Pontious v. Rippy

589 A.2d 1188, 139 Pa. Commw. 137, 1991 Pa. Commw. LEXIS 199
CourtCommonwealth Court of Pennsylvania
DecidedApril 11, 1991
Docket1104 C.D. 1990
StatusPublished
Cited by2 cases

This text of 589 A.2d 1188 (Pontious v. Rippy) 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
Pontious v. Rippy, 589 A.2d 1188, 139 Pa. Commw. 137, 1991 Pa. Commw. LEXIS 199 (Pa. Ct. App. 1991).

Opinions

SILVESTRI, Senior Judge.

Joseph J. Pontious (Pontious) appeals from an order of the Court of Common Pleas of Elk County, dated May 1, 1990, which denied his motion for summary judgment and granted summary judgment in favor of the appellees, members of the Borough Council of the Borough of Johnson-burg (collectively, Borough Council). The trial court determined that Pontious’ military service from June 1974 through July 1977 does not bring him within the statutory definition of “soldier” in order to be entitled to preference for appointment to the police force of the Borough of Johnsonburg, pursuant to Chapter 71 of the Military Code (Code), 51 Pa.C.S. §§ 7101-7109, commonly known as the Veterans’ Preference Act.1

Pontious served on active duty in the United States Marine Corps from June 1974 through July 1977 and was honorably discharged. On two occasions, in 1985 and in 1987, he applied for open positions in the Borough’s police department. After successfully completing the examination for appointment, his name was placed on the list of eligible candidates presented by the Johnsonburg Borough Civil [139]*139Service Commission to the Johnsonburg Borough Council. In both instances he was the only veteran on the list. The Borough Council passed over Pontious’ appointment on both occasions.

In March 1988 Pontious filed a complaint in mandamus against the Borough Council, seeking an order directing his appointment to the police force and for back pay and other damages. Pontious maintained that he was entitled to appointment as a police officer pursuant to Section 7104(b) of the Code and that he is a “soldier” as defined in Section 7101 of the Code, 51 Pa.C.S. § 7101. Section 7101 provides:

§ 7101. Soldier defined

As used in this chapter, “soldier” means a person who served in the armed forces of the United States, or in any women’s organization officially connected therewith, 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 women’s organization officially connected therewith, since July 27, 1953, including service in Vietnam, and who has an honorable discharge from such service.

Pontious and the Borough Council each filed motions for summary judgment. The trial court considered the question of whether Pontious is a soldier within the definition set forth in Section 7101 of the Code. In its consideration of this question, the trial court found that an essential question was whether Pontious’ military service occurred “during any war or armed conflict in which the United States engaged.” The trial court then reviewed the time period during which troops were removed from Vietnam and determined that the date upon which the Paris Peace Accords were signed, January 28, 1973, constitutes the official end of the armed conflict between the United States and Vietnam. Accordingly, since Pontious’ military service did not begin until June 1974, the trial court determined [140]*140that his service did not occur during a period of war or armed conflict and thus found that Pontious is not a soldier as defined by Section 7101 of the Code. The trial court denied Pontious’ motion for summary judgment and granted summary judgment in favor of the Borough Council.

Pontious maintains that the trial court committed error in dismissing his mandamus action and raises the following issues here: (1) whether any honorably discharged veteran who has served in the armed forces since July 27, 1953 is entitled to preference as set forth in the Veterans’ Preference Act; (2) whether the Veterans’ Preference Act mandates the appointment of a qualified veteran who is certified to the eligibility list for appointment to a municipal police force; and (3) if the Veterans’ Preference Act requires that a veteran serve during a period of war or armed conflict in order to qualify for benefits, whether the period of the Vietnam conflict extended to April or May of 1975.

Pontious argues that the determination of whether he is a soldier as defined in Section 7101 of the Code does not depend on whether or not he served during a period of war or armed conflict, as maintained by the Borough Council and the trial court. Pontious argues that any person who served since July 27, 1953, as he did, is entitled to veterans’ preference regardless of the question of whether the United States was engaged in a war or armed conflict at the time. We agree and reverse the trial court.

We are called upon to construe Section 7101 of the Code, mindful that the object of statutory interpretation and construction is to ascertain and effectuate the intent of the legislature and to give effect to all of the statute’s provisions. Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a). A statement of legislative intent appears in Section 7102(a) of the Code, 51 Pa.C.S. § 7102(a), which provides that the preference credits in civil service examinations 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.” Herskovitz v. [141]*141State Civil Service Commission, 111 Pa.Commonwealth Ct. 427, 534 A.2d 160 (1987). Any person who serves in the armed forces, whether during a war or armed conflict or during peace-time, receives discipline and experience and demonstrates loyalty and public spirit. The history of Section 7101 reflects that the legislature intended, in the current statute, that veterans’ preference be given to anyone who served in the armed forces of the United States after July 27, 1953 and was honorably discharged, without regard to the dichotomy between war, armed conflict and peace.

Historically, the definition of soldier appeared first as Section 1 of the Act of May 22, 1945, P.L. 837, and read as follows:

The word “soldier” as used in this act, shall be construed to mean a person who served in the armed forces of the United States, or in any women’s organization officially connected therewith, during any war in which the United States engaged, and who has an honorable discharge from such service. (Emphasis added.)

Plain reading of this act reveals that a person must have served in the armed forces or in an affiliated women’s organization during a war in which the United States engaged and must have been honorably discharged in order to fit the definition of soldier. An amendment was enacted as Section 2 of the Act of December 7, 1955, P.L. 804, and resulted in the addition of the words “or armed conflict” after the phrase “during any war.” The act otherwise remained as written in 1945.

In 1966 this section was once again amended at Section 1 of the act of January 25, 1966, P.L. (1965) 1545, to read as follows:

The word “soldier” as used in this act, shall be construed to mean a person who served in the armed forces of the United States, or in any women’s organization officially connected therewith, 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 [142]*142States, or in any women’s organization officially connected therewith, since July 1, 1958, including service in Vietnam,

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Related

Ardolino v. City of Pittsburgh Civil Service Commission
658 A.2d 847 (Commonwealth Court of Pennsylvania, 1995)
Pontious v. Rippy
589 A.2d 1188 (Commonwealth Court of Pennsylvania, 1991)

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Bluebook (online)
589 A.2d 1188, 139 Pa. Commw. 137, 1991 Pa. Commw. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pontious-v-rippy-pacommwct-1991.