Original jurisdiction in case of Richard N. Wilt v. Department of Revenue, Commonwealth of Pennsylvania, and Milton Lopus, Secretary of Revenue, Commonwealth of Pennsylvania.
Jay R. Braderman, with him Baskin and Sears, for petitioner.
Elisabeth S. Shuster, Deputy Attorney General, with her Norman J. Watkins, Deputy Attorney General, Chief, Civil Litigation, and Edward G. Biester, Jr., Attorney General, for respondent.
President Judge Bowman and Judges Crumlish, Jr. and Rogers, sitting as a panel of three. Judge Craig disqualified himself. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Crumlish, Jr.
[ 46 Pa. Commw. Page 560]
Richard N. Wilt filed a now amended petition for review in our original jurisdiction*fn1 naming the Commonwealth's Department of Revenue and Milton Lopus, the Secretary of Revenue, as respondents. Wilt avers that he became Director of the Bureau of Cigarette and Beverage Taxes in the Department of Revenue in April of 1976 and that he was dismissed from that position on December 15, 1977. He avers that his dismissal was not made in accordance with regulations of the Executive Board and a Governor's Office Management Directive requiring that dismissals of persons in his position be accomplished
[ 46 Pa. Commw. Page 561]
only with the prior approval of the Governor's Secretary of Personnel. He says that his dismissal did not have the prior approval of the Secretary of Personnel. For this cause, apparently meant to sound in mandamus, Wilt seeks reinstatement, back pay and other emoluments of his office.
Mr. Wilt also alleges in his petition for review that at or about the time of his dismissal the Respondents, the Department of Revenue and Secretary Lopus, released stories to the news media accusing him of mismanagement, incompetency and improper conduct, which accusations they knew or had reason to know were false. For this cause Mr. Wilt asks only that we make an order directing the Respondents publicly to apologize to him.
Mr. Wilt also asks for an order directing the Respondent Department of Revenue to reimburse him for his attorney's fees and costs.
The Respondents have filed a number of preliminary objections. We will deal only with those which still have relevance.
The Commonwealth, Department of Revenue, has filed a demurrer to all claims against it based on its sovereign immunity. In Brungard v. Hartman, 46 Pa. Commonwealth Ct. 10, 405 A.2d 1089 (1979), we held that Section 5110(a) of the Judicial Code, 42 Pa. C.S. § 5110(a) effectively retroactively invoked the bar of sovereign immunity against the Commonwealth claims except in eight categories there described. The wrongs, if any, committed by the Respondent Commonwealth by the publication of stories concerning Mr. Wilt's conduct of his office are not of the kind described by the eight ...