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 
2

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had withdrawn her pension contributions, pursuant to Sections 22-104(2), 22-201(2) 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. 
3

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 
4

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 
5

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).
6

 (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).
7

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 randomlytimed 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). 
8

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 
9

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 twoyear 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[-
10

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 
11

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 
12

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. 
13

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 OptOut 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 
14

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 
15

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] 
16

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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Karen Guss, :

Appellant :

:

v. :

:

City of Philadelphia Board of : No. 46 C.D. 2019

Pensions and Retirement :

O R D E R

AND NOW, this 6

th day of July, 2020, the Philadelphia County 

Common Pleas Court’s December 3, 2018 order is affirmed.

___________________________

ANNE E. COVEY, Judge