impact on a
member’s benefits. If the General Assembly
had intended to require specific notice of all
Retirement Code provisions impacting a
member’s benefits[,] it easily could have
done so. It is not for the courts to add, by
interpretation, to a statute, a requirement which
the General Assembly did not see fit to
include. Accordingly, we conclude that the
[School Retirement] Board did not err in
denying [the claimant’s] application for
disability retirement benefits.
Trakes, 768 A.2d at 367.
Cardella, 827 A.2d at 1280-81 (emphasis added; citations omitted). The Cardella
Court concluded:
The case now before us deals with [a statutory section],
which clearly does not contain an equivalent provision
requiring that PSERS specifically notify its members of
their opportunity to elect Class T-D membership.
Therefore, based on our reasoning in Trakes, the Higgins
case does not require that PSERS provide notice by [F]irst[-
9
C]lass [M]ail to its members informing them of their option
to elect to become [] Class T-D members of the retirement
system. However, one salient fact does distinguish this case
from Trakes: In this case, PSERS elected to provide
notice by [F]irst[-C]lass [M]ail to all its members of their
option to become Class T-D members. If we would take
PSERS’ argument that the notice issue is irrelevant to its
logical conclusion, it could willingly provide notice of
important retirement benefits to certain members and not
others and the members who did not receive notice would
have absolutely no recourse. This result is untenable.
Accordingly, we hold that in this situation, basic principles
of fairness dictate that if PSERS chooses to provide
notice of retirement benefits despite not being
statutorily mandated to do so, it must provide the same
notice to all its members.
Cardella, 827 A.2d at 1281-82 (bold emphasis added).
In Higgins, the relevant statute required notice, but did not dictate the
manner in which it was to be delivered. The Higgins Court explained:
If a statute does not prescribe a specific type of notice, then
actual or constructive notice is required. . . . [I]n the
absence of specific statutory notice provisions, what is
required of a governmental unit is that which is sufficient to
provide the person to be notified with actual or
constructive notice of his or her rights.
Higgins, 736 A.2d at 751 (emphasis added; citation omitted).
The claimant in Higgins was employed by the Pennsylvania Department
of Education between 1962 and 1964 and, in 1976, became a Montgomery County
Area School District employee and a PSERS member. PSERS had not enforced the
election provision between 1976 and 1983. Between 1983 and 1985, PSERS
implemented two grace periods allowing members to elect multiple service, and
published grace period information in two newsletters. In 1995, the claimant
requested information about purchasing credit for her past state service. PSERS
10
treated the request as a request to elect multiple service and denied the request as
untimely.
On appeal, this Court explained:
[The h]earing [e]xaminer found that the timeliness
requirement was not met in the instant case as admittedly
there was no actual or constructive notice given to [the
c]laimant upon commencing her employment at [the school
district] in 1976 and that the subsequent notices via the
newsletter were insufficient to constitute actual or
constructive notice. PSERS argues, however, that [the
c]laimant had an opportunity to elect multiple service
through the grace period it offered between 1983 and 1985,
that important information is transmitted via the
newsletters, that members have a duty to read the
newsletters, and that this opportunity corrected any failure
to previously provide notice. We disagree.
While the grace period was apparently not limited to
members who had not been given timely notice, its effect
was to give such members a chance to receive the benefits
of multiple service. What PSERS provided through the
grace period was no less than what [the c]laimant asks of
[the School Retirement] Board and of this Court today: an
opportunity to elect multiple service and repurchase
withdrawn credits.
If [the c]laimant received actual or constructive notice of
the grace period, her appeal would fail because she
would have been given what the Retirement Code
requires, a genuine opportunity to participate in
multiple service. Her failure to follow through on this
chance would have constituted a choice to decline such
benefits. The Retirement Code only mandates one
chance to elect multiple service. To give [the c]laimant
more than one such chance would be to go beyond the
Retirement Code.
Higgins, 736 A.2d at 752 (emphasis added).
Here, as in Cardella, the relevant statute does not mandate notice.
Notwithstanding, the Board elected to provide notice to its members. This Court
11
concludes that, having elected to provide notice of the 30-day window, the Board was
required to provide notice to all members and, consistent with Higgins, could satisfy
its notice obligations by actual or constructive notice. Accordingly, the Court
rejects Guss’s contention that the Code required the Board to provide Guss actual
notice of her right to opt into Plan Y.5
Relying on Jones v. Flowers, 547 U.S. 220 (2006), Guss next asserts
that the Board’s notification efforts did not satisfy due process requirements. In
Jones, the U.S. Supreme Court explained:
[T]his Court has deemed notice constitutionally sufficient if
it was reasonably calculated to reach the intended recipient
5
In Higgins, this Court interpreted the relevant statutory provision to provide a conditional
rather than a mandatory 30-day window from the start of employment based on consideration of the
statute as a whole. Although the relevant language mandated that the employee make an election
within 30 days, this Court found that, based on a separate statutory provision providing for the
Board to grant multiple service after 30 days, the applicable Retirement Code section “is not
operative until the initial 30[-]day period for employer to give notice has expired and the employer .
