IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott R. Blake,                               :
                            Petitioner        :
                                              :
              v.                              :   No. 724 C.D. 2015
                                              :   Submitted: October 9, 2015
State Civil Service Commission,               :
                        Respondent            :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY JUDGE BROBSON                                   FILED: February 17, 2016


              Petitioner Scott R. Blake (Blake) petitions for review of an order of
the State Civil Service Commission (Commission). The Commission rejected
Blake’s appeal of a determination by the Commission’s Veteran’s Preference and
Certification Division, denying Blake a veteran’s preference in his application for
civil service employment. We reverse the Commission’s order.
              The Commission’s pertinent factual findings are summarized as
follows. On May 28, 2014, Blake submitted an application for either a “Special
Investigator 1” or “Special Investigator 2” position. Blake claimed a veteran’s
preference on the application and, in response to a question regarding veteran’s
training, wrote that he attended the United States Military Academy at West Point



       1
        This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
from July 1991 through January 1993.               He stated that during that period he
completed forty-five credits, but he did not graduate.
              During the two-month period from July through August 1991, Blake
completed basic training at West Point. Blake indicated that, in exchange for
attendance at West Point, a cadet must comply with a requirement to perform
active duty military service upon graduation from West Point. In lieu of having to
pay tuition, Blake testified, a cadet who is commissioned as a second lieutenant
must perform active military service. A cadet who begins a third year at West
Point must repay the value of tuition if he or she does not graduate, and, once a
cadet begins the third year at West Point, he or she has an obligation to perform
active duty service. Blake testified that a cadet who does not graduate may be
required to enlist in the regular army.
              Blake left West Point in 1993, prior to his third year. He testified that
he performed no active duty military service after he left West Point. He also
testified that the forty-five college credits he received from West Point were
applied in satisfaction of the requirements for his bachelor’s degree from the
University at Albany, New York.2
              After he received notice from the Commission that it would not honor
his period at West Point for the purpose of a veteran’s preference, Blake
communicated with the Commission, asserting his belief that, based upon federal

       2
          Blake’s military records/discharge information, as reflected in his “DD Form 214”
(which apparently is a discharge form), indicates the following pertinent information regarding
the period during which Blake was at West Point: (1) his rank when he was discharged from
West Point was “cadet;” (2) he did not have a command to which he was transferred; (3) his
active “service” consists solely of the eighteen-month period he attended West Point; and (4) he
received the “National Defense Service Medal.” (Reproduced Record (R.R.) “Appendix D.”)



                                               2
statutory authority, the determination was erroneous.                     Pamela Yetter, a
Commission Human Resource Analyst, responded by asking Blake to provide the
Commission with a copy of his DD Form 214 that was more readable than the one
he had included in his application.           After Blake complied with that request,
Ms. Yetter responded by indicating that the Commission’s initial determination
was correct. Ms. Yetter advised Blake that the federal provision upon which he
relied had no bearing on Pennsylvania veteran’s benefits or civil service
employment and informed him that he had the right to appeal the determination.
Blake communicated with Ms. Yetter again on August 13, 2014, reiterating his
belief that the time he spent at West Point qualified him to receive the preferential
hiring status accorded persons who have certain military experience, and he filed
an appeal with the Commission.
               Chairman Scott A. Rainey of the Commission conducted a hearing.
The Commission, after considering the evidence, including the notes of testimony
and exhibits, acknowledged that case law and state statutory provisions were not
clear regarding the status of a person who has attended a United States military
academy for a limited period of time. The Commission noted that the definitions
contained in the Military and Veterans Code (Code)3 do not specifically mention
persons who attend military academies. The Commission also noted the key
statutory     provisions        in   the   Code       relating   to   veteran’s   preferences:
(1) Section 7101 of the Code,4 which defines the term “soldier” and includes the



      3
          51 Pa. C.S. §§ 101-9701.
      4
          51 Pa. C.S. § 7101.



