Notes: Tarawa 9 -- Louis Sheehan

Notes: Tarawa 9  -- Louis Sheehan

The 2d Marine Division at Tarawa

Major General Julian C. Smith’s utmost concern when he assumed command of the 2d Marine Division on 1 May 1943 was the physical condition of the troops. The division had redeployed to New Zealand from Guadalcanal with nearly 13,000 confirmed cases of malaria. Half the division would have to be replaced before the next campaign. The infantry regiments of the 2d Marine Division were the 2d, 6th, and 8th Marines; the artillery regiment was the 10th Marines; and the engineers, pioneers, and Naval Construction Battalion (“Seabees”) were consolidated into the 18th Marines. These were the principal commanders as the division began its intensified training program leading to Operation Galvanic:

• CO, 2d Marines: Col William M. Marshall
• CO, 1/2: Maj Wood B. Kyle
• CO, 2/2: LtCol Herbert R. Amey, Jr.
• CO, 3/2: Maj John F. Schoettel
• CO, 6th Marines: Col Maurice G. Holmes
• CO, 1/6: Maj William K. Jones
• CO, 2/6: LtCol Raymond L. Murray
• CO, 3/6: LtCol Kenneth F. McLeod
• CO, 8th Marines: Col Elmer E. Hall
• CO, 1/8: Maj Lawrence C. Hays, Jr.
• CO, 2/8: Maj Henry P. “Jim” Crowe
• CO, 3/8: Maj Robert H. Ruud
• CO, 10th Marines: BGen Thomas E. Bourke
• CO, 18th Marines: Col Cyril W. Martyr

Other officers who would emerge in key roles at Tarawa included Brigadier General Leo D. Hermle, Assistant Division Commander; Lieutenant Colonel Presley M. Rixey, commanding 1/10, a pack-howitzer battalion supporting the 2d Marines; Lieutenant Colonel Alexander B. Swenceski, commanding the composite 2d Tank Battalion; Major Henry C. Drewes, commanding 2d Amphibian Tractor Battalion; Major Michael P. Ryan, commanding Company L, 3/2; and First Lieutenant William D. Hawkins, commanding the Scout Sniper Platoon in the 2d Marines. Altogether, 18,088 Marines and sailors of the division participated in the assault on Tarawa Atoll. About 55 percent were combat veterans. Unlike Guadalcanal, the Marines at Tarawa carried modern infantry weapons, including Garand M-1 semi-automatic rifles, Browning automatic rifles, and portable flamethrowers. Assault Marines landed with a combat load consisting of knapsack, poncho, entrenching tool, bayonet, field rations, and gas masks (quickly discarded). Many of those carrying heavy weapons, ammunition, or radios drowned during the hectic debarkation from landing craft under fire at the reef’s edge.

For WWI Notes: Louis Sheehan 9

For WWI Notes:   Louis Sheehan  9

Now can you measure just what a big warm hut means to these men as a home, far away from home? The red triangle at the entrance gleams across the whole camp and stands for the three things the soldier most needs.

It stands, in the first place, as a pledge for supplying the physical need of these hungry, lonely, and fiercely tempted men. A dry shelter, a warm fire, a cheerfully lighted room, the bursts of song, and the hum of conversation make the men forget the wind and rain and mud outside. Supper and a hot cup of coffee satisfy their hunger. On the notice-board is the announcement of the outdoor sports, football tournaments, and the games, where the thirty thousand men of the division will compete in open contest on the coming Saturday, under the direction of the Y M C A. Whatever the soldier needs for his physical life, whether it is to eat or to sleep, a bed in London, a cool drink in the thirsty desert, or hot coffee in the trenches, it is furnished for him by the Association.

The hut also provides for the soldier's intellectual and social needs. The piano and the phonograph, the billiard tables, draughts and chess boards, tables for games, library, and reading room keep him busy; and the concerts, stimulating lectures, moving pictures, educational classes, and debating societies provide him with recreational and mental employment.

The far deeper moral and spiritual needs of the soldier are also met. As the evening draws to a close, one sees the secretary in his military uniform stand up on the table; hats are off and heads are bowed at the call for evening prayers, which are held here every night. On Sunday the parade services of the different denominations take place in turn in the Association hut. Weekly voluntary religious meetings are also held. At one end of the building is the "quiet room," where groups of Christian soldiers can meet for Bible classes or for prayer. At regular intervals evangelistic meetings are held. On our last night at this hut, on a Sunday evening, twelve hundred men gathered to listen to the Christian message.

Of the three bars of the triangle, it is this which stands at the top, which unites the other two and which is the dominating factor of the whole. And yet nowhere is religion forced down the throats of the men. Rather it is the aim to make it the unconscious atmosphere of the whole hut. It is a striking fact, to which every soldier will testify, that while the language of the barrack room and beer canteen is often reeking with the profane and the obscene, the whole tone of the Association hut is entirely different. As one soldier says: "You don't realize the enormous difference of atmosphere between this and any other place where soldiers congregate. A man simply does not talk bad language and filth here; he learns to control himself." Thus the threefold work of the Association stands for the whole man and for the whole manhood of the nation.

In many ways the Y M C A hut seeks to meet the soldier's every need.

1. It is his club, where he meets his comrades and in the freedom and friendship of the place forgets the irksome drill, the endless restraints, and the stern discipline of military life.

2. As we have already seen, it is his home, the place where he writes his letters and keeps in touch with his family and distant friends. Nearly twenty million pieces of stationery are sent out free for the soldiers each month from the London central office, and the sign of the red triangle on the letter head brings weekly joy and cheer to the broken circle in the distant home. It is here that the lad is helped to "keep the home fires burning" in his heart and to hold true to those high ideals. One little girl when visiting the Crystal Palace, upon seeing the sign of the red triangle, said: "My daddy always makes that mark on his letters when he writes to us at home."

3. It is his church, for out on the desert, or in the jungle, or at the front, there is usually no other church building for religious services. The following is taken from a typical Sunday program in one of the huts: "6:30 a. m., Roman Catholic Mass; 7:30 Nonconformist service; 9:00 Anglican service; 2-3 p. m., Bible class; 6:4:5-8 United Song Service." Thus each denomination is allowed to have its own service in its own way on Sunday morning, while the evening meeting is interdenominational and open to all.

In one place where the young Hebrews were being sadly neglected and were falling away from their former moral standards, the secretary arranged with the Jewish rabbi to have a weekly service in the Y M C A tent for his men. It has been held ever since. The Jews of the neighboring city were so grateful that they started a campaign to raise a fund of $10,000 for Y M C A huts. The Rev. Michael Adler, the head Jewish rabbi with the forces in France, has time and again expressed his cordial appreciation of the help rendered to the men of his faith. The doors of the Association will always remain open for men of all creeds. As wide as the needs of men, as broad as democracy, as unified as humanity, and as tolerant as its Lord and Master, the movement will ever aim to be.

4. The Association hut is the soldier's school. Here his classes are held. A program taken at random from a single hut will show the scope of a week's work: "Bible classes; religious services; lecture on The Town Where We Are; lecture on South America; lantern lecture on Russia; debating society; impromptu speeches; history class."

5. The Association hut is also his place of rest, and the shop where he buys his supplies. Here he can procure almost anything he needs that is decent, and read anything that is wholesome. Usually this hut is the only clean place of recreation in the camp, and without it he is left to choose between the cheerless tent and the beer canteen.

6. The Y M C A is the center of his recreation, and his entertainment bureau. Under the leadership of Miss Lena Ashwell and scores of others, concerts and entertainment parties have been organized and have toured continuously in France, Great Britain, Egypt, and the more distant camps. The six artists of each party are received with tremendous enthusiasm and become the fast friends of Tommy Atkins. One writes: "Last time the party came here the press of men waiting on the verandah to go into the second performance was so great that our brand new verandah collapsed with the sound of a bomb explosion! Luckily the mass was so tightly packed that they fell through in a solid heap; no one was hurt, and all were able to enjoy the concert thoroughly."

7. It is the soldier's bank, and his postoffice. We were in one hut alone where more than fifteen thousand dollars were on deposit in the savings bank. The sale of stamps in this hut amounts to fifteen hundred dollars a month, and of postal orders for the remittance of money home to more than four thousand dollars. Every week an average of 28,000 letters are written and posted in this one room, while thousands more are received and handed to the men.

8. The Association is the soldier's friend and tourist guide, while he is visiting London, Paris, or the other great cities. In some places one table is set apart where a chaplain or secretary is always on duty to help the soldiers make their wills, find out their trains to London, answer their questions, or give them the friendly help they need.

The Y M C A stands by the soldier to the last and even after he falls. After the boy has fought his last fight and lies wounded or crippled or dying in the hospital in France, it meets his parents and relatives and provides for their entire stay in the country. Each relative of the wounded proceeding to France receives printed instructions from the War Office that the Y M C A will meet all the boats and provide transportation and accommodations for all who need it while at the front. Our friend, Mr. Geddes, broke down as he tried to tell us how he and his wife had been met on the lonely shores of France by the Y M C A secretary and motored quickly to the bedside of their dying son, only to find that they were just too late. The funeral was arranged, even to the providing of flowers. The last ministry was performed for the young man away from home and for the loved ones left behind, under the triangle that will forevermore be red.

Thus the Association is at once the soldier's club, his home, his church, his school, his place of rest, his entertainment bureau, his bank and postoffice, his tourist guide, and the friend that stands by him and his bereaved parents at the last. Fifteen hundred just such huts and centers stretch away from Scotland to East Africa, from France to Mesopotamia, from Egypt to India. Could any other single organization have met all these needs of the men under arms, mobilized so quickly, united all denominations, entered all lands, and embraced all forms of work secular and religious?

We conducted meetings for several months throughout the camps in the British Isles. At our last parade service with the brigade out in the open field there were several thousand seated on the grass, with their eight bands drawn up in front. In every service the battle was on between good and evil, between God and mammon, between sacrifice and sin.

One night we visited the sailors' training camp. It was a great meeting, with two thousand of the sailor boys crowded in a big theater. The concert was going on when we arrived and the jeers and yells of the crowd drowned some of the voices of the performers; it was evident that we were going to have a hard time to hold the audience. Captain "Peg" stepped to the stage and soon had them singing, "We'll Never Let the Old Flag Fall." Roars of applause followed and they clamored for more. Out in the glare of the footlights and looking into that sea of faces, we began to fight for that audience. There were two thousand tempted men whom we should never see again. In five minutes the whole theater was hushed—you could hear a pin drop. After half an hour the meeting was interrupted by the noise of the band outside. Surely the men will bolt and leave the meeting. We said to them: "Boys, there is the band. Let everybody go now who wants to go! We are going on. Every man that wants to make the fight for character, the fight for purity with the help of Jesus Christ, stay with us here." There was a shout from the audience, and not a man left the theater. The band thundered on, but the crowd was with us now, and the hopes of hundreds of hearts for the things that are eternal surged to the surface. Several hundred men signed the War Roll, pledging their allegiance to the Lord Jesus Christ. One sailor boy came up to thank us, saying that he had all but fallen the week before; and simply for the lack of a sixpence he had been saved from sin. With God's help he would now live for Christ. Another came up who had been drinking heavily and had quarreled with his wife. He did not have the price of a postage stamp to write to her. He wanted to know how he could be saved from drink. Man after man came forward, hungry for human help and longing for a better life.

For WWI Notes: Louis Sheehan 9

For WWI Notes:   Louis Sheehan  9

CHAPTER IV

WITH THE BRITISH ARMY

I

In sheltered America we cannot realize what war means, but when we entered the warring countries of Europe, in an instant we were in a different atmosphere. We landed in England upon a darkened coast, we entered a darkened train, where every blind was drawn lest it furnish a guide to London for invading Zeppelins or aeroplanes. We passed through gloomy towns and villages, where not a single light was showing from a window, where every street lamp and railway station was darkened or hidden. Automobiles with a dim spark of light groped through the black streets of the metropolis.

