IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jose E. Lebron, :

Petitioner :

:

v. :

:

Public School Employees’ :

Retirement Board, : No. 1265 C.D. 2019

Respondent : Argued: September 15, 2020

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY 

JUDGE COVEY FILED: October 30, 2020

Jose E. Lebron (Dr. Lebron) petitions this Court for review of the Public 

School Employees’ Retirement Board’s (Board) August 16, 20191 order denying his 

request for post-retirement employment without annuity loss and an adjustment 

waiver, and affirming the Public School Employees’ Retirement System’s (PSERS)

determination that Dr. Lebron shall repay retirement benefits.2 Dr. Lebron presents 

four issues for this Court’s review: (1) whether the Board’s refusal to enact 

regulations concerning emergency/personnel shortage returns to employment

pursuant to Section 8346(b) of the Public School Employees’ Retirement Code 

(Retirement Code), 24 Pa.C.S. § 8346(b) (also known as Act 63 of 2004, or Act 

2004-63), or to issue a written policy notifying PSERS retirees of the standards for 

same, deprived Dr. Lebron of his due process rights; (2) whether the Board erred by

shifting the burden of establishing an emergency or personnel shortage to Dr. Lebron, 

1 Although the Board’s Opinion and Order was dated August 9, 2019, it was mailed on 

August 16, 2019.

2 The Board also denied Dr. Lebron’s request for oral argument.
2

when evidence concerning the same is in the possession of the School District of 

Philadelphia’s (SDP) agent, ASPIRA, Inc. of Pennsylvania (ASPIRA), or PSERS; (3) 

whether the Board erred by not accepting ASPIRA’s judgment that an emergency or 

shortage of appropriate personnel existed; and (4) whether the Board erred by 

determining that Dr. Lebron did not qualify for the hardship exception under Section 

8303.1 of the Retirement Code, 24 Pa.C.S. § 8303.1. After review, we affirm in part, 

reverse in part, and vacate and remand in part.

Facts

The facts of this case are largely undisputed. Dr. Lebron began 

employment with the SDP as a teacher in 1970. He became a PSERS member in 

1973. See Reproduced Record (R.R.) at 127a, 134a. The SDP employed Dr. Lebron 

as a principal from October 1983 until he retired, effective July 1, 2007.

Section 8346 of the Retirement Code states, in relevant part:

(a) General rule.--If an annuitant returns to school service . 

. . , any annuity payable to him under this part shall cease 

effective upon the date of his return to school service . . . .

(a.1) Return of benefits.--In the event an annuitant whose 

annuity from the system ceases pursuant to this section 

receives any annuity payment . . . on or after the date of his 

return to school service . . . , the annuitant shall return to the 

[B]oard the amount so received from the system plus 

statutory interest. . . . 

. . . . 

(b) Return to school service during emergency.--When,

in the judgment of the employer, an emergency creates an 

increase in the work load such that there is serious 

impairment of service to the public or in the event of a 

shortage of appropriate subject certified teachers or other 

personnel, an annuitant or participant receiving distributions 

may be returned to school service for a period not to extend 

beyond the school year during which the emergency or 
3

shortage occurs, without loss of his annuity or distributions, 

provided that the annuitant meets the conditions set forth in 

subsection (b.2) [(relating to age and breaks in service)]. 

The annuitant or participant receiving distributions shall not 

be entitled to earn any credited service, and no contributions 

may be made to the fund or the trust by the annuitant or 

participant receiving distributions, the employer or the 

Commonwealth on account of such employment. Such 

service shall not be subject to member or participant 

contributions or be eligible for qualification as creditable 

school service or for participation in the plan, mandatory 

pickup participant contributions, voluntary contributions or 

employer defined contributions.

24 Pa.C.S. § 8346.3 Section 8102 of the Retirement Code defines “[s]chool year” as 

“[t]he 12-month period which the governmental entity uses for purposes of 

administration regardless of the actual time during which a member renders service.” 

24 Pa.C.S. § 8102. Section 211.3(g) of the Board’s Regulations states: “For the 

purpose of the Retirement Code, the school year commences on July 1 and ends on 

June 30 of the following year.” 22 Pa. Code § 211.3(g).

Thus, when a PSERS annuitant returns to work in the public schools 

pursuant to Section 8346(b) of the Retirement Code (i.e., for emergency or shortage

of appropriate personnel during a school year), his/her PSERS annuity distributions 

continue uninterrupted. See R.R. at 181a, 206a. If an annuitant’s return to service is 

not for reasons of emergency or shortage of appropriate personnel, and/or exceeds the 

subject school year, his/her PSERS annuity distributions must cease. See R.R. at 

181a.

On July 19, 2004, PSERS published on its website an explanation of 

how “Act [63 of] 2004[] Affects Retirees Working After Retirement.” R.R. at 421a424a. Although Dr. Lebron does not recall if he specifically reviewed that 

3 Section 8346(b.1) of the Retirement Code also authorizes a PSERS member to return to 

public school service in an extracurricular position without losing retirement benefits. See 24 

Pa.C.S. § 8346(b.1). 
4

publication, he admitted that, as a PSERS member and SDP principal, he was more or 

less familiar with the Retirement Code, and understood that there were consequences 

to working in public schools after retirement; in particular, that there were limited 

exceptions for returning to service, and such return could not exceed one school year. 

See R.R. at 128a-129a, 134a, 139a. 

On June 28, 2007, Dr. Lebron attended a PSERS retirement exit 

counseling session, during which the retirement counselor reviewed, and Dr. Lebron 

acknowledged his understanding, that he could work in the public schools and still 

collect his retirement benefits only if there was an emergency or shortage of 

appropriate personnel and the period of time was limited to one school year, which 

was from July 1 through June 30 of the following year. See R.R. at 98a, 130a-132a, 

206a; Dr. Lebron Br. App. A, Board Op., Findings of Fact (FOFs) 6-8. That same 

day, Dr. Lebron submitted his application to PSERS to retire effective July 1, 2007

(Retirement Application). In the Retirement Application, Dr. Lebron certified to 

PSERS his understanding that he was prohibited from working in a Pennsylvania 

public school while simultaneously collecting his monthly annuity, except pursuant to 

Act 63 of 2004. See R.R. at 132a-133a; FOF 10.

 By September 6, 2007 Initial Benefit Letter, PSERS notified Dr. Lebron 

that his monthly gross benefit would be $6,925.08, and included the following notice: 

EMPLOYMENT AFTER RETIREMENT

Passed on July 4, 2004, Act 2004-63 permits a PSERS 

retiree to be employed by a Pennsylvania public school in 

emergency, shortage of personnel, and extracurricular 

situations without loss of the retiree’s monthly benefit.

The law defines an emergency/shortage of personnel 

situation as ‘[w]hen, in the judgment of the employer, an 

emergency creates an increase in the work load such that 

there is serious impairment of service to the public or in the 

event of a shortage of appropriate subject certified teachers 

or other personnel.’ . . . 
5

Both emergency and shortage of personnel situations are 

restricted to a period not to extend beyond the school year 

during which the emergency or shortage occurs. . . . 

In all situations, a member may not contribute, earn any 

credited service, nor have the Commonwealth or employer 

contribute on account of such employment.

If a retiree returns to service that does not qualify under Act 

2004-63, he or she must advise their [sic] employer of the 

prior service and should also send a letter to PSERS. This 

letter should include the retiree’s return to service date so 

that the member’s pension may be stopped before an 

overpayment occurs.

R.R. at 369a (emphasis in original); FOF 13. Dr. Lebron testified that he read and 

understood the September 6, 2007 Initial Benefit Letter and the notice. See R.R. at 

135a-136a, 184a; FOF 14.

By April 15, 2009 Finalized Benefit Letter, PSERS informed Dr. Lebron 

that his finalized gross monthly benefit was $7,703.08, and included the following:

EMPLOYMENT AFTER RETIREMENT

If you return to work, it is your responsibility to notify the 

employer that you are a PSERS retiree.

Act 2004-63 permits a PSERS retiree to be employed by a 

Pennsylvania public school (including charter schools) in an

emergency or shortage of personnel and extracurricular 

situations (certain conditions apply) without loss of the 

retiree’s monthly benefit.

Employers must determine that an emergency or shortage 

exists and make a ‘good faith’ effort to hire non-retirees 

first. Please refer to your Retired Member Handbook 

[(Handbook)] or PSERS’ [w]eb[site] for detailed 

information.

If a retiree’s return to service does not qualify under Act 

2004-63, the retiree should immediately send a letter to 

PSERS. This letter should include the retiree’s return to 

service date so that the retiree’s monthly benefit may be 

stopped before an overpayment occurs.
6

R.R. at 373a (emphasis in original); FOF 16. Dr. Lebron testified that he saw and 

understood the April 15, 2009 Finalized Benefit Letter and the post-retirement 

employment explanation. See R.R. at 136a-137a, 185a-186a; FOF 17.

Dr. Lebron also testified that he received and read PSERS’ Handbook, 

which explained, in relevant part:

Returning to School Service After Retirement

Act 2004-63 expanded the period of time and conditions 

under which PSERS retirees may return to Pennsylvania 

public school employment without loss of their monthly 

retirement benefit. This law specifically defines the ability 

of a PSERS retiree to be employed by a Pennsylvania 

public school in an emergency, shortage of personnel, and 

extracurricular situations. Public schools include charter 

schools . . . .

If you retired under a regular retirement benefit, you 

may return to Pennsylvania public school employment 

under the following conditions.

Employment Due to Emergency or Shortage of 

Personnel -

• Whenever a school employer determines there has 

been an increase in workload that creates a serious 

impairement [sic] of service to the public or there is a 

shortage of personnel, a retiree may return to 

Pennsylvania school service for a period not to 

extend beyond the school year during which the 

emergency or shortage occurs.

The employer makes the determination that these elements 

have been satisfied. Employers are expected to first 

make a ‘good faith’ effort to secure non-retired school 

personnel. PSERS, however, reserves the right to review 

an employer’s determination that a qualifying emergency or 

shortage exists.

. . . .

It is your responsibility to notify the employer that you 

are a PSERS retiree.
7

. . . . 

If you do return to service under any circumstances other 

than the provisions covered by Act 2004-63, you must 

advise your employer that you are a PSERS retiree. You 

should also send a letter to PSERS including the return to 

service date so your pension may be stopped before an 

overpayment occurs.

R.R. at 407a-408a (Handbook pp. 31-32) (emphasis in original); FOF 19. Dr. Lebron 

testified that he read and understood that portion of the Handbook. See R.R. at 138a139a, 186a; FOF 20. 

From 2008 through 2015, PSERS sent newsletters to its retired 

members, including Dr. Lebron, two to three times per year, all of which were 

available to members on PSERS’ website, and ten of which contained articles about 

returning to service (see R.R. at 140a-141a, 225a-226a, 230a; FOF 76): Summer 2008 

(see R.R. at 461a; FOF 24); Summer 2009 (see R.R. at 467a-469a; FOF 28); Fall 

2009 (see R.R. at 472a-474a; FOF 30); Fall 2010 (see R.R. at 484a-486a; FOF 32); 

Summer 2011 (see R.R. at 492a; FOF 59); Fall 2011 (see R.R. at 503a-505a; FOF 

60); Vol 2. 2013 (see R.R. at 509a; FOF 71); Vol. 1 2014 (see R.R. at 512a-513a; 

FOF 72); Vol. 3 2014 (see R.R. at 527a; FOF 73); Vo1. 1 2015 (see R.R. at 538a; 

FOF 75). Dr. Lebron testified that he read most of those newsletters.

4

 See R.R. at 

140a-141a. 

4 Similar information was available on PSERS’ website. In particular, in July 2008, PSERS 

also published a pamphlet entitled, Let’s Talk About Returning to School Service After Retirement

(Publication #9660), which was available to members in print and on PSERS’ website. See R.R. at 

139a, 187a-188a, 425a-440a; FOFs 25, 76. In addition, the Summer 2011 newsletter notified 

recipients of a publication – PSERS Return to Service Guidelines and Clarifications (Publication 

#9682) – then available in print and on PSERS’ website. See R.R. at 139a, 188a-189a, 492a; FOFs 

58, 76; see also R.R. at 441a-455a. Although PSERS made this information available to Dr. 

Lebron, he does not recall reviewing those publications on the website. See R.R. at 139a-140a.

Between September 2007 and June 2011, Dr. Lebron served as principal in six postretirement positions within the SDP for emergency/shortage of appropriate personnel reasons, each 

for less than one school year: (1) from September to December 2007 (Microsoft High School of the 

Future, sudden principal resignation); (2) January to June 2008 (Middle Years Alternative School 
8

ASPIRA is a non-profit corporation that provides non-academic 

management services (such as operations and human resources) to charter schools.

