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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (11/25/81)

decided: November 25, 1981.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA NATIONAL GUARD, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND DAVID H. GREENWOOD, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of David H. Greenwood v. Pennsylvania National Guard, No. A-78744.

COUNSEL

Dennis T. Guise, for petitioner.

Francis Pipak, with him Louis B. Lounghren, Meyer, Darragh, Buckler, Bebenek & Eck, for respondent, David H. Greenwood.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 63 Pa. Commw. Page 2]

On July 8, 1976, David H. Greenwood (claimant) filed a claim petition with the Workmen's Compensation Appeal Board (Board) for an injury he allegedly sustained while participating in annual training as a member of the Pennsylvania National Guard. The Board reversed the referee's denial of benefits, and this appeal followed. We vacate the order of the Board and dismiss the appeal.

The Pennsylvania National Guard argues that the Board exceeded its subject matter jurisdiction by awarding benefits to a member of the Pennsylvania National Guard. We agree. The legislature has clearly reposed this authority in the Department of Military Affairs. Section 702 of the Military Code, 51 Pa. C.S. § 702,*fn1 provides in pertinent part as follows:

[ 63 Pa. Commw. Page 3]

The [Department of Military Affairs] shall have the power and its duty shall be:

(11) To investigate the circumstances and to determine the amount of relief or pension payable as a result of the death or disability of a member of the Pennsylvania National Guard; to establish rules governing the filing of claims for pension or relief and to grant such pension or relief, under the laws of this Commonwealth concerning members of the Pennsylvania National Guard.

While Section 3501 of the Military Code, 51 Pa. C.S. § 3501, provides that "the amount of compensation" shall be determined "in accordance with the Workmen's Compensation Law of Pennsylvania," the official comment states that the authority to implement this section is found in Section 702(11). Therefore, while The Pennsylvania Workmen's Compensation Act*fn2 is to be applied in determining the amount of compensation, the actual authority to award relief lies with the Department of Military Affairs.

In analyzing the jurisdiction of the Board to entertain the disability claims of National Guard members, we must take into consideration that an administrative agency may exercise only those powers which the legislature has conferred by clear and unmistakable language. An administrative agency cannot exercise a doubtful power, Pennsylvania Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 382 A.2d 731 (1978), or acquire jurisdiction by agreement. Western Pennsylvania Water Co. v. Pennsylvania Public Utility ...


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