In London we saw a great Zeppelin brought down in flames. It was a sight never to be forgotten. At half-past two in the morning we were awakened by the roar of the anti-aircraft guns in and around the city. After traveling all night from Germany, one Zeppelin had arrived over London and a whole fleet of them was scattered over the coasts and counties of England.

We sprang to the window and found the sky swept by a score of searchlights with their great shafts of piercing light, shooting from the dark depths of the city high into the sky, where they all converged on a single bright object that hung nine thousand feet above us. Long, and shining like silver with its flashing aluminum, the Zeppelin seemed held as if blinded by the fierce light. Bombs were dropping from it and explosions followed in rapid succession in the city beneath.

It was a battle to the death, high in the air with all London looking on. The guns were in full play and the shell and shrapnel were bursting all about the Zeppelin. Sometimes you could trace the whole trajectory of a projectile, as a spark of light swept through the sky toward the Zeppelin and then burst to the right or left, above or below it. Most of the shots seemed to go wide of the mark. More than a score of aeroplanes had been sent up to attack it, with one plane to guide the rest and signal to the guns below by wireless or lights. The battle finally developed into a duel to the death between the machine guns of the Zeppelin and Lieutenant Robinson of the Flying Corps, who was up for two hours in his aeroplane after the enemy—one man fighting for a city of five millions. He attacked from below and bombs were thrown at his plane; then he attacked from the side as he circled about the monster, but he was driven off by their machine guns. At last, mounting high in the sky, he attacked from above. The guide-plane flashed down the signal for the guns to cease firing and give him a chance.

For a few moments all was silent; the battle seemed to be over. The great airship, which had swung sharply to the left, was triumphantly leaving for home. Then it was that Robinson dropped his incendiary bomb. Suddenly there was an explosion. A flame of burning gas leaped into the sky. London was lit up for ten miles round-about. Our room was instantly as bright as though a searchlight had flashed into the window. Far above us was the Zeppelin in flames. Now it began to sink—first it was in a blaze of white light, then its outline turned to a dull red, finally it crumpled to a glowing cinder, sank from sight, and fell crashing to the earth. Then all was dark again. Death had fallen suddenly upon the men in the Zeppelin and upon some in the sleeping city below.

As we drove through London we passed the draper's shop, near St. Paul's Cathedral, where George Williams and a group of twelve young men met in a little upper room on June 6, 1844, to organize the first Young Men's Christian Association. A dozen young men with little wealth, influence, or education might not seem a very formidable force, but twelve men have upset the world and changed the course of history before now. They had only thirteen shillings, or $3.25, in the treasury, and were too poor even to print and send out a circular announcing their little organization. But George Williams brought his fist down on the table, with the confident words, "If this movement is of God, the money will come."

It has come. The twelve men have been multiplied now to a million and a half, scattered in forty lands. Girded with new strength and with the dauntless optimism of youth, the movement has risen up to minister not only to the millions of British and American soldiers and munition workers, but also to the men in the camps, hospitals, or prisons in most of the nations now at war. The thirteen shillings have been multiplied until now the permanent Y M C A buildings are worth over a hundred million dollars. An average of two new huts or centers have been erected and opened by the British or American Associations every day since war was declared; while two permanent buildings in brick or stone rise each week in some part of the world.

Wars are the birth-pangs of new eras. A new day dawned for the Young Men's Christian Association with the present war. At midnight on August 4, 1914, the British Association as it had been for seventy years was buried and forgotten, and a new movement arose on the ruins of the old. Ninety per cent of its former workers left to join the colors, but a new army of over thirty thousand men and women was mustered and trained within its huts for the service of the British soldiers. The Y M C A had suddenly to "think imperially," and to minister to a world at war.

Seventy years ago George Williams was the man of the hour, but a leader of the British war work of the Y M C A was found in the present crisis in the person of Mr. A. K. Yapp, General Secretary of the National Council of Great Britain, who has recently been knighted by virtue of his distinguished service for the nation. He had spent Sunday, August second, in deep searching of heart and had caught a vision of what the war would mean, and the opportunity that would be presented to an organization that was interdenominational, international, readily mobile, and adaptable enough instantly to meet a great national crisis.

Within a fortnight the British army and the whole British navy were mobilized for war. During that time the Y M C A was represented in four-fifths of the camps of the territorial forces and 250 centers were opened. In six months 500 centers were occupied; at the end of the first year there were 1,000, and after two years of the war 1,500 such centers were in full swing. The area of operations includes the British Isles, Egypt, the Dardanelles, Malta, the Mediterranean ports, India, Mesopotamia, East and South Africa, Canada, Australia, and out to the last limits of Britain's far flung battle line.

The Y M C A has a strong homing instinct, aiming to provide "a home away from home." In the dugouts behind the trenches, in the deserts of Egypt, or in the jungles of Africa, it has been forced to make a home in every kind of shelter. It was significant that its first three successive dwelling places seventy years ago were a little bedroom, a coffee house, and a room in a tavern. During the present war, one may see Associations in actual operation along the fighting line in France, in a cowshed, a pigsty, a stable, a hop-house, dugouts under the earth; in battered and ruined buildings in Flanders; in tents in the Sahara and on the ancient Peninsula of Mt. Sinai; at the bases of the big battle fleets; in the rest houses of the flying corps; on the Bourse in Cairo; in hotels taken over in Switzerland and France, and in the great Crystal Palace of London. In four centers it has used and transformed a brewery, a saloon, a theater, and a museum. Its dwellings stretch away from the tents of "Caesar's Camp," where the Roman Julius lauded in 55 B. C., on the southern shores of Britain, to the far north, in the new naval institute at Invergordon, erected for the sailors of the Grand Fleet at a cost of more than $20,000. They range from the battered dugouts at the front in France to the Shakespeare hut in London, costing more than $30,000. They stretch from the rest huts of the great metropolis, with sleeping and feeding accommodations for some ten thousand men a day during the dangerous period of leave in London, away to the hut in "Plug Street" Woods, recently blown to atoms by a shell, where the secretary escaped by a few seconds and returned to find literally nothing left save the rims of his spectacles and two coins melted and fused together by the terrific heat of the explosion. Several of the secretaries and workers have been killed by shell fire, or in transit by torpedoes from submarines, while other Association men have received the Victoria Cross for heroism in action.

Let us visit a typical hut to grasp the significance of its work, in order that we may realize what is going on in the fifteen hundred similar centers. We are on the great Salisbury Plain, in the midst of thirty miles square of weltering mud during the long winter months. To realize what a hut means to the men in such a place, we must understand the unnatural situation created by the conditions of war. Here are multitudes of men far from home, shut out from the society of all good women, taken away from their church and its surroundings, weary and wet with marching and drilling, often lonely and dejected, in an atmosphere of profanity and obscenity in the cheerless barrack rooms, and tempted by the animal passions which are always loosed in war-time. The men need all the help we can give them now, and need it desperately.

Save this (saved only for) for notes for Project on WWI. Louis Sheehan.9.4.

"Shaw Empty of Good Sense"

By Christabel Pankhurst.

Written for THE NEW YORK TIMES.

His reputation for perversity and contrariety is fully maintained by George Bernard Shaw in the ineptly-named article, "Common Sense About the War." At home in Britain we all know that it is Mr. Shaw's habit to oppose where he might be expected to support, and vice versa. For example, should he speak at a prohibition meeting he would most likely extol strong drink, or if asked to defend the sale of liquor declare dramatically for prohibition.

He sees himself as the critic of everything and everybody—the one and only man who knows what to do and how to do it.

Mr. Shaw charges his compatriots with intellectual laziness, but they are not so lazy as to leave him to do their thinking for them. That he sometimes—and oftener in the past than now—says illuminating things is true, but firm reliance cannot be placed upon his freakish mental processes, exemplified in his writings about the war. He has played with effect the part of jester to the British public, but when, as now, his jests are empty of the kernel of good sense, the matter gets beyond a joke.

The truth is that in face of this great and tragic reality of war the men of mere words, the literary theorists, are in danger of missing their way. Certainly women of deeds are more likely to see things aright than are men of words, and it is as a woman of deeds that I, a suffragette, make answer to my irresponsible compatriot, Mr. Bernard Shaw. And yet not a compatriot, for Mr. Shaw disclaims those feelings of loyalty and enthusiasm for the national cause that fill the mass of us who live under the British flag!

"Until Home Rule emerges from its present suspended animation," says Mr. Shaw, "I shall retain my Irish capacity for criticising England with something of the detachment of a foreigner." Now, these words are not a little surprising, because Mr. Shaw's interest in the Home Rule cause has hitherto been of a most restrained and well-nigh secret character, and any one who imagines that Mr. Shaw is a strenuous campaigner for Home Rule is greatly mistaken. If in the years preceding the war the Horne Rule cause had depended upon Mr. Shaw's activities, it would have been in a bad way. It is now, when a foreign enemy menaces our nation as a whole, that Mr. Shaw manifests this enhanced interest in Home Rule.

The suffragettes, who have fought and suffered for their cause as no living man reformer in the British Isles has fought and suffered for his, have during the present crisis subordinated their claim to the urgent claims of national honor and safety. So Mr. Shaw, whose campaigning is done generally in the armchair, and never in any place more dangerous than the rostrum, ought surely to refrain from his frivolous, inconsistent, destructive, and unprofitable criticism of our country.

As for the question of lynching, Mr. Shaw is, the American public may be assured, in no danger whatever of being lynched. He is in far more danger of having the Iron Cross conferred upon{69}him by the Kaiser in recognition of his attempt to supplement the activities of the official German Press Bureau. But if he were a German subject, writing on certain points of German policy as he does upon certain points of British policy, his fate can well be imagined. The only retribution that will come upon this man, who exploits the freedom of speech and pen that England gives him, is that his words lose now and henceforth the weight they used to have. Oh, the conceit of the man, who in this dark hour, when the English are dying on the battlefield, writes of "taking the conceit out of England" by a stroke of his inconsequent pen!

Admits England's Cause Is Just.

But with all his will to "take the conceit" out of this England, so fiercely menaced, her sons killed, her daughters widowed—yet needing, so he thinks, his castigation into the bargain—the critic is constrained to admit that our country is playing the part of "the responsible policeman of the West" and that "for England to have refrained from hurling herself into the fray, horse, foot, and artillery, was impossible from every point of view." Then why preface these statements by a series of attacks upon the country which is admitted to be justly fighting in a just cause?

The sole importance of Mr. Shaw's criticism comes from this. He unwarrantably indorses statements made by Germany in her attempt to put the Allies in the wrong. Because he is known to the German people by his dramatic work, extracts from his article will be circulated among them as an expression of the views of a representative British citizen. And how are the Germans to know that this is false, deprived as they are of news of what is happening in the outside world and ignorant as they must be of Mr. Shaw's real lack of influence at this serious time?

That their traffic in mere words disables some literary men from comprehending facts is shown by Mr. Shaw's play upon the word "Junkerism." He points to the dictionary definition of the word instead of to the fact it represents, and by this verbal juggling tries to convince his readers that the military autocracy that dominates and misdirects Germany has its counterpart and equal in Great Britain. Whereas, the conditions in the two countries are wholly different, and it is this very difference that Germany has regarded as one of the signs of British inferiority.

Mr. Shaw's suggestion that the British are posing as "Injured Innocence" and as "Mild Gazelles" is neither funny nor true. We are simply a people defending ourselves, resisting conquest and military despotism, and fighting for the ideal of freedom and self-government. When our country is no longer in danger we suffragettes, if it be still necessary, are prepared to fight on and wage our civil war that we may win freedom and self-government for women as well as men. But, in the meantime, we support the men—yes, and even the Government do we in a sense support—in fighting the common enemy who menaces the freedom of men and women alike. Although the Government in the past have erred gravely in their dealing with the woman question, they are for the purpose of this war the instrument of the nation.