5

 

See R.R. at 73a, FOF 35. In 2011, the SDP’s Assistant Superintendent, Evelyn 

Nuñez (Dr. Nuñez), was ASPIRA’s Chief Academic Officer.6 See R.R. at 51a-53a, 

72a; FOF 38.

In April 2011, the SDP contracted with ASPIRA to operate Olney High 

School in North Philadelphia as a charter school – Olney Charter High School 

(Olney).

7

 See FOFs 36-37. At that time, the state considered Olney a particularly 

dangerous, underperforming school. See R.R. at 53a-54a; FOF 36. Olney was a 

Renaissance school, which means it was run by a School Advisory Council (SAC) 

that made recommendations regarding staffing. See R.R. at 55a. Olney’s SAC 

preferred and requested a bilingual African-American or Latino with high school 

principal experience, familiar with the City of Philadelphia, to be Olney’s principal in 

for the Humanities, principal retired mid-year); (3) September 2008 to June 2009 (Germantown 

High School, interim principal special assignment); (4) October 2009 to February 2010 (Kensington 

Creative & Performing Arts High School, principal on maternity leave); (5) February to June 2010 

(Lawton Elementary School, principal retired mid-year); (6) August 2010 to June 2011 (Randolph 

Career Academy, principal died). See R.R. at 146a-147a, 149a-156a; FOFs 22-23, 26, 29, 31, 33-

34. Dr. Lebron did not inform PSERS about any of those positions. See R.R. at 147a, 150a-153a, 

155a; FOFs 22-23, 26, 29, 31, 34. Accordingly, Dr. Lebron received a salary from the SDP and 

collected his monthly annuity payments from PSERS during those assignments. See 156a-157a; 

FOF 34.

5 Dr. Lebron was a member of ASPIRA’s Board of Directors from approximately 1983 to 

1988 or 1989, which was before ASPIRA managed charter schools. See R.R. at 52a-53a, 160a161a, 174a-175a. 

6 ASPIRA employed Dr. Nuñez from 2002 to 2013. See R.R. at 52a, 70a, 96a, 109a.

7 Olney had approximately 1,600 students and required between 130 and 200 staff. See R.R. 

at 67a, 106a.

By March 16, 2012 approval, PSERS accepted Olney as a PSERS employer, and its 

employees became PSERS members, effective July 1, 2011. See R.R. at 72a-73a, 224a-225a, 227a228a; FOF 57. The Board explained in its brief to this Court that because “Olney was not a PSERS 

participating employer until July 1, 2011[,] . . . the Board determined Dr. Lebron returned [to 

service] on July 1, 2011, not [on] his actual start date of June 27, 2011. ([Board Op. at] 28).” 

Board Br. at 14 n.3. 
9

order to be aligned with the student demographic.8 See R.R. at 55a-56a, 81a-82a; 

FOF 40. 

When ASPIRA acquired the Olney contract, its hiring team9

immediately offered the Olney principal job to Olney’s then-principal, who declined 

the position.10 See R.R. at 56a-57a, 81a; FOF 42. ASPIRA next offered the position 

to another SDP principal, Debbie Corella (Corella), who also declined. See R.R. at 

57a, 81a; FOF 43. Thereafter, ASPIRA interviewed candidates who submitted 

resumes, but the candidates did not have principal or high school experience, or they 

did not otherwise meet the SAC’s criteria. See R.R. at 57a-58a, 81a-82a; FOF 44. 

In May 2011, ASPIRA contacted Dr. Lebron, who was well-known in 

the community, and asked him to interview for the Olney principal position. See R.R. 

at 57a-58a, 80a-81a, 91a, 101a-102a, 157a-163a, 171a-172a; FOF 45. At the 

interview with the hiring team, Dr. Lebron informed ASPIRA that he was 

retired, and declared that the only way he could accept the position was if ASPIRA 

notified PSERS and obtained approval. See R.R. at 58a-59a, 64a, 102a-104a, 143a, 

159a-162a, 171a-172a; FOF 47. ASPIRA’s hiring team agreed that the Chief 

Operating Officer and the Human Resources Director would notify PSERS regarding 

Dr. Lebron’s return to service. See R.R. at 64a-65a. 

On May 23, 2011, ASPIRA contracted with Dr. Lebron to be Olney’s 

principal from June 27, 2011 to August 17, 2012,

11 during which time he would 

8 ASPIRA was open to hiring someone who was not bilingual, if necessary. See R.R. at 82a; 

FOF 40. 

9 ASPIRA’s hiring team consisted of its high-level administrative staff, including: Chief 

Executive Officer Alfredo Calderon, Chief Financial Officer Murray Roseman, Chief Operating 

Officer Orlando Rendon, Human Resources Director Marisol Morales, Curriculum Instruction 

Director Susan Ostrich, and Dr. Nuñez. See R.R. at 58a, 101a-102a; FOF 46.

10 Olney’s former principal’s name is not contained in the record before this Court. 

11 Dr. Lebron’s 2011-2012 contract included the contract term, his annualized salary, the 

requirement that he maintain a satisfactory performance rating, health, dental, and short- and longterm disability plan information, and also referenced his eligibility to participate in PSERS. See

R.R. at 102a, 163a-165a; FOF 52.
10

mentor two assistant principals with the goal that one of those individuals would 

become principal in June 2012.12 See R.R. at 66a-67a, 90a, 102a, 104a-105a, 107a, 

164a-165a; FOFs 52, 54, 56, 61. Dr. Lebron’s 2011-2012 contract with ASPIRA did 

not reference an emergency or shortage of appropriate personnel. See R.R. at 165a.

ASPIRA sent the other Olney principal candidates rejection letters 

wherein it informed them that, although their “‘skills and qualifications were 

excellent,’ it had ‘chosen to hire another candidate for the position.’” R.R. at 5a; see

also R.R. at 78a-80a, 211a-213a, 217a-220a; FOFs 55, 86.

After the 2011-2012 school year, the criteria for Olney’s principal 

remained the same, and ASPIRA determined that neither of Olney’s assistant 

principals were ready to assume the principal role. See R.R. at 68a, 71a, 89a, 108a109a; FOFs 62, 67. After ASPIRA advertised Dr. Lebron’s position and did not 

receive any resumes, it offered the principal position to Dr. Lebron for the 2012-2013 

school year (i.e., July 1, 2012 to June 30, 2013), and he again contracted with 

ASPIRA under the condition that it notify and obtain PSERS’ approval.

13

 See R.R. at 

68a-69a, 92a, 109a, 166a-168a; FOFs 63-64. Dr. Lebron’s 2012-2013 contract with 

ASPIRA did not mention an emergency or shortage of personnel. See R.R. at 166a; 

FOF 65. 

At the end of the 2012-2013 school year, both assistant principals 

resigned, and Dr. Nuñez’s predecessor, Dr. Lucilla Paramo (Dr. Paramo), offered Dr. 

Lebron the position for the 2013-2014 school year with two new assistant principals, 

and Dr. Lebron accepted the offer for the contract term August 1, 2013 to July 31, 

2014.

14

 See R.R. at 70a, 109a-111a; FOFs 68-69. After neither of the two assistant 

12 The assistant principals were not bilingual. See R.R. at 89a. 

13 With the exception of the contract term and salary, Dr. Lebron’s 2012-2013 contract was 

substantially similar to his 2011-2012 contract. See R.R. at 69a, 166a; FOF 64.

14 With the exception of the contract term, Dr. Lebron’s 2013-2014 contract was 

substantially similar to his previous ASPIRA contracts. See R.R. at 111a, 166a-167a; FOF 69.
11

principals were able to assume Dr. Lebron’s role, ASPIRA contracted with Dr. 

Lebron for the 2014-2015 school year.15 See R.R. at 113a-114a, 168a-169a; FOF 74. 

ASPIRA terminated Dr. Lebron’s position as Olney’s principal on June 25, 2015. 

See R.R. at 169a-170a; FOF 77.

Dr. Lebron never sought PSERS’ approval to return to work as Olney’s 

principal, or confirmed that ASPIRA or the SDP did so. See R.R. at 162a-163a; FOF 

78. Neither ASPIRA nor the SDP ever sought approval from or notified PSERS of

Dr. Lebron’s return to service as Olney’s principal. See R.R. at 225a; FOF 79. No 

retirement deductions were taken from Dr. Lebron’s pay while he worked at Olney, 

nor did ASPIRA pay its employer share. See R.R. at 174a, 200a; FOFs 80, 90.

In April 2015, based on information ASPIRA sought from PSERS about 

PSERS’ annuitants employed in its charter schools whose PSERS’ contributions were 

not being withheld, PSERS learned that Dr. Lebron was working at Olney. See R.R. 

at 191a-197a, 208a-209a; FOF 82. PSERS sent its standard request to ASPIRA 

(copied to Dr. Lebron) for information about the nature of Dr. Lebron’s employment, 

in particular, proof of the steps it took to secure a non-annuitant for the Olney 

principal job each year. See R.R. at 189a-192a; FOFs 83-84. ASPIRA responded 

that it regarded Dr. Lebron as an emergency hire for the subject school years; 

however, based on ASPIRA’s documentation, PSERS determined that Dr. Lebron 

had been working at Olney in a non-emergency capacity. See R.R. at 197a-198a, 

210a. 

By September 1, 2015 letter, PSERS’ Retirement Administrator, Troy 

Peechatka (Peechatka), notified Dr. Lebron of PSERS’ determination that Dr. Lebron 

returned to active employment with the SDP on July 1, 2011, and that it would

discontinue Dr. Lebron’s retirement benefits as of September 30, 2015, and 

15 Dr. Lebron’s 2014-2015 contract was substantially similar to his previous ASPIRA 

contracts. See R.R. at 113a-114a, 168a-169a; FOF 74.
12

recalculate the debits and credits on his account as a result of his active 

employment.

16

 See R.R. at 1a-2a, 198a-199a, 210a-211a; FOFs 86-87. Peechatka 

explained:

ASPIRA [] represented that it recruited and interviewed 

numerous candidates prior to the start of the 2011-2012 

school year for the principal and co-principal position[s] but 

advised the candidates that, although their ‘skills and 

qualifications were excellent,’ it had ‘chosen to hire another 

candidate for the position.’ The basis of an emergency 

employment when choosing a retiree over a non-retiree is 

that a qualified applicant is sought rather than the best 

qualified. Voluntarily choosing not to hire a qualified nonannuitant, regardless of the reason, does not establish a 

shortage of personnel that exempts you from the return to 

service provisions in the Retirement Code. 

R.R. at 5a; see also R.R. at 210a-211a; FOFs 86-87. PSERS determined from 

ASPIRA’s rejection letters to the 2011 candidates that ASPIRA considered the other 

candidates’ skills and qualifications excellent. See R.R. at 211a-213a; FOF 55. 

On October 1, 2015, Dr. Lebron appealed from the September 1, 2015 

determination to PSERS’ Executive Staff Review Committee (ESRC), requesting that 

PSERS consider him in service at Olney for the 2011-2012 school year through June 

30, 2015, pursuant to Section 8346(b) of the Retirement Code, stating that he was the 

only candidate ASPIRA could find with the special skills and experience needed at 

Olney, that ASPIRA hired him on an emergency basis for the 2011-2012, 2012-2013, 

2013-2014 and 2014-2015 school years, and that he believed he was employed at 

Olney in accordance with Section 8346(b) of the Retirement Code. See R.R. at 3a-6a, 

203a; FOF 88. 

16 Beginning on August 19, 2015, and continuing through the July 11, 2018 hearing, the 

SDP employed Dr. Lebron as principal of Kensington High School. See R.R. at 97a-98a, 170a, 

202a; FOF 85. On October 26, 2015, the SDP reported to PSERS that Dr. Lebron had returned to 

service, which triggered PSERS to stop his annuity payments and begin crediting his return as an 

active member. See R.R. at 201a-202a, 204a; FOF 85.
13

Dr. Lebron argued:

The [ESRC] should grant the relief requested because the 

law specifies that the emergency determination is to be 

made ‘in the judgment of the employer.’ There is no 

properly promulgated regulation supporting [] PSERS[’] 

position in this matter. The court cases only authorize 

PSERS to reverse that determination in situations 

tantamount to fraud on the part of the employer. (Baillie v. 

[Pub. Sch. Emps.’ Ret. Bd.], 9[9]3 A.2d 9[4]4 ([Pa.] 

Cmwlth. 2010)). Additionally, even assuming arguendo 

some validity to [] PSERS[’] position, this would be a 

proper case for relief under [Section 8303.1 of the 

Retirement Code].

R.R. at 4a. Dr. Lebron also requested copies of all information that ASPIRA 

provided to PSERS regarding his Olney employment. See R.R. at 4a.

