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JANE D. HERTZOG v. COMMONWEALTH PENNSYLVANIA (12/16/88)

decided: December 16, 1988.

JANE D. HERTZOG, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, RESPONDENT



Appeal from the Order of the Department of General Services, in the case of In Re: Dallas H. Hertzog, Deceased, Jane D. Hertzog, Claimant: Claim for Death Benefits under Act 101-1976, As Amended.

COUNSEL

Rodney M. Fisher, for petitioner.

Joseph F. Greenfield, Assistant Counsel, with him, P. Alan Zulick, Deputy Chief Counsel, David A. Fitzsimons, Assistant Counsel, and William W. Warren, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 122 Pa. Commw. Page 166]

The matter before us is an appeal by Jane D. Hertzog (Petitioner), widow of Dallas H. Hertzog (Decedent), from a decision of the Department of General

[ 122 Pa. Commw. Page 167]

Services (DGS) which affirmed a decision of the Bureau of Risks and Insurance Management (Bureau) denying Petitioner's $25,000 death benefit claim pursuant to Section 1 of the Act of June 26, 1976, P.L. 424, as amended, 53 P.S. ยง 891 (Act 101).

Petitioner filed a claim under Act 101 for a $25,000 death benefit but the Bureau denied the claim. Petitioner appealed to DGS. Before the hearing examiner, the parties stipulated to the admission of certain items including, inter alia, the deposition testimonies of George E. Endy,*fn1 and David K. Franke.*fn2 The hearing examiner denied benefits concluding Decedent was not a law enforcement officer under Act 101 and was not killed in the performance of his duties as required by Act 101. This appeal ensued.

The relevant facts, as found by the hearing examiner, are as follows. On June 18, 1983, Decedent worked as a security guard at the Oley Township Heritage Festival. Afterwards, Decedent went to the Oley Township police station to visit with his friend Officer Franke. While at the police station, a call came in over the police radio that an armed robbery involving guns and knives was in progress in a neighboring township. Officer Franke decided to proceed to the scene of the robbery. Decedent asked Officer Franke if he could accompany him and was told by Officer Franke that he could not. Officer Franke thereafter proceeded to the robbery scene, unaware that following the police car was Decedent on his personal motorcycle. At an intersection a short distance from the police station, Decedent's

[ 122 Pa. Commw. Page 168]

    motorcycle collided with the rear of the police car operated by Officer Franke. On June 21, 1983, Decedent died as a result of this accident.

The hearing examiner made these additional findings with respect to Decedent's employment position with Oley Township. Decedent was a part-time security guard for the Township and in this capacity he would work at various public functions. If any problems arose, Decedent was required to notify a police officer. Decedent would appear at these functions in uniform; however, the Township never issued to Decedent a police uniform, badge, or any other police equipment. Decedent was given an outdated Oley Township police badge as a souvenir. The Township compensated Decedent for his services as a security guard. Decedent was not a full-time or part-time police officer, a special school policeman, or an auxiliary policeman for the Township. On occasion, Decedent would go to the Oley Township police station to talk with police officers. On several occasions, Decedent would show up at vehicle stops ...


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