                                                  3
undefined term “active duty;” (2) Section 7102 of the Code,5 which provides for
awarding credit in civil service examinations to “soldiers;” and (3) Section 7104(b)
of the Code,6 which provides for the placement of a soldier’s name at the top of an
eligibility list for civil service positions. The Commission also referenced case law
specifically addressing the characteristics of “active duty” service and “soldiers”
and which involved individuals who were members of the National Guard or the
United States Army Reserves.               The Commission identified the key issue as
whether the term “active duty,” as used in Section 7101 of the Code to define the
term “soldier,” included persons such as Blake who attended but did not graduate
from a service school such as West Point.
                Instead of addressing that issue, the Commission concluded that Blake
failed to overcome a constitutional prohibition barring the award of a veteran’s
preference, because the Commission could not find a “‘reasonable relation’
between ‘[Blake]’s particular service as a West Point cadet and the preference of




       5
          51 Pa. C.S. § 7102. Section 7102 of the Code provides, in pertinent part, that “[w]hen
any soldier shall take any civil service . . . examination for a public position . . . he shall be given
credit in the manner herein provided.” (Emphasis added.)
       6
           Section 7104(b) of the Code provides that
                [w]henever any soldier possesses the requisite qualifications, and
                his name appears on any eligible or promotional list . . . as the
                result of any such civil service examination, the appointing . . .
                power in making an appointment . . . shall give preference to such
                soldier, notwithstanding that his name does not stand highest on
                the eligible . . . list.
(Emphasis added.)



                                                   4
veterans for the proper performance of public duties.’”7 (Adjudication at 14;
quoting Housing Authority of the County of Chester v. State Civil Service
Commission, 730 A.2d 935, 948 (Pa. 1999) (Housing Authority).)
               As set forth in his brief, Blake’s appeal consists of two primary
arguments:        (1) the Commission erred in failing to conclude that his
eighteen-month period as a West Point cadet constituted the type of service that
qualifies him as a soldier entitled to a veteran’s preference; and (2) the
Commission erred in concluding that the Constitution prohibits an award of a
veteran’s preference to Blake.
               At the outset, we note that Blake’s appeal to the Commission focused
on a question of statutory construction, and Blake’s primary argument here is that
because the Code does not define the term “active duty,” it is reasonable to apply
the definition of “active duty” as set forth in Section 101(d)(1) of the federal
Military Code, 10 U.S.C. § 101(d)(1).8 As we mentioned above, rather than
engaging in a thorough statutory construction analysis, the Commission proceeded
to consider constitutional principles it believed were applicable to Blake’s appeal.
“[W]hen faced with a case raising constitutional and non-constitutional grounds, a
court must decide the matter on non-constitutional grounds and avoid

       7
         The Commission briefly reasoned that accepting Blake’s interpretation of the pertinent
statutory provisions would produce an absurd result. Thus, the Commission rejected Blake’s
arguments that the Code intended for persons who have completed basic training at a United
States military academy and attended such academy for an eighteen-month period to be awarded
a veteran’s preference in the civil service appointment process. (Adjudication at 18.)
       8
          Section 101(d)(1) of the Military Code defines the term “active duty,” in pertinent part,
as “full-time duty in the active military service of the United States. Such term includes
full-time training duty, annual training duty, and attendance, while in the active military service,
at a school designated as a service school . . . .”



                                                 5
constitutional questions if possible.” Dauphin Cnty. Soc. Serv. for Children and
Youth v. Dep’t of Pub. Welfare, 855 A.2d 159, 165 (Pa. Cmwlth. 2004). Indeed, in
following that direction, when a case does not present a constitutional issue, the
administrative agency should not create one. Accordingly, because an analysis of
the statutory provision could negate the need to engage in a constitutional
discussion, we will first consider whether Blake’s tenure as a West Point Academy
cadet falls within the definition of the term “soldier” in Section 7101 of the Code.
             Section 7101 of the Code provides the following definition of the term
“soldier:”
             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 and who was released from active duty
             under honorable conditions, other than from periods of
             active duty for training, or with an honorable discharge
             from such service . . . . Qualifying periods of service
             during a war or armed conflict, for purposes of this
             provision, will be designated by the Department of
             Military and Veterans Affairs.

