Appealed From No. 88-180; Common Pleas Court of Elk County; Judge Gordon J. Daghir, President Judge.
Thomas G. Wagner, Meyer & Wagner, St. Marys, for appellant.
Vernon D. Roof, Pontzer & Roof, Ridgway, for appellees.
Doyle and Kelley, JJ., and Silvestri, Senior Judge. Doyle, Judge, concurring.
[ 139 Pa. Commw. Page 138]
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 Johnsonburg (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.*fn1
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 Pa. Commw. Page 139]
Service 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:
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 ...