October 9, 1997
PHILIP J. DUFFY, PETITIONER
PENNSYLVANIA STATE POLICE, RESPONDENT
Appealed From Order dated March 10, 1997. State Agency Pennsylvania State Police.
Before: Honorable Bernard L. McGINLEY, Judge, Honorable Dan Pellegrini, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Pellegrini.
The opinion of the court was delivered by: Pellegrini
FILED: October 9, 1997
OPINION BY JUDGE PELLEGRINI
Philip J. Duffy (Duffy) appeals from the March 10, 1997 order of the Pennsylvania State Police Commissioner (Commissioner), affirming the order of the Pennsylvania State Police (PSP) denying benefits under the Heart and Lung Act *fn1 for an injury sustained by Duffy while a cadet at the PSP Academy and its subsequent recurrence after Duffy had been sworn in and employed as a PSP Trooper.
Duffy was a cadet at the PSP Academy training to become a State Police Trooper. His training at the Academy lasted six months during which he lived at the Academy and was paid at cadet wages. On his own time, Duffy decided to practice for the obstacle course but unfortunately, fell over an obstacle and injured his back. *fn2 Duffy graduated from the Academy and was sworn in as a PSP Trooper on October 7, 1994.
On October 17, 1994, Duffy suffered a recurrence of his back injury, was diagnosed with a herniated disc, and missed one month of work. *fn3 He subsequently returned to full duty as a PSP Trooper. While he received workers' compensation benefits, the PSP denied Heart and Lung Benefits under Section 637(a) of the Heart and Lung Act (Act), 53 P.S. § 637(a), because it found that Duffy was not a "member" of the PSP at the time of his original injury. Duffy appealed that decision to the Commissioner of the PSP who appointed a hearing examiner.
The hearing examiner found that cadets are "members" of the Pennsylvania "State Police Force" for purposes of the Heart and Lung Act because no legislative mandate exists that excludes cadets from being members of the PSP force. However, he went on to conclude that because Duffy was injured as a result of practicing for the obstacle course on his own time, he was not entitled to Heart and Lung benefits because his injury had not occurred during the "performance of duty" as required by the Heart and Lung Act. *fn4
Both Duffy and the PSP filed exceptions to the hearing examiner's proposed order with the Commissioner. Upon an independent review of the record, the Commissioner concluded that at the time of the original injury, Duffy, as a cadet, was not a "member" of the PSP force for purposes of the Heart and Lung Act, making him ineligible for benefits for any periods of incapacitation which resulted from the injury sustained while a cadet and affirmed the hearing examiner's denial of benefits albeit on different grounds. This appeal followed. *fn5
Before us, Duffy contends that the Commissioner erred in finding that PSP cadets are not "members" of the PSP force for purposes of determining eligibility for Heart and Lung benefits under the Act. *fn6 While noting that the PSP's administrative regulations define "members" of the PSP force as only those officers who have already been sworn, *fn7 Duffy contends that those internal regulations are not controlling as to what is a "member" of the PSP force for purposes of the Heart and Lung Act. Because Section 711(a) of the Administrative Code of 1929 (Administrative Code), *fn8 71 P.S. § 251(a), provides that, "the commissioner shall maintain a training school to be known as the Pennsylvania State Police Academy for the proper instruction of members of the State Police Force...", Duffy argues that the Commissioner cannot automatically infer that the legislature intended cadets not be included as members of the PSP force. Also, he argues that because the intent of the Heart and Lung Act is to provide special benefits to police officers and other employees in rigorous public service, the training of such employees is also rigorous and serves the same public interest that the General Assembly intended. Therefore, Duffy contends that Heart and Lung Act benefits should also be awarded to those injured training to be police officers.
Even though we agree with Duffy that the Administrative Code does not specifically exclude cadets from the force, the Administrative Code consistently treats cadets differently than sworn officers. *fn9 Auguring against Duffy's contention that they are members of the force is that cadets are not vested with the power to make arrests, enforce the law, or in any other way function as a PSP Trooper until after they have crossed the threshold, upon graduation, of being sworn in as actual PSP officers. Up until they are sworn in as "officers", cadets have no more authority or power to enforce the law than any other civilian, and they remain civilians until they have completed the requirements of the Academy, passed the requisite examinations, and have been sworn in as officers. This lack of ability to enforce the law is embodied in the PSP's Administrative Regulation 2.02(K) that defines a member as a sworn officer. Because the Heart and Lung Act applies only to those performing the police service - members of the police force - not those merely training to perform police work, the decision of the Commissioner is affirmed.
DAN PELLEGRINI, JUDGE
AND NOW, this 9th day of October, 1997, the March 10, 1997 order of the Pennsylvania State Police Commissioner is affirmed.
DAN PELLEGRINI, JUDGE