Thus, the term “soldier” encompasses a person: (1) who served in the armed
forces; (2) who served during a war or armed conflict in which the United States
was engaged; (3) who was released from active duty under honorable conditions;
and (4) whose active duty constituted more than active duty for training. In this
matter, Blake contends that (1) his tenure at West Point constitutes service; (2) he
attended West Point during a war or armed conflict—i.e., the Persian Gulf War;
(3) he was honorably discharged from West Point; and (4) his tenure while at West
Point constituted “active duty” rather than “active duty for training.” As alluded to
above, Blake relies on the definition of “active duty,” as set forth in Section


                                          6
101(d)(1) of the Military Code, in support of his contention that his service while
at West Point constituted “active duty” service. Based upon this reasoning, Blake
contends that he qualifies as a “soldier” for purposes of the veteran’s preference
provisions in the Code.
               The Commission argues that, contrary to Blake’s position, we should
not be bound by the definition in 10 U.S.C. § 101(d)(1), especially in light of the
fact that Section 7109 of the Code9 provides that the Code is the exclusive law
pertaining to veteran’s preferences. Moreover, the Commission asserts that the
term “active duty” contained in the Code encompasses two components—military
training and military service—which, the Commission argues, Blake’s tenure at
West Point fails to satisfy.        The Commission bases this argument on
Section 7102(a) of the Code, which, as we noted above, provides that soldiers are
entitled to a veteran’s preference “for the discipline and experience represented by
his military training and for the loyalty and public spirit demonstrated by his
service for the preservation of his country.” (Emphasis added.) The Commission
contends that Blake cannot claim to have performed any military service during his
period at West Point. The Commission argues that these two requirements are
reflected in the definition of the term “soldier” in Section 7101 of the Code by
virtue of the distinction the General Assembly made therein regarding “active
duty” and “active duty for training.”
               Because the General Assembly employed a term it failed to define—
i.e.—“active duty,” we are presented with a question of statutory construction.
One of our rules of statutory construction provides that “[w]hen the words of a

      9
          51 Pa. C.S. § 7109.



                                         7
statute are not explicit, the intention of the General Assembly may be ascertained
by considering, among other matters . . . the former law, if any, including other
statutes upon the same or similar subjects.” 1 Pa. C.S. § 1921(c)(5) (emphasis
added). It is apparent, therefore, that this Court may consider language that is used
in federal statutory provisions of a similar nature to the veteran’s preference
provisions of the Code, especially if our General Assembly adopted such similar
language after Congress adopted a federal counterpart.
             The most similar federal statute this Court has found is a provision in
Title 5 of the United States Code, which relates generally to government
organization and employment, including civil service provisions. Section 2108 of
Title 5 relates to “[v]eteran; disabled veteran; preference eligible.” Included with
the definitions in that provision is the term “veteran,” which includes “an
individual who . . . served on active duty as defined by section 101(21) of title 38
at any time in the armed forces during the period beginning on August 2, 1990, and
ending on January 2, 1992.”
             Section 101 of Title 38 of the United States Code relates to veteran’s
benefits and provides the following definition to which the veteran’s preference
provision in Title 5 refers:
             (21) The term “active duty” means--
                   ....
                   (D) service as a cadet at the United States
                   Military, Air Force, or Coast Guard
                   Academy, or as a midshipman at the United
                   States Naval Academy.