By determination dated November 5, 2015, PSERS informed Dr. Lebron 

that it had removed his name from its annuitant payroll and re-enrolled him as an 

active, contributing PSERS member, and directed him to repay, within 30 days, the 

$378,686.00 in retirement benefits he received between July 1, 2011 and August 31, 

2015.17 See R.R. at 124a, 199a-201a, 334a; FOF 89. On November 24, 2015, Dr. 

Lebron appealed from PSERS’ repayment notice to the ESRC. See FOF 92.

On August 16, 2016, the ESRC denied Dr. Lebron’s request that PSERS 

consider his service at Olney for the subject period as in accordance with Section

8346(b) of the Retirement Code, stating that although ASPIRA claims his 

employment as Olney’s principal was an emergency, ASPIRA failed to show it made 

a bona fide effort to hire a non-retired employee for the position. See R.R. at 7a-14a;

17 PSERS did not credit Dr. Lebron with service for the time ASPIRA employed him 

because ASPIRA did not provide the salary and service information PSERS requested. See R.R. at 

200a; FOF 91. However, PSERS will credit Dr. Lebron for those service years if it receives the 

necessary documentation. See R.R. at 200a; FOF 91. ASPIRA will also owe its employer share of 

the contribution, plus interest for each year ASPIRA did not submit it to PSERS. See R.R. at 200a; 

FOF 90. 
14

FOF 93. Although the ESRC was authorized to seek additional information from Dr. 

Lebron, it did not do so. See R.R. at 216a. 

On September 14, 2016, Dr. Lebron appealed from the ESRC’s denial to 

the Board, requested a hearing, and again asked for “all of the information that 

ASPIRA ha[d] provided to [] PSERS or the ESRC pertaining to [his] service 

beginning June 27, 2011.” R.R. at 19a; see also R.R. at 15a-24a; FOF 94. 

On October 4, 2016, PSERS filed an answer to Dr. Lebron’s appeal,

18

and therein objected to Dr. Lebron’s document request on the basis that “there is no 

formal discovery under the General Rules of Administrative Practice and Procedure

[(GRAPP)], 1 Pa. Code §[§] 31.1[-35.251].”

19

 R.R. at 32a; see also R.R. at 25a-40a; 

FOF 95. Nearly three years after his initial request, and just weeks before the 

hearing, PSERS supplied Dr. Lebron with the requested documents in mid-June 2018. 

See R.R. at 291a, 307a. A hearing was held before a Board-appointed hearing 

examiner (Hearing Examiner) on July 11, 2018. See R.R. at 41a-232a; FOF 96.

At the hearing, Dr. Nuñez testified that, before ASPIRA acquired the 

Olney contract, ASPIRA had publicized that it was competing for the contract and 

advertised the principal position. See R.R. at 56a-57a, 76a-77a. Dr. Nuñez claimed

that ASPIRA’s advertising for the Olney principal position consisted of internal 

18 According to the Board:

By letter dated October 12, 2016, the [Board’s] Appeal Docket Clerk

notified [ASPIRA] of [Dr. Lebron’s] appeal and explained that 

ASPIRA may elect to participate as an intervenor because[,] as [Dr. 

Lebron’s] former employer, ASPIRA may have a financial interest in 

the appeal. The Appeal Docket Clerk’s letter directed ASPIRA to file 

a petition to intervene no later than October 24, 2016. ASPIRA did 

not file a petition to intervene. 

Board Op. at 2.

19 “[A]s ‘a general rule, discovery as provided by the rules of civil procedure are not 

available in administrative proceedings.’” C.S. v. Dep’t of Human Servs., Bureau of Hearings & 

Appeals, 184 A.3d 600, 606 (Pa. Cmwlth. 2018) (quoting Pa. Bankers Ass’n v. Pa. Dep’t of 

Banking, 981 A.2d 975, 997 n.18 (Pa. Cmwlth. 2009)).
15

emails (LISTSERV) to school employees, posts on PAREAP (a Pennsylvania 

teaching job website), ASPIRA’s website and social media pages, and notices in The 

Philadelphia Inquirer and at local universities. See R.R. at 82a-87a. Dr. Nuñez 

recalled that she assisted ASPIRA in hiring principals for its other charter schools for 

the 2011-2012 and 2012-2013 school years. See R.R. at 92a-93a.

Dr. Nuñez described that the new principal’s duties at Olney beginning 

June 2011 entailed overseeing construction to combine two school buildings, 

interviewing and hiring nearly 200 employees, and researching publishing companies 

and obtaining academic resource materials for the 2011-2012 school year. See R.R. 

at 67a-68a; FOF 41. She explained that all of this work created the greatest sense of 

urgency because it had to be done within two months, and the number of candidates 

with experience running high schools had declined. See R.R. at 71a; FOF 48. Dr. 

Nuñez declared that the hiring team relied on Dr. Lebron’s representations about the 

process of employing him as a retiree and the hiring team appointed the Chief 

Operating Officer and the Human Resources Director to follow up with PSERS. See

R.R. at 65a. 

Dr. Lebron testified that, after he informed the hiring team at his May 

2011 interview that he could not accept the job as Olney’s principal for the 2011-

2012 school year unless ASPIRA deemed it an emergency hire, “[the hiring team] 

indicated -- since it was an emergency they [sic] were going to be contacting 

PSERS,” and he assumed ASPIRA did so. R.R. at 162a; see also R.R. at 103a-104a, 

161a-162a, 171a-172a; FOFs 47, 49. Dr. Lebron did not recall thereafter asking 

ASPIRA’s hiring team if it had contacted PSERS, nor did he seek anything in writing

to that effect. See R.R. at 162a-163a. He further recognized that his contract for the 

2011-2012 school year referenced that he was eligible to participate in PSERS but, in 

light of his representations at his interview, he did not consider that form language 

applicable to him. See R.R. at 165a. Dr. Lebron acknowledged that the contract did 
16

not reference an emergency or shortage of appropriate personnel. See R.R. at 165a; 

FOF 53. The same was true for his 2012-2013, 2013-2014 and 2014-2015 school 

year contracts. See R.R. at 166a-169a; FOFs 65, 70, 74.

Dr. Lebron began work under his contract on June 27, 2011, to make 

Olney fully operational by: coordinating building upgrades; identifying, interviewing 

and hiring approximately 125 teachers and staff; establishing procedures; developing 

community relationships; creating safety protocols; and researching curriculum 

materials. See R.R. at 104a-106a; FOF 56. Dr. Lebron explained that, during the 

course of his contract, he was also responsible for training the two assistant principals 

to eventually run Olney. See R.R. at 107a. 

Dr. Lebron testified that he understood his initial Olney employment 

would be for the 2011-2012 school year but, in light of the continued growth and 

development of Olney during that year, neither assistant principal was ready to take 

over, and ASPIRA was unable to find a replacement for him, so he agreed to remain

on for the 2012-2013 school year, subject to PSERS’ continued approval. See R.R. at 

108a-109a; FOF 63. He recounted that Dr. Paramo approached him in 2013 about 

staying on for the 2013-2014 school year, and he was satisfied with her 

representations that he was still needed. See R.R. at 109a-111a; FOF 68. Dr. Lebron 

recalled that the same situation occurred relative to the 2014-2015 school year, 

because the new assistant principals assigned for the 2013-2014 school year were 

unable to accept the principalship for the 2014-2015 school year. See R.R. at 113a114a; FOF 74. 

Dr. Lebron acknowledged that he had read and understood the return to 

service restrictions presented to him by the retirement counselor in June 2007, in his 

September 6, 2007 Initial Benefit Letter, in his April 15, 2009 Finalized Benefit

Letter, in the Handbook, and in the newsletters he read. See R.R. at 131a-132a, 136a141a. Dr. Lebron attested:
17

Q Did you believe you were responsible for submitting a 

letter to PSERS for your post[-]retirement employment?

A I didn’t think so.

Q Did you believe that you were responsible to have your 

employer do that?

A I think so, yes.

Q . . . . Did you understand that your employer may have to 

document the basis for your emergency?

A Yes.

Q Did you ever ask ASPIRA to keep documentation 

regarding your employment?

A I mentioned it to the [hiring team] that day, you [sic] got 

to get the clearance in order for me to be employed, 

clearance from PSERS.

R.R. at 142a-143a. Dr. Lebron admitted that he did not tell PSERS that he was 

returning to service. See R.R. at 146a; FOF 78. He understood that it was his 

employer’s responsibility to notify PSERS and, since ASPIRA told him it would take 

care of contacting PSERS, he did not think he had anything further to do in that 

regard. See R.R. at 172a-173a; FOF 78. Dr. Lebron represented that repaying the 

$378,686.00 in retirement benefits he received between July 1, 2011 and August 31, 

2015, “would wipe [him] out”; he did not have the money to repay PSERS. R.R. at 

125a; see also R.R. at 124a.

Peechatka testified that his job responsibilities include examining 

whether an annuitant has returned to service in an approved capacity (i.e., whether the 

employment meets one of the Retirement Code’s post-retirement exceptions). See

R.R. at 176a-178a, 181a-182a. He explained relative to the personnel shortage 

exception that, when an employer has unsuccessfully attempted to secure a nonretiree for a position, it is permitted to use an annuitant for as long as the shortage 

lasts for that school year. See R.R. at 179a. He added that “the Retirement Code 
18

does not address the best qualified, only the shortage.” R.R. at 179a; see also R.R. at 

210a-211a. Peechatka stated that, when investigating personnel shortage cases, 

PSERS looks at evidence of good faith steps the employer took to secure a nonannuitant, including documentation of employer outreach by job postings, 

professional journals, headhunters and other methods. See R.R. at 180a, 210a. 

Peechatka further expressed that an annuitant can serve in an emergency

capacity for as long as the emergency lasts during the school year, and a sudden, 

unexpected increase in workload that the current school staff is not able to handle, in 

addition to its regular duties, constitutes an emergency. See R.R. at 180a. He 

described that, if an emergency goes beyond the school year, PSERS would need to 

see proof of the steps the employer took throughout the school year to secure a nonannuitant before it would approve an emergency hire for another year. See R.R. at 

181a. Peechatka declared that an annuitant may not continue working in an 

emergency capacity to train his/her replacement. See R.R. at 181a. Peechatka 

recalled reviewing Dr. Lebron’s case and determining, based on ASPIRA’s 

documentation, that Dr. Lebron returned to service in a non-approved capacity. See

R.R. at 179a. 

When Peechatka was asked: “Is there a form for PSERS retirees 

returning in an emergency capacity?” he replied: “No, there’s not.” R.R. at 205a. 

When asked: “Why not?” Peechatka responded: “I don’t have an answer for that.” 

R.R. at 205a. Peechatka acknowledged that Dr. Lebron’s September 6, 2007 Initial 

Benefit Letter, his April 15, 2009 Finalized Benefit Letter and the Handbook do not 

specify that Dr. Lebron had an affirmative obligation under Section 8346(b) of the 

Retirement Code to do anything if he returned to work in an emergency capacity; but, 

rather, only if he returned to service in a position that was not an emergency. See

R.R. at 207a-208a. Peechatka reported that, based upon the documentation that 

ASPIRA provided to PSERS, including the other candidates’ resumes and rejection 
19

letters, ASPIRA could have hired any of them in Dr. Lebron’s place. See R.R. at 

211a-213a, 217a-220a. Peechatka stated, however, that ASPIRA did not submit its 

original job posting, so PSERS was not aware of what ASPIRA listed as the specific 

requirements for the position. See R.R. at 213a-216a. To Peechatka’s knowledge, 

neither ASPIRA nor the SDP sought PSERS’ approval for Dr. Lebron to return to 

service at any time before April 2015. See R.R. at 225a.

On November 29, 2018, after the parties filed post-hearing briefs,20 the 

Hearing Examiner issued an Opinion and Recommendation that the Board should 

affirm PSERS’ November 5, 2015 repayment letter because: Dr. Lebron was afforded 

due process; because Dr. Lebron failed to demonstrate by a preponderance of the 

evidence that his service as Olney’s principal for the subject school years was due to 

an emergency or personnel shortage, the Board should deny his claim that he was 

exempt from loss of annuity under Section 8346(b) of the Retirement Code; and, 

because Dr. Lebron failed to prove by a preponderance of the evidence that he 

satisfied the four prongs of Section 8303.1 of the Retirement Code, the Board should

deny his adjustment waiver request. See Dr. Lebron Br. App. B, Hearing Examiner 

Recommendation at 1. 

On December 31, 2018, Dr. Lebron filed a Brief on Exceptions and 

requested oral argument before the Board. See R.R. at 301a-312a. Dr. Lebron 

specifically excepted on the following bases: (1) he was the latest victim of the 

Board’s failure to promulgate and adopt rules and regulations pursuant to Section 

8502(h) of the Retirement Code, 24 Pa.C.S. § 8502(h), concerning annuitant 

emergency/personnel shortage returns to employment; (2) PSERS’ basis for 

determining an invalid return to service under Section 8346(b) of the Retirement 

Code was not supported by substantial evidence; (3) PSERS is not authorized to 

20 See R.R. at 233a-299a; FOF 97.
20

review a school employer’s judgment that it has an emergency situation; and (4) 

PSERS’ position that he did not meet the hardship test under Section 8303.1(a)(1) of 

the Retirement Code is specious. See R.R. at 302a-311a. 