Facts Belie Him.

Mr. Shaw would seem to hold Britain responsible for German militarism, but the facts he cites are against him there. "I am old enough," says he, "to remember the beginnings of the anti-German phase of military propaganda in England. The Franco-Prussian war of 1870-1871 left England very much taken aback. Up to that date nobody was much afraid that Prussia—suddenly Prussia beat France right down in the dust." Precisely! It was this war on France, deliberately engineered by Bismarck, and it was the defeat and despoilment of France that fed Germany's militarism and encouraged Germany to make those plans of military aggression which, after long and deliberate preparation, are being carried into effect in the present war. Germany's plans of military aggression have compelled other countries to prepare, {70}however inadequately, to defend themselves.

Mr. Shaw gives support to the Germans' contention that they are not the aggressors but are menaced by Russia. Yet he does not explain why, if that is so, Germany took French gold and territory in 1870 and has since continued to alienate France; nor why Germany has chosen Britain as her enemy of enemies to be supplanted and surpassed in power.

If Germany is simply on the defensive against Russia and has no desire to attack and cripple France and Britain, then why has she antagonized these countries and driven one after the other into a Russian alliance?

When he affects to criticise Germany for not having "entrusted the security of her western frontier to the public opinion of Western Europe and to America and fought Russia, if attacked, with her rear not otherwise defended," Mr. Shaw burkes the fact that Germany's object is to seize Belgium and to make it part of the German Empire, also to seize at least the northern coast of France and to make this seizure the means of dominating Britain.

Indeed, the point at which German ambition for conquest ceases would be hard to fix. And yet Mr. Shaw pictures for us an injured-innocent, mild-gazelle Germany on the defensive! Quite in this picture is his assertion that "the ultimatum to Servia was the escapade of a dotard," whereas, everybody knows that the ultimatum was dictated at Berlin. It is plain as a pikestaff that in order to bring on the Great War of conquest for which her rulers thought The Day had arrived. Germany dictated the issue and terms of the ultimatum to Servia and then urged Austria to refuse any compromise and arbitration which might have averted war.

Mr. Shaw has assumed the impossible task of trying to blind the American public to these and other facts that prove Germany to be the aggressor in this war, but he will fail in his attempt at white-washing German policy because it is one of the characteristics of the American people that they have a strong feeling for reality and that no twisting and combining of words can prevent them from getting at the facts beneath.

Bernhardi's writings are generally believed to be an inspiration, and in part a statement of German policy. But Mr. Shaw differs. In trying to prove that Bernhardism has nothing to do with the case, he maintains that Germany has neglected the Bernhardi programme, and says:

"He warned Germany to make an alliance with Italy, Austria, Turkey, and America before undertaking the subjugation of France, then of England."

Mr. Shaw then asserts that Germany disregarded this advice and allowed herself to be caught between Russia and a Franco-British combination with no ally save Austria. But here again facts are against him. For Germany has followed with marvelous precision the line drawn by Bernhardi.

She is actually fighting in partnership with Austria. She allied herself with Italy—though Italy has refused to fight with her in this present war of aggression. Germany has also bent Turkey to her purpose, and has dragged the Turks into the war. An alliance with America! Well, to have gained the help of America in crushing France and crippling England, and ravaging and conquering Belgium was quite beyond the power of German diplomacy and intrigue! Still Germany's attempts to win at least America's moral support in this war are vigorous, if unsuccessful.

And with what quotable matter Mr. Shaw provides the German rulers for the further deluding of their subjects when he writes of the German people being "stirred to their depths by the apparent treachery and duplicity of the attack made upon them in their extrernest peril from France and Russia," when he writes of the Kaiser doing "all a Kaiser could do without unbearable ignominy to induce the British not to fight him and give him fair play with Russia," and when he writes of "taking the Kaiser at a disadvantage." As though we ought meekly to have agreed to the Kaiser's plan of defeating France {71}and using her defeat as a bridge to England and a means of conquering England! Uncommon nonsense about the war—so we must rename Mr. Shaw's production!

And what is all this that flows from the pen of Mr. Shaw about Belgium and "obsolete treaties," "rights of way," "necessities that know no international law," "circumstances that alter treaties"? Made in Germany such statements are, and yet even the Imperial German Chancellor is not so contemptuous as Bernard Shaw is of Belgium's charter of existence, the treaty now violated by Germany.

That is a treaty that cannot become obsolete until the powers who made it release Belgium from the restrictions and obligations which the treaty imposes. Germany pleads guilty in this matter of the violation of Belgian neutrality, though Mr. Shaw attempts to show her innocent, for the German Chancellor has said: "This is an infraction of international law—we are compelled to overrule the legitimate protests of the Luxemburg and Belgian Governments. We shall repair the wrong we are doing as soon as our military aims have been achieved." And again the Chancellor said the invasion of Belgium "is contrary to the law of nature." To Mr. Bernard Shaw's peculiar sense of international morality such dealing is not, however, repugnant.

No "Right of Way" in Belgium.

In his letter to President Wilson Mr. Shaw, either willfully or ignorantly, seeks to confuse the neutrality of a neutralized State such as Belgium and the neutrality of an ordinary State such as Italy, and he pretends that violation of the first sort of neutrality creates a situation in no way different from that created by the violation of the second and normal sort of neutrality. I would refer Mr. Shaw to "The Case for Belgium" issued by the Belgian delegates to the United States wherein they point out that "the peculiarity about Belgian neutrality is that it has been imposed upon her by the powers as the one condition upon which they recognized her national existence."

The consequence of this is that whereas Italy and the United States and other powers having a similar status can, subject to the risk of attack from an affronted belligerent, please themselves whether or not they condone a violation of their neutrality, Belgium and the other neutralized States cannot condone such violation, but must either resist all breaches of their neutrality or surrender their right to existence. And further a neutralized State, putting faith in the treaty that guarantees its existence and its neutrality, refrains naturally from that preparation for war which would be deemed necessary in the absence of such a treaty.

There is no such thing as the "right of way" through neutralized Belgium which Mr. Shaw claims on behalf of belligerent Germany. Far from exercising a right of way Germany has violently committed a trespass, offering a German promise, a mere "scrap of paper," as reparation. "A right of way," argues Bernard Shaw, "is not a right of conquest"; but the truth is that in passing through Belgium Germany assumed dominion over Belgium, which dominion she has since formally asserted and is seeking forcibly to maintain.

A New Shavian Theory.

No comprehension does Mr. Shaw display of the hurt to the Belgians' sense of honor involved in Germany's use of their territory for purposes hostile to their friendly neighbor, France. To be forced into injuring a friend is an outrage, indeed, and Mr. Shaw surely knows too much of matters military to be unaware that to permit a right of way to one combatant amounts to making an attack upon the other, and that Germany, by the very fact of crossing Belgium soil, was forcing Belgium to be the enemy of France. Only by their great heroism were the Belgians able to escape this infamy that had been planned for them.

To be conquered does not really matter! There we have another Shavian {72}theory. How grateful would the would-be world-ruling Kaiser feel to Mr. Shaw were he to succeed in inoculating the peoples of Europe and of America with that theory! So would the task of putting the peoples under the German yoke (otherwise known as German culture) be made easier—and cheaper. But the spirit of national freedom, which is as precious to humanity as is the spirit of individual freedom, cannot be driven out by words any more than it can be driven out by blows. The most unlettered Belgian soldier, fighting for a truth that is at the very heart and depth of all things true, puts the mere wordmonger to shame.

That Great Britain does not fight only for Belgium is certainly a fact, though Belgium's plight alone would have been enough to bring us into the conflict. We fight also for France, because she is wrongfully attacked, and because she is by her civilization and culture one of the world's treasures. We fight for the all-sufficient reason of self-defense.

There is the case for Britain, and despite his special pleading for Germany, Mr. Shaw can show no flaw in it. He does say, however, that the British Government, instead of first seeking a mild way of preserving peace, ought to have said point blank to Germany: "If you attack France we shall attack you." I also think that such a declaration would have been the right one. To me and to many others the thought that our country might stand by and watch inactively an attack upon France was intolerable. Great was our relief when this apprehension was removed by the British Government's declaration of war. Why did not the British Government say to Germany before the war cloud burst that Britain would fight to defend France, and why did the Government delay so long in declaring war? Mr. Shaw does not give the reason, but I will give it.

It was that the Government feared opposition to our entering into the war would come from a Radico-Socialist literary clique in London, from a section of the Liberal press, and from certain Liberal and Labor politicians who had been deceived by German professors and other missionaries of the Kaiser into thinking the German peril did not exist. When Belgium was invaded most of these misguided ones were unable to cling any longer to their "keep out of it" policy, and then the Government felt free to act. Yet the Government need not have waited, because with the facts before them the people as a whole would perfectly have understood the necessity of fighting even had Belgium not been invaded.

Henceforward the general public must be kept informed of what is happening in the international world. Foreign politics must be conducted with greater publicity. There, at least, Bernard Shaw is right, but this is a reform which he and his fellow-men have failed to effect, whereas women, had they been voters, would have demanded and secured it long ago.

Now, although undue diplomatic secrecy, always wrong, will be especially wrong when the terms of peace come to be made, sentimentality will certainly be more mischievous still. It is difficult to resist the conclusion that Bernard Shaw's writings on the war are intended as an appeal to sentimentality—an appeal that Germany at the close of the war shall have treatment which, by being more than just to her, would be less than just to the countries whom she has attacked, and would mean a recurrence of this appalling war in after years.

Before the war specious words were used to cloak the German policy of aggression which has plunged the world in horror and is martyrizing peoples. In view of the coming victory of the Allies, the same tactics will be adopted by the German militarists, and it behooves Bernard Shaw to beware lest even without intent he serve as their tool. Men such as he who believe that while they can never be in the wrong, their country can never be in the right, are just the men who are in danger of stumbling at this time.

CHRISTABEL PANKHURST. Photo (C) by Underwood & Underwood. See Page 68.

JAMES M. BARRIE. See Page 100.

---

{73}

Save this (saved only for) for notes for Project on WWI.  Louis Sheehan. 9.4. 

Save this (saved only for) for notes for Project on WWI. Louis Sheehan. 9.3.

Bernard Shaw as a Patriot.

From The New York World, Nov. 17, 1914.

Bernard Shaw has written for our neighbor THE TIMES an elaborate three-page thesis to maintain:

1. That Great Britain was abundantly justified in making war with Germany.

2. That the explanation given by the British Government for making war against Germany was stupid, hypocritical, mendacious, and disgraceful.

3. That he alone is capable of interpreting the moral purpose of the British people in undertaking this necessary work of civilization.

4. That the reason the British Government's justification of the war is so inadequate is because no British Government is ever so clever as Bernard Shaw.

{68}5. That even in the midst of the most horrible calamity known to human history it pays to advertise.

Various patriots have various ways of serving their country. Some go to the firing line to be shot and others stay at home to be a source of innocent merriment to the survivors.

---

Save this (saved only for) for notes for Project on WWI.  Louis Sheehan. 9.3.