                                         8
38 U.S.C. § 101(21)(D).10
                As indicated above, Blake was a cadet, and, thus for the purposes of
United States Code Title 38, he was on active duty. Moreover, he was on active
duty between July 1991 and January 1993—a period recognized for veteran’s
preference purposes as satisfying the requirement to be a “veteran” under 5 U.S.C.
§ 2108(1).
                The timing of the General Assembly’s adoption of the term “active
duty” provides some additional guidance.                 When the General Assembly first
adopted a veteran’s preference provision in 1945, the definition of the term
“soldier,” in relevant part, encompassed only persons “who served in the armed



       10
            In contrast, for federal veteran’s preference purposes, “active duty for training” means:
                (A) full-time duty in the Armed Forces performed by Reserves for
                training purposes;
                (B) full-time duty for training purposes performed as a
                commissioned officer of the Reserve Corps of the Public Health
                Service (i) on or after July 29, 1945, or (ii) before that date under
                circumstances affording entitlement to “full military benefits”, or
                (iii) at any time, for the purposes of chapter 13 of this title;
                (C) in the case of members of the National Guard or Air National
                Guard of any State, full-time duty under section 316, 502, 503,
                504, or 505 of title 32, or the prior corresponding provisions of
                law; and
                 (D) duty performed by a member of a Senior Reserve Officers’
                Training Corps program when ordered to such duty for the purpose
                of training or a practice cruise under chapter 103 of title 10 for a
                period of not less than four weeks and which must be completed by
                the member before the member is commissioned.
38 U.S.C. § 101(22). This provision includes no minimum periods of time relative to such active
service.



                                                  9
forces . . . during any war in which the United States was engaged, and who has an
honorable discharge from such service.”11 The General Assembly did not alter this
particular aspect of Section 7101 of the Code until 1975, when it changed the
eligibility for a veteran’s preference to include persons who have been released
from “active duty under honorable conditions.” In contrast to the 1975 shift in
language by our General Assembly, our United States Congress enacted
Section 101(21) of Title 38 of the United States Code on September 2, 1958. The
language that includes cadets’ service within the definition of “active duty” is the
same now as it was then.
                Because these provisions in Titles 5 and 38 of the United States Code,
relating to veteran’s preferences for federal civil service purposes, are the most
similar federal statutes in comparison to the provisions of the Code at issue here,
and because the key definitions found in the federal provisions predate our own
present veteran’s preference statutory definition, we believe that they provide the
clearest support for our analysis—one which happens to favor Blake’s argument.12
Consequently, we interpret the term “active duty” for purposes of our Code to be


       11
            Act of May 22, 1945, P.L. 837.
       12
           As we mentioned above, Section 101(d)(1) of the United States Military Code
(Military Code), 10 U.S.C. § 101(d)(1), upon which Blake relies, contains slightly different
language defining the term “active duty” to mean “full-time duty in the active military service of
the United States. Such term includes full-time training duty, annual training duty, and
attendance, while in the active military service, at a school designated as a service school . . . .”
The identical expression “active military service” has been interpreted by the Court of Appeals
for the Ninth Circuit, in the context of a retirement matter, to mean persons who have already
been commissioned and attend service schools after receiving a commission. Jacobs v. United
States, 680 F.2d 88, 89 n.2 (9th Cir. 1982). Thus, this definition is not helpful to Blake’s position.




                                                 10
consistent with the definition of the term “active duty” as used in Title 38 of the
United States Code, 38 U.S.C. § 101(21).
             Although the Commission invokes the language in Section 7102(a) of
the Code to support its conclusion that Blake is not a “soldier” under
Section 7101 of the Code, we conclude that the language of Section 7101 of the
Code, as more fully defined by reference to the federal statutory provisions, stands
alone to support the conclusion that Blake was a soldier when he attended West
Point.
             While the preference provision set forth in Section 7102 of the Code,
permitting such benefit for “soldiers” “for the discipline and experience
represented by his military training and for the loyalty and public spirit
demonstrated by his [or her] service for the preservation of his country,” reveals
the General Assembly’s intent, we do not view that language as adding additional
criteria to the definition of the term “soldier” in Section 7101 of the Code. In
Soberick v. Salisbury Township Civil Service Commission, 874 A.2d 155
(Pa. Cmwlth. 2005), we recognized this point, noting that “[t]he plain language of
the ‘soldier’ definition requires an individual serve in the armed forces and receive
an honorable discharge from such service. 51 Pa. C.S. § 7101.” Soberick, 874
A.2d at 158. Consequently, we conclude that the Commission erred and that
Blake, who was honorably discharged by the United States Army, engaged in
service that supports his claim that he is a soldier for the purpose of applying a
veteran’s preference.
             We also conclude that, even if our statutory analysis had not resolved
the matter before the Commission, the Commission’s reliance upon the
“reasonable relation” language from various Supreme Court decisions to conclude


