As you have been informed via letter, your request has been denied by SERS’ Appeals Committee for the reasons described in the letter. If you disagree with the Appeals Committee’s decision, you may file an administrative appeal with the State Employees’ Retirement Board (“Retirement Board”). If you choose to file an appeal with the Retirement Board, you may represent yourself or have an attorney represent you. You cannot be represented by a financial advisor, accountant, or other person unless that person is also an attorney admitted to the Bar of the Supreme Court of Pennsylvania. For additional information on pursuing an appeal, please read this brochure carefully.
NOTE: Information in this brochure is provided to help you understand the process by which you may appeal a decision of SERS’ Appeals Committee to the State Employees’ Retirement Board. It is not intended as legal advice, does not constitute a complete statement of the law, and should not be used to replace consultation with an attorney. Although this document presents an overview of the appeals process, it is not a complete statement of the law applicable to appeals. In the event this document conflicts with the applicable law, the law will control.
If you have specific questions regarding whether or not you should file an appeal with the State Employees’ Retirement Board, you should consult an attorney. SERS cannot give you legal advice or advise you on the merits of an appeal to the State Employees’ Retirement Board. If you need assistance in finding an attorney you may contact your county bar association or:
Pennsylvania Lawyer Referral Service
100 South Street, Box 186
Harrisburg, PA 17108
Telephone (717) 238-6807 or Toll Free (800) 692-7375
1. Filing An Appeal
The first step in your appeal will be to file a Letter of Appeal with the Retirement Board. The Letter of Appeal must be received by the Retirement Board’s Docket Coordinator within thirty days of the date of the Appeals Committee’s letter denying your request. You may submit your Letter of Appeal to the Retirement Board by mail, fax, or hand delivery. An appeal submitted by email or telephone will not be accepted and cannot extend the time period for filing a Letter of Appeal. If you do not file a Letter of Appeal within thirty days of the date of the Appeals Committee’s denial letter, you will permanently lose your right to appeal the decision of the Appeals Committee to the Retirement Board.
The Letter of Appeal should include the following information set forth in separate numbered paragraphs:
Your full legal name, your daytime telephone number, and your evening telephone number.
The name and contact information for the person who can discuss your appeal with the attorney representing SERS and receive notices and correspondence about the appeal.
A description of what you stand to gain or lose as a result of the appeal.
A statement of whether you are bringing the appeal on your own behalf as an individual or in a representative capacity such as a guardian or executor.
A complete statement of the facts that form the basis of your appeal. Each fact should be set forth in a separate numbered paragraph.
A statement of what you want the Retirement Board to do (for example, “I would like the Retirement Board to reverse the Appeals Committee’s decision and grant my request to purchase service credit for my military service.”)
A complete statement of the legal principles on which you are relying. If your argument is based on particular court cases or provisions of the State Employees’ Retirement Code you should identify the cases or statutory provisions and provide citations to each of them.
Once you have prepared your Letter of Appeal, send it to:
State Employees’ Retirement Board
30 North Third Street, Suite 150
Harrisburg, PA 17101-1716
ATTENTION: Docket Coordinator
Submissions to any other address may not reach the docket coordinator and therefore may not be recognized.
You may attach to your Letter of Appeal copies of any documents that relate to your claim. Please label each document as an exhibit, in sequential order (Claimant’s Exhibit 1, Claimant’s Exhibit 2, etc.). Although most appeals are decided after a hearing, the Retirement Board may decide your appeal based on the factual and legal grounds stated in your Letter of Appeal. If your Letter of Appeal does not state a sufficient factual or legal basis for the decision you seek, the Retirement Board may dismiss or deny your appeal without a hearing being held.
When the Retirement Board receives your appeal, it is taking a fresh look at the facts and law surrounding your request. Filing an appeal does not mean that the Retirement Board will automatically look at all of the material that is already in your SERS file or earlier documents related to your claim. If you think that material from your SERS file or other documents are important to the resolution of your claim, you should attach them to your Letter of Appeal as exhibits.
2. The Administrative Hearing
After you file your Letter of Appeal, SERS will file an Answer which responds to the facts set forth in the Letter of Appeal. You do not need to respond to the Answer. SERS may also include a New Matter, which contains additional facts, claims, or defenses that rebut the allegations set forth in your Letter of Appeal. If SERS files a New Matter, you will need to respond in writing to the facts set forth in the New Matter within twenty days of the date the New Matter is filed.
Either before, with or after SERS files an Answer, SERS also may file a motion to have the Retirement Board dismiss your claim if SERS believes you have not stated enough facts or a sufficient legal basis to support your claim. If SERS files this sort of motion, you have ten days from the date the motion is filed to provide the Retirement Board with a written response explaining why your appeal should not be dismissed.
Once the Answer (and reply to the New Matter, if any) is filed with the Retirement Board, the Retirement Board will, in most cases, schedule an administrative hearing. The administrative hearing usually takes place a few months after the Letter of Appeal and Answer are filed. All hearings take place at the Retirement System’s headquarters in Harrisburg.
If a hearing is held, it will be conducted by an independent hearing examiner. The hearing examiner is an independent attorney appointed by the Governor’s Office of General Counsel to preside over the hearing. The purpose of the hearing, and the duty of the hearing examiner, is to gather all the facts relating to the case. Creating a factual record will enable the Retirement Board to properly apply the appropriate law, rules, procedures, and precedents in order to make a reasoned decision. The hearing examiner has no special or personal interest in the outcome of the appeal.
The evidence and testimony provided at the hearing provide the foundation for the Retirement Board’s decision. The hearing is not a “round table” discussion. Your testimony and evidence must be limited to the issues before the hearing examiner. Both you and SERS have the right to present witnesses and evidence such as documents, records, or other information. You may cross-examine SERS’ witnesses and SERS may cross-examine your witnesses (including you, if you testify).