Population=50R Louis Sheehan

W164 (88,237,242) [ISHTAR] (Industry=2,Metal=57,Mines=9,Population=78,

     Limit=78,Turns=4,I-Ships=11)

W209 (102,113,186,222) [ISHTAR] (Metal=100,Mines=6,Population=79,Limit=79,

     Turns=6,P-Ships=1)

  (F70[ISHTAR]-->W113 F241[NEPTUNE]-->W222)

W210 (42,46,142,225) [ISHTAR] (Metal=85,Mines=6,Population=76,Limit=76,

     Turns=5,P-Ships=1)

W222 (46,209,225) [ISHTAR] (Industry=30,Metal=98,Mines=6,Population=50R, Louis Sheehan, 

     Limit=100,Turns=7,I-Ships=1)

  F27[DRACO]=1

  F37[DRACO]=1

  F104[ISHTAR]=1

  F73[NEPTUNE]=1

  F151[NEPTUNE]=1

  F178[NEPTUNE]=1

  F241[NEPTUNE]=31 (Moved,Cargo=31)

  (F70[ISHTAR]-->W209 F210[DRACO]-->W225)

W225 (102,210,222) [ISHTAR] (Industry=1,Metal=35,Mines=6,Population=85,

     Limit=85,Turns=6,I-Ships=1)

  F210[DRACO]=7 (Moved)

C5

543 Pa. 132, *; 669 A.2d 940, **;

1996 Pa. LEXIS 10, ***

ROBERT D. CHRISTIANA, Appellant v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Appellee

No. 75 W.D. Appeal Docket 1994

SUPREME COURT OF PENNSYLVANIA

543 Pa. 132; 669 A.2d 940; 1996 Pa. LEXIS 10

September 18, 1995, ARGUED

January 18, 1996, DECIDED

PRIOR HISTORY:  [***1]  Appeal from the Order of the Commonwealth Court Entered July 28, 1994, at No. 1745 C.D. 1993, Affirming the Opinion and Order of the Public School Employes' Retirement Board Dated June 24, 1993 at No. 117-16-8296. 166 Pa. Cmwlth. 300, 646 A.2d 645 (1994). JUDGES BELOW: CRAIG, COLINS, MCGINLEY, PELLEGRINI, FRIEDMAN, KELLEY, NEWMAN, JJ. (Cmwlth.).

DISPOSITION: Affirmed.

COUNSEL: Mr. Robert D. Christiana, APPELLANT, Pro se.

For Public School Employes' Retirement Board, APPELLEE: Louis J. Sheehan, Esquire. For Attorney General's Office, APPELLEE: Ernest D. Preate, Jr., Esquire.

JUDGES: MR. CHIEF JUSTICE ROBERT N. C. NIX, JR., FLAHERTY, ZAPPALA, CAPPY, CASTILLE, MONTEMURO, JJ. Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case.

OPINION BY: ZAPPALA

OPINION

 [**940]   [*134]  OPINION

JUSTICE ZAPPALA

DECIDED: JANUARY 18, 1996

Appellant, Robert D. Christiana, is a former superintendent of the Upper St. Clair School District. Prior to his retirement, the School District had purchased certain annuities for Christiana. Christiana requested that the amounts paid for the annuities be included by the Public School Employes' Retirement System (PSERS) in its calculation of his final average salary for retirement purposes. After an administrative hearing, the Public School Employes' Retirement Board (Board) entered an order directing that the annuities were not to be included in the computation of his retirement benefits. The Commonwealth Court affirmed the Board's order in an en banc decision. We granted Christiana's petition for allowance [***2]  of appeal and now affirm.

The Board's opinion set forth detailed factual findings that are summarized as follows. Christiana was hired as the superintendent by the School District in July of 1979 at a starting salary of $ 52,000. He had been employed previously by school districts in  [**941]  Michigan and New York in various positions and had served as the superintendent of Pennsylvania's Springfield Township School District. Christiana's salary was increased over the next few years:

1980-1981 $ 58,000

1981-1982 $ 63,500

1982-1983 $ 65,723

1983-1984 $ 71,000

In the next five years, the School District reported the following figures as Christiana's salary to PSERS:

 [*135]  1984-1985 $ 71,000

1985-1986 $ 71,000

1986-1987 $ 71,000

1987-1988 $ 74,000

1988-1989 $ 80,000

Beginning with the 1984-1985 school year, the School District also expended funds to purchase single premium annuities for Christiana. The School District did not report the expenditures as part of Christiana's salary to PSERS or pay retirement contributions on those amounts. The minutes of Upper St. Clair School Board's meetings at which the annuity payments were addressed indicate [***3]  that the annuity payments were to be made for purposes of purchasing prior years' seniority pension credit. ¹ The minutes reflect the costs of the annuity purchases:

FOOTNOTES

1 The minutes also indicate that the annuity payments were "in lieu of salary increases." For the school year 1987-1988, in which Christiana also received a salary increase of $ 3,000, the minutes state that "in lieu of any additional salary increase," the School District shall purchase a single premium annuity for purposes of purchasing prior years' seniority pension credit at a cost of $ 9,500.

1984-1985 $ 5,000

1985-1986 $ 7,000

1986-1987 $ 10,000

1987-1988 $ 9,500

By early November of 1988, the School Board was apprised of Christiana's intention to retire at the end of the 1988-1989 school year. On November 14, 1988, the School Board adopted a resolution relating to Christiana's anticipated retirement:

RESOLVED, That for the 1988-89 school year, the salary for the Superintendent shall be $ 80,000; and further,

 [***4] 

RESOLVED, That commencing with the retirement of the Superintendent on June 30, 1989, the Blue Cross/Blue Shield or equivalent medical and hospitalization benefits applicable to building administrators shall be continued for the Superintendent until his attaining age 65, and for his wife Nancy, until her attaining age 65, at District expense; and further,

RESOLVED, That the District shall reimburse the Superintendent during the 1988-1989 school year for costs incurred  [*136]  for the services of a financial planner, such reimbursement not to exceed $ 2,000; and further,

RESOLVED, That the District shall purchase for the Superintendent three years' pension credit under the State Retirement Plan for his service in the United States Air Force as permitted by the laws of Pennsylvania; and further,

RESOLVED, That the District shall provide the Superintendent with an annuity or other equivalent payment at a cost to the District of $ 19,200 for purposes of purchasing for the Superintendent pension credit under the State Retirement Plan for service as an educator in positions prior to his employment under the Pennsylvania retirement system, as permitted [***5]  by the laws of Pennsylvania; . . .

The annuity payment of $ 19,200 for the 1988-1989 school year became problematic due to changes in the federal tax code that were effective as of January 1, 1989. In response, the School Board rescinded the resolution of November 14, 1988, and adopted a second resolution on January 9, 1989. The resolution split the $ 19,200 payment into two separate payments of $ 9,500, which was backdated to the 1988 calendar year, and of $ 9,700, which was to be made at or prior to Christiana's retirement date of June 30, 1989:

MOTION: By Wellington: WHEREAS, the Board of School Directors at its regular meeting on November 14, 1988, adopted certain resolutions relating to the salary and the benefits payable to or for the benefit of the Superintendent; and

WHEREFORE, prior to the adoption of such resolutions it was represented to the Superintendent that the Board would consider  [**942]  modification to those resolutions after the Superintendent and the District had an opportunity to consult with their respective advisors, and such consultations have taken place and the Board is prepared to make certain modifications;

NOW, THEREFORE,  [***6]  BE IT RESOLVED, that with the consent and agreement of the Superintendent, the resolutions  [*137]  adopted by the Board at its November 14, 1988, meeting relating to the salary and benefits payable to or for the benefit of the Superintendent be and are hereby rescinded and the following resolutions are adopted in their place and stead:

RESOLVED, that for the 1988-89 school year, the salary for the Superintendent shall be $ 80,000; and further,

RESOLVED, that commencing with the retirement of the Superintendent on June 30, 1989, the Blue Cross/Blue Shield or equivalent medical and hospitalization benefits then applicable to Building Administrators shall be continued for the Superintendent until his attaining age 65, and for his wife, Nancy, until her attaining age 65, at District's expense . . .

RESOLVED, that the District shall reimburse the Superintendent during the 1988-89 school year for costs incurred for the services of a financial planner, such reimbursement not to exceed $ 2,000; and further,

RESOLVED, that the District, in recognition of the superior manner in which the Superintendent has performed his duties and responsibilities,  [***7]  shall provide the Superintendent in calendar year 1988 with additional compensation in the amount of $ 9,500; and further,

RESOLVED, that the District shall, at or prior to the retirement of the Superintendent on June 30, 1989, pay to or on behalf of the Superintendent additional compensation in the amount of $ 9,700 plus an amount necessary to purchase for the Superintendent three years' pension credit under the State Retirement Plan in recognition of his service in the United States Air Force, as permitted by the laws of Pennsylvania.

Pursuant to this resolution, the School District purchased an annuity in the amount of $ 9,500. The annuity payment was not reflected in Christiana's regular salary. The $ 9,700 payment made in 1989 was treated differently, however. Christiana received that payment directly, but the School District in turn reduced his monthly take-home pay and used the payroll  [*138]  deductions to purchase the 1989 annuity. From March of 1989 through June of 1989, the School District reported additional remuneration of $ 8,730 to PSERS that reflected the payroll changes.

Christiana submitted an application for retirement to PSERS on August 8, 1989. On [***8]  January 19, 1990, PSERS sent a letter advising the School District that after review of the School Board's minutes of November 14, 1988, and January 9, 1989, the $ 8,730 reported did not appear to be Christiana's normal salary and that the amount could not be used in calculating his retirement benefits. The School District was requested to submit a form to reflect this change in the reported salary.

The School District did not comply with the request. Instead, a form was sent increasing the salary report by the sum of $ 970 -the difference between the $ 9,700 annuity purchase for 1989 and the $ 8,730 originally reported as salary. In a letter dated February 9, 1990, the School District's business manager noted the correction and indicated that in addition, the report for the fourth quarter of 1988 had failed to report a payment of $ 9,500 to Christiana. The letter stated that the School District viewed the payments as merit increases. On February 27, 1990, PSERS requested a copy of the School District's merit pay policy. The School District did not respond.

On December 19, 1990, PSERS informed Christiana that his request to include the $ 9,500 for the 1987-1988 school year and the [***9]  $ 9,700 for the 1988-1989 school year in its calculation of his final average salary for retirement purposes had been denied. An administrative hearing was held on September 11, 1991, before a hearing examiner to consider whether the $ 19,200 should be considered as compensation under the Public  [**943]  School Employees' Retirement Code. ² PSERS learned then that the School District had purchased annuities for Christiana during the four previous school years (1984-1988). At the hearing, Christiana sought for the first time to add  [*139]  each of those annuity purchases to the salary amounts reported by the School District to PSERS. Christiana's take-home pay did not reflect those payments, and as noted earlier, the School District never included any of the annuity purchases in its salary reports to PSERS during those four years.

FOOTNOTES

2 Act of October 2, 1975, P.L. 298, as amended, 24 P.S. §§ 8101-8104.

The hearing examiner recommended that the $ 19,200 should be excluded from the calculation of Christiana's final average salary [***10]  because the amount was properly characterized as nonincludable "severance payments" under the Retirement Code. The hearing examiner also recommended that the four annuity payments made during 1984-1988 be included in the calculation of final average salary as compensation.

The Board determined that Christiana had not properly raised the issue relating to the four annuity purchases in the earlier years, but nevertheless addressed the issue because there were sufficient facts on the record for its resolution. The Board concluded that the nonsalary reduction tax shelter annuity payments were not includable as Retirement Code compensation because they were nonstandard and/or nonregular remuneration as well as being bonuses and fringe benefits. The $ 19,200 annuity purchases in the 1988-1989 school year were found not to be includable in Retirement Code compensation because the payments were components of a severance package and were also characterized as nonincludable bonuses and fringe benefits. On June 24, 1993, the Board entered an order directing that none of the annuity purchases were to be included as Retirement Code Compensation. The Commonwealth Court affirmed the Board's order.  [***11]  ^HN1

On appeal from a final adjudication of an administrative board, our scope of review is limited to a determination of whether the board committed an error of law, whether there has been a violation of constitutional rights, or whether necessary factual findings are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). The issue raised in this appeal is whether the Board committed an error of law in determining that the annuity payments were not compensation  [*140]  for purposes of computing final average salary under the Retirement Code.