On January 18, 2019, PSERS filed a letter brief in lieu of a brief 

opposing Dr. Lebron’s exceptions, wherein it responded that: (1) Dr. Lebron failed to 

cite any legal authority for his claim that the Board’s failure to promulgate rules and 

regulations is a basis for relief and ignores the existence of the Baillie Court’s 

contrary ruling that PSERS is authorized to review a school employer’s use of an 

annuitant; (2) Dr. Lebron failed to except to any specific finding of fact; (3) this 

Court’s Baillie and Volpe v. Public School Employees’ Retirement Board (Pa. 

Cmwlth. No. 1837 C.D. 2016, filed October 24, 2017)

21 decisions authorized PSERS 

to review ASPIRA’s judgment that an emergency existed; and (4) Dr. Lebron failed 

to prove that he met the requirements for a waiver under Section 8303.1 of the 

Retirement Code. See R.R. at 313a-318a. 

On August 16, 2019, the Board denied Dr. Lebron’s request for oral 

argument; denied his request that his post-retirement employment as Olney’s 

principal during the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school years 

be deemed an acceptable return to service without loss of annuity under Section 

8346(b) of the Retirement Code; denied his waiver request; and affirmed PSERS’ 

November 5, 2015 repayment letter. See Board Op. at 44. Dr. Lebron appealed to 

this Court.22

21 This Court acknowledges that its unreported memorandum opinions may only be cited 

“for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth 

Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Volpe is cited herein for its 

persuasive value.

22 This Court’s scope of review of the Board’s opinion and order is limited to determining 

whether substantial evidence supported the Board’s necessary findings of fact, whether the Board 

violated constitutional rights, or whether the Board committed an error of law. See Robertson v. Pa. 

Pub. Sch. Emps.’ Ret. Sys., 162 A.3d 569 (Pa. Cmwlth. 2017); see also Hairston-Brown v. Pub. Sch.

Emps.’ Ret. Bd., 78 A.3d 720 (Pa. Cmwlth. 2013). “Substantial evidence is such relevant evidence 
21

Discussion

Dr. Lebron argues that the Board’s refusal to enact regulations deprived 

him of his due process rights, that the Board erred by shifting the burden of proof to 

him, and that the Board ignored ASPIRA’s judgment that an emergency or shortage

of appropriate personnel existed. The crux of Dr. Lebron’s appeal is that, since he 

did all that PSERS required of him, he should not be penalized for returning to 

service at Olney for the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school 

years in the face of ASPIRA’s determination that there was an emergency/shortage of 

appropriate personnel.

Section 8346(b) of the Retirement Code states, in pertinent part:

When, in the judgment of the employer, an emergency 

creates an increase in the work load such that there is 

serious impairment of service to the public or in the event 

of a shortage of appropriate subject certified teachers or 

other personnel, an annuitant or participant receiving 

distributions may be returned to school service for a 

period not to extend beyond the school year during 

which the emergency or shortage occurs, without loss of 

his annuity or distributions[.]

24 Pa.C.S. § 8346(b) (bold and italic emphasis added). That provision expressly 

authorizes the public school employer to judge whether circumstances are sufficient 

to hire an annuitant without affecting the annuitant’s retirement benefits. Section 

8346(b) of the Retirement Code does not specify that PSERS can review the 

employer’s determination. 

However, in Baillie, this Court expounded: 

Section 8521[(e)] of the Retirement Code provides that 

PSERS and its Board ‘stand in a fiduciary relationship to 

the members of the system regarding the investments and 

disbursements of any of the moneys of the fund.’ 24 

as a reasonable mind might accept as adequate to support a conclusion.” Hairston-Brown, 78 A.3d 

at 727 (quotation marks omitted).
22

Pa.C.S. § 8521(e). PSERS is responsible for the ‘uniform 

administration’ of the public school employees’ retirement 

system. 24 Pa.C.S. § 8502(h). To that end, PSERS’ 

interpretation of the Retirement Code should not be 

overturned unless it is clear that such construction is 

erroneous. In addition, Section 8534(b) of the Retirement 

Code requires PSERS to correct all intentional or 

unintentional errors in members’ accounts.[23] In other 

words, PSERS has the duty to correct errors made by 

public school employers and to make actuarial adjustments 

to an individual member’s benefit payments. . . . 

. . . PSERS would breach its fiduciary duty if it allowed 

a member to receive an annuity after returning to school 

service under circumstances that do not constitute an 

‘emergency.’ [The public school employer] made the 

initial determination that an emergency existed; however, 

the final decision for matters affecting disbursements to 

annuitants must rest with PSERS. Otherwise, public

school employers would have the final say in matters that 

have statewide implication and can affect the solvency of 

the fund. Accordingly, we hold that PSERS has the 

authority to review whether a public employer’s 

decision to return a retired employee to work was, in 

fact, done on the basis of an emergency as defined in 

Section 8346(b) of the Retirement Code.

Baillie, 993 A.2d at 949-50 (emphasis added; citation and footnotes omitted);24 see 

also Volpe. Although the statute does not so specify, in the Baillie Court’s ruling that 

23 Section 8534(b) of the Retirement Code provides, in relevant part:

Should any change or mistake in records result in any member . . .

receiving from the system or plan more or less than he would have 

been entitled to receive had the records been correct, then regardless 

of the intentional or unintentional nature of the error and upon the 

discovery of such error, the [B]oard shall correct the error and if the 

error affects contributions to or payments from the system, then so far 

as practicable shall adjust the payments which may be made for and 

to such person in such a manner that the actuarial equivalent of the 

benefit to which he was correctly entitled shall be paid. 

24 Pa.C.S. § 8534(b).

24 Although Baillie is factually distinguishable from the instant matter, these rules of law are 

nevertheless controlling here.
23

PSERS was authorized to review ASPIRA’s determination that Dr. Lebron’s return to 

service met the emergency/shortage of appropriate personnel exceptions in Section 

8346(b) of the Retirement Code, it noted that in order for PSERS to uphold its 

fiduciary duty in administering the Retirement Code, it must determine that the 

employer properly exercised its judgment. 

 Moreover, “[t]he law is clear that the Board is the ultimate finder of fact 

and arbiter of witness credibility. As long as the Board’s factual findings are 

supported by substantial evidence those findings are conclusive on appeal.” White v. 

Pub. Sch. Emps.’ Ret. Bd., 11 A.3d 1, 7 (Pa. Cmwlth. 2010) (citation omitted).

1. Regulations

Although Section 8502(h) of the Retirement Code directs the Board that 

it “shall . . . adopt and promulgate rules and regulations for the uniform 

administration of the system[,]” 24 Pa.C.S. § 8502(h) (emphasis added), the Board 

has not done so. Dr. Lebron contends that the Board’s failure to promulgate 

regulations violated his due process rights. However, Dr. Lebron did not proffer, and 

this Court has not found, any case law declaring that an administrative agency’s 

failure to promulgate regulations creates legal rights in an individual. Accordingly, 

despite that regulations would provide for “uniform administration” and make the 

parties’ rights and responsibilities under Section 8346(b) of the Retirement Code

clearer, the Board’s failure to promulgate regulations did not deprive Dr. Lebron of 

his due process rights.

25

 

25 Notwithstanding, this Court strongly urges the Board to perform its ministerial duty to 

“adopt and promulgate . . . [rules and] regulations[,]” 24 Pa.C.S. § 8502(h), to avoid similar future 

litigation.
24

2. Burden of Proof

Dr. Lebron argues that the Board erred by shifting the burden of 

establishing an emergency/shortage of appropriate personnel to him, when evidence 

concerning the same was in ASPIRA’s or PSERS’ possession. 

This Court has held relative to Board cases: 

[I]t is well-established that the party who maintains the 

existence of certain facts . . . must prove those facts by a 

preponderance of the evidence. Wingert v. State Emp[s.’]

Ret[.] B[d.], . . . 589 A.2d 269, 271 ([Pa. Cmwlth.] 1991); 

Samuel J. Lansberry, Inc. v. P[a.] Pub[.] Util[.] Comm[’n], . 

. . 578 A.2d 600, 602 ([Pa. Cmwlth.] 1990). A 

preponderance of the evidence is ‘such proof as leads the 

fact-finder . . . to find that the existence of a contested fact 

is more probable than its nonexistence.’ Sigafoos v. P[a.]

B[d.] of Prob[.] [&] Parole, . . . 503 A.2d 1076, 1079 ([Pa. 

Cmwlth.] 1986). 

Hamilton v. Pa. State Emps.’ Ret. Bd., 194 A.3d 1147, 1154-55 (Pa. Cmwlth. 2018). 

In the instant matter, the Board misinterprets that Dr. Lebron is the only party 

maintaining the existence of the operative facts and, thus, he had the sole burden of 

proof. 

Section 8346(b) of the Retirement Code expressly states that it is 

applicable “[w]hen, in the judgment of [ASPIRA,]” Dr. Lebron’s return to service at 

Olney for the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school years was 

due to an emergency or shortage of appropriate personnel.

26

 24 Pa.C.S. § 8346(b) 

26 The notices included with Dr. Lebron’s September 6, 2007 Initial Benefit Letter, April 15, 

2009 Finalized Benefit Letter, and the Handbook confirmed that, whether an emergency or shortage 

exists is determined by the retiree’s employer. See 24 Pa.C.S. § 8346(b); see also R.R. at 369a, 

373a, 407a; FOFs 13, 16, 19. The notice in his April 15, 2009 Finalized Benefit Letter and the 

Handbook further clarified that, before hiring an annuitant, the employer must first make a good 

faith effort to hire a non-annuitant. See R.R. at 373a, 407a; FOFs 16, 19. The Handbook added: 

“PSERS . . . reserves the right to review an employer’s determination that a qualifying emergency 

or shortage exists.” R.R. at 407a (emphasis added); FOF 19. Although Dr. Lebron does not recall 

reading it, PSERS’ Return to Service Guidelines and Clarifications on PSERS’ website details what 
25

(emphasis added). This Court in Baillie held that when the employer has determined 

the existence of an emergency or personnel shortage, PSERS may review the 

employer’s determination. In addition, Peechatka declared that, in these cases,

PSERS examines evidence of the good faith steps the employer took to secure a nonannuitant. Further, PSERS sent its information request concerning the nature of Dr. 

Lebron’s employment as Olney’s principal to ASPIRA, and the Board found: “PSERS 

had not received satisfactory documentation from ASPIRA[.]”27 FOF 86 (emphasis 

added). Finally, for nearly three years, Dr. Lebron repeatedly asked PSERS for 

copies of the documents ASPIRA provided in response to PSERS’ request, but 

PSERS responded that he was not entitled to discovery.

28

Moreover, Peechatka and the Board acknowledged that Dr. Lebron had 

no affirmative obligation to notify PSERS or seek permission to return to work in 

accordance with Section 8346(b) of the Retirement Code. Notwithstanding, the 

Board declared that Dr. Lebron had the burden of proof because he had knowledge or 

was put on notice that his return to service was not justified under Section 8346(b) of 

the Retirement Code. 

The Board reasoned:

[Dr. Lebron] received [the Handbook], which he read and 

reviewed. In particular, [Dr. Lebron] read the portions of 

[the Handbook] about returning to service after retirement, 

the statements that[:] ‘PSERS, however, reserves the right 

to review an employer’s determination that a qualifying 

emergency or shortage exists,’[;] ‘[i]t is your 

information may be required from the employer to prove that an emergency or personnel shortage 

existed. See R.R. at 447a.

27 Although PSERS copied Dr. Lebron on the request, it was not addressed to him.

28 PSERS eventually supplied Dr. Lebron with ASPIRA’s documents approximately four 

weeks before the hearing, which afforded him little time to seek additional information. This Court 

does not countenance PSERS’ three-year delay in granting Dr. Lebron’s request until one month 

before the July 2018 hearing, thereby affording Dr. Lebron insufficient time between mid-June 

2018 and the hearing to follow up or subpoena additional information under GRAPP.
26

responsibility to notify the employer that you are a 

PSERS retiree,’[;] and[,] ‘[i]f you do return to service 

under any circumstances other than the provisions covered 

by Act 2004-63, you must advise your employer that you 

are a PSERS retiree. You should also send a letter to 

PSERS including the return to service date so your pension 

may be stopped before an overpayment occurs.’ Exhibit 

PSERS-5 (emphasis added).

[Dr. Lebron] read and understood these statements, clearly 

gaining the knowledge that he may have returned to service 

in error, but he took no steps to inform PSERS to secure 

the cessation of his pension before an overpayment 

occurred. Additionally, despite this notice and this 

knowledge, [Dr. Lebron] made no inquiries to see if 

PSERS had reviewed ASPIRA’s determination that [Dr. 