. . has been given an opportunity to fail in its responsibility to provide the statutory notice.”
Higgins, 736 A.2d at 751.
Importantly, here, other than as it relates to Guss’s notice argument (as described in her
Statement of the Questions Involved), Guss does not challenge the Board’s authority to offer the 30-
day window beyond 30 days following the employment start date. Nor does she offer any legal
authority with respect to that issue. “[A]n argument ‘not supported by pertinent authority . . . is
waived.’” Muldrow v. Se. Pa. Transp. Auth., 88 A.3d 269, 274 (Pa. Cmwlth. 2014) (quoting
Eckman v. Erie Ins. Exchange, 21 A.3d 1203, 1208 (Pa. Super. 2011)). Therefore, the issue is
waived, and we shall not address whether the Board exceeded its authority in doing so.
The record evidence reflects that the Board provided Guss the same constructive notice
provided to all members, by First-Class and certified mail, offering her the opportunity to opt into
Plan Y within 30 days of the date of the letter. Although Guss contends she was not provided
notice within 30 days of her employment,
[Guss] received . . . constructive notice of the grace period, [and thus,]
her appeal [must] fail because she [was] given what the [] Code
requires, a genuine opportunity to [opt into Plan Y]. Her failure to
follow through on this chance [] constituted a choice to decline such
benefits. The [] Code only mandates one chance to [opt out of Plan
10]. To give [Guss] more than one such chance would be to go
beyond the [] Code.
Higgins, 736 A.2d at 752.
12
when sent. See, e.g., Dusenbery [v. U.S., 534 U.S. 161,]
168-169 . . . [(2002)]; Mullane[v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306,] 314 [(1950)]. In each of these
cases, the government attempted to provide notice and
heard nothing back indicating that anything had gone awry,
and we stated that ‘[t]he reasonableness and hence the
constitutional validity of [the] chosen method may be
defended on the ground that it is in itself reasonably certain
to inform those affected.’ Id. at 315[.]
Jones, 547 U.S. at 226-27. Similarly, in Higgins, this Court stated:
The U.S. Supreme Court has addressed what is reasonable
notice to constitute due process of law. The Supreme Court
in Mullane held that a reasonable and, therefore
constitutionally valid method for notice is a direct notice
that is reasonably certain to inform those affected, or, where
conditions do not reasonably permit direct notice, the form
of notice chosen should be a feasible and customary method
which is more likely (or at least as equally likely) to provide
notice than those methods which were not chosen.
Higgins, 736 A.2d at 752-53 (citation omitted).
Importantly, “constitutionally adequate notice of administrative action is
notice which is reasonably calculated to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections. This
requirement is satisfied when notice of the action is mailed to the interested
party’s last known address.” Higgins, 736 A.2d at 753 n.15 (emphasis added;
citation omitted). In the instant matter, the record evidence supports that the Board
mailed the Opt-Out Letter by both First-Class and certified mail to Guss’s record
home address. Accordingly, this Court concludes that the Board’s notification efforts
satisfied due process.
Finally, Guss asserts that the Board’s finding that she received the Opt-
Out Letter was not based on substantial evidence. This Court has explained:
Under the mailbox rule, evidence that a letter was mailed
ordinarily will be sufficient to permit a fact-finder to find
that the letter was, in fact, received by the party to whom it
13
was addressed. A claimant asserting non-receipt of mail
must overcome the presumption created by the common law
mailbox rule.
Douglas v. Unemployment Comp. Bd. of Review, 151 A.3d 1188, 1191 (Pa. Cmwlth.
2016) (citation omitted).
‘[U]nless a rule or regulation specifies otherwise, proof
of [actual] mailing is not a requirement for a party to
prove that a document was actually mailed.’ C.E. v.
Dep[’t] of Pub[.] Welfare, 97 A.3d 828, 833 (Pa. Cmwlth.
2014) ([italic] emphasis in original). Instead, ‘when a letter
has been written and signed in the usual course of business
and placed in the regular place of mailing, evidence of the
custom of the establishment as to the mailing of such
letters is receivable as evidence that it was duly mailed.’