Section 8102 of the Retirement Code defines the following relevant terms:

^HN2"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses incidental to employment and excluding any severance payments.

"Final average salary." The highest average compensation received as an active member during any three nonoverlapping periods of 12 consecutive months with the compensation for part-time service being annualized on the basis of the fractional portion of the school year for which credit is received;  [***12]  except, if the employee was not a member for three such periods, the total compensation received as an active member annualized in the case of part-time service divided by the number of such periods of membership; and, in the case of a member with multiple service credit, the final average salary shall be determined by reference to compensation received by him as a school employee or a State employee or both.

"Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.

"Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary salaries provided for members within the same governmental entity with the same educational  [**944]  and experience qualifications who are not terminating service.

24 Pa.C.S.A. § 8102.

The regulations promulgated under the Retirement Code further refine the definition of "compensation:"

^HN3Excludes a bonus, severance payment or other remuneration or similar emoluments received by a [***13]  school employee during his school service not based on the standard salary  [*141]  schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments which may be negotiated in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits.

22 Pa. Code § 211.2.

The restrictive definitions of compensation under the Retirement Code and regulations reflect the Legislature's intention to preserve the actuarial integrity of the retirement fund by "excluding from the computation of employes' final average salary all payments which may artificially inflate compensation for the purpose of enhancing retirement benefits." Dowler v. Public School Employes' Retirement Board, 153 Pa. Commw. 109, 620 A.2d 639 (1993); Laurito v. Public School Employes' Retirement Board, 146 Pa. Commw. 514, 519, 606 A.2d 609, 611 (1992).

In Laurito v. Public School Employes' Retirement Board, the Commonwealth Court affirmed [***14]  a decision of the Retirement Board that refused to include a salary increase for the purposes of computation of retirement benefits for an elementary middle school principal. Dr. Angelo Laurito retired after 42 years of service with the Northern Cambria School District. Laurito's annual salary was negotiated each year with the school district. For the 1984-1985 school year, his salary was $ 32,600. On July 25, 1985, the school board awarded him a $ 16,000 "salary adjustment" for the 1985-1986 school year. In addition, Laurito was granted a leave of absence for the 1985-1986 school year, and his July 1, 1986 resignation for retirement purposes was accepted.

PSERS notified Laurito that the $ 16,000 increase would not be included as compensation for retirement purposes. The Retirement Board upheld the determination, concluding that the claimed salary adjustment was a severance payment. The Commonwealth Court affirmed on appeal, finding that the  [*142]  record failed to establish that Laurito's salary increase was customary for an individual of similar experience within the school district. The court concluded that the school board's actions were tantamount to a severance agreement, stating [***15] 

We find especially persuasive the observation made by the board that the $ 16,000 payment in the final year of service provided a mechanism for the school district to recognize Laurito's devoted service, as well as to remedy the perceived inequity of a below-average salary throughout a working lifetime, by effectuating an inflated final salary for purposes of retirement benefits.

146 Pa. Commw. at 519-20, 606 A.2d at 611-12.

In Dowler v. Public School Employes' Retirement Board, the Commonwealth Court held that a payment made pursuant to a retirement agreement was not compensation despite the personnel director's performance of consulting services. William Dowler was employed for over seventeen years as the personnel director at the West Chester Area School District before his retirement on July 1, 1988. In addition to his other duties, Dowler conducted all of the school district's labor negotiations in the first three years of his employment. The school district hired private contractors to conduct labor negotiations thereafter.

On November 17, 1987, Dowler and the school district entered into an agreement concerning his retirement. Dowler was to be placed on a [***16]  reduced work schedule from January 1, 1988, to July 1, 1988. He was to be compensated during that time as if he were working a five-day schedule and his duties would include training a replacement and assisting with negotiations. In addition,  [**945]  funds were to be given to Dowler on January 1, 1988, to purchase credit for his military services in an amount not to exceed $ 15,000.

For the first time in Dowler's experience, three labor contracts expired at the end of June, 1988. Dowler assisted in the negotiations while working full-time as the personnel director. A new director was not hired until May, 1988. The school district paid $ 14,854.08 to Dowler, which he used to  [*143]  purchase retirement credit for military service. PSERS concluded that the amount was a severance payment and did not include it as part of Dowler's final average salary in computing his retirement compensation.

Dowler appealed the determination, asserting that he did not receive the benefit of his agreement because he was not given the opportunity to work half-time at full pay. The Board concluded that the money represented a severance payment and dismissed the appeal. The Commonwealth Court affirmed, stating

 ^HN4

Under [***17]  the Code, all payments, other than for regular professional salary, which are part of an agreement in which a professional member agrees to terminate school service by a date certain, are prima facie severance payments. The claimant may rebut a prima facie case only by showing that the payment is in accord with the scheduled or customary salary scale within the School District for personnel with the same educational and experience qualifications who are not terminating service.

153 Pa. Commw. at 115-16, 620 A.2d at 643.

In furtherance of its responsibility to ensure the actuarial soundness of the retirement fund, the Board has determined that it is statutorily required to exclude nonregular remuneration, nonstandard salary, fringe benefits, bonuses, and severance payments from inclusion as compensation under the Retirement Code. The Board has developed the concepts of "standard salary" and "regular remuneration" as part of its understanding of compensation.

Based upon its interpretation of the Retirement Code and accompanying regulations, ^HN5standard salary and regular remuneration are defined by the Board as take-home cash, including, among others, (i) amounts withheld [***18]  for tax remittances; (ii) amounts picked up as contributions to PSERS; and (iii) amounts appropriately deferred in qualifying deferred compensation programs, and excluding, fringe benefits, bonuses, severance payments, and non-salary  [*144]  reduction Internal Revenue Code § 403(b) tax sheltered annuities.

Christiana v. Public School Employees' Retirement Board, 166 Pa. Commw. 300,    , 646 A.2d 645, 649-50 (1994) (emphasis supplied).

The nonsalary reduction tax sheltered annuities purchased for Christiana during the four consecutive school years beginning in 1984-1985 were found by the Board to be nonstandard salary, nonregular remuneration and bonuses or fringe benefits under this analysis. ³ The $ 19,200 in annuity purchases, which the School District authorized after being advised of Christiana's impending retirement, were excluded as being part of a severance package.

FOOTNOTES

3 Such annuities are distinguishable from the annuity contracts purchased under a deferred compensation program authorized under the Fiscal Code, Act of March 30, 1811, P.L. 145 as amended, 72 P.S. §§ 4521.1 - 4521.2. Income deferred under programs authorized thereunder is included as regular compensation for the purpose of computing deductions for employe contributions to retirement and pension programs and for the purpose of computing retirement and pension benefits. 72 P.S. § 4521.1(e). Christiana's assertion that the annuity purchases made on his behalf qualified for treatment as deferred compensation under this provision fails to recognize this distinction and is unsupportable.

 [***19]  Christiana had received salary increases for the first three years after he became superintendent for the Upper St. Clair School District. Over a four-year period, Christiana's annual salary increased from $ 58,000 to $ 71,000. When his salary for 1984-1985 was under consideration, members of the School Board expressed concern that an additional increase would generate negative publicity. A newspaper reporter's comment that Christiana's salary at that time exceeded that of Pennsylvania's Governor was repeated in the headlines of a local newspaper. Unwilling to confront public scrutiny  [**946]  of a salary increase, the School Board elected to freeze Christiana's salary and purchased a single premium annuity for the purpose of purchasing prior years' seniority pension credit.

Richard J. Mancini, the School District's business manager, testified that Christiana was the highest paid school superintendent in Western Pennsylvania, including the City of Pittsburgh  [*145]  School District which was ten times the size of Upper St. Clair's School District. Mancini indicated that the single premium annuity was considered as a way to handle adverse public reaction because responses to salary surveys would not [***20]  include that amount. He considered the annuity purchases to be compensation.

Nevertheless, the record establishes that the School District did not report the annuity payments to PSERS as compensation paid to Christiana and did not pay pickup contributions on those amounts. In fact, the School District continued to purchase single premium annuities even when salary increases were approved in subsequent years. In the 1987-1988 school year, Christiana's salary was increased to $ 74,000 and a single premium annuity in the amount of $ 9,500 was purchased. His salary was then increased to $ 80,000 in the following year in which an additional $ 9,500 was earmarked for an annuity purchase.

With respect to the $ 19,200 annuity payment, the School Board's resolutions indicate that it was part of a comprehensive salary and benefits package developed after notice of Christiana's impending retirement. The School Board's initial resolution dated November 14, 1988, contemplated a salary increase to $ 80,000, payment for services of a financial planner not to exceed $ 2,000, continuing medical benefits for Christiana and his wife until age 65, the purchase of three years' pension credit for military [***21]  service ⁴, and the $ 19,200 annuity purchase. On January 9, 1989, the resolution was rescinded. A second resolution was adopted which incorporated all of the earlier provisions, but split the $ 19,200 into two separate annuity purchases.

FOOTNOTES

4 The amount expended by the School District for this purchase was approximately $ 21,000. Christiana did not seek to include this amount in the computation of his retirement benefits.

The Commonwealth Court concluded that the Board did not err in excluding the annuity payments from the calculation of Christiana's final average salary. As to the 1988-1989 salary and benefits package, the court found that the record was devoid of any evidence that the package was in accord with the  [*146]  District's regular and standard yearly compensation practices, particularly those involving Christiana himself over the ten-year term of his employment.

We find that the Commonwealth Court did not err in concluding that none of the annuity purchases were includable as compensation for purposes of [***22]  determining Christiana's final average salary. There is substantial evidence in the record to support the Retirement Board's conclusions that the annuity payments were remuneration that was not based on the standard salary schedule for which Christiana was rendering service, and that the $ 19,200 payment was a severance payment. Therefore, under the Retirement Code and applicable regulations, the annuity payments were properly excluded from the computation of Christiana's final average salary.

The order of the Commonwealth Court is affirmed.

Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case.    

166 Pa. Commw. 300, *; 646 A.2d 645, **;
1994 Pa. Commw. LEXIS 436, ***

ROBERT D. CHRISTIANA, Petitioner v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Respondent

NO. 1745 C.D. 1993

COMMONWEALTH COURT OF PENNSYLVANIA

166 Pa. Commw. 300; 646 A.2d 645; 1994 Pa. Commw. LEXIS 436

March 2, 1994, ARGUED

July 28, 1994, FILED

SUBSEQUENT HISTORY: Petition for Allowance of Appeal and/or Cross-Petition Granted December 7, 1994.

PRIOR HISTORY:  [***1]  APPEALED From File No. 117-16-8296. State Agency, Public School Employes' Retirement Board.

COUNSEL: Reed B. Day for petitioner.

Louis J. Sheehan, Assistant Counsel, for respondent.

JUDGES: BEFORE: HONORABLE DAVID W. CRAIG, President Judge, HONORABLE JAMES GARDNER COLINS, Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE JAMES R. KELLEY, Judge, HONORABLE SANDRA SCHULTZ NEWMAN, Judge.