In some cases, if there are no disagreements about the relevant facts and you and SERS can agree to a written statement of the facts, the agreed upon facts and any supporting documents can be submitted to the hearing examiner in writing (“stipulated”) without the need for any witnesses to testify. To protect your rights, SERS will agree to submit a written stipulation of facts to the hearing examiner only if you are represented by a lawyer.
To prepare for the hearing, please be aware that:
It is important that you organize the facts and circumstances relating to your appeal. If you intend to introduce documents or other exhibits, you should mark them as exhibits and make sure you have copies for SERS’ attorney and the hearing examiner, and any other parties that are participating in the case. As the claimant, you have the burden to provide sufficient evidence to support your request for relief. If you do not provide evidence in support of your claim, the appeal may be dismissed.
If you need assistance due to a disability or other condition, please contact SERS’ Docket Coordinator as soon as possible so that arrangements can be made.
All witnesses (including you, if you testify) will be required to testify under oath. Each party has the right to cross-examine the other party’s witnesses.
All hearings are recorded by a court reporter and written transcripts will be produced. You must make arrangements with the court reporter to purchase a copy of the transcript at your expense if you want a copy for yourself. You can make arrangements to view the transcript at SERS’ main office in Harrisburg, but SERS is not permitted to make copies of the transcript.
If there are any witnesses who have firsthand knowledge of the matter and you wish to have them testify or bring documents to the hearing, you must notify them of the date, time, and place of the hearing and arrange for them to be present. If a witness can testify only as to what he or she was told by someone else, such testimony alone cannot provide the only basis for the ultimate decision in an appeal.
If any of your witnesses refuse to appear or provide documentary evidence, you may request that the hearing examiner issue subpoenas to ensure that the witnesses will be present or will provide the documentary evidence at the hearing. After applying to the hearing examiner for subpoenas, he or she will issue them if they are determined to be necessary. Subpoenas can be opposed and sometimes take time to be acted on, so they should be requested as far in advance of the hearing as possible.
You or your attorney should attend the hearing to protect your rights. If you or your attorney do not attend, SERS may move to dismiss your appeal.
In the event you need to postpone the hearing, you should request a continuance from the hearing examiner as soon as possible, stating your reasons for making the request. Before contacting the hearing examiner, you should first contact the attorneys representing SERS and any other parties participating in the hearing to determine if they will oppose your request.
3. After The Hearing
At the conclusion of the hearing, the hearing examiner will outline a schedule for the submission of written briefs from the parties. The briefs are documents filed with the hearing examiner that contain proposed findings of fact, proposed conclusions of law, and argument in support of the respective parties’ positions. In your brief, you should set forth your legal arguments in favor of your position together with a discussion of the facts and legal principles that support your argument. Usually, you will be required to submit your brief within thirty days from the date the hearing examiner receives the transcript of the hearing. The hearing examiner will notify you that he or she has received the transcript. After the earlier of receipt of your brief or the expiration of the thirty-day period for you to file your brief, the hearing examiner will inform SERS that the agency has thirty days to submit its brief. Within twenty days of the date SERS submits its brief, you may submit a reply brief addressing the issues raised in SERS’ brief if you think it is necessary.
Occasionally, the Hearing Examiner will have all parties file their briefs by the same date and then allow all parties the opportunity to reply to the first round of briefs, also all on the same date. If circumstances require you to request an extension of the filing deadline for your brief, you may request an extension from the hearing examiner. Before contacting the hearing examiner, you should first contact the attorneys representing SERS and any other parties participating in the hearing to determine if they will oppose your request.
After the briefs are filed, the hearing examiner will consider the facts and documentary evidence presented at the hearing together with the briefs submitted by the parties. Based on this record, he or she will draft an Opinion and Recommendation for the Retirement Board’s consideration. The Opinion and Recommendation will contain the hearing examiner’s fact findings, conclusions of law, a discussion of the reasoning supporting his or her recommendation, and a recommendation to the Retirement Board as to the resolution of the claim. The Opinion and Recommendation is not the final decision on your claim. It is a summary and analysis for the Retirement Board to use in resolving your claim. The hearing examiner’s Opinion and Recommendation will usually be issued within 120 days of the date the final brief is filed.
Once the hearing examiner has issued his or her Opinion and Recommendation, each party has thirty days to submit written exceptions to the portions of the Opinion and Recommendation with which he or she takes issue. Your exceptions should state which portions of the Opinion and Recommendation you disagree with and the reasons why you disagree. Failure to file exceptions within the allotted time period to items in the hearing examiner’s Opinion and Recommendation with which you disagree will constitute a waiver of any objections you have to those portions of the Opinion and Recommendation. After both parties file their exceptions, they have twenty days to file briefs opposing the other party’s exceptions.
After the exceptions and briefs opposing exceptions (if any) are filed, the entire record of the proceeding, including the pleadings, hearing transcript and exhibits, briefs, exceptions, briefs opposing exceptions, and hearing examiner’s Opinion and Recommendation, are analyzed by the Retirement Board. After considering the record and applying the law to the facts of the case, the Retirement Board will issue an adjudication and order. The adjudication and order represents the Retirement Board’s final decision and can adopt all or part of the hearing examiner’s Opinion and Recommendation without taking additional evidence or legal argument and can reach a conclusion different from the one recommended by the hearing examiner. The Retirement Board’s adjudication and order will not usually be issued for several months after the record is completed.
If you disagree with the Retirement Board’s adjudication and order, you may pursue an appeal of the Retirement Board’s order to Commonwealth Court. Appeals to Commonwealth Court are controlled by the Pennsylvania Rules of Appellate Procedure and usually must be made within 30 days of the mail date noted on the Retirement Board’s adjudication and order.