Herskovitz v. Commonwealth, State Civil Service Commission

534 A.2d 160, 111 Pa. Commw. 427, 1987 Pa. Commw. LEXIS 2667
CourtCommonwealth Court of Pennsylvania
DecidedDecember 3, 1987
DocketAppeal 1655 C.D. 1986
StatusPublished
Cited by11 cases

This text of 534 A.2d 160 (Herskovitz v. Commonwealth, State Civil Service Commission) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herskovitz v. Commonwealth, State Civil Service Commission, 534 A.2d 160, 111 Pa. Commw. 427, 1987 Pa. Commw. LEXIS 2667 (Pa. Ct. App. 1987).

Opinions

Opinion by

Judge MacPhail,

The Petitioners above-named1 appeal from the orders of the State Civil Service Commission (Commission) which denied each Petitioner veterans’ preference points resulting in their non-selection for appointment to the position of administrative law judge with the Pennsylvania Public Utility Commission. We reverse.

At issue is the question of whether training time and service in the Pennsylvania National Guard and/or the U.S. Army Reserve entitle the participant to the benefits provided by Chapter 71 of the Military Code (Code), 51 Pa. C. S. §§7101-7109.

It appears from the Commission’s findings of fact that Petitioner Ilerskovitz served in the Pennsylvania National Guard from January 3, 1970 to January 2, 1976. He was on active duty for training purposes from April 22, 1970 to October 18, 1970. He was honorably discharged on January 2, 1976.

Petitioner Cocheres, while attending college, served in the Reserve Officers Training Corps from Septem[430]*430ber, 1965 to May 24, 1969. He entered the U.S. Army Reserve in September, 1967 and spent six weeks at a summer training camp at Indiantown Gap Military Reservation during the summer of 1968. He was appointed a 2nd Lieutenant in the U.S. Army Reserve on May 25, 1969. From September 22, 1972 to November 28, 1972 the Petitioner underwent basic training at Fort Gordon, Georgia. On May 24, 1977, he was honorably discharged from the U.S. Army.

Petitioner Strohecker, while attending college, served in the Reserve Officers Training Corps for 4 years. He participated for three months in an armor officer basic training course in 1971 and upon completion thereof he was released to the U.S. Army Reserve where he served from January, 1972 through September, 1975. He has been a member of the Pennsylvania Army National Guard since October, 1976.2

In arriving at its decisions denying the Petitioners veterans’ preference, the Commission interpreted the language in Section 7101 of the Code, 51 Pa. C. S. §7101, to mean that only those persons who were engaged in full-time active duty other than active duty for training, would qualify for the benefits provided by the Code.

Section 7104 of the Code, 51 Pa. C. S. §7104, provides that a “soldier” who possesses the requisite qualifications under the Code, is entitled to its benefits. Section 7101, 51 Pa. C. S. §7101, defines “soldier” as follows:

‘[S]oldier means a person who served in the armed forces of the United States, or in any women’s organization, officially connected there[431]*431with, during any war or armed conflict, in which the United States engaged, or who so served or hereafter serves in the armed forces of the United States, or in any womens organization officially connected therewith, since July 27, 1953, including service in Vietnam, and who has an honorable discharge from such service.

(Emphasis added.) Quite obviously, our initial inquiry must be to determine whether Petitioners fall within the above statutory definition.

In the construction and interpretation of a statute we must ascertain and effectuate the intention of the General Assembly and, if possible, give effect to all of the statutes provisions. Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa. C. S. §1921(a).

Section 7102(a), 51 Pa. C. S. §7102(a), provides that the preference credits are to be awarded to a soldier “for the discipline and experience represented by his military training and for the loyalty and public spirit demonstrated by his service for the preservation of his country.” We believe that this is a clear statement of legislative intent. We also believe that one who serves in the Pennsylvania National Guard or in the U.S. Army Reserve receives the same discipline and experience of military training as those engaged in full-time active service and that the Guard or Reserve voluntary enlistments demonstrate the same public-spirited service for the preservation of our country as those who have volunteered or may have been drafted into full-time active service. It is true, of course, that the actual continuous time of service is different for those who are “regular army” and those who are in the Guard or the Reserve, but the same kinds of disruption in normal civilian life do occur, albeit on a lesser scale.

[432]*432The Commission, relying upon an Attorney Generals Opinion3 and this Courts opinion in Greenwood v. Department of Military Affairs, 78 Pa. Commonwealth Ct. 480, 468 A.2d 866 (1983), rev'd, 510 Pa. 348, 508 A.2d 292 (1986), concluded that active duty for training was not the type of “service” contemplated by the Code.

The Attorney Generals Opinion4 relied upon Mitchell v. Cohen, 333 U.S. 411 (1948), which held, inter alia, that an “ex-serviceman” was someone who completely disassociated himself from his civilian status and employment during the period of his military service and thus experienced substantial long-term interference with his civilian life. The Codes definition of “soldier,” of course, contains no such limiting language; rather, the clear language of the statute is that a soldier includes any person who served or is serving in the armed forces of the United States. This Courts decision in Greenwood, which held that a Pennsylvania National Guardsman who was injured while-participating in annual training was entitled to compensation under the provisions of Section 844 of The Military Code of 1949,5 was reversed by our Supreme Court subsequent to the Commissions decision. See Department of Military Affairs v. Greenwood, 510 Pa. 348, 508 A.2d 292 (1986). Our Supreme Court recognized the state-federal dual character of the Pennsylvania National Guard and held that annual training which is federally funded is perva[433]*433sively federal in character and not such state military duty as would qualify the Guardsman for benefits under the Code.

We note that each of the Petitioners has undergone training at federal installations, that both the Pennsylvania National Guard and U. S. Army Reserves are subject to call for duty and have been called for duty outside the boundaries of the United States, see 10 U.S.C. §§331—333, 672(a), 672(b), 673(a) and 673(b), and that both the state National Guard units and U.S. Reserves are an integral part of the United States Total Force Policy. We conclude that all Petitioners have been members of the armed forces of the United States within the meaning of Section 7101 of the Code.

It is true, as the Commission notes, that the terms “served” and “serves” are not defined in the Code. The Commission, as we have observed, was of the opinion that the service contemplated must be long term.

When this case was reargued, we directed counsel to address the implication, if any, of Section 103 of the Code, 51 Pa. C. S. §103, on the issue before us. That section provides:

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Herskovitz v. Commonwealth, State Civil Service Commission
534 A.2d 160 (Commonwealth Court of Pennsylvania, 1987)

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Bluebook (online)
534 A.2d 160, 111 Pa. Commw. 427, 1987 Pa. Commw. LEXIS 2667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herskovitz-v-commonwealth-state-civil-service-commission-pacommwct-1987.