Dep[’t] of Transp[.] v. Brayman Constr[.] Co[rp].—Bracken
Constr[.] Co., . . . 513 A.2d 562, 566 ([Pa. Cmwlth.] 1986)
(quoting Christie v. Open Pantry Marts, . . . 352 A.2d 165,
166-67 ([Pa. Super.] 1975)). ‘It is well settled that the
presumption in the mailbox rule is not nullified by
testimony denying receipt of the item mailed.’ Brayman
Constr[.] Co., 513 A.2d at 566.
Pinnacle Health Hosps. v. Unemployment Comp. Bd. of Review, 210 A.3d 1127,
1131-32 (Pa. Cmwlth. 2019) (bold emphasis added).
Here, the Board’s Administrative Services Supervisor Shahied Lloyd
(Lloyd) described the Board’s process of mailing pension correspondence. See R.R.
at 68a. Lloyd testified that the Board scans and retains all correspondence mailed to
employees. See R.R. at 70a. He further explained that if the post office returns
regular mail as undeliverable, it is placed in the employee’s file, and there was no
such letter in Guss’s file. See R.R. at 78a-79a. Lloyd stated that the three March 22,
2016 mailings (the Plan Packet and two copies of the Opt-Out Letter) had been
scanned, evidencing that the Board sent them to Guss. See R.R. at 70a-73a. Further,
the U.S. Postal Service tracking information for the Opt-Out Letter sent by certified
mail was produced, reflecting that notice to pick up the certified Opt-Out Letter had
14
been left at Guss’s home. See R.R. at 72a-73a. “As the ultimate fact finder, the
Board has the authority to resolve evidentiary conflicts and to make all necessary
credibility determinations.” Merlino v. Phila. Bd. of Pensions & Ret., 916 A.2d
1231, 1234 n.5 (Pa. Cmwlth. 2007). The Board found Lloyd’s testimony was
credible and, as such, established the presumption that Guss received the Opt-Out
Letter. Because the Board found Guss not credible, Guss failed to rebut the
presumption that she received the Opt-Out Letter.
Guss complains that the Board did not adequately explain its reasons for
finding that her testimony lacked credibility. However,
[a]n appellate court may not reweigh the evidence or make
credibility determinations. [] [A]n appellate court may
[only] ‘overturn a credibility determination if it is arbitrary
and capricious or so fundamentally dependent on a
misapprehension of material facts, or so otherwise flawed,
as to render it irrational.’ Agostino v. T[wp.] of Collier, 968
A.2d 258, 263-64 (Pa. Cmwlth. 2009). A fact finder
capriciously disregards evidence ‘when there is a willful
and deliberate disregard of competent testimony and
relevant evidence which one of ordinary intelligence could
not possibly have avoided in reaching a result.’ Id. at 264(quoting Arena v. Packaging Sys[.] Corp[.], . . . 507 A.2d
18, 20 ([Pa.] 1986)).
Spencer v. City of Reading Charter Bd., 97 A.3d 834, 842 (Pa. Cmwlth. 2014)
(citation and footnote omitted). “In addition, where the fact finder has not observed
the witness testify and cannot assess witness demeanor, a mere conclusion on
credibility is inadequate; the fact finder must explain the reasoning for the
determination.” Id. at 842 n.8.
Here, the Board did not observe Guss testify. However, as the Board
noted in its factual findings, “all three panel members [presiding at the hearing]
recommended that [Guss’s] appeal be denied. [R.R. at 42a-44a]. Board Member
Rodriguez concluded, ‘[Guss] was not convincing in demonstrating [that] the [Board]
15
staff failed to mail the proper documents.’ [R.R. at 42a].” FOF No. 76. In addition,
Board Findings of Fact Nos. 79-93 support the Board’s credibility determinations.
These findings include: the Opt-Out Letter sent by First-Class Mail was not returned
as undeliverable; the tracking information for the Opt-Out Letter sent by certified
mail reflects that the letter arrived at the appropriate postal facility and that notice of
the certified mailing was left at Guss’s home but was not picked up; Guss received
the Plan Packet, which was mailed on the same date as the Opt-Out Letter and sent to
the same address; Guss was familiar with Board procedures and Code requirements;
and Guss had previously failed to timely respond to Board letters. Given these
factual findings, this Court cannot conclude that the Board’s credibility determination
was arbitrary or capricious, or otherwise flawed. Accordingly, Guss’s testimony did
not serve to rebut the presumption that she received the Opt-Out Letter and failed to
timely respond. Therefore, substantial evidence supports the Board’s conclusion that
the Board mailed Guss the Opt-Out Letter.
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Karen Guss, :
Appellant :
:
v. :
:
City of Philadelphia Board of : No. 46 C.D. 2019
Pensions and Retirement :
ORDER
AND NOW, this 6th day of July, 2020, the Philadelphia County
Common Pleas Court’s December 3, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge