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KEVIN JOYCE v. ROBERT A. GUENTHER (02/09/76)

decided: February 9, 1976.

KEVIN JOYCE, PLAINTIFF
v.
ROBERT A. GUENTHER, COLONEL, CHIEF OF STAFF, DEPARTMENT OF MILITARY AFFAIRS, ADJUTANT GENERAL'S OFFICE, ANNVILLE, PENNSYLVANIA AND HARRY J. MIER, MAJOR GENERAL, DEPARTMENT OF MILITARY AFFAIRS, ADJUTANT GENERAL'S OFFICE, ANNVILLE, PENNSYLVANIA, AND CAPT. MOESNER, CAPTAIN, DOYLESTOWN ARMORY, DOYLESTOWN, PA., DEFENDANTS



Original jurisdiction in case of Kevin Joyce v. Robert A. Geunther, Colonel, Chief of Staff, Department of Military Affairs, Adjutant General's Office, Annville, Pennsylvania, and Harry J. Mier, Major General, Department of Military Affairs, Adjutant General's Office, Annville, Pennsylvania, and Capt. Moesner, Captain, Doylestown Armory, Doylestown, Pa.

COUNSEL

Robert A. Solomon, for plaintiff.

Robert J. Dixon, Deputy Attorney General, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 23 Pa. Commw. Page 257]

This matter comes within the original jurisdiction of this Court and involves a complaint in equity filed by Kevin Joyce against Robert A. Guenther, Colonel, Chief of Staff, Department of Military Affairs, Adjutant General's Office; Harry J. Mier, Major General, Department of Military Affairs, Adjutant General's Office; and Captain Moesner (Defendants), all officers in the Pennsylvania National Guard. Joyce is seeking an injunction directing the Defendants to discharge him from their "custody and the custody of the Pennsylvania National Guard." Joyce alleges that at the time he signed his enlistment contract and was sworn into the National Guard, he was "intoxicated to the point where he did not know what he was doing or understand the nature of his actions, including the signing of various papers." Although Joyce requested a preliminary injunction as well as a permanent injunction, it was stipulated between the parties that Joyce would not be ordered into active service pending final disposition of this case, and, therefore, the matter proceeded to hearing on the request for a permanent injunction.

Based upon a record made, and after argument, we make the following findings of fact:

1. In early November of 1973, the Pennsylvania National Guard established a recruiting booth at the Bucks County Community College at which Joyce voluntarily sought information concerning his joining the Pennsylvania National Guard.

2. In accord with an appointment voluntarily made by Joyce, members of the Guard on November 10, 1973, drove to Joyce's residence in Levittown, Pennsylvania, and conveyed him to Doylestown for the purpose of his taking an entrance examination and receiving certain required X-rays.

[ 23 Pa. Commw. Page 2583]

. On November 12, 1973, in accord with an appointment, Joyce voluntarily appeared at the National Guard Armory in Doylestown for the purpose of a required physical examination and induction into the Pennsylvania National Guard.

4. After arriving at the Armory between 7:00 o'clock and 7:30 P.M., Joyce was driven to the Norristown Armory (less than an hour's driving time away), where he was given a physical by a physician of the Guard, which he successfully passed.

5. After all of the necessary forms were completed, and signed by Joyce, he was sworn into the National Guard by an officer at the Norristown Armory and ...


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