IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Karen Guss , : Appellant :

: v. :

: City of Philadelphia Board of : No. 46 C.D . 201 9 Pensions and Retirement : Submitt ed: June 12 , 2020

BEFORE: HONORABLE ANNE E. COVEY , Judge

HONORAB LE CHRISTINE FIZZANO CANNON, Judge HONO RABLE 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 t he trial court erred by holding that the Board’s attempt to notify Guss met due process requir ements ; and (3) whether t he trial court erred by holding that the Board’s findings were based on substantial evidence. After review,
we affirm.
T he City employed Guss as an Assistant City Solicitor from 2001 to
2005. See Findings of the Board, August 3 1, 2018, Board Finding of Fact (FOF) No.
3. Guss was a member of Pension Plan Y d uring her employment

. See id

. Guss left City employment on July 30, 2005

. See FOF No. 14 . By August 26, 20 0 5 letter, the2

Board advis ed Guss that she could pay monies to f inalize 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 explain ed Guss’ s options given that Guss was separated from City employment. See FOF No. 1 6. The B oard 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 m ay not be able to reenter Plan Y at a la ter 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had withdrawn her pension contributions, pursuant to Sections 22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)

a nd (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 op t out of Plan 10 and into Plan Y within 30 days of employment
, but

t he 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, herei n,] are taken from the published version of the Philadelphia Code available at the time of Guss’s rehire[,] Philadelphia Code, 11 th 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 Sum mary 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 P lan P acket
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 describe d Plan Y as covering “All Civil Serv ice

- 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 c ertified m ail, the other by F irst

- C lass M ail to her home address ) were c opies 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)

. G uss did not opt out of
Plan 10 or otherwise respond to the Opt

- Out Letter

.

I n 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 appeal ed to the Board from the
Board’s administrative denial. See FOF No. 34. In he r appeal letter, Guss explained
that she had no notice she would be placed in Plan 10 and that she believe d she was4

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 hearin g was held on October 11, 2017. See FOF N o s

. 39, 44.

At the hearing, Guss admitted receiving the Plan Packet and accompanying letter, but claimed she did not receive the Opt

- Out L etter either by
F irst

- C lass M ail or certified m ail. See FOF No. 57. She e xplained that , based upon
her read ing 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 testifie d 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 F irst

- C lass and certified mail). See FOF Nos. 58

- 59. The Board offered the U nite d S tates (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 ho m e. See FOF No.
60. On January 25, 2018, the Board denied Guss’ s appeal, d etermining that both the
Plan Packet and the Opt

- Out Letter were delivered by F irst

- C lass M ail, and the certified mail copy of the Opt

- Out Letter was delivered
, but Guss did not pick it up.
See FOF No s

. 79

- 81. Further , the Board found Guss not to be cred ible. 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 No s . 85

- 86. In addition , the Board found that Guss had rea d
and understood the November 2005 letter inform ing her that
, if she withdrew her5

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, h ad “substantial knowledge of the [] Code, and an understanding of the
opt [

- ] out requirement included therein

. ” FOF No s . 89

- 90. Based thereon, the Board
denied Guss ’s appeal. Guss appealed to the trial court
, which affirmed the Board ’s
decision

. Guss ap pealed to this Court. 2

Initially, when the City hire d 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, [o r] 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 2 2

- 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 provide d : (2) Employees first hired on or after January 8, 19 87. 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 wh ether 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 wh o

. . . . (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
a pplicable

. 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 Sect ion 22

- 203(1)(a) of the Code state d
, 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 su bject 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 resp onse period. 4 Specifically, Guss
contends:
[T] he [Code] provide [s] in relevant part that new or rehired

emplo yees . . . 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 establish ing, 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 contr ary 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) ( i ssues not raised in an appellant’s statement of questions involved or fairly suggested thereby are waived on appeal).8

Gu ss 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.

I n Cardella v. Pub lic School Empl o yees’ Reti rement 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, sev eral recent cases are important. In Higgins v. Pub lic Sch ool Employes’ Ret irement Sys tem , 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

- 85 35 ,] 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
e mployee ’ s last know [n] address was required. B ecause 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 mul tiple service membership in the retirement system. However, in Tr akes 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 erroneo usly 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 propos ition 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 distinguishabl e from the situation in [the claimant’s] case. Higgins involved a specific9 provision of the Retirement Code

. . . which expressly requires that PSERS notify former [State Employees’ Retirement System ] members of their right to elect multiple service membe rship 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. Th e 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
c laimant’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 c ould have an impact on a member’ s benefits. If the General Assembly had intende d 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 inc lude. 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

- 8 1 ( emphasis added; citations omitted). The Car della
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, base d 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 d oes 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 logi cal 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 128 1

- 82 ( bold emphas is added ).