OPINION BY: JAMES R. KELLEY

OPINION

 [*302]   [**646]  OPINION BY JUDGE KELLEY

Robert D. Christiana, the former Superintendent of the Upper St. Clair School District (District) appeals from an order of the Public School Employes' Retirement Board (Board) which denied the inclusion of certain annuities purchased for Christiana by the District in the calculation of his final average salary under the Public School Employes' Retirement Code (Retirement Code). ¹

FOOTNOTES

1 Act of October 2, 1975, P.L. 298, as amended, 24 P.S. §§ 8101 - 8104.


The Board made extensive findings of fact. Those findings relevant to the present [***2]  appeal may be summarized as follows. Christiana was first employed by the District in July, 1979 at the initial salary of $ 52,000. Christiana's salaries for the subsequent school years were:

1980-1981	$ 58,000
1981-1982	$ 63,500
1982-1983	$ 65,723
1983-1984	$ 71,000

 [*303]  The following amounts were initially reported to the Public School Employes' Retirement System (PSERS) as Christiana's salary for the next five school years:

1984-1985	$ 71,000
1985-1986	$ 71,000
1986-1987	$ 71,000
1987-1988	$ 74,000
1988-1989	$ 80,000

In November 1988, the Upper St. Clair School Board (School Board) became aware of Christiana's intention to retire from his position at the end of the 1988-1989 school year. Christiana formally retired in August, 1989.

At its November 14, 1988 meeting, the School Board adopted resolutions concerning the 1988-1989 salary and benefits payable to  [**647]  or for the benefit of Christiana. Among the resolutions was one which directed the District to provide Christiana "with an annuity or other equivalent payment at a cost to the District of $ 19,200 for the purposes of purchasing for the Superintendent pension credit under the State Retirement Plan [***3]  … ."

On January 9, 1989, the School Board met and rescinded its resolutions of November 14, 1988, adopting the following relevant resolutions in their place:

RESOLVED, that the District, in recognition of the superior manner in which the Superintendent has performed his duties and responsibilities, shall provide the Superintendent in calendar year 1988 with additional compensation in the amount of $ 9,500; and further,

RESOLVED, that the District shall, at or prior to the retirement of the Superintendent on June 30, 1989, pay to or on behalf of the Superintendent additional compensation in the amount of $ 9,700 plus an amount necessary to purchase for the Superintendent three years' pension credit under the State Retirement Plan in recognition of his service in the United States Air Force, as permitted by the laws of Pennsylvania. ²

FOOTNOTES

2 The amount necessary to purchase the pension credit for military service was slightly in excess of $ 20,000; however, Christiana does not seek to characterize this expenditure as "compensation" under the Retirement Code.


 [***4]   [*304]  Pursuant to this resolution, the District purchased an annuity for Christiana in the amount of $ 9,500, but this expenditure was not directly reflected as Christiana's regular salary. ³ In contradistinction, the District in 1989 directly paid Christiana an additional $ 9,700 which increased his regular salary from $ 80,000 to $ 89,700. The $ 9,700 was separately accounted for and deducted from Christiana's take-home salary. The District purchased an annuity for Christiana with the payroll deductions.

FOOTNOTES

3 This annuity, and all others subsequently referred to, were purchased by the District pursuant to Internal Revenue Code § 403(b) which grants special tax advantages to school employees with respect to annuities purchased for them by their tax-exempt employers.


The District reported to PSERS a total of $ 8,730 in payroll deductions starting in March 1989, through and including June 1989, to reflect the additional compensation called for by the January 9, 1989 School Board resolution. ⁴ After review of the School Board [***5]  meeting minutes and resolutions, on January 19, 1990, PSERS declined to accept or recognize the reported $ 8,730 for retirement credit purposes.

FOOTNOTES

4 The $ 8,730 in payroll deductions reported to PSERS represented a $ 970 shortfall from the $ 9,700 deduction authorized by the School Board.


By letter to PSERS dated February 9, 1990, the District resubmitted Christiana's reported salary for the 1988-1989 school year. The letter broadened the reporting period to encompass deductions made between January 1, 1989 and June 30, 1989, and adjusted the total salary accordingly. The letter read, in part:

On the original 1st quarter report $ 970.00 of additional compensation was not reported in February, 1989.

Further, in reviewing the report for the 4th quarter of 1988 we discovered that a payment of $ 9,500.00 to Dr. Christiana was also not reported.

The District views these payments as merit increases, no different than merit pay which is paid in accordance with  [*305]  our negotiated agreement with the teachers of  [***6]  the School District.

At the administrative hearing held September 11, 1991 before a hearing examiner to consider the issue of whether the $ 19,200 (comprised of $ 9,500 + $ 9,700) (Enhancement II) paid to Christiana in the 1988-1989 school year should be considered Retirement Code compensation for the purposes of calculating the final average salary, PSERS was made aware that additional remuneration was awarded to Christiana not only in his final year of service but also for the four previous school years (1984-1988) (Enhancement I). At the hearing, for the first time Christiana sought to add Enhancement I to the salaries previously reported to PSERS for the respective years for inclusion as Retirement Code compensation.

 [**648]  According to the relevant School Board meeting minutes, the Enhancement I payments were intended to compensate Christiana "in lieu of salary increases" for the given years. The pertinent resolutions directed that the District purchase a single premium annuity for Christiana for the purposes of purchasing prior years seniority pension credit at the following amounts:

1984-1985	$ 5,000
1985-1986	$ 7,000
1986-1987	$ 10,000
1987-1988	$ 9,500

None [***7]  of these amounts were reflected in Christiana's take-home pay, nor were the amounts formally reported to PSERS as salary.

The hearing examiner recommended that Enhancement II be excluded from the calculation of Christiana's final average salary because the amounts were properly characterized as non-includable "severance payments" under the Retirement Code. The hearing examiner recommended further that Enhancement I be included in the calculation of final average salary because such amounts were properly characterized as includable Retirement Code compensation. Christiana appealed to the Board.

Concerning Enhancement I, the Board concluded that Christiana's non-salary reduction tax shelter annuity payments  [*306]  may not be included in Retirement Code compensation because such payments are non-standard and/or non-regular remuneration as well as being bonuses and fringe benefits. Similarly, the Board concluded that the Enhancement II payments were components of a severance package none of which may be included in Retirement Code compensation because such payments must be characterized as non-includable bonuses and fringe benefits. It is from that order that Christiana now appeals to this court.

 [***8]  On appeal, Christiana argues (1) that he is entitled to have his final average salary adjusted in order to receive retirement credit for single premium tax-sheltered annuities purchased for him by his employer in lieu of salary increases; (2) that PSERS may not sua sponte utilize statistical and public policy considerations when denying a claim for retirement benefits which were not raised before the hearing examiner; (3) that the Board denied Christiana due process by overruling the hearing examiner without providing Christiana reasonable notice and an opportunity to be heard; and, (4) that the Board denied Christiana due process by commingling the prosecutorial and adjudicative functions in determining Christiana's eligibility for benefits.

We note that ^HN1our scope of review from adjudications of administrative boards is limited to a determination of whether the board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Finnegan v. Public School Employes' Retirement Board, 126 Pa. Commonwealth Ct. 584, 560 A.2d 848 (1989).

Christiana first [***9]  argues that the Board erred in failing to give effect to the relevant portions of the Fiscal Code of the Commonwealth ⁵ which expressly authorize the inclusion of tax-deferred income as credit for customary retirement plans. For five years, Christiana argues, the District purchased qualified tax-deferred annuities for Christiana in accordance with the ^HN2Fiscal Code, which provides in relevant part:

 [*307]  The state treasurer shall pay all grants, salaries, annuities, gratuities, and pensions established by law … the treasurer or other officer in charge of payrolls for any … political subdivision may make systematic investments in mutual funds, savings accounts or government bonds or make premium payments on life insurance or annuity contracts to any institution or company licensed and authorized … to accept deposits … for the purpose of funding a deferred compensation program for employes.

72 P.S. § 4521 (emphasis provided by Christiana).

Moreover, Christiana asserts, the Fiscal Code authorizes the purchase of annuities through a deferred compensation program:

 [**649]  ^HN3(a) The governing body of any … political subdivision may, by contract, agree with any employe  [***10]  to defer, a portion of that employe's compensation and may subsequently, with the consent of the employe, purchase … annuity contracts … .

* * *

(e) Such deferred compensation program shall be in addition to, and not a part of, any other retirement benefit program provided by law for employes of the … political subdivision. Income deferred under programs authorized by this act shall continue to be included as regular compensation for the purpose of computing deductions for employe contributions to retirement and pension programs and for the purpose of computing retirement and pension benefits earned by any employe.

72 P.S. § 4521.1(a), (e), (emphasis provided by Christiana).

Christiana maintains that these provisions of the Fiscal Code permit the use of tax-deferred annuity payments which may be purchased by deferring a portion of an employee's compensation. Such deferred income, Christiana contends, is then to be included in the computation of the employee's retirement and pension benefits.

FOOTNOTES

5 Act of March 30, 1811, P.L. 145, as amended, 72 P.S. §§ 4521 - 4521.2.


 [***11]  We cannot disagree with Christiana's reading of the Fiscal Code provision set forth above. However, his argument continues,  [*308]  advancing the assertion that the Board erred by characterizing the annuities as non-salary reduction purchases, or non-regular remuneration, thus rendering such payments ineligible for inclusion as compensation under its interpretation of the Retirement Code.

^HN4Section 8102 of the Retirement Code sets forth the following relevant definitions:

"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses incidental to employment and excluding severance payments.

"^HN5Final average salary." The highest average compensation received as an active member during any three nonoverlapping periods of 12 consecutive months … .

"^HN6Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.

"^HN7Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary [***12]  salaries provided for members within the same governmental entity with the same educational and experience qualifications who are not terminating service.

24 P.S. § 8102.

^HN8Section 211.2 of Title 22 of the Pennsylvania Code expands upon the definition of Retirement Code compensation, in pertinent part:

Excludes a bonus, severance payment or other remuneration or similar emoluments received by a school employe during his school service not based on the standard salary schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments  [*309]  which may be negotiated in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits.

22 Pa. Code § 211.2 (emphasis added).

Accordingly, the Board has developed general concepts in understanding the Retirement Code's meaning of "compensation": "standard salary" and "regular remuneration". Based upon its interpretation of the Retirement Code and accompanying regulations,  [***13]  standard salary and regular remuneration are defined by the Board as take-home cash, including, among others, (i) amounts withheld for tax remittances; (ii) amounts picked up as contributions to PSERS; and (iii) amounts appropriately deferred in qualifying deferred compensation programs, and excluding, fringe benefits, bonuses, severance payments, and non-salary reduction Internal Revenue Code § 403(b) tax sheltered  [**650]  annuities. Board's opinion, June 24, 1993, pp. 16-17 (emphasis added).

Based on its interpretation of the guiding statutes and regulations, the Board characterized both Enhancement I and II payments to Christiana as non-standard salary, non-regular remuneration, bonuses and fringe benefits. Additionally, the Board characterized Enhancement II as part of a severance payment. Therefore, the Board denied the inclusion of both the Enhancement I and Enhancement II annuity payments in the calculation of Christiana's final average salary.

^HN9The Board is charged with the execution and application of the Retirement Code and the Board's interpretation should not be overturned unless it is clear that such construction is erroneous. Panko v. Public School Employees' Retirement System, 89 Pa. Commonwealth Ct. 419, 492 A.2d 805 (1985). [***14]  Accordingly, our review of the record suggests that the Board did not err in excluding the annuity payments from the calculation of Christiana's final average salary.

In each of the school years in which Christiana received an Enhancement I payment, the School Board adopted resolutions which directed that "in lieu of a salary increase" for that year, Christiana would benefit from the purchase of a single  [*310]  premium annuity for the purpose of purchasing prior years seniority pension credit. Christiana testified that the Enhancement I annuity payments were used as a means of rewarding Christiana without representing to the taxpayers of Upper St. Clair that his "salary" was substantially increased each year. (Original Record, Transcript of Hearing held September 11, 1991, at pp. 16-18.) Christiana testified he believed that his total compensation included his base reported salary, plus the additional amounts provided for the purchase of the annuities. (Id. at pp. 25-26.) The District's business manager at the time, Richard Mancini, testified that in his opinion "there was no doubt" the annuity payments were compensation. (Id. at p. 67.)