Lebron’s] post-retirement return to employment had 

occurred in a bona fide emergency or shortage of other 

personnel. Based on these occurrences, he had knowledge 

or notice of a possible error before ever accepting the 

position at Olney in 2011. Therefore, he could have taken 

action to preserve his benefits long prior to PSERS[] ever 

learning of his return to work in 2015 and then notifying 

[Dr. Lebron] of the need to make the adjustment to his 

annuity required by the Retirement Code.

Board Op. at 38-39 (emphasis added). The Board also asserted that PSERS’ other 

instructions put Dr. Lebron on notice to confirm that PSERS approved of his postretirement return to service before accepting the Olney principalship. See Board Op. 

at 37-38. In making these determinations, the Board erroneously imposed a duty on 

Dr. Lebron to report his return to service to PSERS and get PSERS’ approval even 

though Section 8346(b) of the Retirement Code does not require the same. See 

Volpe. 

PSERS has issued various policy statements explaining what it interprets 

as its members’ responsibilities under Section 8346(b) of the Retirement Code. “The 

value of a statement of policy is that it communicates, in advance of a discrete agency
27

action, how the agency interprets a law and intends to give it effect.” Borough of 

Bedford v. Dep’t of Envtl. Prot., 972 A.2d 53, 61-62 (Pa. Cmwlth. 2009). 

Here, Dr. Lebron attended retirement counseling and admitted he read 

and understood, at a minimum, the notices of PSERS’ policy included with the

September 6, 2007 Initial Benefit Letter, the April 15, 2009 Finalized Benefit Letter, 

and the Handbook. The notices in Dr. Lebron’s April 15, 2009 Finalized Benefit 

Letter and the Handbook directed that it is the annuitant’s responsibility “to notify 

the employer that [he is] a PSERS retiree[,]” R.R. at 373a, 408a (emphasis added); 

FOFs 16, 19, which he did. The notices in Dr. Lebron’s September 6, 2007 Initial 

Benefit Letter, the April 15, 2009 Finalized Benefit Letter, and the Handbook stated 

that if his return to service did not qualify under Section 8346(b) of the 

Retirement Code (i.e., he returned to work in circumstances other than for an 

emergency or personnel shortage), he “should” also send a letter to PSERS. R.R. at 

369a, 373a, 408(a) (bold and italic emphasis added); FOFs 13, 16, 19. Thus, as 

Peechatka confirmed, based upon the wording in Section 8346(b) of the Retirement 

Code and the PSERS’ policy statements, Dr. Lebron was not required to notify

PSERS that he was returning to service in an emergency or shortage of 

appropriate personnel capacity in 2011, and the Board agreed (“[Dr. Lebron] had 

no positive duty under the Retirement Code to notify PSERS of his return to school

service[.]” Board Op. at 40); see also Volpe. Thus, the Board’s imposition of a duty 

on Dr. Lebron is without support in the statute and the record.

In Volpe, the Board similarly acknowledged that the Retirement Code 

did not impose a positive duty on retirees to notify PSERS of a return to school 

service in emergency or shortage of appropriate personnel circumstances. Volpe was 

employed by the SDP as a Subsidies Technical Assistant (handling the SDP’s 

financial operations) until he retired in July 1998. Because the SDP’s staff could not 

handle Volpe’s former duties, the SDP asked him to return to work two days per 
28

week for the 1998-1999 school year. Volpe accepted and worked part-time for the 

SDP while collecting his pension. Volpe had received retirement counseling about 

the effect of returning to service and also received and read PSERS’ 2000 Handbook. 

Despite the SDP’s claims that it was trying to train Volpe’s replacement, the trainees 

left for one reason or another. And, after PSERS informed the SDP in 2008 that it 

needed to make a bona fide effort to hire qualified non-annuitants rather than hire

better-qualified retirees, the SDP advertised Volpe’s position for a few days each 

year.29 Volpe applied for the job and was hired each year until 2012. In November 

2012, PSERS notified Volpe that his employment did not satisfy the exceptions in 

Section 8346(b) of the Retirement Code, and ordered him to repay nearly $70,000.00 

in retirement benefits and uncredited service.30 On appeal, the Board agreed that 

Volpe failed to produce evidence that an emergency or shortage of appropriate 

personnel existed from 1998 until 2012 while he continued to collect his annuity 

payments, and that Volpe had a duty to report his return to service to PSERS. On 

further appeal, this Court disagreed.

The Volpe Court found that Volpe notified the SDP of his retirement 

status, but concluded that, since there was no statutory requirement, administrative 

regulation, or policy statement that required or even advised Volpe to inform PSERS 

that he returned to school service under Section 8346(b) of the Retirement Code, the 

Board improperly imposed an implied duty on Volpe to notify PSERS of his return to 

service no matter the circumstances. The Volpe Court also declared that the Board’s 

reliance on the Handbook’s reservation of rights in light of the other evidence did not 

support the Board’s conclusion that Volpe knew or was on notice that the SDP had 

29 Clearly, the SDP was aware of its responsibilities when hiring an annuitant well before 

ASPIRA hired Dr. Lebron on its behalf.

30 Volpe retired again when PSERS undertook the 2012 investigation. Upon his retirement, 

PSERS’ adjustment reduced his monthly retirement benefit by approximately 60%. 
29

erroneously determined that an emergency existed justifying Volpe’s return to school 

service while collecting his annuity payments.

The Volpe Court reasoned:

PSERS’[] action in advising [Volpe] only to tell [the] SDP 

upon his return to school service that he is a PSERS retiree, 

but then penalizing him by taking a portion of his pension 

when he failed to do more, is arbitrary. PSERS created a 

gap in communication when it advised [Volpe] to tell [the] 

SDP that he is a PSERS retiree but then did not advise 

either [Volpe] or [the] SDP to report his return to school 

service to PSERS. PSERS could have readily filled this 

gap. The State Employees’ Retirement Code, which 

governs the retirement of state employees and officers, 

contains a provision similar to that of Section 8346(b) of the 

Retirement Code. See Section 5706(a.1) of the State 

Employees’ Retirement Code, 71 Pa. C.S. § 5706(a.1). 

Similar to Section 8346(b) of the Retirement Code, Section 

5706(a.1) of the State Employees’ Retirement Code permits 

a former state employee to return to State service without 

jeopardizing his or her pension if there is an emergency. 

Pursuant to Section 5706(a.1) of the State Employees’ 

Retirement Code, the Governor has issued Management

Directive 515.20 establishing ‘policy, responsibilities, and 

procedures for reemployment of persons retired from 

commonwealth service.’ ([See] Management Directive 

515.20 Amended (July 20, 2015).) Management Directive 

515.20(7.a.) clarifies that when an agency ‘[d]etermines that 

an emergency requires the temporary reemployment of an 

annuitant,’ the agency must complete a form with certain 

information about the annuitant, forward that form to the 

Office of Administration for approval, which must then 

forward the form and justification to the State Employees’ 

Retirement System (SERS). (Id.) Here, PSERS could have 

advised either the annuitant or the school district to inform 

PSERS about the hiring of a retiree, so PSERS could then 

review to see if a true emergency existed. PSERS does not 

lack the statutory authority to do so given that it has the 

right to inspect school district’s employment records, and 

school districts have a corresponding duty to comply. 
30

Sections 8502(f) and 8506(b) of the Retirement Code, 24 

Pa.C.S. §§ 8502(f), 8506(b). Alternatively, PSERS could 

have required preapproval before a school district hired a 

PSERS retiree, as it did with other annuitants that [the] SDP 

hired. . . . However, PSERS did not communicate to 

either [Volpe] or [the SDP] that one or the other was to 

notify it of the hiring of a retiree or to require 

preapproval.

. . . . [Volpe] complied with the only advisory PSERS gave 

him. [The] SDP knew that [he] was a PSERS retiree. 

Thereafter, [Volpe] did not receive any notice from 

PSERS indicating that it disagreed with [the] SDP’s 

determination or that his return to service would affect 

his pension. Under these circumstances, it was not 

unreasonable for [Volpe] to assume that [the] SDP had 

passed along to PSERS the information that [Volpe] was a 

PSERS retiree who had returned to school service. It would 

make little sense for an annuitant to communicate to his 

employer that he was a PSERS retiree who had returned to 

service if the employer was not going to pass that 

information along to PSERS. 

Slip op. at 23-25 (emphasis added; footnote omitted).

Applying the Volpe Court’s reasoning in the instant matter,31 and based 

on the statute and PSERS’ instructions to retirees, this Court concludes that, where 

31 The Board had the benefit of this Court’s Volpe decision when it issued its August 2019 

order in the instant matter. However, the Board claims that this case is distinguishable from Volpe

because

[i]n this case, PSERS informed [Dr. Lebron] that he should send a 

letter to PSERS directly if he was working in a capacity that did not 

fit a return to service exception, including the one-year limitation, to 

avoid any overpayment of annuity. The gap in communication that 

the Commonwealth Court found in Volpe does not exist in this case 

between PSERS and [Dr. Lebron].

Board Op. at 40 (record citations omitted). Despite that Dr. Lebron had the benefit of more than 

PSERS’ Handbook, and Section 8346(b) of the Retirement Code which now allows a return to 

service of up to one school year (as opposed to the 95-day restriction in Volpe), the same 

communication gap that created Volpe’s situation now affects Dr. Lebron. Accordingly, Volpe is 

instructive and persuasive here.
31

Dr. Lebron had a reasonable belief that he returned to service in accordance with 

Section 8346(b) of the Retirement Code, his only duty was to notify ASPIRA that he 

was a PSERS retiree.

32

 Accordingly, Dr. Lebron’s only burden was to prove that 

he had a reasonable belief his return to service was in accordance with Section 

8346(b) of the Retirement Code and that he notified ASPIRA he was a PSERS 

retiree.

Despite that Section 8346(b) of the Retirement Code and PSERS’ policy 

statements place the onus on the employer to determine that a shortage of appropriate 

personnel exists, and PSERS created the communication gap, the Board 

place[d] the consequences of [ASPIRA’s/the SDP’s 

purported] statutory violations at the doorstep of [Dr. 

Lebron]. When governmental entities fail to carry out 

mandatory statutory duties, however, the result of that 

failure should not be laid at the feet of a person who is 

entitled to be the recipient of that duty. Rather, justice and 

fairness require that the person protected by the statute, here 

[Dr. Lebron], be given the opportunity to take advantage of 

the statutory right conferred upon h[im.33] 

Higgins v. Pub. Sch. Emps.’ Ret. Sys., 736 A.2d 745, 750 (Pa. Cmwlth. 1999); see 

also Larsen v. State Emps.’ Ret. Sys., 22 A.3d 316 (Pa. Cmwlth. 2011); Mullen v. 

Dubois Area Sch. Dist., 259 A.2d 877, 880-81 (Pa. 1969) (“The burden of complying 

with the statute rests with the school [employer, here ASPIRA/the SDP]; should they 

32 Considering what occurred in Volpe and the instant case, regardless of PSERS’ policy 

statements and notices, it would certainly behoove an annuitant in these circumstances to notify 

PSERS of a return to service regardless of whether Section 8346(b) of the Retirement Code

exceptions are implicated and, perhaps, seek PSERS’ express approval or an advisory opinion, to 

avoid these unfortunate circumstances. This Court also urges PSERS to consider changing its 

policy, developing a written procedure, or promulgating regulations to avoid similar future litigation 

or, at the very least, more clearly apprise its members of the potential risks highlighted in Baillie, 

Volpe and the instant decision.

33 Dr. Lebron is protected by Section 8346(b) of the Retirement Code. That provision 

conferred upon Dr. Lebron the statutory right to simultaneously receive his annuity payments and a 

salary as an incentive to assist a public school where the school has determined it has an 

emergency/shortage of appropriate personnel. 
32

fail to conduct their business as required, the consequences ought to lie at [their] 

door, not at the door of their victims. They must not be permitted to advantage 

themselves of their own failures to the detriment of their employees.”).

Under the unique circumstances where the statute and PSERS’ 

instructions did not put Dr. Lebron on notice that he would have the burden of 

proving that ASPIRA faced an emergency/shortage of appropriate personnel during 

the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school years, he did not 

participate in nor was he privy to ASPIRA’s decision-making, and he did not have 

access to documentation or other evidence of ASPIRA’s efforts to hire a nonannuitant, thereby placing him completely at the mercy of an independent third party

not obliged to give him information, or even participate in these proceedings,

34 the 

Board erred by imposing the burden solely on Dr. Lebron to prove that his return to 

service was in accordance with Section 8346(b) of the Retirement Code.