                                         11
that application of the veteran’s preference was unconstitutional as applied to
Blake was misplaced. In Housing Authority, our Supreme Court reviewed the
constitutionality of Section 7104(b) of the Code, 51 Pa. C.S. § 7104(b).13 The
Philadelphia Housing Authority argued that Section 7104(b) unconstitutionally
conferred a mandatory appointment preference upon veterans. The Supreme Court
found guidance in its decision in Graham v. Schmid, 3 A.2d 701 (Pa. 1938), which
involved a similar statutory provision. In Schmid, the Supreme Court concluded
that as long as a statute requires candidates to pass a required civil service exam
(establishing the candidate’s actual ability to perform a job), a statute may provide
a veteran a preference in appointment to a civil service position. Schmid, 3 A.2d at
703. In Housing Authority, the Supreme Court reaffirmed the principle set forth in
Schmid that a statutory provision favoring a veteran in appointments was a
reasonable legislative distinction, reflecting a rational foundation upon which to
distinguish a veteran as a “superior candidate” for a position.                         Housing
Authority, 730 A.2d at 949. The Supreme Court concluded that a “reasonable
relation” must exist “between the basis of [a] preference [in the statute being
challenged] and the object to be attained, the preference of veterans for the proper
performance of public duties.” Id. at 948.
               In the decisions that followed, the Supreme Court considered other
facial challenges to veteran’s preference provisions, such as Commonwealth v.
O’Neill, 83 A.2d 382 (Pa. 1951) (holding unconstitutional requirement that

       13
         Section 7104(b) of the Code provides, in pertinent part, that “[w]henever any soldier
possesses the requisite qualifications . . . the appointing or promoting power in making an
appointment . . . to a public position shall give preference to such solider, notwithstanding that
his name does not stand highest on the eligible . . . list.”



                                               12
veterans seeking promotion should receive ten-point examination increment).14
Our Supreme Court’s decisions, such as O’Neill, employing the “reasonable
relationship” rationale appear to be limited to facial challenges to statutory
provisions, rather than as-applied challenges to veteran’s preferences.15
Consequently, we conclude that the Commission erred in its constitutional
analysis.
               Accordingly, based upon our interpretation of Section 7101 of the
Code, we reverse the Commission’s order.




                                      P. KEVIN BROBSON, Judge




       14
           In Hoffman v. Township of Whitehall, 677 A.2d 1200 (Pa. 1996), our Supreme Court
held unconstitutional the veteran’s preference set forth in Section 7104(b) of the Code, as it
pertains to promotions.
       15
          In Sicuro v. City of Pittsburgh, 684 A.2d 232 (Pa. Cmwlth. 1996), we concluded that
the City of Pittsburgh’s practice of amending eligibility lists to provide veteran’s preferences for
persons who were not soldiers at the time they took their civil service examinations violated the
Code. We made a reference to the Supreme Court’s “reasonable relationship” language as used
in O’Neill and Schmid and noted that the Supreme Court had recently upheld those decisions in
Hoffman. Our decision in Sicuro was not grounded on the Supreme Court’s reasoning in those
cases, which, in contrast to Sicuro, involved facial challenges to statutory provisions.



                                                13
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott R. Blake,                       :
                       Petitioner     :
                                      :
            v.                        :   No. 724 C.D. 2015
                                      :
State Civil Service Commission,       :
                        Respondent    :


                                    ORDER


            AND NOW, this 17th day of February, 2016, the order of the State
Civil Service Commission is REVERSED.




                             P. KEVIN BROBSON, Judge