Referring to the first annuity payment of  [***15]  $ 5,000 in 1984-1985, Dina J. Fulmer, a School Board member at the time testified as follows:

Q: What did you understand this $ 5,000 to be?

A: It was a -- well, a reward for his performance. It was a way of compensating him which would not get our name in the paper again.

* * *

Q: Why were the words in lieu of a salary increase chosen?

A: Well, in lieu of means instead of or actually in place of being that lieu is the French word for place. Rather than increasing his base salary, we just decided to purchase this annuity.

(Id. at pp. 83, 85.)

However, regardless of Christiana's or the District's contradictory understanding, the record reveals that the District did not pay pickup contributions on the annuity purchases made on behalf of Christiana beginning with the 1984-1985 school year. ⁶ Further, in its reports to PSERS, the District did not  [*311]  report the Enhancement I payments as compensation paid to Christiana, nor did the District initially report any of the $ 19,200 Enhancement II payment to PSERS, as compensation or otherwise. Lastly, despite its apparent unwillingness to formally raise Christiana's base salary in the face of public opposition, Christiana [***16]  did in fact receive two regular salary increases totalling $ 9,000 during the five year period under consideration.

FOOTNOTES

6 Section 8102 of the Retirement Code defined "pickup contributions" as regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.


With respect to Enhancement II alone, the record also supports the findings of the Board that the payments constituted part of a severance package. Christiana testified the Board was made aware of his intention to retire prior to their November, 1988 negotiations concerning his 1988-1989 salary and benefits. (Id. at 47-48.) What emerged from those deliberations were resolutions directing (i) that the District, "in recognition of the superior manner in which the Superintendent  [**651]  has performed his duties", pay Christiana additional compensation in the amount of $ 9,500 in 1988; and (ii) that the District pay Christiana an additional $ 9,700 at or prior to his retirement. (Original Record,  [***17]  PSERS Exhibit #10B.)

While the record is silent as to whether Enhancement II was made contingent on Christiana's retirement, it is at the very least payment "in excess of the scheduled or customary" salary Christiana had enjoyed. Further, the final year salary and benefits package, of which Enhancement II was a part, included employer provided amounts for a financial planner, continuing medical coverage for Christiana and his wife, and a one-time offering of a salary reduction tax sheltered annuity. We find the record devoid of any evidence that Christiana's final year package was in accord with the District's regular and standard yearly compensation practices, particularly those involving Christiana himself over the ten year term of his employment.

^HN10The Retirement Code indicates that the General Assembly wishes to exclude from the computation of employees' final average salary all payments which may artificially inflate compensation for the purpose of enhancing retirement benefits.  [*312]  Dowler v. Public School Employes' Retirement Board, 153 Pa. Commonwealth Ct. 109, 620 A.2d 639 (1993).

Christiana next argues that the Board erred by  [***18]  sua sponte utilizing financial statistics and public policy considerations not considered before the hearing examiner in denying Christiana's claim for retirement benefits. We disagree.

^HN11The Board, and not the hearing examiner, is the final fact finder in these cases. Dowler. As such, the Board may take official notice of facts which are obvious and notorious to an expert in the agency's field and those facts contained in the agency's files. Falasco v. Pennsylvania Board of Probation and Parole, 104 Pa. Commonwealth Ct. 321, 521 A.2d 991 (1987).

Next, Christiana asserts that in overruling the recommendations of the hearing examiner, the Board denied Christiana reasonable notice and an opportunity to be heard. Christiana contends that the Board made its determination in this matter without his participation and based its decision on facts and issues Christiana never had the opportunity to address.

^HN12The Administrative Agency Law, 2 Pa.C.S. § 504, states that "no adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice and an opportunity to be heard." Christiana was presented [***19]  with just these very opportunities and exploited them by filing a brief and reply brief prior to the hearing; attending the hearing and presenting evidence; and, filing exceptions to the hearing examiner's recommendations, followed by a response to the exceptions filed by PSERS. Our review of the record indicates that the Board studied the complete record, including the arguments advanced by Christiana, in reaching its decision.

Lastly, Christiana raises a due process challenge concerning the alleged commingling of prosecutorial and adjudicative functions between the PSERS and the Board. However, Christiana failed to raise this issue before the Board.

 [*313]  We have held that ^HN13commingling claims may be waived if they are not raised before the administrative board. Newlin Corp. v. Department of Environmental Resources, 134 Pa. Commonwealth Ct. 396, 579 A.2d 996 (1990). ⁷ Unless a claimant can offer a convincing reason for failing to raise the claim before the Board, the commingling issue is waived. Dowler. Here, Christiana has not offered any explanation for failing to raise this issue below.

FOOTNOTES

7 ^HN14Pennsylvania Rule of Appellate Procedure 1551 states, in part, that:

no question shall be heard or considered by the court which was not raised before the government unit except (1) Questions involving the validity of a statute … (3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit.

 [***20]  Accordingly, the order of the Board is affirmed.

JAMES R. KELLEY, Judge

 [**652]  ORDER

NOW, this 28th day of July, 1994, the order of the Public School Employes' Retirement Board, dated June 24, 1993, is hereby affirmed.

JAMES R. KELLEY, Judge

Top of Form

669 A.2d 1098, *; 1996 Pa. Commw. LEXIS 10, **

DR. VERNON R. WYLAND, Petitioner v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Respondent

NO. 566 C.D. 1995

COMMONWEALTH COURT OF PENNSYLVANIA

669 A.2d 1098; 1996 Pa. Commw. LEXIS 10

October 17, 1995, Argued

January 8, 1996, Decided

January 8, 1996, FILED

SUBSEQUENT HISTORY:  [**1]  Petition for Allowance of Appeal Denied August 5, 1996, Reported at: 1996 Pa. LEXIS 1604.

PRIOR HISTORY: APPEALED From No. File no. 480-24-6298. State Agency: Public School Employes' Retirement Board.

DISPOSITION: Affirmed.

COUNSEL: Dee Lafferty Pugh for petitioner.

Louis J. Sheehan, Assistant Counsel, for respondent.

JUDGES: BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JAMES R. KELLEY, Judge, HONORABLE GEORGE T. KELTON, Senior Judge.

OPINION BY: JAMES R. KELLEY

OPINION

 [*1100]  OPINION BY JUDGE KELLEY

FILED: January 8, 1996

Dr. Vernon R. Wyland, the former Superintendent of the Garnet Valley School District (school district) appeals from the order of the Public School Employes' Retirement Board (board) adopting a hearing examiner's calculation of his final average salary used to determine his retirement benefits under the Public School Employees' Retirement Code (Retirement Code). ¹ We affirm.

FOOTNOTES

1 24 Pa.C.S. §§ 8101 - 8534.


The relevant facts as found by the hearing examiner, and adopted by the board, may be summarized as follows. Wyland became a member of the Public School Employes' Retirement System (PSERS) by virtue of his employment [**2]  with the Shaler Area School District on June 1, 1983. On July 1, 1987, he began service with the Garnet Valley School District as the District Superintendent for the 1987-1988 school year, at an annual salary of $ 65,000. On December 16, 1988, his annual salary for the 1988-1989 school year was increased to $ 70,200, retroactive to July 1, 1988. On March 28, 1990, Wyland's annual salary for the 1989-1990 school year was increased to $ 74,412, retroactive to July 1, 1989. Wyland's annual salary for the 1990-1991 school year was increased to $ 94,481 as of June 30, 1991.

During the 1989-1990 school year, the school district experienced a prolonged labor action with intense teacher contract negotiations which continued until a new contract was signed in June of 1990. During the labor action, the teachers went out on strike for a period of 25 to 30 days. As a result of the contract negotiations and work stoppage, Wyland became the target of community pressures and antagonisms and he also became the subject of a vote of "no confidence" from the teachers.

During the same period, the school district was engaged in a building program involving the construction of a new middle school building [**3]  and other renovations. At that time, the Garnet Valley Board of School Directors (school board) was sensitive to the adverse public reaction to cost overruns associated with the building program. The teachers' contract negotiations and public reaction to the work stoppage contributed to a significant turnover in the composition of the school board. Six school board members changed as a result of resignations, and new members who were appointed came to the school board predisposed against Wyland as a result of the labor situation and the cost overruns.

As a result, in November of 1990, Wyland was informed by the president of the school board that his contract would not be extended beyond its expiration date of June 30, 1991. Because the school board did not want to take public action on their decision, Wyland was asked if he would rather resign from his position. Wyland concluded that it would be best to resign as he felt it would be easier to tell prospective employers that he had resigned, rather than to say that his contract had not been extended.

After negotiations regarding the terms of Wyland's resignation, on November 21, 1990, the president of the school board sent him a letter [**4]  outlining the terms under which he could resign. The letter stated, inter alia:

3)

The [School] Board guarantees the payment to you of your full salary through June 30, 1991. That salary will not be reduced between now and June 30, 1991.

(a) Your annual raise, ordinarily effective January, 1991, will be deferred. As part of your salary, and in lieu of the annual raise in January, the [School] Board will purchase from you all unused vacation days credited to your account as of June 30, 1991 … .

(b)

Additionally, at the conclusion of your contract on June 30, 1991, the [School] Board, as part of your annual raise, will pay you for all unused sick days then credited to your account … .

(c)

Notwithstanding Paragraphs 3(a) and 3(b), you have agreed to reimburse the District for its share of the retirement cost allocable to the inclusion of that portion of your salary  [*1101]  represented by payments under Paragraph 3(a) and 3(b).

Wyland accepted the proposed terms as outlined in the letter.

On November 26, 1990, Wyland submitted his letter of resignation, contingent upon the school board's acceptance of the proposed terms in [**5]  the president's letter. At its regular meeting on November 27, 1990, the school board accepted Wyland's resignation effective June 30, 1991. The school board did not take a public vote regarding the content and financial terms of the November 21, 1990 letter to avoid disclosure of their action.

By letter dated June 20, 1991, Wyland submitted a memorandum to the school district's director of business and support services which summarized his accumulated vacation days and sick days. On June 25, 1991, Wyland and the school board president signed a letter of agreement which contained identical terms as outlined in the letter of November 21, 1990.

On June 28, 1991, the school district issued Wyland a check in the amount of $ 20,069.40 as payment for his unused sick days, vacation days and comp days. The payroll document computing Wyland's vacation and sick days noted that the payment was to be considered compensation as per the November 21, 1990 letter of agreement. As required by the letter of agreement, Wyland reimbursed the school district for its share of the retirement costs allocable to the inclusion of the $ 20,069.40 payment.

On June 28th, Wyland also entered into an agreement [**6]  with the school district releasing the school district from any future liability concerning his resignation, in exchange for the payment of $ 20,069.40. The agreement referred to this payment as a "severance payment". Wyland was required to sign the release agreement in order to receive the $ 20,069.40 payment. He signed the release agreement and received the payment.

On September 17, 1991, PSERS received a retirement application from Wyland with an effective date of retirement of June 29, 1991. PSERS contacted the school district regarding the $ 20,069.40 payment to Wyland. The school district sent PSERS a copy of the minutes of the school board meeting in which Wyland formally submitted his resignation, and indicated that no information from his personnel file could be released without his written consent. PSERS then informed the school district that in the absence of any written evidence concerning the reason for the payment, the $ 20,069.40 would not be used to calculate Wyland's retirement benefits. Wyland was sent copies of both letters from PSERS, but his consent for the release of information from his personnel file was never requested by PSERS.

Initially, Wyland's retirement [**7]  benefits were calculated by PSERS using a "final average salary" of $ 79,698. However, without the necessary documentation, the $ 20,069.40 was removed from PSERS' computation of his final average salary. As a result, his retirement benefits were recalculated using a final average salary of $ 73,008. By letter dated April 8, 1992, PSERS informed Wyland that his benefits had been recomputed, and that he was required to repay $ 7,619.03 that he had received in overpayment.