35

Recently, in a case involving criminal law, th[e 

Pennsylvania Supreme] Court explained that[] ‘[t]he 

function of a standard of proof, as that concept is embodied 

in the Due Process Clause [of the United States 

Constitution] and in the realm of factfinding, is to instruct 

the factfinder concerning the degree of confidence our 

society thinks he should have in the correctness of factual 

conclusions for a particular type of adjudication. While the 

risk of error in a particular adjudication does not vary 

depending on the standard of proof adopted, the burden 

allocates that risk between the parties.’ [Commonwealth v.] 

Sanchez, 36 A.3d [24,] 65 [(Pa. 2011)] (citations omitted). . 

. . A more stringent burden of production and persuasion 

imposes a higher risk of an erroneous decision on the party 

upon which the burden rests. Thus, shifting the burden of 

proof onto a defendant places the risk of an erroneous 

34 Dr. Nuñez’s testimony was only available to Dr. Lebron because ASPIRA no longer 

employed Dr. Nuñez and she agreed to testify on his behalf. She did not have access to ASPIRA’s 

records. See R.R. at 96a. 

35 Where PSERS’ interpretation of the Retirement Code is clearly erroneous, it may be 

overturned. Baillie.
33

decision upon the defendant. The determination of whether 

such a shift is suitable rests . . . primarily on considerations 

of whether the shift vindicates the public policy at issue. In 

addition, we consider difficulties of adducing evidence to 

prove a negative, the parties’ relative access to evidence, 

and whether placing the burden of proof on one party is 

necessary to help enforce a further right, constitutional or 

otherwise. See Sanchez, 36 A.3d at 67.

Tincher v. Omega Flex, Inc., 104 A.3d 328, 408-09 (Pa. 2014).

Here, notwithstanding that Dr. Lebron did not have the burden to prove 

that ASPIRA faced an emergency/shortage of appropriate personnel for the subject

school years, because Dr. Lebron reaped the benefit of simultaneously collecting his 

annuity and a salary, and he faced the potential of having to return retirement benefits 

he received that were not in accordance with Section 8346(b) of the Retirement Code, 

he had to have a reasonable belief that his return to service complied with Section 

8346(b) of the Retirement Code. Therefore, this Court rules that Dr. Lebron had the 

burden to prove that he had a reasonable basis to believe his return to service 

for each school year complied with Section 8346(b) of the Retirement Code and 

that he notified ASPIRA he was an annuitant. Once Dr. Lebron met his burden, 

the burden shifted to PSERS to prove either that ASPIRA did not exercise its 

judgment under Section 8346(b) of the Retirement Code, or that ASPIRA’s 

judgment in employing Dr. Lebron during each of those years was not based on

an emergency or a shortage of appropriate personnel. Consequently, both Dr. 

Lebron and PSERS had a burden of proof.

 

3. ASPIRA’s Judgment

According to Section 8346(b) of the Retirement Code, Dr. Lebron could 

return to service, collect a salary, and still receive his retirement annuity if, in 

ASPIRA’s/the SDP’s judgment: (1) there was “an emergency [that] create[d] an

increase in the work load such that there [was] serious impairment of service to the 
34

public or [there was] a shortage of appropriate . . . personnel,” and (2) his service 

did not exceed the school year during which the emergency or personnel shortage 

occurred. 24 Pa.C.S. § 8346(b) (emphasis added).

Dr. Lebron asserts that the Board erred by ignoring ASPIRA’s 

determination that he returned to service at Olney for the 2011-2012, 2012-2013, 

2013-2014 and 2014-2015 school years pursuant to the emergency/shortage of 

appropriate personnel exception under Section 8346(b) of the Retirement Code.36 

Because Dr. Lebron relied upon ASPIRA’s representations that there were no other 

suitable non-annuitant candidates for Olney’s principal position, rather than an 

emergency, this Court will examine whether Dr. Lebron’s return to service 

qualified under Section 8346(b) of the Retirement Code’s shortage of appropriate 

personnel exception.

37

 Further,

our duty on review is to determine whether the [Board’s] 

findings [we]re supported by substantial evidence. The 

finding[s] needed to support a decision in [PSERS’] favor 

[we]re that (1) [there was no shortage of appropriate 

36 In response to Dr. Lebron’s request for argument on his exceptions, the Board referenced 

“Section 201.12 of the Board’s [R]egulations, 22 Pa. Code § 201.[1]2 [reserved],” making GRAPP 

applicable to Board proceedings. Section 35.214 of GRAPP authorizes the Board to conduct oral 

argument on exceptions. See 1 Pa. Code § 35.214. However, the Board concluded: “The Board 

does not believe that oral argument is necessary in helping the Board understand and resolve the 

issues and, therefore, denies [Dr. Lebron’s] request.” Board Op. at 2. The Board did not err by 

denying oral argument.

37 Dr. Lebron repeatedly refers to ASPIRA invoking the emergency exception under Section 

8346(b) of the Retirement Code. In order for that specific exception to apply, ASPIRA had to 

establish that “an emergency create[d] an increase in the work load such that there [was] serious 

impairment of service to the public[.]” 24 Pa.C.S. § 8346(b). Further, the Volpe Court accepted the 

Board’s interpretation that an emergency was “sudden, unexpected, unforeseen and require[d] 

immediate action.” Slip op. at 10 (adopting and quoting the hearing examiner’s definition). 

However, neither ASPIRA nor Dr. Lebron provided evidence to PSERS or the Board that an 

increased workload seriously impaired ASPIRA’s/SDP’s service to the public, or they faced 

sudden, unexpected, unforeseen circumstances that required immediate action, thereby creating an 

emergency. Accordingly, like the Board, see Board Op. at 27, this Court will review whether the 

Board erred by concluding that there was insufficient evidence to support ASPIRA’s claim that Dr. 

Lebron’s employment was permissible due to a shortage of appropriate personnel. 
35

personnel during the subject school years, and/or (2) Dr. 

Lebron’s return to service exceeded the school years during 

which the personnel shortages occurred. See 24 Pa.C.S. § 

8346(b).]

S. Hills Health Sys. v. Dep’t of Pub. Welfare, 510 A.2d 934, 936 (Pa. Cmwlth. 1986). 

a. Shortage of Appropriate Personnel

Dr. Lebron had to demonstrate that he had a reasonable basis to believe 

that his return to service for each of the 2011-2012, 2012-2013, 2013-2014 and 2014-

2015 school years was due to a shortage of appropriate personnel. Thereafter, 

“[s]ince [PSERS] assert[ed] [that ASPIRA did not face a shortage of appropriate 

personnel for the subject school years], [PSERS] had the burden of proving [the 

same].” Id. at 935; see also Baillie; Wingert. 

As stated previously, when investigating shortage of appropriate 

personnel cases, PSERS looks at evidence of good faith steps the employer took to 

secure a non-annuitant for the position. Peechatka pronounced that “the Retirement 

Code does not address the best qualified, only the shortage.” R.R. at 179a. 

Notwithstanding, Section 8346(b) of the Retirement Code expressly references “a 

shortage of appropriate . . . personnel[.]” 24 Pa.C.S. § 8346(b) (emphasis added). 

Here, PSERS directed ASPIRA to provide any and all evidence of its 

efforts to hire non-annuitants for the subject school years. Unfortunately, ASPIRA 

did not submit its original job postings or advertisements, so PSERS could not 

determine what ASPIRA listed as the specific requirements for the position. 

ASPIRA provided only the other 2011 candidates’ resumes and the rejection letters in 

which ASPIRA informed them that, although their “‘skills and qualifications were 

excellent,’ it had ‘chosen to hire another candidate for the position.’” R.R. at 5a. The 

only other evidence available to Dr. Lebron was Dr. Nuñez’s testimony.
36

Dr. Nuñez testified that Dr. Lebron’s employment as Olney’s principal 

for the 2011-2012 and 2012-2013 school years was necessitated by a shortage of 

appropriate personnel, and that ASPIRA made a bona fide effort to locate and hire 

non-annuitants that met SAC’s criteria before contracting with Dr. Lebron. However, 

the Board found Dr. Nuñez’s testimony in that regard not credible.

The Board’s credibility determination stemmed, in part, from ASPIRA’s 

financial interest in the outcome of this matter. In particular, the Board concluded

that ASPIRA stands to “incur debt with PSERS due to PSERS’ determination, 

because ASPIRA will owe its employer share of contributions for each year of [Dr. 

Lebron’s] employment, plus interest for each year that the employer’s contribution 

[w]as not [] received[.]” Board Op. at 31. The Board also declared that Dr. Nuñez 

“may bear some responsibility for ASPIRA’s hiring of [Dr. Lebron] without clearing 

it with PSERS, so she has a motive to be other than frank on this point.” Board Op. 

at 31. However, there is no record evidence that Dr. Nuñez bore any individual 

responsibility for hiring Dr. Lebron or any of ASPIRA’s other principals, and she was 

no longer an ASPIRA employee when she gave her testimony in July 11, 2018 (more 

than five years after she left ASPIRA). 

In addition, the Board declared that “[i]t is also impossible to credit [Dr. 

Nuñez’s] testimony so long after the fact[.]” Board Op. at 31. Although it is 

common knowledge that the passage of time can affect a witness’s memory, the 

Board does not cite to, and this Court did not locate, any legal basis for the Board’s 

conclusion that the mere passage of time itself supports a finding that Dr. Nuñez’s 

testimony was not credible. There is nothing in the record to support a finding that 

time affected Dr. Nuñez’s memory. This Court is also perplexed by the Board’s 

utilization of a double standard in declaring the passage of time fatal to Dr. Nuñez’s 

credibility without reaching the same conclusion regarding Dr. Lebron’s testimony. 

See R.J.W. v. Dep’t of Human Servs., 139 A.3d 270 (Pa. Cmwlth. 2016); see also A.P. 
37

v. Dep’t of Pub. Welfare, 98 A.3d 736 (Pa. Cmwlth. 2014). Moreover, where PSERS

is authorized to and could have created a system in which it would have discovered 

Dr. Lebron’s situation much sooner or, perhaps, avoided the circumstances 

altogether,

38 the Board’s reliance on the passage of time to discredit testimony is selfserving and disingenuous.

The Board also found Dr. Nuñez’s testimony “general[ly] unreliab[le],” 

Board Op. at 32, because she represented that ASPIRA’s hiring team relied on Dr. 

Lebron to tell it how to return him to service, but Dr. Lebron testified that was not the 

case. However, reading the testimony in context, what Dr. Nuñez said was that the 

hiring team relied on Dr. Lebron’s representations about the process of employing 

him as a retiree and, after Dr. Lebron informed the hiring team that it must contact 

PSERS and the hiring team discussed it, the hiring team appointed the Chief 

Operating Officer and the Human Resources Director to follow up with PSERS. See

R.R. at 65a. That testimony is entirely consistent with Dr. Lebron’s testimony that, 

after he informed the hiring team at his May 2011 interview that he could not accept 

the Olney principal job unless it was an emergency hire and must be cleared with 

PSERS, the hiring team represented that it would contact PSERS. See R.R. at 162a. 

Because the testimony is not contradictory, the Board’s conclusion that Dr. Nuñez’s

testimony was generally unreliable on that basis was flawed. 

This Court has held:

An appellate court may not reweigh the evidence or make 

credibility determinations. Leon E. Wintermyer, Inc. v. 

Workers’ Comp[.] Appeal B[d.] (Marlowe), . . . 812 A.2d 

478, 487-88 ([Pa.] 2002). However, an appellate court 

may ‘overturn a credibility determination if it is 

arbitrary and capricious or so fundamentally dependent 

38 PSERS could create a SERS-like system in which the employer must notify PSERS every 

time an annuitant returns to service, or its own process whereby an annuitant and the employer shall 

notify PSERS and/or obtain pre-approval any time an annuitant returns to work.
38

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) 

(emphasis added; footnote omitted). This Court finds the Board’s credibility 

determinations flawed and evident of the Board’s effort to justify its decision without 

record or legal support.

Further, several findings the Board made to reach its conclusion that 

ASPIRA did not employ Dr. Lebron at Olney for the 2011-2012, 2012-2013, 2013-

2014 and 2014-2015 school years because of shortages of appropriate personnel were 

not supported by substantial evidence. See White. 

Specifically, the Board declared that “there is no evidence that when 

ASPIRA hired [Dr. Lebron] . . . , ASPIRA had determined the principal position at 

Olney to be unfillable due to a shortage of other personnel.” Board Op. at 29. That is 

not the standard. Rather, Section 8346(b) of the Retirement Code requires “a 

shortage of appropriate . . . personnel” for the exception to apply. 24 Pa.C.S. § 

8346(b) (emphasis added). Notwithstanding, the Board concluded that there was not 

a personnel shortage that required ASPIRA to hire Dr. Lebron, because Dr. Nuñez 

“had two years of experience in the SDP as a principal, 13 years of experience as a 

superintendent or chief academic officer in the charter school sector, and 11 years of 

experience as a teacher in the SDP . . . , she had started four other [ASPIRA] charter 

schools and was the founding principal of ASPIRA’s second charter school[,]” 

Board Op. at 30, and could have done the job. 
39

However, the fact that Dr. Nuñez participated in hiring principals for 

ASPIRA’s other charter schools for the 2011-2012 and 2012-2013 school years is not 

relevant to whether there was a shortage of appropriate personnel to be Olney’s 

principal for the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school years. 

