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RICHARD S. HERSKOVITZ v. COMMONWEALTH PENNSYLVANIA (12/03/87)

decided: December 3, 1987.

RICHARD S. HERSKOVITZ, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION, RESPONDENT. LOUIS G. COCHERES, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION, RESPONDENT. ALBERT J. STROHECKER, III, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION, RESPONDENT



Appeal from the Order of the State Civil Service Commission in the case of Richard S. Herskovitz v. State Civil Service Commission, No. 5711; from the Order of the State Civil Service Commission in the case of Louis Cocheres v. State Civil Service Commission, No. 5899; from the Order of the State Civil Service Commission in the case of Albert J. Strohecker, III v. State Civil Service Commission, No. 5813.

COUNSEL

Richard S. Herskovitz, for himself.

Debra K. Wallet, Wallet & Christianson, for petitioner, Louis G. Cocheres.

Albert J. Strohecker, III, for himself.

Earl R. Dryer, Deputy Counsel, for respondent.

Dennis T. Guise, Chief Counsel, for Amicus Curiae, Department of Military Affairs.

Steve C. Nicholas, for Amici Curiae, National Guard Association of Pennsylvania and Pennsylvania National Guard Enlisted Association.

John J. Dunn, Sr., with him, Robert W. Valimont, Dunn & Byrne, for Amicus Curiae, American Legion National Guard Association of Pennsylvania and Pennsylvania National Guard Enlisted Association.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Colins, and Palladino. Opinion by Judge MacPhail. Dissenting Opinion by President Judge Crumlish, Jr. Judge Palladino joins in this dissent.

Author: Macphail

[ 111 Pa. Commw. Page 429]

The Petitioners above-named*fn1 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 Herskovitz 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 September,

[ 111 Pa. Commw. Page 4301965]

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.*fn2

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 ...


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