By letter dated April 23, 1992, Wyland requested that PSERS include the $ 20,069.40 in its calculation of his final average salary. On July 1, 1992, PSERS notified Wyland that its Appeals Committee had denied his request. By letter dated July 28, 1992, Wyland requested an administrative hearing.

On July 6, 1993, a hearing was scheduled and held before an independent hearing examiner. Based on the evidence presented at the hearing and the briefs and motions submitted by the parties, the hearing examiner concluded that the $ 20,069.40 paid to Wyland was a severance payment, and should not be considered in the calculation of his final average salary. In this regard, the hearing examiner specifically found the following:  [**8] 

1. At the time of the November 21, 1990 agreement, [the school district] was under a great deal of political pressure due to the recent teacher strike and cost overruns at the middle school project and [Wyland]'s raise was motivated by [the school district]'s need for [Wyland]'s cooperation.

2. The November 21, 1990 agreement was designed as a buyout of [Wyland]'s  [*1102]  vacation and sick days, both items regularly purchased by [the school district] at the end of a superintendent's term, and both items that would not normally be considered standard salary.

3. Both [Wyland] and [the school district] represented to the general public that [Wyland]'s pay for the 1990-1991 school year was $ 74,412.00, and it would be unfair to now allow [Wyland] to claim a higher pay for retirement purposes.

4. The November 21, 1990, agreement required [Wyland] to reimburse [the school district] for its share of the retirement cost allocable to the inclusion of the $ 20,069.40 payment into [Wyland]'s salary. With a regular salary increase this retirement cost would have been the responsibility of [the school district].

5. [Wyland] was required [**9]  to sign the June 28, 1991, release agreement in order to receive the $ 20,069.40 payment and the release agreement referred to the money as a severance payment.

The hearing examiner also found, inter alia, that: the payment was not based on the standard salary schedule for which Wyland was rendering service; the payment was not made under the school district's scheduled or customary salary scale; and, the payment was made contingent upon Wyland's "retirement" as that term includes terminations which result in the immediate receipt of a pension.

Both Wyland and PSERS filed exceptions to the hearing examiner's decision with the board. The board adopted the hearing examiner's findings of fact and conclusions of law, and affirmed the hearing examiner's decision. Wyland then filed a petition for review in this court appeal.

On appeal, Wyland claims: (1) the board erred in determining that the $ 20,069.40 payment in his final year of employment constituted severance pay rather than compensation, thereby reducing his final average salary used for the calculation of his retirement benefits; and (2) his due process rights were denied by PSERS' failure to request information from [**10]  him before eliminating the $ 20,069.40 from its calculation of his final average salary, and by the commingling of the prosecutorial and adjudicative functions of PSERS and the board.

We note that ^HN1our scope of review from adjudications of administrative boards is limited to a determination of whether the board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Christiana v. Public School Employees' Retirement Board, 166 Pa. Commw. 300, 646 A.2d 645 (Pa. Cmwlth. 1994); Dowler v. Public School Employes' Retirement Board, 153 Pa. Commw. 109, 620 A.2d 639 (Pa. Cmwlth. 1993). Because the board is charged with the execution and application of the Retirement Code, the board's interpretation should not be overturned unless it is clear that its construction of the Retirement Code is erroneous. Christiana.

Wyland first argues that the board erred in determining that the $ 20,069.40 payment in his final year of employment constituted a severance payment rather than compensation. In particular, Wyland claims that: there is no evidence that the increase was paid contingent upon his retirement; there is no substantial evidence [**11]  that it was payment for his unused vacation or sick time; his resignation at the end of his contract term cannot be considered to be his "retirement"; the increase was consistent with the school district's compensation plan; and it made his salary comparable to other superintendents in Delaware County.

^HN2Both the Retirement Code and the applicable regulations contain restrictions on the types of compensation that may be used in calculating an employee's final average salary. Hoerner v. Public School Employes' Retirement Board, 655 A.2d 207 (Pa. Cmwlth. 1995). The purpose of these restrictions is to ensure the actuarial soundness of the retirement fund by preventing employees from artificially inflating compensation as a means of receiving greater retirement benefits. Id.

^HN3Section 8102 of the Retirement Code sets forth the following relevant definitions:

"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses  [*1103]  incidental to employment and excluding any severance payments.

"Final average salary." The highest average compensation received as an active member during any three nonoverlapping [**12]  periods of 12 consecutive months … .

"Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.

"Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary salaries provided for members within the same governmental entity with the same educational and experience qualifications who are not terminating service.

24 Pa.C.S. § 8102 (emphasis added).

^HN4Title 22 Pa. Code § 211.2 also defines compensation as follows:

Compensation - Excludes a bonus, severance payment or other remuneration or similar emoluments received by a school employe during his school service not based on the standard salary schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments which may be negotiated [**13]  in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits. (Emphasis added.)

^HN5Whether or not a payment must be considered a severance payment is a question of law. Dowler. Under the Retirement Code, all payments, other than those for regular professional salary, which are part of an agreement in which a professional member agrees to terminate school service by a date certain, are prima facie severance payments. Id. A claimant may rebut a prima facie case only by showing that the payment is in accord with the scheduled or customary salary scale within the school district for personnel with the same educational and experience qualifications who are not terminating service. Id.

In this case, both the hearing examiner and the board were presented with the letters of agreement between Wyland and the school board president dated November 21, 1990 and June 25, 1991 which stated, inter alia, that Wyland would be paid for all of his unused vacation and sick days in lieu of his annual raise, and that he would reimburse the school district for its share of the retirement cost allocable to the inclusion [**14]  of this amount. The hearing examiner and the board were also presented with an agreement between Wyland and the school board president dated June 28, 1991 which stated that the parties had reached certain agreements concerning the termination of his employment and severance payments, the terms of which were embodied in the letter of June 25. The hearing examiner and the board were also presented with documentation that Wyland was paid $ 20,069.40 by the school district for 62 unused vacation and comp days, and 93 unused sick days. Clearly, such evidence is sufficient to support the board's conclusion that the $ 20,069.40 paid to Wyland constituted a severance payment as it is defined in the Retirement Code.

Wyland is essentially asking this court to reweigh the conflicting evidence presented to the hearing examiner and the board, and to only accept that evidence which contradicts the plain meaning of the contents of the foregoing documents. However, ^HN6questions of resolving conflicts in the evidence, witness credibility, and evidentiary weight are properly within the exclusive discretion of the fact finding agency, and are not usually matters for a reviewing court.  [**15] Herzog v. Department of Environmental Resources, 166 Pa. Commw. 114, 645 A.2d 1381 (Pa. Cmwlth. 1994). Moreover, "this court 'may not substitute its judgment for that of an administrative agency acting within its discretion in the field of its expertise upon substantial evidence … .'" Dowler, 620 A.2d at 644 (citation omitted). The hearing examiner and the board rejected Wyland's claims regarding this evidence. On  [*1104]  appeal, we will not substitute our judgment nor reweigh this evidence.

Wyland next claims that his right to due process and fundamental fairness was denied by PSERS' failure to formally request information from him before eliminating the $ 20,069.40 from its calculation of his final average salary, and by the commingling of prosecutorial and adjudicative functions by PSERS and the board. He first argues that his vested property rights to his pension were reduced by PSERS in an arbitrary manner, without notice and without a chance to respond, thereby violating his due process rights.

^HN7The Administrative Agency Law, 2 Pa.C.S. § 504, states that "no adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice and an opportunity to be heard."  [**16]  Wyland was afforded these opportunities and exercised them before the hearing examiner and the board in this case.

As the claimant in Hoerner, we note that Wyland has failed to cite any authority for the proposition that he was entitled to a "pre-reduction" hearing before PSERS in this case. The determination of Wyland's final average salary and the calculation of benefits is simply the result of a staff function performed by PSERS.

Wyland could, and did, appeal the initial determination of his retirement benefits to PSERS' appeal committee and, ultimately, to the board. He filed a brief and a reply brief prior to the hearing before the hearing examiner, attended the hearing and presented evidence, and filed exceptions to the hearing examiner's determination with the board. ^HN8As Wyland was given notice and a hearing prior to the final determination of his retirement benefits, and there exists no authority for a hearing in connection with PSERS' initial review, this claim is meritless. See Stone & Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994) (The initial denial of an insurance license application was the result of a staff function [**17]  performed by the Pennsylvania Insurance Department; as this decision could be appealed to the Insurance Commissioner who would conduct a hearing before the final determination, applicants were not entitled to notice and a hearing prior to the initial denial of a license application).

Finally, Wyland argues that the commingling of the prosecutorial and adjudicative functions by PSERS and the board is violative of his due process rights. In support of his position, Wyland relies on the case of Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1994). In Lyness, our Supreme Court stated:

In the modern world of sprawling governmental entities akin to corporations it would be both unrealistic and counterproductive to insist that administrative agencies be forbidden from handling both prosecutorial and adjudicatory functions, where such roles are parcelled out and divided among distinct departments or boards. Efficiency and cost-effectiveness are certainly desirable ends. Indeed, each administrative board and judge is ultimately a subdivision of a single entity, the Commonwealth of Pennsylvania, but this does not render their collective work as prosecutors, investigators [**18]  and adjudicators constitutionally infirm, nor create an imminent threat of prejudice.

What our Constitution requires, however, is that if more than one function is reposed in a single administrative entity, walls of division be constructed which eliminate the threat or appearance of bias. … [A] "mere tangential involvement" of an adjudicator in the decision to initiate proceeding is not enough to raise the red flag of procedural due process. … Our constitutional notion of due process does not require a tabula rasa. … However, where the very entity or individuals involved in the decision to prosecute are "significantly involved" in the adjudicatory phase of the proceedings, a violation of due process occurs.

Lyness, 529 Pa. at 546-47, 605 A.2d at 1209-10 (citations omitted).

Thus, ^HN9where "walls of division" are erected between the parties completing disparate functions within an administrative agency, no due process violation will be found. See, e.g., Stone & Edwards Insurance;  [*1105]  Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994).

Even if we were to adopt Wyland's position that the initial determination and review [**19]  of his retirement benefits by PSERS and the board constitute "prosecutorial" and "adjudicative" functions, there has been no showing by Wyland of a commingling of these functions as proscribed by Lyness. Wyland's initial application was reviewed by a supervisor in the retirement processing section of PSERS. When he was dissatisfied with the determination of his benefits, Wyland requested PSERS' appeals committee to review his claim. When he was dissatisfied with the appeals committee's decision, Wyland submitted a request to the legal division of PSERS for a hearing before a hearing examiner. The independent hearing examiner conducted the hearing and made a recommendation to the board, which was the final arbiter. The board was not involved in the adjudication until Wyland appealed the decision of the hearing examiner to the board. Such a procedure does not involve the commingling of prosecutorial and adjudicative functions, and does not violate due process. See Duffield.

Unquestionably, under Lyness, ^HN10the mere possibility of bias under Pennsylvania law is sufficient to "raise the red flag" of the protections offered by the procedural guaranty of due process. Stone &  [**20]  Edwards Insurance. However, the appearance of bias proscribed by Lyness must be one which arises from an actual environment of commingled functions. Id. Wyland has not advanced a claim of the actual commingling of functions in the manner in which PSERS and the board conduct their investigations, prosecutions and adjudications. In the absence of any actual commingling, which would give rise to an appearance of bias, Wyland's unsubstantiated claim of commingling is meritless. Id.

Accordingly, the order of the board is affirmed.

JAMES R. KELLEY, Judge

ORDER

NOW, this 8th day of January, 1996, the order of the Public School Employes' Retirement Board, dated January 27, 1995, at No. 480-24-6298, is affirmed.

JAMES R. KELLEY, Judge

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