Although there may have been principal candidates for other schools, PSERS 

presented no evidence of whether those candidates were “appropriate . . . personnel” 

under the circumstances. 24 Pa.C.S. § 8346(b). In addition, there is no record 

evidence that the other charter schools for which Dr. Nuñez hired principals were 

high schools, let alone new charter schools intended to rehabilitate a notoriously atrisk student body, or whose appropriate candidates included bilingual, AfricanAmerican, or Latino persons with high school principal experience familiar with the 

City of Philadelphia, to be aligned with the at-risk student demographic. 

Accordingly, the Board improperly reached its conclusion based on that evidence.

The Board also spontaneously concluded that, in light of Dr. Nuñez’s 

qualifications, she could have undertaken the preparation for Olney’s 2011-2012 

school year while ASPIRA continued to search for a non-annuitant to be principal 

and, thus, ASPIRA did not exhaust all efforts before hiring Dr. Lebron. The Board 

clarified:

If the evidence establishes . . . that a school 

employer has a back-up plan to fill the vacancy with 

another existing employee, even if only temporarily, 

that fact does support a finding that a shortage did 

not exist that would support hiring a PSERS retiree. 

It contradicts an argument that the employer had no 

choice but to stop recruiting efforts for the vacancy 

and hire a retiree. In this case, Dr. Nu[ñ]ez testified 

that she believed she would have been the back-up 

plan. . . . This testimony is not the basis for th[e] 

Board’s conclusion that [Dr. Lebron] failed to meet 

his burden of proving that a shortage of other 

personnel existed in May 2011, but it does lend 

support to that conclusion because it shows that 
40

ASPIRA had not exhausted its perceived options 

prior to hiring [Dr. Lebron].

Board Op. at 30-31 n.2. The Board added that “there were five other ASPIRA 

employees involved in the hiring process[.]” Board Op. at 30-31. 

The Board clearly disregarded Dr. Nuñez’s testimony that, although she 

had a principal certificate, was bilingual, and was familiar with charter schools, her 

experience was in primary education (grades K through 8) and she would not have 

accepted the position. The Board further assumed, without record support, that Dr. 

Nuñez and/or the rest of ASPIRA’s hiring team of high-level administrative staff had 

the requisite time, skills, and resources to oversee Olney’s construction, interview and 

hire nearly 200 employees, and research publishing companies and obtain academic 

resource materials for the 2011-2012 school year. Even if they did, the Board 

improperly imposed an implied duty on ASPIRA to hire its employees out to the SDP 

when it cannot immediately locate non-annuitant candidates to fill the SDP’s job 

openings. Accordingly, the Board’s findings are without any record basis.

The Board also relied upon the 2011 Olney candidate rejection letters to 

support its conclusion that, since there were non-annuitant candidates ASPIRA could 

have hired instead of Dr. Lebron, Dr. Lebron’s return to service as Olney’s principal 

did not meet the requirements of Section 8346(b) of the Retirement Code. In those 

letters, ASPIRA informed the candidates that, although their “‘skills and 

qualifications were excellent,’ it had ‘chosen to hire another candidate for the 

position.’” R.R. at 5a. The letters do not support the Board’s conclusion. As stated 

above, Section 8346(b) of the Retirement Code requires a shortage of “appropriate . . 

. personnel” for the personnel shortage exception to apply. 24 Pa.C.S. § 8346(b)

(emphasis added). The statutory language clearly reveals that ASPIRA could seek 

more than just warm bodies for the job. Certainly, a pro forma letter politely 

rejecting candidates, who lacked high school and principal experience, for the task of 
41

reforming an at-risk school is not credible evidence that any of those candidates were 

“appropriate . . . personnel” for the Olney principalship, particularly during the first 

year. Id. Accordingly, the record does not support the Board’s finding.

The Board further concluded that Dr. Lebron’s acceptance of the Olney 

principalship for the 2011-2012 and 2012-2013 school years subject to ASPIRA 

notifying PSERS that he returned to work, when he did not place that same proviso 

on his six post-retirement positions within the SDP between September 2007 and 

June 2011, “is a strong indicator that [Dr. Lebron] understood his return to work at 

Olney to be different from all of his prior returns, [] supporting the finding that 

ASPIRA initially offered him the position without [] referring to the shortage of other 

personnel exception.” Board Op. at 30. In reaching that conclusion, the Board 

stated: “[Dr. Lebron], in his prior returns to work under the other personnel shortage 

exception . . . had never sought PSERS’ approval.” Id. 

This Court agrees that Dr. Lebron never sought approval for those

assignments, and further acknowledges the record evidence that Dr. Lebron’s returns 

to service from September to December 2007 at Microsoft High School of the Future

(due to a sudden principal resignation) and from September 2008 to June 2009 at 

Germantown High School (when he and another veteran principal were asked to 

temporarily run a persistently dangerous school) were emergency assignments.39 See

R.R. at 146a-148a, 151a-152a. However, contrary to the Board’s conclusion, Dr. 

Lebron did not testify that his other four assignments were due to 

emergency/shortages of appropriate personnel. See R.R. at 149a-150a, 152a-156a. 

Moreover, since Dr. Lebron was never asked whether he accepted those postretirement positions conditioned on the SDP notifying PSERS, the Board could not 

39 Dr. Lebron testified that the SDP informed him that his return to service from September 

to December 2007 at Microsoft High School of the Future had been cleared with PSERS. See R.R. 

at 147a-148a.
42

know that those instances differed from his Olney principalship job offer in that 

manner. Further, as stated above, to the extent Dr. Lebron reasonably believed that 

any of his post-retirement assignments were due to an emergency/shortage of 

appropriate personnel under Section 8346(b) of the Retirement Code, he was not 

obligated to report his return to service to PSERS. Rather, he understood the 

employer had the duty to report his return to service to PSERS, if necessary. Dr. 

Lebron handled his Olney employment in the same fashion. Accordingly, there is no 

record support for the Board’s conclusion that Dr. Lebron’s actions relative to his 

post-retirement returns to service before Olney are “a strong indicator that [Dr. 

Lebron] understood his return to work at Olney to be different from all of his prior 

returns[.]” Board Op. at 30.

 The Board also asserted that Dr. Lebron’s Olney contracts for the 2011-

2012, 2012-2013, 2013-2014 and 2014-2015 school years are a “strong indicator” 

that Dr. Lebron was not hired based on a personnel shortage pursuant to Section 

8346(b) of the Retirement Code. Board Op. at 32. Specifically, the Board relies on 

the fact that those contracts did not reference personnel shortages and did reference

that he was eligible to participate in PSERS as if he was not an annuitant. However, 

the contracts contained ASPIRA’s standard employment language, including the 

PSERS contribution language in the same paragraph with other employer-provided 

benefits. See R.R. at 95a-96a. Dr. Lebron expressed his understanding that the 

PSERS participation language did not apply to him. See R.R. at 165a-166a. The 

Board’s interpretations of the above facts and conclusions it drew therefrom are not 

based on record evidence and, in fact, are contradicted by Dr. Lebron’s testimony that 

the Board found to be credible.

Further, Section 8346(b) of the Retirement Code does not mandate that 

the reason for hiring be expressly stated in the employment contract. In fact, there’s 

no requirement that Dr. Lebron execute a contract in emergency/shortage of 
43

appropriate personnel circumstances for post-retirement employment to qualify under 

Section 8346(b) of the Retirement Code. Although Dr. Lebron entered into a contract 

for his September 2008 to June 2009 employment at Germantown High School, the 

SDP did not give him a contract for his September to December 2007 employment at 

Microsoft High School of the Future, for his October 2009 to February 2010 

employment at Kensington Creative & Performing Arts High School, for his 

February to June 2010 employment at Lawton Elementary School, or for his August 

2010 to June 2011 employment at Randolph Career Academy. See R.R. at 147a, 

151a-156a. Under the circumstances, there is no record support for the Board’s 

finding that Dr. Lebron’s contracts were a “strong indicator” that Dr. Lebron was not 

hired based on a shortage of appropriate personnel. Because the above factual 

findings were not supported by substantial evidence, they are not conclusive on 

appeal. See White.

Finally, the Board repeatedly referenced that ASPIRA did not notify 

PSERS of Dr. Lebron’s return to service as Olney’s principal or “clear[] it with 

PSERS[,]” as if ASPIRA had a duty to do so. Board Op. at 31; see also FOFs 78-79. 

However, notwithstanding Dr. Lebron’s understanding and/or representations to the 

contrary throughout this proceeding, neither Section 8346(b) of the Retirement Code 

nor PSERS’ instructions required ASPIRA/the SDP to notify PSERS when, in its 

judgment, an emergency or shortage of appropriate personnel existed, and there was 

no statutory or common law requirement that ASPIRA seek pre-approval for Dr. 

Lebron’s return to service under any circumstances. See Volpe. The Board erred as a 

matter of law by concluding otherwise. This Court may overturn PSERS’ erroneous 

interpretation of the Retirement Code. Baillie. 

 The Board credited testimony that Dr. Lebron informed ASPIRA he was 

a retiree in 2011, and that he expressly conditioned his acceptance of ASPIRA’s job 

offers for the 2011-2012 and 2012-2013 school years on ASPIRA notifying PSERS, 
44

if necessary. Dr. Lebron “did not receive any notice from PSERS indicating that it 

disagreed with [ASPIRA’s] determination or that his return to service would affect 

his pension.” Volpe, slip op. at 24. And, ASPIRA did not deduct PSERS 

contributions from Dr. Lebron’s salary during that time. 

The Board concluded that “there is no evidence in the record whatsoever 

about what efforts, if any, ASPIRA/[the SDP] made to locate a non-annuitant for the 

Olney principalship for [the 2013-2014 and 2014-2015] school years.” Board Op. at 

33. This Court acknowledges that there is little record evidence of ASPIRA’s 

purported shortage of appropriate personnel for those years. However, Dr. Lebron 

did not have the burden of proving that was the case, he did not participate in nor was 

he privy to ASPIRA’s decision making, and he did not have access to documentation 

or other evidence of ASPIRA’s efforts to hire a non-annuitant. Dr. Lebron’s only 

burden was to show that he had a reasonable belief that ASPIRA had a shortage of 

appropriate personnel for each of those school years, and that he notified ASPIRA he 

was a retiree. 

The record is clear that, when ASPIRA offered Dr. Lebron the Olney 

principalship job for the 2013-2014 and 2014-2015 school years, ASPIRA was aware 

he was a retiree and “it was [reasonable] for [Dr. Lebron] to assume that [ASPIRA] 

had passed along to PSERS the information that [Dr. Lebron] was a PSERS retiree 

who had returned to school service[,]” if necessary. Volpe, slip op. at 24. Like the 

first two contracts, Dr. Lebron “did not receive any notice from PSERS indicating 

that it disagreed with [ASPIRA’s] determination or that his return to service would

affect his pension[,]” id., and ASPIRA did not deduct PSERS contributions from Dr. 

Lebron’s salary during the latter contract terms. Although Dr. Lebron testified he 

was satisfied with Dr. Paramo’s representations that he was still needed for the 2013-

2014 and 2014-2015 school years, see R.R. at 109a-111a, 113a-114a; FOFs 68, 74, 

that vague testimony alone was insufficient to satisfy his burden of proving he had a 
45

reasonable belief that ASPIRA was experiencing shortages of appropriate personnel 

for those school years. 

Moreover, the Board did not make a specific finding or conclude that 

there was not a shortage of appropriate personnel in those years. Rather, the Board’s 

holding is based on its conclusion that Dr. Lebron’s evidence did not compel it to find 

that ASPIRA needed Dr. Lebron for the 2013-2014 and 2014-2015 school years due 

to a shortage of appropriate personnel. Because the issue here is whether, in 

ASPIRA’s/the SDP’s judgment, there was a shortage of appropriate personnel, that 

there was little to no record evidence of “what efforts, if any, [they] made to locate a 

non-annuitant for the Olney principalship for [the 2013-2014 and 2014-2015] school 

years[,]” Board Op. at 33, “should not be laid at the feet of [Dr. Lebron.]” Higgins, 

736 A.2d at 750. 

Based on the foregoing, the record evidence supported that Dr. Lebron

reasonably believed ASPIRA had the requisite shortages of appropriate personnel

under Section 8346(b) of the Retirement Code for the 2011-2012 and 2012-2013

school years and that he communicated to ASPIRA that he was a retiree. The record 

evidence also supported that ASPIRA exercised its judgment and properly 

determined that Dr. Lebron’s returns to service for those school years were 

necessitated by shortages of appropriate personnel. That being the case, as the Board 

readily admits, neither Dr. Lebron nor ASPIRA was required to notify PSERS or seek 

its approval for Dr. Lebron’s return to service for those years.