I n 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 r equired . . . . [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 a t 751 (emphasis added ; citation omitted )

.

T he 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 enf orced 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 informat ion about purchasing credit for her past state service. PSERS11

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 w as 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 constitu te 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 member s 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 suc h 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 r epurchase 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 Ret irement Code

. Higgins , 736 A.2d at 752 (emphasis added)

.

H ere, as in Cardella
, the relevant statute does not mandate notice. Notwithstanding, the Board elected to provide notice to its members. T his Court12

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 Cour t 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 el ection within 30 days, this Court found that
, based on a separate statutory provision providing for the B oard to grant multiple service after 30 days, the applicable Retirement C ode section “is not operative until the initial 30 [

- ] day period for employer t o 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 doe s she offer any legal authority with respect to that issue . “[A] n argument ‘ not supported by pertinent authority . . . is waived .’ ” Muldrow v. S e

. P a. T ransp. A uth. , 88 A.3d 269, 274 (Pa. Cmwlth. 2014) (quoting Eckman v. Erie Ins. Exchange , 21 A.3d 1203, 1208 (Pa. Super. 2011) )

. T herefore , the issue is waived, and we shall not a ddress whether the Board exceeded its authority in doing so. T he record evidence reflects that the Board provided Guss the same constructive notice provided to all members, by F irst

- C lass and c ertified m ail, 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 wh at 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 on e 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

- 16 9 . . . [(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] cho sen 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 pe rmit 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)

.

Imp ortantly, “ c onstitutionally 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 satis fied 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, t he record evidence supports that the Board
mailed the Opt

- Out Letter by both F irst

- C lass and c ertified mail to Guss’ s record
home address . Accordingly, this Court concludes that the Board’s notification efforts
satisfied d ue p rocess.

Finally, Guss asserts that the Board’s finding that she received the Opt

Out Letter was not base d on substantial evidence. This Court has explained :

U nder 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 it14 was addressed. A c laimant 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 o therwise, 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 w ritten 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 b y 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,
113 1

- 32 (Pa. Cmwlth. 2019) (bold emphasis added).

Here, the Board’s Administrative Service s Supervisor Shahied Lloyd (Lloyd) describ ed 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

- O ut Letter ) had been scanned, evidencing that the Board sent them to Guss. See R.R. at 70a

- 73a. Further,
the U.S. Postal Servic e tracking information for the Opt

- Out Letter sent by certified
mail was produced
, reflecting that notice to pick up the certifi ed Opt

- Out L etter had15

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 & R et. , 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
L etter. Because t he Board found Guss not credible, Guss failed to rebut the
presumpt ion that she received the Opt

- Out Letter.

Guss complains that the Board did not adequately explain its reasons for finding that her testimony lack ed credibility. However,

[a] n appellate court may not reweigh the evidence or make credibility determina tions. [] [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 flaw ed, 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 hav e 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 t he 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 Gus s 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 demonstrat ing [that] the [Board]16

staff failed to mail the proper documents.’ [R.R. at 42a].” FOF No. 76. In addition,
Board F indings of Fact N os. 79

- 93 support the Board’s credibility determination s

. These findings include : the Opt

- Out Letter sent by F irst

- C lass M ail was not returned as undeliverable; the tracking information for the Opt

- Out Letter sent by c ertified

m ail reflects that the letter arrived at the appropriate postal facility and that notice of
the c ertified mailing was left at Guss’ s ho me but was not picked up; Guss received
the Plan Packet
, which was mailed on the same date as the Opt

- Out L etter 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 letter s. 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 Le tter and failed to timely respond. Therefore , substantial evidence supports the Board’s conclusion that the Board mailed Guss the Opt

- Out L etter.

For all of the above reasons, the trial court’s order is affirmed.

___________________________ A NNE E. COVEY, JudgeI N 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 , t he Philadelphia County
Common Pleas Court’s December 3, 2018 order is affirmed.

___________________________ ANNE E. COVEY, Judge