40

 Accordingly, Dr. 

Lebron was entitled to simultaneously collect his salary as Olney’s principal and 

receive his retirement annuity pursuant to Section 8346(b) of the Retirement Code for

40 This statement is consistent with the Board’s conclusion that Dr. Lebron similarly relied 

on his 2007 to 2011 post-retirement employers to determine that those assignments were 

necessitated by emergencies/shortages of appropriate personnel in accordance with Section 8346(b) 

of the Retirement Code. 
46

the 2011-2012 and 2012-2013 school years, and the Board erred by concluding 

otherwise.

The same cannot be said for the 2013-2014 and 2014-2015 school years. 

There was insufficient record evidence for the Board to conclude whether Dr. Lebron 

reasonably believed ASPIRA had the requisite shortage of appropriate personnel 

under Section 8346(b) of the Retirement Code for the 2013-2014 and 2014-2015 

school years, and whether ASPIRA properly exercised its judgment, or ASPIRA’s 

judgment in employing Dr. Lebron during those years was based on a shortage of 

appropriate personnel. Accordingly, this matter is remanded to the Board to afford

Dr. Lebron adequate means and time to obtain evidence,

41 and for the Board to 

thereafter conduct a hearing at which Dr. Lebron will have the opportunity to prove 

he had a reasonable belief that his returns to service for the 2013-2014 and 2014-2015 

school years were due to shortages of appropriate personnel. If Dr. Lebron meets his 

burden, then PSERS has the burden to prove for the 2013-2014 and 2014-2015 school 

years either that ASPIRA did not exercise its judgment, or that ASPIRA’s judgment 

in employing Dr. Lebron during those years was not based on a shortage of 

appropriate personnel. The Court’s remand is limited to the 2013-2014 and 2014-

2015 school years. 

b. Exceeded the School Year

Section 8346(b) of the Retirement Code also limits an annuitant’s return 

to service to a school year. See 24 Pa.C.S. § 8346(b). Dr. Lebron was aware that the 

41 GRAPP allows Dr. Lebron to obtain subpoenas from the Board to compel the production 

of documentary evidence and witness testimony, see 1 Pa. Code § 35.142, and to take depositions in 

lieu of hearing testimony, if necessary. See 1 Pa. Code § 35.145. In addition to GRAPP, the 

Board’s rules specifically contemplate the use of subpoenas to compel testimony. See 22 Pa. Code 

§ 201.7. Therefore, Dr. Lebron could subpoena ASPIRA’s and PSERS’ records, and ASPIRA or 

other witnesses who could shed light on ASPIRA’s hiring decisions for the 2013-2014 and 2014-

2015 school years.
47

school year was from July 1 of one calendar year to June 30 of the following year. 

Dr. Lebron’s 2012-2013 contract term was from July 1, 2012 to June 30, 2013. Thus, 

Dr. Lebron was entitled to collect his salary and receive his retirement annuity during 

the 2012-2013 school year as prescribed in Section 8346(b) of the Retirement Code. 

Dr. Lebron’s 2011-2012 contract term was from June 27, 2011 to August 

17, 2012. Because Section 8346(b) of the Retirement Code restricted Dr. Lebron’s 

return to service for 2011-2012 to one school year (i.e., July 1 to June 30), Dr. Lebron 

was only entitled to collect his salary and receive his retirement annuity between July 

1, 2011 and June 30, 2012. He was not permitted to collect his salary and receive his 

retirement annuity for dates outside that range, except, as the Board acknowledged, 

“the portion of [Dr. Lebron’s] first contract prior to that date [(i.e., June 27 to June 

30, 2011)] may be discounted[,]” Board Op. at 28, because ASPIRA did not 

participate with PSERS until July 1, 2011. 

Thus, Dr. Lebron was not entitled to the retirement benefits he received 

for the 48 days from July 1 to August 17, 2012 that extended beyond the 2011-2012 

school year. Accordingly, we remand this matter to the Board for it to recalculate 

what Dr. Lebron owes, allowing adjustments only for the 48 days that exceeded the 

2011-2012 school year. 

In addition, if the Board determines, after a hearing, that Dr. Lebron had 

a reasonable belief his returns to service for the 2013-2014 and/or 2014-2015 school 

years were in accordance with Section 8346(b) of the Retirement Code, and PSERS 

fails to prove either that ASPIRA did not exercise its judgment or that ASPIRA’s 

judgment in employing Dr. Lebron during those years was not based on a shortage of 

appropriate personnel, then Dr. Lebron would be entitled to retain the retirement 

annuity he received during those school years (i.e., from July 1, 2013 to June 30, 

2014, and/or from July 1, 2014 to June 30, 2015). Dr. Lebron would not be entitled 

to, and would have to repay, the retirement benefits he received for the 31 days (from 
48

July 1 to July 31, 2014) that extended beyond the 2013-2014 school year. In that 

event, the Board shall further recalculate Dr. Lebron’s repayment accordingly.

4. Waiver

Lastly, Dr. Lebron contends that the Board erred by determining that he 

did not qualify for the hardship exception under Section 8303.1 of the Retirement 

Code. That Section states:

Upon appeal by an affected member, beneficiary or 

survivor annuitant, the [B]oard may waive an adjustment or 

any portion of an adjustment made under [S]ection 8534(b) 

[of the Retirement Code] (relating to fraud and adjustment 

of errors) if in the opinion of the [B]oard or the [B]oard’s 

designated representative:

(1) the adjustment . . . will cause undue hardship to 

the member . . . ;

(2) the adjustment was not the result of erroneous 

information supplied by the member . . . ;

(3) the member had no knowledge or notice of the 

error before adjustment was made, and the member . 

. . took action with respect to [his] benefits based on 

erroneous information provided by the system; and

(4) the member . . . had no reasonable grounds to

believe the erroneous information was incorrect 

before the adjustment was made.

24 Pa.C.S. § 8303.1(a). This Court has declared that “[a c]laimant must satisfy all 

four provisions of this waiver-of-adjustment provision in order to qualify.” White, 11 

A.3d at 6; see also Volpe. 

Where, as here, the Board agreed that Dr. Lebron “technically satisfie[d] 

the second prong of . . . [S]ection 8303.1(a)[ of the Retirement Code,]” insofar as the 

adjustment to Dr. Lebron’s retirement benefits was not caused by any erroneous 
49

information he supplied to PSERS, this Court need only address the first, third and 

fourth waiver requirements. 

Since Dr. Lebron’s exceptions did not specifically challenge the Board’s 

conclusions as to the third and fourth waiver requirements, he waived such

challenges. See 1 Pa. Code § 35.213 (“Objections to any part of a proposed report 

which is not the subject of exceptions may not thereafter be raised . . . and shall be 

deemed to have been waived.”); see also Volpe; Hairston-Brown v. Pub. Sch. Emps.’

Ret. Bd., 78 A.3d 720 (Pa. Cmwlth. 2013); Baillie. Because the Board concluded that 

Dr. Lebron did not satisfy the third and fourth requirements of Section 8303.1 of the 

Retirement Code, he is not entitled to a waiver. See White. 

 

Conclusion

Based on the foregoing, this Court holds that the Board did not deprive 

Dr. Lebron of his due process rights by not promulgating regulations or granting oral 

argument on his exceptions, and the Board properly concluded that Dr. Lebron is not 

entitled to a waiver under Section 8303.1(a) of the Retirement Code. 

However, the Board erred by placing the burden of proving shortages of 

appropriate personnel on Dr. Lebron, and by concluding that no shortage of 

appropriate personnel existed for the 2011-2012 and 2012-2013 school years. 

Because the record evidence demonstrates that Dr. Lebron had a reasonable belief 

that ASPIRA was experiencing a shortage of appropriate personnel for the 2011-2012 

and 2012-2013 school years, that he informed ASPIRA he was a retiree, and that 

ASPIRA properly exercised its judgment in employing Dr. Lebron during those years 

because of the shortage of appropriate personnel, neither Dr. Lebron nor ASPIRA 

was obligated to notify PSERS of Dr. Lebron’s employment, Dr. Lebron was entitled 

to simultaneously collect his salary as Olney’s principal and receive his retirement 

annuity pursuant to Section 8346(b) of the Retirement Code for the 2011-2012 and
50

2012-2013 school years, but only between July 1, 2011 and June 30, 2012 for the 

2011-2012 school year. Accordingly, this Court reverses the portion of the Board’s 

order denying Dr. Lebron’s request that his post-retirement employment with 

ASPIRA for the 2011-2012 and 2012-2013 school years be deemed a permissible 

return to school service under Section 8346(b) of the Retirement Code. This Court 

vacates the portion of the Board’s order directing Dr. Lebron to repay retirement 

benefits as detailed in PSERS’ November 5, 2015 letter. Rather, Dr. Lebron is 

directed to repay only those retirement benefits he received for the 48 days that 

extended beyond the 2011-2012 school year. This matter is remanded to the Board to

recalculate what Dr. Lebron owes consistent with this Opinion.

In addition, this Court vacates the portion of the Board’s order denying 

Dr. Lebron’s request that his post-retirement employment with ASPIRA for the 2013-

2014 and 2014-2015 school years be deemed a permissible return to school service 

under Section 8346(b) of the Retirement Code. The record is clear that Dr. Lebron 

notified ASPIRA that he was a retiree on at least two occasions. The Court remands 

this matter to the Board to allow Dr. Lebron sufficient time to obtain subpoenas from 

the Board to compel the production of documentary evidence and witness testimony, 

including from ASPIRA and PSERS, and depositions in lieu of hearing testimony, if 

necessary. Thereafter, the Board shall conduct a hearing at which Dr. Lebron has the 

opportunity to prove he had a reasonable belief that his returns to service for the 

2013-2014 and/or 2014-2015 school years were due to shortages of appropriate 

personnel. If Dr. Lebron meets his burden, then PSERS has the burden to prove 

either that ASPIRA did not exercise its judgment, or that ASPIRA’s judgment in 

employing Dr. Lebron during those school years was not based on a shortage of 
51

appropriate personnel. If necessary, the Board shall further recalculate Dr. Lebron’s 

repayment accordingly.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jose E. Lebron, :

Petitioner :

:

v. :

:

Public School Employees’ :

Retirement Board, : No. 1265 C.D. 2019

Respondent :

O R D E R

AND NOW, this 30th day of October, 2020, this Court AFFIRMS the 

portions of the Public School Employees’ Retirement Board’s (Board) order dated 

August 9, 2019 (mailed August 16, 2019) denying Jose E. Lebron’s (Dr. Lebron) 

request for oral argument, and a waiver pursuant to Section 8303.1(a) of the 

Retirement Code, 24 Pa.C.S. § 8303.1(a). 

FURTHER, this Court REVERSES the portion of the Board’s order 

denying Dr. Lebron’s request that his post-retirement employment with ASPIRA, Inc. 

of Pennsylvania (ASPIRA)/the School District of Philadelphia for the 2011-2012 and

2012-2013 school years be deemed a permissible return to school service under 

Section 8346(b) of the Retirement Code, 24 Pa.C.S. § 8346(b). 

FURTHER, this Court VACATES the portion of the Board’s order 

directing Dr. Lebron to repay retirement benefits as detailed in the Public School 

Employees’ Retirement System’s (PSERS) November 5, 2015 letter. Rather, Dr. 

Lebron is directed to repay only those retirement benefits he received for the 48 days 

that extended beyond the 2011-2012 school year. This Court REMANDS the matter 

to the Board for an adjustment recalculation consistent with this Opinion.

FURTHER, this Court VACATES the portion of the Board’s order 

denying Dr. Lebron’s request that his post-retirement employment with ASPIRA for 

the 2013-2014 and 2014-2015 school years be deemed a permissible return to school 
service under Section 8346(b) of the Retirement Code, and REMANDS this matter to 

the Board to allow Dr. Lebron sufficient time to obtain evidence in accordance with 

this Opinion, and for the Board to thereafter conduct a hearing at which Dr. Lebron 

has the opportunity to prove he had a reasonable belief that his returns to service for 

the 2013-2014 and/or 2014-2015 school years were due to shortages of appropriate 

personnel. If Dr. Lebron meets his burden, then PSERS has the burden to prove

either that ASPIRA did not exercise its judgment, or that ASPIRA’s judgment in 

employing Dr. Lebron during those school years was not based on a shortage of 

appropriate personnel. The Board shall further recalculate Dr. Lebron’s repayment 

accordingly. 

Jurisdiction is relinquished.

___________________________

ANNE E. COVEY, Judge